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by: Colin E. Flora
For today’s discussion, we turn our attention away from appellate-court decisions and focus in on a recent ruling out of the United States District Court for the Southern District of Indiana. That ruling was in Jane Doe No. 62 v. Delta Tau Delta Beta Alpha Chapter and it brings us back to a topic we’ve discussed twice in recent months: whether a property owner owes a duty to protect a person on the premises from criminal acts of a third party.
As you might have guessed, based upon the title of the case, this action stems from “an alleged sexual assault that occurred in a college fraternity house during a fraternity-sponsored event.” The legal analysis turned on a handful of cases that we have recently discussed. We first discussed the topic in light of the case Hamilton v. Steak’n Shake Operations Inc., back in April. We returned to it last month in discussingCerta v. Steak ‘n Shake Operations Inc. And now we have a case that synthesizes those two decisions, though oddly makes no mention of Cosgray v. French Lick Resort & Casino, which was issued between Hamilton and Certa and, as we briefly discussed, held that a resort/casino “did not owe a duty to a hotel guest who was raped by an intruder into her room because, in the court’s esteem, ‘the sexual criminal attack on Cosgray by another invitee in a room left intentionally unlocked [to allow a different guest to enter] was not normally to be expected, and thus not foreseeable, and therefore French Lick Resort did not owe a duty to Cosgray.’”
Let’s start by looking at what is alleged to have happened in Jane Doe No. 62. The claim arose out of an alleged sexual assault at a college fraternity in April 2015. But, as we saw in Cosgray, the simple fact that an assault occurred on the property does not automatically mean the entity in control of the property had a legal duty to prevent the attack. In order for that to be the case there needs to be something more to have made the assault foreseeable. For that, we look to events a year and a half before, in October 2013. The evidence indicated that the same fraternity brother alleged to have been involved with the April 2015 assault had engaged in sex with a different woman who is purported to have been unconscious and unwilling at the time. “Within a few days of th[at] incident,” the woman told her close friend of the incident, and that close friend told at least four members of the fraternity of the allegations. Those four men were still members of the fraternity and present at the house in April 2015.
The fraternity brother “was charged with sexual assault and ultimately pled guilty to a charge of battery.” The victim filed a claim against the fraternity in the federal court in Indianapolis, wherein the fraternity moved for summary judgment. In deciding that motion, the federal court found the following questions merited certification to the Indiana Supreme Court for resolution:
- Under the standard articulated in Rogers[v. Martin] and Goodwin[v. Yeakle’s Sports Bar & Grill, Inc.], may a court consider the actual knowledge of a defendant in determining the foreseeability of an event in the context of a duty analysis? If so, does it properly do so by framing either the class of plaintiff or the harm in terms of that knowledge?
- Under Indiana law, does a fraternity owe a duty to a female social invitee to protect her from sexual assault by a member of the fraternity during a fraternity-sponsored event?
- Does the analysis change where there is evidence that prior to the event some fraternity members were told by a third party that the fraternity member had on an earlier occasion sexually assaulted a female?
- Is the analysis impacted by evidence that the female social invitee may have been under the influence of alcohol, most of which was consumed off premises, at the time of the sexual assault?
The Indiana Supreme Court, however, chose not to take up the certified questions, leaving the federal court to resolve the matter on its own.
As a case rooted in premises liability, the first step in the analysis was to determine the nature of the woman’s entry onto the property, as that has always been a key in defining the scope of responsibility owed by the person in control of the premises. The three standards are that of trespasser, licensee, and invitee. That is, in order, a person who enters without permission, one who is permitted to enter, and one who is asked upon the property. The degree of duty increases as you go through the three. The parties did not dispute that the woman “was a social invitee” of the fraternity. Consequently, the fraternity owed her “a duty to exercise reasonable care for [her] protection.” While that is the prototypical mechanism for analyzing a landowner’s duty, the 2016 Indiana Supreme Court decisions in Rogers and Goodwin created a “framework [that] distinguishes between the duty to an invitee ‘in cases involving injuries due to conditions of the land,’ and those involving injuries ‘due to activities on a landowner’s premises unrelated to the premises’ condition.’”
As Chief District Judge Magnus-Stinson, writing for the federal court, summarized the guidance of Rogers and Goodwin:
In order to determine the precise duty owed when activities on the land are involved, “foreseeability is the critical inquiry in determining whether the landowner’s duty of reasonable care extends to the particular circumstances at issue.” As it applies to duty, “foreseeability is a general threshold determination that involves an evaluation of (1) the broad type of plaintiff and (2) the broad type of harm.” In other words, “this foreseeability analysis should focus on the general class of persons of which the plaintiff was a member and whether the harm suffered was of a kind normally to be expected—without addressing the specific facts of the occurrence.” The Indiana Supreme Court has noted that this “analysis comports with the idea that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists.”
So the question became whether the attack on the woman in April 2015 was foreseeable to the fraternity. That’s where the prior attack in October 2013 comes into play. The woman argued that it was foreseeable because the fraternity, “through several of its members, was aware of the allegations” from October 2013 about the exact member at issue “at a prior fraternity-sorority event.” In support, she relied on Hamilton and Certa. Guided by those recent decisions, the fraternity acknowledged that “a defendant’s actual knowledge does play a role in the foreseeability analysis.” Still, it argued the April 2015 attack was not foreseeable “because (1) ‘DTD did not have actual knowledge or reason to believe a criminal assault would occur on April 11, 2015’; and (2) knowledge of assault allegations made 18 months prior to the assault alleged by Ms. Doe is irrelevant, because it does not constitute contemporaneous knowledge of a current threat.”
Notably, both Hamilton and Certa arose from knowledge arising at the time of the attacks:
In Hamilton, where defendant Steak ‘n Shake was aware of a series of escalating threats between its customers, the court incorporated the defendant’s knowledge into its definition of the broad type of plaintiff and harm, defining “the broad type of plaintiff [as] a restaurant patron who has been subjected to escalating threats and taunts and the broad type of harm [as] injury resulting after the encounter culminated in physical violence.”In Certa, also involving an altercation between patrons of a Steak ‘n Shake restaurant, the court defined the broad type of plaintiff as a “restaurant patron” and the broad type of harm as “injury caused by a third party.” It then addressed foreseeability separately, concluding that Steak ‘n Shake was aware of a series of escalating threats, and that “[g]iven these circumstances, [the court] conclude[s] that Steak ‘n Shake's knowledge of the events on its premises in this case gave rise to a duty to take reasonable steps to provide for [the plaintiff’s] safety as a patron of its establishment.” While the Hamilton and Certa courts framed their analyses slightly differently—one incorporating the defendant's knowledge into the definitions of the plaintiff and type of harm, and the other considering the defendant’s knowledge as a second step—the result was the same: the defendant’s knowledge was a relevant consideration in determining the existence of a duty.
Following Hamilton and Certa the court synthesized a test in which knowledge appears to supplement the two-part analysis set forth in Rogers and Goodwin. Specifically, the court wrote, “In this instance, considering the ‘broad type of plaintiff’ and the ‘broad type of harm,’ as well as the defendant’s knowledge, the Court concludes that the duty implicated here can be described as follows: the broad type of plaintiff is an invitee to a social fraternity event, and the broad type of harm is sexual assault by a member previously alleged to have committed sexual assault, where the fraternity knew or should have known of the prior allegations.”
There was one last meaningful issue to be considered, which was whether the span of eighteen months between the two incidents was relevant. The fraternity argued that the gap in time made the prior allegations “either too attenuated or too stale to constitute knowledge relevant to this particular incident.” The court, however, “decline[d] to determine as a matter of law that information received eighteen months prior to an incident is per seinsufficient to constitute relevant knowledge, particularly when the information is an allegation of sexual assault.” As the Court further explained:
This approach is consistent with the Indiana Supreme Court’s observation that “courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists.” It also comports with the Indiana Model Civil Jury Instructions’ expressions of the elements and burden of proof for premises liability claims. Should this case proceed to trial, in order to prove negligence in the premises liability context, Ms. Doe must prove each of the following by the greater weight of the evidence:
(1) DTD was the occupant of property;
(2) Ms. Doe was an invitee on the property occupied by DTD;
(3) Ms. Doe was injured as a result of a sexual assault by a DTD member on the property; and
(a) knew or should have known that allegations of a prior sexual assault had been made against the member; and
(b) failed to use reasonable care to protect the invitee against the danger posed by the member.
Accordingly, the court denied summary judgment on the issue of duty leaving the matter to progress to trial unless it either settles goes up on interlocutory appeal.
That takes us to a final point, which I alluded to earlier. Of the three recent cases from the Court of Appeals of Indiana touching on this topic, only two were discussed in the decision. It seems that no one brought Cosgrayto the court’s attention. Since Cosgray at least superficially seems closer on the facts, it merits a look, so I will do so here.
There, a woman went to a resort/casino, had some drinks, went to her room, and left the door ajar so another person could later enter the room after he was finished gambling. The woman fell asleep and awoke to an unknown man sexually assaulting her. That man was determined to have been invited to the property by an employee of the facility who had been provided a room in the resort for the night due to inclement weather. The employee had invited the man back to her room but had rebuked his advances and left him alone by the room of the woman he would ultimately attack. The victim filed suit against the facility asserting that it had her a duty to protect her from such an attack. On appeal, the court looked to Rogers and Goodwin for guidance but made no mention of the Hamilton decision that had been handed down two months before. Without giving any consideration to whether the resort/casino had prior knowledge on which to draw, the court concluded:
Under the foreseeability test outlined in Goodwin and Rogers—examining the broad type of plaintiff and the broad type of harm, without consideration of the actual facts—we find that the sexual criminal attack on Cosgray by another invitee in a room left intentionally unlocked was not normally to be expected, and thus not foreseeable, and therefore French Lick Resort did not owe a duty to Cosgray.
So, does Cosgray dictate a contrary outcome? I think the answer is no. Although it did not consider whether knowledge mattered, there was no evidence of the resort having any knowledge relating either specifically to the victim or to the assailant.
What does this case tell us about future sexual assault cases at fraternities? The simple fact is that it probably does not open the floodgates of litigation for sexual assaults at fraternities. Mind you, I am by no means an apologist for fraternities; I have previously questioned the wisdom of the continued relationships between universities and the so-called Greek system. But Cosgrayshows why Jane Doe No. 62 may be limited to circumstances in which either the attacker has a history or there has been some targeting of the victim. A general history of sexual assault in the fraternity just may not be enough under Cosgray:
Cosgray encourages this court to take into consideration the “ongoing history of assaults and batteries involving injury and a prior reported rape” and the specific security measures to impose a duty on French Lick Resort. However, Cosgray’s inclination to incorporate the totality of the circumstances into our consideration of the duty element is no longer applicable since our supreme court decision in Goodwin and Martin.
If that is the case, then Cosgray may have created the unintended side-effect of what amounts to a one-free-bite in fraternity sexual assault cases. Since transfer to the Indiana Supreme Court was not sought in Cosgray, it is hard to say whether the Indiana Supreme Court would agree that the prior history at the resort is irrelevant. I think, at the very least, there is almost certainly a tipping point where frequency of occurrence renders such actions foreseeable even if the individual victims and assailants are tabulae rasae.
Join us again next time for further discussion of developments in the law.
- Jane Doe No. 62 v. Delta Tau Delta Beta Alpha Chptr, No. 1:16-cv-01480-JMS-DML, 2018 U.S. Dist. LEXIS 115138 (S.D. Ind. July 11, 2018) (Magnus-Stinson, C.J.).
- Jane Doe No. 62 v. Delta Tau Delta Beta Alpha Chptr, No. 1:16-cv-01480-JMS-DML, 2018 U.S. Dist. LEXIS 65739, at *29–30 (S.D. Ind. Apr. 17, 2018) (Magnus-Stinson, C.J.).
- Doe v. Ind. Univ. Bloomington, 98 N.E.3d 68, 68 (Ind. 2018) (Rush, C.J.).
- Hamilton v. Steak’n Shake Operations Inc., 92 N.E.3d 1166 (Ind. Ct. App. 2018) (Altice, J.), trans. denied.
- Certa v. Steak ‘n Shake Operations Inc., ---N.E.3d---, No. 79A05-1708-CT-1873, 2018 Ind. App. LEXIS 189 (Ind. Ct. App. May 29, 2018) (Barteau, S.J.), pet. for trans. pending.
- Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384 (Ind. 2016) (Rucker, J.).
- Rogers v. Martin, 63 N.E.3d 316 (Ind. 2016) (Rush, C.J.).
- Cosgray v. French Lick Resort & Casino, ---N.E.3d---, No. 59A01-1710-CT-2512, 2018 Ind. App. LEXIS 165 (Ind. Ct. App. May 9, 2018) (Riley, J.), trans. not sought.
- Colin E. Flora, When Does a Proprietor Owe a Duty to Stop One Patron from Shooting Another? Indiana Court of Appeals Weighs In, Hoosier Litig. Blog(Apr. 6, 2018).
- Colin E. Flora, Further Considering When a Proprietor Owes a Duty to a Patron to Protect Him from the Criminal Acts of Another, Hoosier Litig. Blog(June 8, 2018).
- Colin E. Flora, What Constitutes Spoliation of Evidence in Indiana and What Can be Done?,Hoosier Litig. Blog(May 11, 2018).
- Colin E. Flora, Fraternity & University Liability for Hazing and Other Acts, Hoosier Litig. Blog(Oct. 5, 2012).
*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, clients or otherwise, should act or refrain from acting on the basis of any content included herein without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.