Lees v. Carthage Coll.

• Decision Date: 28 May 2013
• Docket Number: No. 11–3061.,11–3061.
• Citation: 714 F.3d 516
• Parties: Katherine LEES, Plaintiff–Appellant, v. CARTHAGE COLLEGE and Lexington Insurance Company, Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

714 F.3d 516

Katherine LEES, Plaintiff–Appellant,

v.CARTHAGE COLLEGE and Lexington Insurance Company, Defendants–Appellees.

No. 11–3061.

United States Court of Appeals, Seventh Circuit.

Argued April 12, 2012.

Decided April 16, 2013.

Rehearing and Rehearing En Banc Denied May 28, 2013.

Rhonda L. Lanford (argued), Attorney, Daniel A. Rottier, Attorney, Habush, Habush & Rottier, Madison, WI, for Plaintiff–Appellant.

Ronald S. Stadler (argued), Attorney, Gonzalez, Saggio & Harlan, LLP, James J. Kriva, Attorney, Kasdorf, Lewis & Swietlik,Milwaukee, WI, for Defendants–Appellees.

Before EASTERBROOK, Chief Judge, and MANION and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Katherine Lees began her freshman year at Carthage College in the fall of 2008. On September 21, 2008, she was sexually assaulted in her dorm room by two men she believed to be Carthage students. Lees withdrew from Carthage after the attack and eventually brought this negligence action against the college and its insurer, Lexington Insurance Company (collectively, “Carthage”). Lees sought to introduce the opinion testimony of Dr. Daniel Kennedy, a premises-security expert, as evidence of the standard of care Carthage was required to meet regarding campus safety. Dr. Kennedy was prepared to testify that there were numerous security deficiencies at Carthage and at Lees's residence hall specifically, that there was a history of sexual assault at the school, and that Carthage fell short of the recommended practices in the field of campus security.

Carthage moved to exclude Dr. Kennedy's expert testimony under Rule 702 of the Federal Rules of Evidence and also moved for summary judgment, arguing that Lees had failed to present reliable expert evidence establishing the relevant standard of care. The district court excluded Dr. Kennedy's testimony, finding it inadmissable for two main reasons: First, he had relied on industry standards that were only aspirational and failed to account for variation between different academic environments; and second, the recent history of sexual assault at Carthage involved acquaintance rape, while the attack on Lees was a case of stranger rape. With Dr. Kennedy's testimony excluded, Lees lacked evidence necessary to prove her claim, so the court entered summary judgment for Carthage.

We vacate the judgment and remand for further proceedings. Although the district court did not explicitly trace and apply the framework of Rule 702, which guides the court's “gatekeeping” discretion under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the court's decision reflects an implicit reliance on the requirements of the rule, and we find no abuse of discretion with respect to at least some of the shortcomings the court identified in Dr. Kennedy's report. But some of the expert's proposed testimony is admissible under Rule 702. Specifically, Dr. Kennedy's testimony about the security standards published by the International Association of Campus Law Enforcement Administrators is not unreliable merely because the standards are aspirational; the standards represent an authoritative statement by premises-security professionals regarding recommended practices in the field of campus security, and that is sufficient to satisfy the Rule 702 requirement of reliability. Also, Dr. Kennedy's testimony about an insecure door at Lees's dorm—more specifically, the absence of a “prop alarm” on the basement door—reflects the application of reliable principles and methods to the specific facts of this case and thus satisfies Rule 702. Because Dr. Kennedy's testimony is admissible in part, Lees raised a genuine factual dispute for trial, and summary judgment for Carthage was improper.

I. Background

Carthage College is a four-year private college located along the shores of Lake Michigan, just north of Kenosha, Wisconsin. The school has a full-time enrollment of 2,000 to 3,000 students, about 1,500 of whom live on campus. Katherine Lees is a resident of California who began her short-lived academic career at Carthage in the fall of 2008. She is hearing impaired and primarily communicates through sign language and lip reading, but she can speak in a way understandable to those familiar with her.

Lees lived on campus in Tarble Hall, an all-female dormitory that is one of nine residence halls on campus. All residence halls are locked 24 hours a day. Between 8 a.m. and 2 a.m. on Fridays and Saturdays (and 8 a.m. and midnight on other nights) students may use their student ID to access any hall. Outside of those hours, students may access only their own residence hall. Between 9 p.m. and midnight on weekends, resident assistants (“RAs”) monitor the lobby of Tarble Hall. The RAs do not staff the lobby's front table between midnight and 2 a.m., but they patrol the hall's corridors and stairways until 2:30 a.m., along with regular security staff. Tarble Hall also has a basement door that is locked from the outside and inaccessible by swiping a student ID. This door lacks a prop alarm, meaning that it can be propped open indefinitely without alerting security. The individual rooms in Tarble Hall use key-in-knob locks. Tarble Hall RAs encouraged students to follow an “open door policy” in which they would leave their doors propped open while other residents were around to encourage socializing.

In the early morning hours of September 21, 2008 (late Saturday night on the 20th to early Sunday morning the 21st), Lees was in her room with her door propped open. Shortly after midnight she saw two young men enter her doorway and say something to her. She tried to tell them she was deaf, and the men laughed and walked away. At around 12:30 a.m., the men returned, entered the room, turned off the lights, and closed the door. One of the men then raped Lees while the other held her down. Lees was able to punch the second man in the face when he tried to assault her, which caused both men to flee. She believes the two men were Carthage students because one was wearing a “Carthage football” sweatshirt and the other a “Carthage” t-shirt. The assailants were never identified. Lees later withdrew from Carthage.

Lees brought this negligence action against Carthage College and its insurer, Lexington Insurance Company,¹ in federal court in the Eastern District of Wisconsin. The complaint invoked the court's diversity jurisdiction, and the parties agree that Wisconsin law governs the case. To establish the applicable standard of care for the jury's determination of negligence, Lees sought to introduce the expert testimony of Dr. Daniel Kennedy, a premises-security expert who has long served as a professor of criminal justice and security administration at the University of Detroit. Dr. Kennedy's report and affidavits explain his opinion that several security deficiencies existed at Carthage and Tarble Hall and that the attack on Lees was foreseeable. Specifically, Dr. Kennedy pointed to the lack of a prop alarm on the basement door; the failure to staff the lobby between midnight and 2 a.m. on weekends; Tarble's open-door policy; the lack of a policy requiring guests to be escorted to the rooms of students they were visiting; and the lack of security cameras. Dr. Kennedy also stated that Carthage in many respects fell short of the recommended practices published by the International Association of Campus Law Enforcement Administrators (“IACLEA”).

Regarding incidents of rape in particular, Dr. Kennedy noted that according to Carthage's crime-reporting statistics under the federal Clery Act, codified at 20 U.S.C. § 1092(f), there had been eight forcible sexual offenses in the five years leading up to 2008: one each in 2003, 2005, and 2006, and five in 2007. Dr. Kennedy also referenced social-science data on rape, including studies showing that women with disabilities, like Lees, were four times more likely to be raped than other women.

Carthage moved to exclude the testimony of Dr. Kennedy and also for summary judgment. The motion for summary judgment made several arguments, but the first was that Lees had failed to put forward reliable expert testimony establishing the relevant standard of care as required under Wisconsin law for this sort of negligence claim. The district court considered the two motions together and granted both, holding that Dr. Kennedy's testimony was inadmissible and that Lees therefore lacked expert evidence on the standard of care.

For a number of different reasons, the court found unreliable, and thus inadmissible, Dr. Kennedy's conclusion that the attack on Lees was foreseeable. First, it held that Dr. Kennedy improperly relied on the IACLEA standards, which were merely recommended and aspirational and did not necessarily account for variation among different types of academic environments. Relatedly, the court faulted Dr. Kennedy for not analyzing security measures at colleges similarly situated to Carthage in terms of size and location. Second, the court criticized Dr. Kennedy's reliance on the recent rape statistics at Carthage, noting that the eight attacks between 2003 and 2007 were all instances of acquaintance rape, while the attack on Lees was stranger rape. The court reasoned that a school would need to take different measures to prevent acquaintance rape than to prevent stranger rape, so this recent history did not suggest foreseeability. Likewise, the court noted that the comparatively greater risk of rape for women with disabilities said nothing about the foreseeability of a student being raped by a stranger in her residence hall.

Finally, the court disregarded out-of-jurisdiction authority cited by Lees as support for her claim that sexual assault in a college dorm room is foreseeable. The court acknowledged that Carthage had a duty to provide a safe living environment but found that the plaintiffs in the cited cases had created genuine issues of fact as to breach and the...