Ostrander v. Duggan

• Decision Date: 03 September 2003
• Docket Number: No. 02-2288.,No. 02-2960.,02-2288.,02-2960.
• Citation: 341 F.3d 745
• Parties: Emilie OSTRANDER, Plaintiff-Appellant, v. Brad E. DUGGAN, Defendant, Delta Tau Delta, Association of Columbia, Mo; Delta Tau Delta International, Defendants-Appellees, University of Missouri Curators, Dr. Hugh E. Stephenson; Paul W. Steele; Mary L. James; Dr. Malaika B. Horne; Paul T. Combs; Theodore C. Beckett; M. Sean McGinnis; John A. Mathes; Connie Hager Silverstein; Kathleen Miller, Secretary of the Board of Curators; and Marvin E. Wright, General; Pamela N. Sampson, Coordinator of Greek Life of the University of Missouri Columbia, in her individual capacity and in her official capacity; Cathy Scroggs, Director of Department of Student Life, University of Missouri Columbia, in her individual capacity and in her official capacity; Charles Schroeder, Vice Chancellor of Student Affairs, in his individual capacity and in his official capacity, Defendants. Emilie Ostrander, Plaintiff-Appellant, v. Brad E. Duggan; Delta Tau Delta, Association of Columbia, of MO; Delta Tau Delta International, Defendants, University of Missouri Curators, Dr. Hugh E. Stephenson; Paul W. Steele; Mary L. James; Dr. Malaika B. Horne; Paul T. Combs; Theodore C. Beckett; M. Sean McGinnis; John A. Mathes; Connie Hager Silverstein; Kathleen Miller, Secretary of the Board of Curators; and Marvin E. Wright, General, Defendant-Appellee, Pamela N. Sampson, Coordinator of Greek Life of the University of Missouri Columbia, in her individual capacity and in her official capacity, Defendant.
• Court: U.S. Court of Appeals — Eighth Circuit

341 F.3d 745

Emilie OSTRANDER, Plaintiff-Appellant, v. Brad E. DUGGAN, Defendant, Delta Tau Delta, Association of Columbia, Mo; Delta Tau Delta International, Defendants-Appellees, University of Missouri Curators, Dr. Hugh E. Stephenson; Paul W. Steele; Mary L. James; Dr. Malaika B. Horne; Paul T. Combs; Theodore C. Beckett; M. Sean McGinnis; John A. Mathes; Connie Hager Silverstein; Kathleen Miller, Secretary of the Board of Curators; and Marvin E. Wright, General; Pamela N. Sampson, Coordinator of Greek Life of the University of Missouri Columbia, in her individual capacity and in her official capacity; Cathy Scroggs, Director of Department of Student Life, University of Missouri Columbia, in her individual capacity and in her official capacity; Charles Schroeder, Vice Chancellor of Student Affairs, in his individual capacity and in his official capacity, Defendants.

Emilie Ostrander, Plaintiff-Appellant, v. Brad E. Duggan; Delta Tau Delta, Association of Columbia, of MO; Delta Tau Delta International, Defendants, University of Missouri Curators, Dr. Hugh E. Stephenson; Paul W. Steele; Mary L. James; Dr. Malaika B. Horne; Paul T. Combs; Theodore C. Beckett; M. Sean McGinnis; John A. Mathes; Connie Hager Silverstein; Kathleen Miller, Secretary of the Board of Curators; and Marvin E. Wright, General, Defendant-Appellee, Pamela N. Sampson, Coordinator of Greek Life of the University of Missouri Columbia, in her individual capacity and in her official capacity, Defendant.

No. 02-2288.

No. 02-2960.

United States Court of Appeals, Eighth Circuit.

Submitted: March 12, 2003.

Filed: September 3, 2003.

Rehearing Denied: October 6, 2003.

COPYRIGHT MATERIAL OMITTED

Christopher M. Schappe, argued, Jefferson City, MO, for appellant.

Douglas R. Richmond, argued, Kansas City, MO (David A. Jermann, on the brief), for Appellee Delta Tau Delta.

Kelly K. Mescher, argued, Columbia, MO (Marvin E. Wright and Phillip J. Hoskins, on the brief), for Appellee Curators of Univ. of Mo.

Before BOWMAN, MORRIS SHEPPARD ARNOLD, and RILEY, Circuit Judges.

RILEY, Circuit Judge.

While attending the University of Missouri in Columbia, Emilie Ostrander (Ostrander) was sexually assaulted by a Delta Tau Delta fraternity member, Brad Duggan (Duggan), inside a house leased to eleven Delta Tau Delta fraternity members, and located across the street from the Delta Tau Delta chapter house. Ostrander brought suit against Duggan, Delta Tau Delta and Delta Tau Delta International (collectively DTD), the Curators of the University of Missouri (MU), and three MU officials. Before submitting the case to the jury, the district court¹ granted summary judgment in favor of DTD, and also granted MU judgment as a matter of law.² The jury returned a verdict in favor of Ostrander on the individual claims against Duggan, and awarded her $100,000 in compensatory and $200,000 in punitive damages. Ostrander appeals the court's rulings in favor of DTD and MU. We affirm.

I. BACKGROUND

Ostrander attended MU and was a member of the Alpha Phi sorority. In March 1998, she met Duggan at the DTD Gamma Kappa chapter house, which is owned and controlled by DTD, and located at 506 East Rollins Street on MU's campus. Ostrander invited Duggan to attend a formal hosted by the Alpha Phi sorority. Duggan attended the formal with Ostrander. During the formal, both Ostrander and Duggan became intoxicated. After the formal ended, Ostrander and Duggan went to a house located on campus at 507 East Rollins Street (507 premises), where Duggan had a room. Ostrander was familiar with the property and believed it to be the DTD annex. That evening Ostrander and Duggan had consensual sex.

A week later, on the evening of April 6, 1998, Duggan telephoned Ostrander and invited her to his room to help him stuff fraternity alumni newsletters into envelopes. Duggan was the DTD alumni chairman. Ostrander arrived at the 507 premises at approximately 9:30 p.m. After stuffing envelopes for thirty minutes, Ostrander drank two shots of what Ostrander believed was vodka. Within minutes, Ostrander experienced an intense feeling of intoxication, saw the room turn a golden haze, lost control of her limbs, and then lost consciousness. Over the next several hours, Ostrander experienced intermittent periods of consciousness during which she was aware Duggan sexually assaulted her several times, and other males in the house were observing her naked. The following morning, Ostrander left the 507 premises, but she did not report the sexual assault to the campus police until late August 1998.

In September 1998, Ostrander accompanied two female students to the Office of Greek Life, where they complained to coordinator Pam Sampson (Sampson) of sexual assaults committed by DTD fraternity members. The other two female students alleged sexual assaults by DTD members which occurred and were reported to MU officials before Ostrander's assault. Following receipt of the complaints, Sampson and her supervisor, Laura Osteen (Osteen), met personally with the DTD local chapter advisor and informed him of the sexual assault allegations. Osteen also wrote to DTD's national president, informing him the Office of Greek Life considered the allegations extremely serious. In the letter, Osteen also expressed expectations that the local DTD chapter would thoroughly investigate the allegations and conduct in-house educational programming on sexual assault, which would be attended by at least 75% of the local chapter fraternity members.

After sending the letter, Sampson and Osteen contacted the DTD local chapter president to confirm DTD national headquarters had been notified of the alleged sexual assaults, and to determine whether the local DTD chapter was investigating the allegations and conducting the required educational programs on sexual assault. Ostrander did not hear back from Sampson and Osteen regarding what action MU had taken, and Ostrander never learned whether MU imposed sanctions on DTD.

II. DISCUSSION

On appeal, Ostrander raises two issues. First, she contends the district court erred in ruling (1) DTD was not the possessor of the 507 premises where the sexual assault occurred, and (2) DTD lacked sufficient notice of the danger on the premises. Second, Ostrander contends the district court erred in ruling (1) discrimination based on sex did not occur within a program or activity of MU, and (2) MU officials did not act with deliberate indifference regarding complaints by female students of sexual assaults perpetrated by DTD fraternity members. We review de novo motions for summary judgment and for judgment as a matter of law, applying the same standards employed by the district court. Anderson v. N.D. State Hosp., 232 F.3d 634, 635 (8th Cir.2000) (summary judgment); Bass v. Gen. Motors Corp., 150 F.3d 842, 845 (8th Cir.1998) (judgment as a matter of law).

A. Premises Liability

We first address Ostrander's premises liability claim against DTD. The record fails to establish DTD owned, possessed, or controlled the 507 premises. Since 1979, the 507 premises had been owned continuously by Robert and Donald Vanlandingham, and since the early 1990s, had been managed continuously by Hawthorne Real Estate Services, Inc. The property lease effective on the date of the sexual assault was signed by eleven individuals, including Duggan, and by an equal number of parental co-signors. DTD was not identified as a party to the lease or otherwise referred to in the lease. DTD's rules for members applied to all members, including those, like Duggan, who did not reside at the chapter house. DTD considered using the 507 premises as an annex, but had not done so. The evidence does not demonstrate DTD policed or in any way controlled the 507 premises, legally or factually.

The record also does not support Ostrander's contention she entered the 507 premises as a business invitee. Duggan invited Ostrander to the 507 premises as his social guest, and Ostrander accepted the invitation for the purpose of socializing with Duggan. Stuffing newsletters in envelopes addressed to DTD alumni was incidental to a social purpose. "The possessor's intention in offering the invitation determines the status of the visitor.... The fact that an invitation underlies a visit does not render the visitor an invitee for purposes of premises liability law." Carter v. Kinney, 896 S.W.2d 926, 928 (Mo.1995).

Even assuming Ostrander raised genuine issues of material fact on the issues of possession and entrant status, she fails to satisfy the Missouri "special facts and circumstances" exception to the no duty to protect rule. To establish an owner's premises liability for failure to protect, Ostrander must show: (1) DTD had a duty to protect Ostrander from injury; (2) DTD breached that duty; and (3) the breach proximately caused Ostrander to sustain injury. Johnston v. Warren County Fair Ass'n, Inc., 110 F.3d 36, 38 (8th Cir.1997) (interpreting Missouri law); Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59, 61 (Mo.1988). Generally, an owner or possessor of a premises is under no duty to protect an invitee from criminal acts of third persons, because such criminal acts are rarely foreseeable. L.A.C. v. Ward Parkway Shopping Ctr. Co., 75 S.W.3d 247, 257 (Mo.2002) (citing Madden, 758 S.W.2d at 62).

Missouri recognizes two "special facts and circumstances" exceptions to the rule that business entities have no duty to protect invitees from criminal acts committed by third persons. Id. (citing Faheen v. City Parking Corp., 734 S.W.2d 270, 272-73 (Mo.Ct.App.1987)). Under the first exception, a "duty may arise when a person, known to be violent, is present on the premises or an individual is present who has conducted himself so as to indicate danger and sufficient time exists to prevent injury." Id. (quoting Faheen, 734 S.W.2d at 272-73). Under the second exception, business owners have a duty to protect invitees from the criminal acts of unknown third...