Delta Tau Delta v. Johnson

Decision Date12 July 1999
Docket NumberNo. 49S02-9601-CV-40.,49S02-9601-CV-40.
Citation712 N.E.2d 968
PartiesDELTA TAU DELTA, BETA ALPHA CHAPTER, and Delta Tau Delta, National Fraternity, Appellants (Defendants Below), v. Tracey D. JOHNSON Appellee (Plaintiff Below), Joseph P. Motz, Non-appealing party (Defendant below).
CourtIndiana Supreme Court

Norman T. Funk, Hill, Fulwider, McDowell, Funk & Matthews, Indianapolis, Indiana, Attorney for Appellant Delta Tau Delta, National Fraternity.

Douglas B. King, Michael Rabinowitch, Wooden & McLaughlin, Indianapolis, Indiana, Attorneys for Appellant Delta Tau Delta, Beta Alpha Chapter.

Ronald E. Elberger, C. Joseph Russell, George T. Patton, Jr., Scott A. Weathers, Bose McKinney & Evans, Indianapolis, Indiana, Attorneys for Appellee.



The present case asks us to determine whether the trial court, in a negligence action, properly denied a motion for summary judgment on the issue of duty.1 After being sexually assaulted in a fraternity house where she had attended a party, Tracey Johnson ("Johnson") brought a civil claim against the perpetrator, Joseph Motz ("Motz");2 Delta Tau Delta, Beta Alpha Chapter ("DTD"), the fraternity at which the party and sexual assault occurred; and Delta Tau Delta, National Fraternity ("National"). Johnson claims that both DTD and National breached a duty of care owed to her and that DTD violated the Dram Shop Act. Both DTD and National filed motions for summary judgment on the grounds that neither owed Johnson a duty of care, and DTD also asserted that it did not commit a Dram Shop violation; both motions were denied. On interlocutory appeal, the Court of Appeals reversed both denials of summary judgment on all issues. Motz v. Johnson, 651 N.E.2d 1163 (Ind.Ct.App.1995). We earlier granted transfer and now address the following issues: (1) whether DTD owed Johnson a common law duty of reasonable care; (2) whether Johnson may proceed on a Dram Shop claim against DTD; and (3) whether National gratuitously assumed a duty of care towards Johnson. Because we answer the first issue affirmatively and the other two negatively, we affirm in part, reverse in part, and remand to the trial court.


DTD is a fraternity on the campus of Indiana University at Bloomington; it is the local chapter of Delta Tau Delta, National Fraternity. On the evening of October 13, 1990, Johnson, an undergraduate student at Indiana University, attended a party at DTD's house. Johnson had been invited to the party by a member of DTD. She arrived at the party around 10:00 p.m. with some friends who had also been invited. At the party, beer was served in a downstairs courtyard area of the house. Pledges drew beer from a keg into pitchers, which they then poured into cups to serve to guests. The courtyard was very crowded and rather chaotic. Around midnight, Johnson and her friends were about to leave when she encountered Motz, an alumnus of the fraternity and an acquaintance of hers.

Motz had driven into Bloomington that day. After going to a football game, Motz bought a case of beer which he brought back to the chapter house. He stored his beer in room C17. Prior to meeting Johnson, Motz drank four or five of his beers.

While Johnson and Motz were talking, Johnson's friends wandered off and she was unable to find them. Motz offered to drive her home, but only after he had sobered up. Johnson accepted the offer. They waited together in room C17 where they both had some drinks of hard liquor, talked, and listened to music with other guests.

Between 3:30 a.m. and 4:00 a.m., Johnson again searched for a ride home. When she was unsuccessful, Motz reaffirmed his offer to drive her home, but only after he sobered up. Soon thereafter, Motz locked himself and Johnson in the room. He then sexually assaulted Johnson.


When reviewing the denial of a summary judgment motion, this Court faces the summary judgment motion in the same posture as did the trial court. Hooks SuperX, Inc. v. McLaughlin, 642 N.E.2d 514, 516 (Ind.1994). "We must view the facts liberally and in the light most favorable to the nonmovant." Wior v. Anchor Indus., Inc., 669 N.E.2d 172, 177 n. 4 (Ind.1996). Summary judgment will be granted only "if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ind. Trial Rule 56(C).


The first issue in this appeal is whether the trial court was correct to deny DTD's motion for summary judgment on Johnson's negligence claim. To establish a claim of negligence, a plaintiff must show: (1) that the defendant owed the plaintiff a duty, (2) that the defendant breached that duty, and (3) that the breach proximately caused the plaintiff's injury. Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991). In this case, Johnson argues that DTD owed its guests a duty of reasonable care, for example, by providing reasonable protection, security, and supervision at the party, that DTD breached its duty, and that the breach proximately caused her injuries. DTD moved for summary judgment on the issue of duty, arguing that it owed no duty to protect Johnson from the unforeseeable criminal acts of a third party. Determining whether one party owes a duty to another is a question of law for the court. Hooks SuperX, 642 N.E.2d at 517. As such, we will determine, de novo, whether DTD owed a duty to Johnson and, thus, whether the trial court correctly denied DTD's motion for summary judgment.3

In Burrell v. Meads, this Court held that a social guest who has been invited by a landowner onto the landowner's land is to be treated as an invitee. 569 N.E.2d 637, 643 (Ind.1991). Thus, a social host owes his guests the duty to exercise reasonable care for their protection. Id. The issue in this case is whether a landowner may have a duty to take reasonable care to protect an invitee from the criminal acts of a third party.4 This issue is one that we have not addressed recently and one which has resulted in some disagreement in the Court of Appeals.

The question of whether and to what extent landowners owe any duty to protect their invitees from the criminal acts of third parties has been the subject of substantial debate among the courts and legal scholars in the past decade. See, e.g., McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891, 897 (Tenn.1996) (noting that the debate caused the court to reconsider its law in this area). The majority of courts that have addressed this issue agree that, while landowners are not to be made the insurers of their invitees' safety, landowners do have a duty to take reasonable precautions to protect their invitees from foreseeable criminal attacks. See id. at 898-99. Indiana courts have not held otherwise. See Kinsey v. Bray, 596 N.E.2d 938 (Ind.Ct.App.1992).

A further question arises, however, in that courts employ different approaches to determine whether a criminal act was foreseeable such that a landowner owed a duty to take reasonable care to protect an invitee from the criminal act. There are four basic approaches that courts use to determine foreseeability in this context: (1) the specific harm test, (2) the prior similar incidents test, (3) the totality of the circumstances test, and (4) the balancing test. See generally Krier v. Safeway Stores 46, Inc., 943 P.2d 405 (Wyo. 1997); McClung, 937 S.W.2d at 899-901; Boren v. Worthen Nat'l Bank, 324 Ark. 416, 921 S.W.2d 934, 940-41 (1996); Ann M. v. Pacific Plaza Shopping Ctr., 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207, 215-16 (1993); Michael J. Yelnosky, Comments, Business Inviters' Duty to Protect Invitees from Criminal Acts, 134 U. PA. L.REV. 883, 891-900 (1986).

Under the specific harm test, a landowner owes no duty unless the owner knew or should have known that the specific harm was occurring or was about to occur. See McClung, 937 S.W.2d at 895; Boren, 921 S.W.2d at 940. Most courts are unwilling to hold that a criminal act is foreseeable only in these situations. See McClung, 937 S.W.2d at 899 (abrogating Cornpropst v. Sloan, 528 S.W.2d 188, 198 (Tenn.1975) which had employed this test); Boren, 921 S.W.2d at 940. Under the prior similar incidents (PSI) test, a landowner may owe a duty of reasonable care if evidence of prior similar incidents of crime on or near the landowner's property shows that the crime in question was foreseeable. See McClung, 937 S.W.2d at 899; Boren, 921 S.W.2d at 940-41. Although courts differ in the application of this rule, all agree that the important factors to consider are the number of prior incidents, their proximity in time and location to the present crime, and the similarity of the crimes. See McClung, 937 S.W.2d at 899; Boren, 921 S.W.2d at 941. Courts differ in terms of how proximate and similar the prior crimes are required to be as compared to the current crime. Compare Baptist Mem'l Hosp. v. Gosa, 686 So.2d 1147 (Ala.1996) (employing a strict PSI test; holding that, although there were 57 crimes reported over a five year period, only six involved a physical touching and, therefore, the assault of someone with a gun was unforeseeable) with Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785, 482 S.E.2d 339 (1997) (employing a liberal PSI test; holding that two prior burglaries of apartments was sufficient to make a rape in an apartment foreseeable). While this approach establishes a relatively clear line when landowner liability will attach, many courts have rejected this test for public policy reasons. See Isaacs v. Huntington Mem'l Hosp., 38 Cal.3d 112, 211 Cal. Rptr. 356, 695 P.2d 653, 658-59 (1985),modified by Ann M. v. Pacific Plaza Shopping Ctr., 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207 (1993); Maguire v. Hilton Hotels Corp., 79 Hawai'i 110, 899 P.2d 393, 400 (1995); Sharp v. W.H. Moore Inc., 118 Idaho 297, 796 P.2d 506, 510-11 (1990); Seibert v. Vic Regnier Builders, Inc., 253 Kan. 540, ...

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