Barenborg v. Fraternity

• Decision Date: 19 March 2019
• Docket Number: B289766
• Citation: 33 Cal.App.5th 70,244 Cal.Rptr.3d 680
• Court: California Court of Appeals Court of Appeals
• Parties: Carson BARENBORG, Plaintiff and Appellant, v. SIGMA ALPHA EPSILON FRATERNITY, Defendant and Respondent.

33 Cal.App.5th 70

244 Cal.Rptr.3d 680

Carson BARENBORG, Plaintiff and Appellant,

v.SIGMA ALPHA EPSILON FRATERNITY, Defendant and Respondent.

B289766

Court of Appeal, Second District, Division 4, California.

Filed March 19, 2019

Law Office of Martin N. Buchanan and Martin N. Buchanan ; Girardi Keese and Amanda L. McClintock, Los Angeles, for Plaintiff and Appellant.

Cokinos Young and Michael C. Osborne for Defendant and Respondent.

MANELLA, P. J.

INTRODUCTION

Appellant Carson Barenborg was injured at a party hosted by a local chapter of respondent Sigma Alpha Epsilon Fraternity, a national fraternity. Appellant sued respondent for negligence. The trial court granted respondent's motion for summary judgment, concluding respondent owed appellant no duty of care and was not vicariously liable for its local chapter's actions.

Appellant challenges these conclusions on appeal. She contends respondent owed her a duty of care based on: (1) a special relationship between respondent and the local chapter; (2) a special relationship between respondent and appellant; and (3) a voluntary assumption of duty under the negligent undertaking doctrine. She also contends respondent is vicariously liable for the local chapter's actions based on an agency relationship. We hold that respondent owed no duty to protect appellant from the actions of the local chapter and is not vicariously liable for them. We therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The National Fraternity

Respondent is a nonprofit corporation operating as a national fraternal organization.

Based in Illinois, respondent has over 200 local chapters and 13,500 undergraduate members across the United States. According to respondent's mission statement, its mission is to "promote the highest standards of friendship, scholarship and service for [its] members ...." Among other goals, respondent seeks "[t]o develop, maintain, and enforce standards and expectations for the conduct of [respondent's] members within and outside of the Fraternity."

Respondent's bylaws, the "Fraternity Laws," govern respondent's operation and are binding on its local chapters. They provide for an all-volunteer "Supreme Council," which acts as respondent's board of directors. Under the Fraternity Laws, the Supreme Council is responsible for granting charters to undergraduate chapters. Respondent permits its local chapters to use its name and insignia and provides them with educational and other resources. It also arranges for its local chapters’ purchase of property and liability insurance.

The Fraternity Laws require local chapters to pay dues, submit certain reports, and allow inspection. But they specify: "In other respects, the Chapter Collegiate shall be virtually independent of [respondent]. Each Chapter Collegiate shall make its own arrangements as to Chapter-Collegiate house or other living quarters; fix its own dues, assessments, and charges; elect its own officers; and have complete control of its own activities. No Chapter Collegiate ... shall have any authority to act for or bind [respondent]. .... Each Chapter Collegiate has its own By-Laws .... [Respondent] has no power to control the activities or operations of any Chapter Collegiate ...."

The Fraternity Laws establish eligibility requirements for membership in the fraternity, but local chapters are otherwise free to extend invitations for membership to students as they see fit. Under the Fraternity Laws, respondent has the authority to discipline both individual members and local chapters for good cause. For example, it may fine, suspend, or expel an individual member, remove any officer of a local chapter from office, suspend or revoke a chapter's charter, or place the chapter under the control of an alumni commission. Finally, the Fraternity Laws provide that each local chapter must have at least one chapter advisor. Each chapter advisor must visit his chapter at least twice a month and report to respondent on any conditions requiring special attention.

A guide entitled, "Minerva's Shield" contains respondent's risk-management policies, which are binding on every local chapter and individual member of the fraternity. They cover issues such as the use of alcohol, sexual conduct, violence, hazing, property management, and event planning. For example, Minerva's Shield prohibits holding open parties or serving alcohol to anyone who is underage or is visibly intoxicated. It also provides that any construction for events must be done by third-party professionals.

B. The Local Chapter

California Gamma Chapter (Cal. Gamma) was an unincorporated association that operated as respondent's local chapter at the University of Southern California (USC). An alumni housing corporation, separate and distinct from respondent, owned and operated Cal. Gamma's fraternity house. In the years and months before appellant's injury, Cal. Gamma and its members were involved in multiple disciplinary violations, such as excessive and underage drinking, various public disturbances, and sexual misconduct. Cal. Gamma also held multiple parties on Thursday nights, in violation of USC policies, which prohibited social events between Monday and Thursday.

C. The Incident and Disciplinary Action

On October 10, 2013, a Thursday, Cal. Gamma and other local fraternities held large parties. Appellant, a 19-year-old student at another university at the time, attended those parties with friends. The group eventually made its way to Cal. Gamma's party, in the backyard of the local chapter's house. A Cal. Gamma member was serving alcohol without checking IDs. By the time appellant arrived, she had consumed five to seven alcoholic beverages and some cocaine. Cal. Gamma members had set up a makeshift dance platform, about six or seven feet high, using wooden tables. Appellant and her friends decided to climb on top of the platform to dance. When appellant reached the top of the platform, another person, either inadvertently or intentionally, knocked her off of the platform. Appellant fell to the ground and sustained serious injuries.

After the incident, respondent placed Cal. Gamma under the authority of an alumni commission and prohibited possession of alcohol in the chapter's house. In 2014, after Cal. Gamma members violated the alcohol ban, respondent suspended Cal. Gamma's charter.

D. The Suit and the Motion for Summary Judgment

Appellant sued respondent, USC, and others, asserting a single cause of action for negligence. Following discovery, respondent moved for summary judgment. The trial court granted the motion, concluding respondent owed appellant no duty of care and was not vicariously liable for Cal. Gamma's actions.¹ This appeal followed.

DISCUSSION

Appellant challenges the trial court's grant of summary judgment for respondent. She argues the court erred in concluding that respondent owed her no duty of care and was not vicariously liable for Cal. Gamma's negligence.

"We review the ruling on a motion for summary judgment de novo, applying the same standard as the trial court." ( Manibog v. MediaOne of Los Angeles, Inc. (2000) 81 Cal.App.4th 1366, 1369, 98 Cal.Rptr.2d 297.) "Summary judgment is appropriate only ‘where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.’ " ( Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618, 230 Cal.Rptr.3d 415, 413 P.3d 656 ( Regents ), quoting Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476, 110 Cal.Rptr.2d 370, 28 P.3d 116.) We view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

A. Respondent Owed Appellant No Duty of Care

A plaintiff suing for negligence must prove "duty, breach, causation, and damages." ( Regents , supra , 4 Cal.5th at p. 618, 230 Cal.Rptr.3d 415, 413 P.3d 656.) Whether a duty of care existed is a question of law, and thus "particularly amenable to resolution by summary judgment." ( Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 465, 63 Cal.Rptr.2d 291, 936 P.2d 70.)

Although every person generally "has a duty to exercise reasonable care to avoid causing injury to others" ( USC, supra, 30 Cal.App.5th at p. 440, 241 Cal.Rptr.3d 616 ), "as a general matter, there is no duty to act to protect others from the conduct of third parties." ( Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 234, 235, 30 Cal.Rptr.3d 145, 113 P.3d 1159 ( Delgado ).) There are, however, a few recognized exceptions to this general "no-duty-to-protect rule ...." ( Id. at p. 235, 30 Cal.Rptr.3d 145, 113 P.3d 1159.) One such exception is the " ‘special relationship’ " doctrine. ( Ibid. ) Under this doctrine, "[a] defendant may owe a duty to protect the plaintiff from third party conduct if the defendant has a special relationship with either the plaintiff or the third party." ( USC , supra, at p. 440, 241 Cal.Rptr.3d 616.) Another exception, relevant here, is the "negligent undertaking doctrine." (See Delgado, supra , at pp. 248-249, 30 Cal.Rptr.3d 145, 113 P.3d 1159.) Under this doctrine, "a person who has no affirmative duty to act but voluntarily acts to protect another has a duty to exercise due care if certain conditions are satisfied." ( USC, supra, at p. 448, 241 Cal.Rptr.3d 616.)

Appellant argues that the rule precluding a duty to protect from third-party conduct has no application here, and thus no exception to the rule is necessary. She maintains that "Cal. Gamma was not just some unrelated third party" but a "recognized chapter of [respondent]," subject to respondent's control. She further contends we should determine whether respondent owed her a duty of care solely by analyzing the factors discussed in Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 ( Rowland ). As explained below, we disagree, First, Cal. Gamma, an unincorporated association, is a...