United States District Court, S.D. Indiana, Indianapolis Division
JANE DOE No. 62, Plaintiff,
DELTA TAU DELTA BETA ALPHA CHAPTER, Defendant.
Jane Magnus-Stinson, United States District Court Chief Judge
case arises out of an alleged sexual assault that occurred in
a college fraternity house during a fraternity-sponsored
event. Plaintiff Jane Doe raised four claims of negligence
against the Beta Alpha chapter of the Delta Tau Delta
fraternity (“DTD”), alleging that DTD
breached its duty to protect her from sexual assault while
she was a guest at the fraternity house. DTD filed a Motion
for Summary Judgment on all of Ms. Doe's claims, and in
an Order issued on April 18, 2018, the Court granted
DTD's Motion as to one of her claims. As to the remaining
claims, the Court certified several relevant questions to the
Indiana Supreme Court and denied the remainder of DTD's
Motion, without prejudice to further argument following the
Indiana Supreme Court's decision. The Indiana Supreme
Court denied consideration of the certified questions, and
following further briefing, the remaining claims are ripe for
resolution. For the reasons described below, the Court denies
DTD's Motion for Summary Judgment as to those claims.
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. SeeFed. 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).
following factual background is set forth pursuant to the
standards detailed above. The facts stated are not
necessarily objectively true, but as the summary judgment
standard requires, the undisputed facts and the disputed
evidence are presented in the light most favorable to
“the party against whom the motion under consideration
is made.” Premcor USA, Inc. v. American Home
Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).
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,
John 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 Erika Twer and 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.] After
less than an hour at the DTD house, M.S., Mr. Enochs, Ms.
Twer, and several other individuals walked to the DZ house.
[Filing No. 121-6 at 3.] Ultimately, M.S. and Mr.
Enochs ended up in M.S.'s room together. [Filing No.
121-6 at 3-4.] After coming to M.S.'s room to see if
M.S. was ready to leave, through the window Ms. Twer saw Mr.
Enochs having sex with M.S., who appeared to be “dead
weight” and “asleep.” [Filing No. 121-6
at 4.] M.S. has no memory of this event. [Filing No.
121-2 at 8-11.]
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 which led Ms. Clodfelter to believe that M.S. had
been sexually assaulted. [Filing No. 137-4;
Filing No. 137-5.] Within a few weeks of the alleged
assault, Ms. Clodfelter 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. believed that shortly after the alleged
assault, 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
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.] Mr. Kiess,
Mr. Demetros, and Mr. Sanders were all at that time members
of DTD and present at the fraternity house for the event.
[Filing No. 121-5 at 5 (deposition of Mr. Kiess);
Filing No. 121-8 at 5 (deposition of Mr. Demetros);
Filing No. 121-10 at 4 (deposition of Mr. Sanders).]
Prior to arriving at the DTD event, Ms. Doe consumed
approximately six shots of alcohol with friends in her dorm
room. [Filing No. 121-15 at 8.] 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
“will not abuse or support the abuse of alcohol.”
[Filing No. 137-18 at 1.]
filed the operative Amended Complaint alleging claims against
several defendants arising from that assault. [Filing No.
29.] DTD filed a Motion for Summary Judgment on all of
Ms. Doe's claims, [Filing No. 121], which this
Court first addressed in an Order dated April 18, 2018,
[Filing No. 148]. The Court granted DTD's Motion
as to Ms. Doe's negligent retention and supervision
claim. [Filing No. 148 at 22.] As to Ms. Doe's
premises liability, general negligence, and willful, wanton,
and reckless misconduct claims, the Court determined that it
was appropriate to certify several questions to the Indiana
Supreme Court, and it did so in an order dated the same day.
[Filing No. 148 at 22; Filing No. 149.]