Oregon Court Upholds Summary Judgment for National, but Overturns for Chapter

Tim Burke, Manley Burke, tburke@manleyburke.com

On September 2, 2015, the Court of Appeals for the State of Oregon decided Scheffel v. Oregon Beta Chapter of Phi Kappa Psi Fraternity, upholding a Summary Judgment granted to the national fraternity, but reversing a similar determination for the chapter, sending the case against the chapter back to the trial court.

Cassandra Scheffel sought damages from the national fraternity and its chapter as a result of being raped by Gregory Sako, a chapter member, during a Halloween party at the chapter’s fraternity house.  Sako was a 20-year old sophomore when the party took place.  He was subsequently convicted of rape and sentenced to 8 years and 4 months in prison with no possibility of early release.

There was no dispute in the record over the fact that Sako had never previously been involved in any conduct which would have suggested that he might commit rape.  The trial court had previously granted summary judgment dismissing the claims against both the chapter and the fraternity.  But the Appellate Court found that in spite of Sako’s non-violent history, the record created at least factual questions as to whether Plaintiff’s sexual assault “in the circumstances of the Halloween party” was reasonably foreseeable by the chapter.

The Appellate Court also found that the chapter’s conduct “fell below the applicable standard of care” and may have constituted negligence per se.  That finding came easily from a unanimous court based on the undisputed evidence in the record that while the local chapter had a general policy that underage members could not drink or possess alcohol, the policy was not enforced.  Underage members frequently kept alcohol in their rooms and drank it in their rooms and in common areas of the house.  In essence, the standard of care set by the Chapter in its “General Policy,” as well as by the laws of Oregon relating to the consumption of alcohol, was not met.

One of the three judges dissented in part, and would have only sent the case against the chapter back to the Trial Court on the issue of negligence per se due to the violation of the standard of care, but not on the general negligence claim based on foreseeability.

The majority’s 38-page opinion discussed the question of foreseeability at length.  It quoted the fraternity’s risk management policies dealing with alcohol and sexual assault.  Among other things, this policy provided that underage members should “never be allowed to possess or consume alcohol.”  As the court put it:

“The section on sexual assault notes that alcohol ‘decreases inhibitions’ and that, on college campuses, acquaintance rape may be ‘as high as 85%’ of rapes, that ‘alcohol plays a prevalent role in sexual assaults,’ and that 97% of sexual abuse cases brought against fraternities involved alcohol.”

The court also noted that the Chapter President was “aware of policies that prohibited all access to private rooms during social events” at other chapters on campus, but that the Phi Kappa Psi chapter had no such rule, in spite of the fact that the University’s Greek Life Office recommended private rooms be closed during social events that include alcohol.

The record was clear that the chapter had significant risk management measures in place during the Halloween party, including two security guards and four sober monitors.  The only alcohol at the party was that brought by guests who were over the age of 21 and could legally consume it.  However, Sako, while underage and apparently not drinking in the common area during the party, was known to have alcohol in his room.  While the Fraternity’s party was scheduled to last until midnight, the Chapter President shut it down at 10:45 because of problems outside the house when individuals not on the guest list attempted to enter.  It was about that same time that Sako took Ms. Scheffel to his room and sexually assaulted her.

Based on a general negligence theory, the Plaintiff argued that since she was a licensee on the property, the chapter was required to exercise reasonable care to protect her.  The chapter argued that it owed a duty of reasonable care to the Plaintiff only if it knew of an unreasonable risk of harm and the Plaintiff did not have reason to know of that harm.  While even the Plaintiff agreed that there was no evidence that the chapter knew of Sako’s propensity for violence, she argued that the chapter knew generally of the “epidemic of alcohol-related sexual assaults” and that the chapter created an unreasonable risk of sexual assault by permitting underage members to consume alcohol and allowing members and their guests access to private rooms during parties where alcohol was available.  The court clearly agreed with Plaintiff’s arguments specifically finding:

“there is evidence in the Summary Judgment Record that would support a finding that the chapter knew that alcohol-related sexual assaults were a foreseeable risk of hosting social events where alcohol is available and that permissive alcohol use by underage members and access to private rooms during social events increases the risk of sexual misconduct.”

The majority went on to say:

“Thus, the Summary Judgment record provides a basis for a reasonable fact finder to conclude that Beta Chapter knew that alcohol-related sexual assaults in college fraternities were a serious problem on college campuses nationwide and that precautions were necessary to minimize that risk.”

The court repeated that finding, noting that Plaintiff provided evidence that the chapter knew that alcohol-related sexual assaults were a risk.  The Court specifically pointed repeatedly to the fact that the chapter permitted underage members to possess and consume alcohol in private rooms and failed to prohibit access to those rooms during a social event where alcohol was served, noting:

“That there was evidence that would support the conclusion that the chapter knew of the risk of alcohol-related sexual assault at an event like the Halloween party, Plaintiff established a question of fact as to whether the chapter was on notice that its conduct would create a risk of the kind of harm that befell her.”

Returning the case to the Trial Court does not necessarily mean that Plaintiff wins her lawsuit against the chapter.  She must still convince a jury that the chapter ignored the known risks and that as a result she was injured.  Alternatively, she could also prove that the chapter was negligent in failing to enforce its alcohol policy regarding minors and that she was assaulted as a result of that failure.

The dissenting judge argued the rape was not foreseeable because the chapter had no notice of Sako’s propensity for violence and the chapter had no history of sexual assault in the chapter house.  There was apparently no evidence of sexual assaults at other fraternities and sororities at the University. Those arguments could yet be successful in front of the jury.

A more difficult argument for the chapter to overcome may be its failure to enforce its own policies regarding possession and consumption of alcohol by minors.  In failing to enforce its own policies and ignoring violations of Oregon law regarding minors possessing and consuming alcohol, there is a serious issue over the standard of care and negligence per se.

As to the national fraternity, the Plaintiff argued that Phi Kappa Psi was vicariously liable under an agency theory.  In part, Plaintiff argued that the national fraternity had the ability to discipline the chapter for violation of its policies.  However, the court noted that the national fraternity did not have day to day control over the chapter and that its ability to discipline was remedial in nature, after the fact.

Neither the Trial Court nor the Court of Appeals was willing to accept Plaintiff’s argument that the National Fraternity had voluntarily assumed a duty to enforce rules at a house party.

For national fraternities this case is in line with the vast majority of decisions addressing similar questions, although the Maine Supreme Court’s decision earlier this summer went in the opposite direction.  Oregon’s decision calls into serious question the wisdom of allowing guests in members’ rooms during parties where alcohol is served, particularly when the risk management procedures for the use of alcohol are enforced in the common areas of the house during the party, but ignored in the private rooms of minor members.