United States District Court, S.D. Indiana, Indianapolis Division
Magntts-Stinson, Chief Judge United States District Court
Southern District of Indiana
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.
October 2013, M.S. 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. [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.]
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” 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].
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.]
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.]
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.
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).
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
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.”).
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.
Negligence: Premises Liability
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.]
Legal Standard: Duty to an Invitee
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