Brown v. Delta Tau Delta

• Decision Date: 18 June 2015
• Docket Number: Docket No. Pen–14–139.
• Parties: Elizabeth BROWN v. DELTA TAU DELTA et al.
• Court: Maine Supreme Court

118 A.3d 789

2015 ME 75

Elizabeth BROWN

v.DELTA TAU DELTA et al.

Docket No. Pen–14–139.

Supreme Judicial Court of Maine.

Argued: Dec. 10, 2014.

Decided: June 18, 2015.

Thomas L. Douglas, Esq. (orally), and Anne E. Schools, Esq., Douglas McDaniel Campo & Schools LLC, PA, Westbrook, for appellant Elizabeth Brown.

Wendell G. Large, Esq., Carol I. Eisenberg, Esq. (orally), and Joseph L. Cahoon Jr., Esq., Richardson, Whitman, Large & Badger, Portland, for appellees Delta Tau Delta and Delta Tau Delta National Housing Corporation.

Panel: ALEXANDER, GORMAN, JABAR, HJELM, and CLIFFORD, JJ.

Majority: GORMAN, JABAR, and HJELM, JJ.

Concurrence/Dissent: ALEXANDER, J.

Dissent: CLIFFORD, J.

Opinion

JABAR, J.

[¶ 1] Elizabeth Brown appeals from the Superior Court's (Penobscot County, Cuddy, J. ) entry of a summary judgment in favor of Delta Tau Delta (DTD) and Delta Tau Delta National Housing Corporation (DTDNHC) on her claims arising out of events that occurred at the fraternal organization's Gamma Nu chapter¹ located on the University of Maine's Orono campus (UMO). Brown argues that the court erred in concluding that neither DTD nor DTDNHC owed her a duty of care sufficient to support her negligence claims, and in dismissing her claims seeking to hold DTD and DTDNHC vicariously liable. Because we conclude that DTD owed a duty to its collegiate chapters' social invitees sufficient to support Brown's claim based on premises liability, we vacate that portion of the summary judgment. We affirm the summary judgment on the remaining claims against DTD. We also affirm and do not further discuss the summary judgment as to DTDNHC because there is nothing in the record suggesting that the property-holding corporation had a duty, based on premises liability or otherwise, to Gamma Nu's social invitees.

I. BACKGROUND

[¶ 2] Viewed in the light most favorable to Brown, as the nonmoving party, the summary judgment record establishes the following facts. See Budge v. Town of Millinocket, 2012 ME 122, ¶ 12, 55 A.3d 484.

[¶ 3] On September 17, 2010, Gamma Nu hosted a party at its DTD fraternity house that was restricted to invited guests only. Brown, a UMO student, was invited to the party by Joshua Clukey, a member of Gamma Nu. Brown arrived at the fraternity house between 11:00 and 11:30 p.m. and found Clukey. Brown and Clukey, who had both been drinking alcoholic beverages, went upstairs to Clukey's room, past a fraternity member whose function was to limit access to the upper floors to residents and their guests. Inside his room, Clukey sexually assaulted Brown and prevented her from leaving the room for several minutes.

[¶ 4] The day after the party, Brown reported the incident to the fraternity president, who told her “the fraternity had been concerned about Clukey for a while” because he had developed a drinking problem and had recently caused property damage and engaged in fights with other fraternity brothers. The fraternity president reported the incident involving Brown to the chapter consultant, who is employed by the national fraternity, DTD. The following week, the local chapter expelled Clukey from the fraternity for engaging in conduct unbecoming a member and for violating the national fraternity's code of conduct and rules regarding alcohol and hazing. Clukey was notified of his expulsion by letter from the national fraternity.

[¶ 5] On September 11, 2012, Brown filed a civil complaint against Clukey, DTD,² and DTDNHC.³ DTDNHC is an Indiana non-profit corporation that holds property for DTD and leases the fraternity house to Gamma Nu. DTD is a national non-profit corporation organized in New York and doing business in Indiana; Gamma Nu is its local chapter at UMO. DTD's purpose is to advance its mission and values by providing resources to local chapters and regulating them through risk management policies, a member code of conduct, and oversight by chapter consultants and alumni advisors. DTD's constitution and by-laws set forth an intricate hierarchy of rules and regulations “to provide for the effective organization of [fraternity] operations on the international, division, and chapter levels,” including member initiation regulations, implementation of national Member Responsibility Guidelines (MRGs), and enforcement mechanisms.

[¶ 6] Brown's initial complaint alleged counts of assault and false imprisonment against Clukey, and vicarious liability against both DTD and DTDNHC. Through subsequent amendments to her complaint, Brown added counts of negligence, premises liability, and negligent infliction of emotional distress against Clukey, DTD, and DTDNHC, and requested recovery of punitive damages from Clukey.

[¶ 7] In October 2013, Clukey was dismissed from the case with prejudice following Brown's settlement of her claims against him. On January 29, 2014, the court granted DTD and DTDNHC's motion to dismiss with respect to the issue of vicarious liability and denied the motion in all other respects. After entry of this order, Brown's remaining counts against DTD and DTDNHC alleged negligence, negligent infliction of emotional distress, and premises liability. On March 17, 2014, the court granted DTD and DTDNHC's motion for summary judgment, concluding that neither DTD nor DTDNHC owed Brown a duty of care. Brown appeals.

II. DISCUSSION

[¶ 8] Because there is nothing in the record suggesting that Clukey was acting as an agent of DTD or DTDNHC at the time of the assault, we reject Brown's vicarious liability claims and focus only on her claims of negligence. We review de novo the court's entry of summary judgment in favor of DTD based upon the legal determination that DTD did not owe Brown a duty of care. See Estate of Cabatit v. Canders, 2014 ME 133, ¶ 8, 105 A.3d 439.

A. Duty

[¶ 9] Even though the issue is fact driven, the question of duty is a legal question decided by the court, not the jury.

See Michaud v. Great N. Nekoosa Corp., 1998 ME 213, ¶ 15, 715 A.2d 955. Because it is a mixed question of law and fact, the facts in any given case will determine whether an entity has a duty to the putative plaintiff. See Cameron v. Pepin, 610 A.2d 279, 282 (Me.1992). This is a multi-factored analysis that necessarily evokes policy-based considerations including the just allocation of loss. See id.

[¶ 10] The undisputed facts in this case do not give rise to a duty beyond that related to Brown's premises liability claim. Specifically, the summary judgment record reveals no “special relationship” between Brown and DTD sufficient to sustain Brown's general negligence claim, see DeCambra v. Carson, 2008 ME 127, ¶¶ 11–12, 953 A.2d 1163 (holding that, absent a special relationship between the parties, “there is no general obligation to protect others from the actions of third parties, even where one knows the third party is or could be dangerous”), nor does it reveal a special relationship or facts that would give rise to bystander liability sufficient to support Brown's negligent infliction of emotional distress claim, see Curtis v. Porter, 2001 ME 158, ¶¶ 18–19, 784 A.2d 18 (holding that, except in bystander liability claims or when “a special relationship exists between the actor and the person emotionally harmed,” there is “no ... general duty to avoid negligently causing emotional harm to others”). However, as our discussion will illustrate, the facts here give rise to a question of duty founded on premises liability. The issue is thus whether, based on the factual record, the national fraternity has a duty to exercise reasonable care for the safety of its local chapter's social invitees during functions sponsored by the local chapter and held at the DTD fraternity house.

[¶ 11] We have determined that a duty founded on premises liability exists between a university and its business invitees. Stanton v. Univ. of Me. Sys., 2001 ME 96, ¶¶ 8, 10, 773 A.2d 1045. In Stanton, a visiting student at the University of Southern Maine was sexually assaulted in her dormitory room. Id. ¶¶ 2–3. We held that, in light of the relationship between the University as the owner of the dormitory and the female student as its business invitee, as well as the foreseeability of a sexual assault occurring within a dormitory room, “the University owed a duty to reasonably warn and advise students of steps they could take to improve their personal safety.” Id. ¶¶ 8–10; see also Schultz v. Gould Acad., 332 A.2d 368, 370 (Me.1975) (“Plaintiff, as a student attending the defendant Academy, had the legal status of a business invitee, to whom defendant's employee owed a duty to exercise reasonable care in taking such measures as were reasonably necessary for [the student's] safety in light of all then existing circumstances.”)

[¶ 12] Though we have not previously addressed the question of a national fraternity's duty to its local chapter's social invitees, courts in other jurisdictions condition the existence of a duty on the extent of the national fraternity's control over the local chapter. In Grenier v. Comm'r of Transp., 306 Conn. 523, 51 A.3d 367, 373–74, 389 (2012), the Connecticut Supreme Court considered whether a national fraternity's level of involvement with its local chapter was sufficient to give rise to a duty of care owed by the fraternity to a local member who suffered fatal injuries in an automobile accident while returning from a chapter event. Noting that different courts had reached different conclusions, the Grenier court held,

Ultimately, whether a national fraternity may be held liable for the actions of one of its local chapters depends both on its ability to exercise control over the local chapter as well as its knowledge either that risk management policies are not being followed or that the local chapter is engaging in inappropriate behavior.

Id. at 388. In reversing summary judgment entered in favor of the national fraternity, the court considered evidence that the fraternity provided financial resources to, imposed risk management standards on, and...