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Doe v. Delta Tau Delta Beta Alpha Chapter

United States District Court, S.D. Indiana, Indianapolis Division

April 17, 2018



          Jane Magntts-Stinson, Chief Judge United States District Court Southern District of Indiana

         This case arises out of an alleged sexual assault that occurred in a college fraternity house during a fraternity-sponsored event. In 2015, plaintiff Jane Doe alleged that John Enochs, a member of the Beta Alpha chapter of the Delta Tau Delta fraternity (“DTD”) sexually assaulted her. Mr. Enochs was charged with sexual assault, and he ultimately pled guilty to a charge of battery. Ms. Doe raises four claims of negligence against this local DTD chapter, alleging that DTD had a duty to protect her from sexual assault while a guest at the fraternity. Presently pending before the Court is DTD's Motion for Summary Judgment on Ms. Doe's claims. [Filing No. 121.] For the reasons described below, the Court GRANTS IN PART and DENIES IN PART DTD's Motion. The Court also CERTIFIES several questions to the Indiana Supreme Court.



          In October 2013, M.S.[1] was a sophomore at Indiana University and a member of the Delta Zeta (“DZ”) sorority. [Filing No. 121-1 at 3.] At that time, Mr. Enochs was a sophomore and a member of DTD. [Filing No. at 121-7 at 2.] M.S. and Mr. Enochs were set up to attend a fall “barn dance” together, and they, along with a number of other individuals, socialized together at the DTD and DZ houses on the evening of the dance. [Filing No. 121-1 at 4; Filing No. 121-7 at 2-4.] At some point while at the DTD house, M.S. “blacked out, ” and she has no memory of the events that occurred between that point and when she woke up later that evening. [Filing No. 121-1 at 6.] Over the course of the next several days, M.S. came to believe that she may have been sexually assaulted by Mr. Enochs while she was blacked out or possibly unconscious, and she communicated her concerns to several friends. [Filing No. 121-1 at 7-8.] Within a few days of the incident, M.S. either told close friend Brook Clodfelter that she had been sexually assaulted, or told Ms. Clodfelter details of the incident that led Ms. Clodfelter to believe that M.S. had been sexually assaulted. [Filing No. 137-4; Filing No. 137-5.] Ms. Clodfelter attests that within a few weeks of the alleged assault, she told DTD fraternity members Jake Demetros, Sam Sanders, Garrett Johnson, and Cael Kiess about the allegations.[2] [Filing No. 137-4; Filing No. 137-5.] M.S. also testified within several weeks of the alleged assault, she believed that Mr. Kiess and Mr. Sanders were aware of the allegations, based upon communications that those individuals had with her about Mr. Enochs. [Filing No. 121-1 at 10-11.]

         Approximately eighteen months later, Ms. Doe was a sophomore at Indiana University. [Filing No. 121-15 at 3.] On April 11, 2015, Ms. Doe visited the DTD fraternity house with friends to attend an afternoon event hosted in the house's courtyard. [Filing No. 121-14 at 8-9.] Prior to arriving at that event, Ms. Doe consumed approximately six shots of alcohol with friends in her dorm room. [Filing No. 121-15 at 8.] According to Ms. Doe, a bar was set up in the courtyard of DTD, serving shots from small paper cups. [Filing No. 121-15 at 12.] While Ms. Doe did not drink any alcohol from the bar, she did drink from a “handle”[3] of alcohol that was being passed around the courtyard. [Filing No. 121-15 at 11.] At some point during the afternoon, Ms. Doe's friend Stephanie Paley observed Ms. Doe entering the house with Mr. Enochs. [Filing No. 121-17 at 9.] Ms. Paley later located Ms. Doe in a bathroom inside the house, upset and crying. [Filing No. 121-17 at 11.] Ms. Doe and her friends returned to Ms. Doe's dorm room, and Ms. Doe called the police to report that she had been sexually assaulted. [Filing No. 121-17 at 13; Filing No. 121-15 at 16.] Mr. Enochs was charged with sexual assault, [Filing No. 121-19], and ultimately pled guilty to a charge of battery, [Filing No. 121-7 at 13-14].

         The Delta Tau Delta fraternity maintains a code of conduct for its members. That code includes ten statements regarding conduct that it states members “must adhere to, ” and it includes an oath that states, “[o]n my solemn Oath, I will abide by this code of conduct and will confront members of this Fraternity who are in violation.” [Filing No. 137-18 at 1.] Among those obligations, members are asked to agree that they “will respect the dignity of all persons and therefore, [they] will not…sexually abuse any human being, ” and “[they] will not abuse or support the abuse of alcohol.” [Filing No. 137-18 at 1.]

         Ms. Doe filed the operative Amended Complaint here alleging claims against several defendants arising from that assault. [Filing No. 29.] The only claims that remain for resolution are those against DTD alleging: (1) negligent retention and supervision; (2) negligence arising from premises liability; (3) general negligence; and (4) negligence arising from willful, wanton, and reckless misconduct. [Filing No. 29.] Presently pending before the Court is DTD's Motion for Summary Judgment, which is ripe for the Court's review. [Filing No. 121.]


         Legal Standard

         A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed.R.Civ.P. 56(e).

         In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed.R.Civ.P. 56(c)(3), and the Seventh Circuit Court of Appeals has “repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them, ” Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).



          Sitting in diversity, this Court's duty “is to decide issues of Indiana state law” by predicting how “the Indiana Supreme Court would decide them today.” Doermer v. Callen, 847 F.3d 522, 527 (7th Cir. 2017). As such, this Court must “ascertain the substantive content of state law as it either has been determined by the highest court of the state or as it would be by that court if the present case were before it now.” Golden v. State Farm Mut. Auto. Ins. Co., 745 F.3d 252, 255 (7th Cir. 2014) (citations omitted).

         For over a century, Indiana courts have set forth the elements of actionable negligence, and although the precise language has changed, the basic test has not. See, e.g., Faris v. Hoberg, 134 Ind. 269 (1893); see also Neal v. Home Builders, Inc., 232 Ind. 160 (1953); Harris v. Indiana Gen. Serv. Co., 206 Ind. 351 (1934). The “essential elements” for a negligence action in Indiana are “(1) a duty owed to the plaintiff by the defendant, (2) a breach of the duty, and (3) an injury proximately caused by the breach of duty.” Yost v. Wabash Coll., 3 N.E.3d 509, 515 (Ind. 2014) (citations omitted). It is well settled that duty is a legal question for the court. Polet v. ESG Sec., Inc., 66 N.E.3d 972, 978 (Ind.Ct.App. 2016); Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind. 1992) (“Whether a defendant owes a duty to a plaintiff is a question of law.”).

         Ms. Doe raises negligence claims under four different theories: (1) negligent retention and supervision; (2) negligence arising from premises liability; (3) general negligence; and (4) negligence arising from willful, wanton, and reckless misconduct. [Filing No. 29.] DTD moves for summary judgment on all of those claims. [Filing No. 121.] The Court reorders and addresses each in turn.

         A. Negligence: Premises Liability

         Ms. Doe alleges that she was an invitee of DTD at the time of the assault, and under a theory of premises liability, DTD owed her a duty of care that was breached. [Filing No. 29 at 17.] DTD moves for summary judgment on this claim, contending that the harm suffered by Ms. Doe was not foreseeable, and therefore that DTD owed Ms. Doe no duty of care. [Filing No. 122 at 18-25.]

         1. Legal Standard: Duty to an Invitee

         The parties appear to agree that Ms. Doe was a social invitee of DTD, and under longstanding Indiana law, the possessor of a premises owes an invitee a duty to exercise reasonable care for the invitee's protection. Rogers v. Martin, 63 N.E.3d 316, 321 (Ind. 2016); Goodwin v. Yeakle's Sports Bar and Grill, Inc., 62 N.E.3d 384, 387 (Ind. 2016). But, as the Indiana Supreme Court noted in Rogers regarding that duty, “inconsistencies in Indiana case law have generated confusion over this issue.” Rogers, 63 N.E.3d at 321. In recent companion cases Rogers and Goodwin, the Indiana Supreme Court comprehensively examined “how the landowner-invitee duty has progressed over time, ” in an effort to provide “a workable framework for the future.” Id. at 321; see alsoGoodwin, 62 N.E.3d at 387. The resulting framework distinguishes between the duty to an invitee “in cases ...

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