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Doe v. Delta Tau Delta Beta Alpha Chapter

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

July 11, 2018

JANE DOE No. 62, Plaintiff,


          Hon. Jane Magnus-Stinson, United States District Court Chief Judge

         This 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.


         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. 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. 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).



         The 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).

         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, 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.]

         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 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.[2] [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 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.] 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”[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 “will not abuse or support the abuse of alcohol.” [Filing No. 137-18 at 1.]

         Ms. Doe 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.] ...

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