James v. Duquesne Univ.

• Decision Date: 30 March 2013
• Docket Number: No. 2:08cv853.,2:08cv853.
• Citation: 936 F.Supp.2d 618
• Parties: Shawn JAMES, Plaintiff, v. DUQUESNE UNIVERSITY, a Pennsylvania Corporation, Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

936 F.Supp.2d 618

Shawn JAMES, Plaintiff,

v.DUQUESNE UNIVERSITY, a Pennsylvania Corporation, Defendant.

No. 2:08cv853.

United States District Court,

W.D. Pennsylvania.

March 30, 2013.

Teresa C. Toriseva, Kathy Brown, Wexler Toriseva Wallace, Wheeling, WV, for Plaintiff.

Frederick W. Bode, III, Steven W. Zoffer, Dickie, McCamey & Chilcote, Pittsburgh, PA, for Defendant.

OPINION

DAVID STEWART CERCONE, District Judge.

Shawn James (“plaintiff”) commenced this personal injury action seeking redress for injuries sustained when he was shot after leaving a dance on Duquesne University's (“Duquesne” or “defendant”) campus. Presently before the court is defendant's motion for summary judgment. For the reasons set forth below, the motion will be granted.

Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the non-moving party, “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's claim, and upon which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. When the movant does not bear the burden of proof on the claim, the movant's initial burden may be met by demonstrating the lack of record evidence to support the opponent's claim. National State Bank v. Federal Reserve Bank of New York, 979 F.2d 1579, 1582 (3d Cir.1992). Once that burden has been met, the non-moving party must set forth “specific facts showing that there is a genuine issue for trial,” or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ( quotingFed.R.Civ.P. 56(a), (e)) (emphasis in Matsushita ). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In meeting its burden of proof, the “opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. The non-moving party “must present affirmative evidence in order to defeat a properly supported motion” and cannot “simply reassert factually unsupported allegations.” Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir.1989). Nor can the opponent “merely rely upon conclusory allegations in [its] pleadings or in memoranda and briefs.” Harter v. GAF Corp., 967 F.2d 846 (3d Cir.1992). Likewise, mere conjecture or speculation by the party resisting summary judgment will not provide a basis upon which to deny the motion. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382–83 n. 12 (3d Cir.1990). If the non-moving party's evidence merely is colorable or lacks sufficient probative force summary judgment must be granted. Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505;see also Big Apple BMW, Inc. v. BMW of North America, 974 F.2d 1358, 1362 (3d Cir.1992), cert. denied,507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993) (although the court is not permitted to weigh facts or competing inferences, it is no longer required to “turn a blind eye” to the weight of the evidence).

The record as read in the light most favorable to plaintiff establishes the background set forth below. The incident giving rise to the injuries for which plaintiff seeks redress occurred on Duquesne's campus in the City of Pittsburgh. This campus is located on forty-nine acres in the Uptown neighborhood of Pittsburgh known as “the bluff.” It is bordered by, among other areas, the Hill District and downtown Pittsburgh.

The Black Student Union (“the BSU”), a student organization registered with Duquesne, decided to host a back-to-school dance on September 16, 2006. The BSU's mission is to provide charitable efforts throughout the area and to build a sense of community. The BSU had sponsored the dance on an annual basis in past years and the event was known as the back-to-school “bash.” ¹ It sponsored the dance in order to build a sense of community and educate the broader campus about African–American culture. In accordance with its past practices, the BSU invited Duquesne students, their guests, students from neighboring universities and colleges and their guests.

The BSU received money from Duquesne's program council to help pay for the dance. The BSU arranged for the dance to be held in the ballroom of the Student Union building. As an official student organization, the BSU was required to follow Duquesne's established rules and procedures regarding campus events. This included complying with the policies and procedures set forth in Duquesne's Spirit Leadership Manual.

Because an invitation was extended to students of neighboring colleges and universities, the bash was advertised off campus. Members of the BSU posted and passed out flyers off campus, including in downtown Pittsburgh and the Hill District. Members of the BSU understood the bash to be open to the general public, not just to students and guests. The BSU charged an admission fee to the dance.

Because the dance was advertised off campus, the Spirit Leadership Manual required that at least two university police officers be assigned to the dance in order to ensure proper order and safety. Leroy Johnson and Dennis Dixon, police officers from Duquesne's Department of Public Safety, were assigned by Duquesne to provide security at the dance.

Richan Gaskins (“Gaskins”), a BSU board member, was stationed at the entrance to the dance. He was accompanied by two other BSU board members who assisted him with security. Gaskins perceived himself as “head of security” for the dance because he was there to “maintain order at the entrance and to ensure that people paid their admission.” Statement of Richan Gaskins (Doc. No. 80–2) at 30. Other BSU board members were collecting the admission fee. Neither officer Johnson or Dixon were stationed at the entrance, but both officers moved throughout the ballroom area during the dance, and one of the officers spent at least a few minutes at the entrance.

Plaintiff was a student at Duquesne and varsity basketball player for the Duquesne Dukes. He and four other team members attended the dance as did Brittany Jones (“Jones”), who was student at Duquesne and a member of the BSU.

Shortly before midnight, Jones received a telephone call from her former boyfriend, Kenny Eason (“Eason”). After the call Jones left the dance to meet Eason and help him find a parking space. Eason was accompanied by Derek Lee (“Lee”), William Holmes (“Holmes”) and two other males. Jones got into the car with Eason and they found a spot on Locust Street in front of the undergraduate library. On their way in to the dance Eason asked Jones whether “they were patting down.” Jones understood Eason to be asking if anyone at the entrance of the dance was patting down for weapons. Jones replied that she did not know.

When Jones and the Eason group arrive at the entrance to the ballroom, Jones approached Gaskins and asked whether they were “patting down.” Jones knew Gaskins: they had socialized in the past and done things together such as eat lunch and walk around downtown Pittsburgh. Gaskins told her that he was not “patting down” and then asked in a joking manner if she was carrying “mace or something.” Jones was not standing next to Eason or his group when she made this inquiry. Gaskins was the only one at the entrance, and there was no officer or other security personnel standing next to him. Jones did not see any security personnel in the area. Jones turned around, looked at Eason and shook her head “no.” There is no evidence that Gaskins saw Jones shake her head. Shortly thereafter, the Eason group entered the ballroom. When the Eason group entered there were no uniformed officers or security personnel at the entrance.

At approximately 2:00 a.m. the dance ended and the attendees began to leave the ballroom. No fights, altercations or confrontations occurred during the dance or when the students and their guests were exiting the Student Union.

Plaintiff and his teammates exited the Student Union and proceeded onto Academic Walk heading towards the dormitory area.² They discussed going to one of their dorms. As they were walking, one of plaintiff's teammates started talking with a young female named Erica Sager (“Sager”). Plaintiff observed his teammate's interaction with Sager because he was walking behind them. Sager was being “real flirtatious” and plaintiff could tell from her body language and laugh that she “just ... wanted to hang around the athletes.”

As plaintiff and those with him progressed down Academic Walk toward the end of the football field, plaintiff heard the Eason group call Sager over. The Eason group was standing ahead of plaintiff and his teammates. Holmes and Lee were in the Eason group. Sager ran ahead of the basketball players and to the Eason group. Plaintiff heard one of the guys in the Eason group yell at Sager and ask her “what the hell you doing with those guys” and “what the fuck you talking to them for.” Plaintiff believed the guys were “... really jealous, angry at [Sager] for talking to—or just walking with us ....” Plaintiff and his teammates continued walking on Academic Walk towards the dorms. Sager and the Eason group were still ahead of them.

As plaintiff and his teammates proceeded the Eason group started to argue and curse at them. At...