Scheffel v. Or. Beta Chapter of Phi Kappa Psi Fraternity

• Decision Date: 02 September 2015
• Docket Number: 1010510, A152194.
• Parties: Cassandra SCHEFFEL, Plaintiff–Appellant, v. OREGON BETA CHAPTER OF PHI KAPPA PSI FRATERNITY, an unincorporated assoc iation, aka Oregon Beta Chapter of Phi Kappa Psi; and Phi Kappa Psi Fraternity, Inc., a foreign corporation, Defendants–Respondents, and Delta Chi Fraternity, aka Delta Chi, an unincorporated association; The Delta Chi Fraternity, Inc., a foreign corporation; and Gregory Thomas Sako, an individual, Defendants.
• Court: Oregon Court of Appeals

273 Or.App. 390

359 P.3d 436

Cassandra SCHEFFEL, Plaintiff–Appellant

v. OREGON BETA CHAPTER OF PHI KAPPA PSI FRATERNITY, an unincorporated assoc iation, aka Oregon Beta Chapter of Phi Kappa Psi; and Phi Kappa Psi Fraternity, Inc., a foreign corporation, Defendants–RespondentsandDelta Chi Fraternity, aka Delta Chi, an unincorporated association; The Delta Chi Fraternity, Inc., a foreign corporation; and Gregory Thomas Sako, an individual, Defendants.

1010510, A152194.

Court of Appeals of Oregon.

Argued and Submitted Feb. 5, 2014.

Decided Sept. 2, 2015.

W. Eugene Hallman, Pendleton, argued the cause for appellant. With him on the briefs were Robert S. Perkins, Mark R. Bocci, James M. Pippen, and Hallman Law Office.

Trish A. Walsh, Portland, argued the cause for respondents. With her on the briefs were Brad C. Stanford and Farleigh Wada Witt.

Before ORTEGA, Presiding Judge, and DeVORE, Judge, and SCHUMAN, Senior Judge.

Opinion

ORTEGA, P.J.

Plaintiff brought a negligence action against defendants Phi Kappa Psi Fraternity (Phi Psi) and Phi Psi's local chapter (Beta Chapter)¹ at Oregon State University (OSU) after she was raped by Gregory Sako, a chapter member, during a Halloween party at the chapter's fraternity house in Corvallis.² Plaintiff's claim against the local chapter was based on theories of premises liability, “failure to control,” and negligence per se. She asserted a claim against Phi Psi on the theory that Phi Psi was vicariously liable as the chapter's principal and, separately, that Phi Psi had negligently performed a duty that it had voluntarily undertaken to supervise, control, and guide the local chapter.

Defendants moved for summary judgment, arguing that the undisputed facts established that the risk of Sako's sexual assault of plaintiff was not reasonably foreseeable to the chapter. Further, the chapter asserted that, as a matter of law, it had satisfied its duty to plaintiff, who was a social guest, to make the premises safe during the party. Beta Chapter also contended that it did not create an unreasonable risk of harm of the type that befell plaintiff, pointing to safety measures that it had implemented for the party, as well as its lack of knowledge of Sako's (or any other chapter member's) propensity for violence. Finally, the chapter asserted that, as to plaintiff's negligence per se count³ of negligence, the Oregon Administrative Rules on which plaintiff relied had been repealed, and thus, could not sustain plaintiff's negligence per se count. Beta Chapter also asserted that, even if the administrative rules applied, there was no factual dispute that it had complied with the rules. As for plaintiff's agency theory against Phi Psi, the national organization claimed that it did not have the requisite right to control the conduct of the local chapter that was asserted as the basis for plaintiff's claims, and that it did not voluntarily undertake any duty to render services to plaintiff or the chapter that would have made it liable for plaintiff's injuries.

The trial court granted summary judgment and dismissed plaintiff's claims.

Plaintiff appeals, contending that the evidence, viewed in the light most favorable to her, was sufficient to create a genuine issue of material fact as to each of her claims. In particular, plaintiff contends that the chapter, as the possessor of the chapter house, owed plaintiff a duty to exercise reasonable care as to activities that occurred at the house; that the chapter knew or had reason to know of a reasonably foreseeable risk of sexual assault of a female guest in the circumstances of the party; and that the chapter's conduct created an unreasonable risk of harm to plaintiff and fell below the applicable standard of care. She points to evidence in the summary judgment record and an affidavit filed under ORCP 47(E). As for her claims against Phi Psi, she maintains that there was sufficient evidence to create a question of fact as to whether the national organization had sufficient control of the chapter to be held vicariously liable for the chapter's negligence and, alternatively, that there was sufficient evidence that Phi Psi undertook a duty to supervise and guide local chapter members, and that Phi Psi's negligent performance of that duty led to the harm that plaintiff suffered.

Ultimately, we conclude that the trial court erred by granting summary judgment to Beta Chapter on plaintiff's negligence claim because evidence in the summary judgment record established factual questions as to whether plaintiff's sexual assault, in the circumstances of the Halloween party, was reasonably foreseeable to the chapter, and whether the chapter's conduct fell below the applicable standard of care. We also conclude that the trial court incorrectly granted summary judgment on plaintiff's negligence per se count. As for plaintiff's claims against Phi Psi, we conclude that summary judgment was appropriate. Accordingly, we reverse and remand the judgment as to Beta Chapter, and otherwise affirm the judgment.

I. FACTS

On review from the grant of summary judgment, we review the summary judgment record in the light most favorable to the nonmoving party—in this case, plaintiff—and draw all reasonable inferences in her favor. Jones v. General Motors Corp., 325 Or. 404, 413, 939 P.2d 608 (1997). We state the facts consistently with that standard.

Phi Psi is headquartered in Indiana and has about 100 local chapters nationwide. As relevant here, its governing documents, including its constitution and bylaws, grant the national organization the power to create, suspend, and revoke local charters, and the power to suspend, expel, or otherwise discipline any fraternity member after due notice and a hearing. Phi Psi also has the power to appoint a committee of alumni to supervise the affairs of any chapter whenever necessary to correct conditions “prevailing at the time,” although the local chapter has “original jurisdiction” over the conduct of its undergraduate members, including the right to initiate, suspend, or expel a member.

Phi Psi requires local chapter officers to review and confirm receipt of the fraternity's risk-management policy, which includes sections on “Social Programming and Alcohol” and “Sexual Assault.” The policy is the “baseline,” (i.e., local chapters cannot adopt a policy that is contrary to it) and includes information and statistics related to “Greek-related accidents.” The policy explains various precautions that are necessary to establish an atmosphere that minimizes the likelihood of alcohol-related problems, including hosting only “BYOB” parties, requiring age identification and wristbands, monitors, and “never allow underage members or guests to possess or consume alcohol.” The section on sexual assault notes that alcohol “decreases inhibitions” and that, on college campuses, acquaintance rape may be “as high as 85 percent” of rapes, that “alcohol plays a prevalent role in sexual assaults,” and that 97 percent of sexual abuse cases brought against fraternities involved alcohol. In early 2008, Phi Psi's Director of Expansion visited Beta Chapter and presented information about the fraternity's risk management program to local chapter members, including Sako.

Phi Psi also requires local chapter members to complete a computer-based educational program and to pass a related test to receive the fraternity's full membership benefits. The program contains lengthy modules that aim to educate students on responsible alcohol use and preventing sexual assaults.

In 2008, Beta Chapter's membership consisted of undergraduate students enrolled at OSU who had been initiated into Phi Psi. The chapter occupied a house in Corvallis that was owned by the House Corporation. The house consisted of a basement, as well as two floors that contained bathrooms, common areas, and private rooms. Although the local chapter had a “general policy” that underage members could not drink alcohol, that policy was not enforced. In fact, it was common for underage members to keep alcohol in their rooms and to drink it in their rooms and in the common areas of the house—although during some social events, members' consumption of alcohol in the common areas was prohibited. At times, older chapter members purchased alcohol for underage members. The chapter president, Gerritz, had confiscated alcohol from a member on occasion when that member was “out of control,” but, otherwise, no restrictions were enforced on members' consumption of alcohol in their private rooms. Gerritz was aware of policies that prohibited all access to private rooms during social events, particularly at sororities, but Phi Psi did not have such a rule.⁴

OSU's Office of Greek Life provides various services and support to fraternities at OSU. Kerr, the head of the office, has recommended to fraternities that access to private rooms should be closed during social events that include alcohol because “control disappears” when individuals move into private rooms. He stated that access to private rooms during social events causes safety issues, including a danger of sexual misconduct and underage alcohol consumption. Kerr noted that he “probably” had a conversation with each fraternity over the preceding 10 years, but he did not specifically remember a conversation with anyone at Beta Chapter.

Beta Chapter initiated Sako as a member of Phi Psi in April 2008 when he was 19 years old. He lived in the fraternity house with a roommate on the main floor. Sako and his roommate regularly possessed alcohol in their room and regularly consumed alcohol in their room and in the common areas of the house. In October 2008, Sako was generally drinking alcohol twice during the week and, on the weekends, would consume anywhere from 4 to “15 or 20 drinks.”

Beta Chapter, along with Delta Chi's OSU chapter, hosted an invitation-only Halloween party on October 31, 2008, at the chapter's house. The chapter hired two security guards for the party, who were...