359 P.3d 436
Or. Ct. App.2015Background
- Plaintiff, a guest at a Halloween party at the Beta Chapter house, was raped by a chapter member, Sako.
- Plaintiff sued Beta Chapter (owner of the house) for premises liability, failure to control, and negligence per se, and Phi Psi for vicarious liability and negligent supervision.
- Beta Chapter moved for summary judgment, arguing lack of foreseeability and compliance with safety measures; it also argued no undue risk from alcohol and no private-room access during the party.
- Plaintiff argued Beta Chapter knew or should have known of a reasonably foreseeable risk of sexual assault in the party circumstances and that its conduct fell below standard of care.
- Trial court granted summary judgment for Beta Chapter; summary judgment was granted for Phi Psi on other theories.
- On appeal, the court reversed as to Beta Chapter on foreseeability and standard of care, but affirmed regarding Phi Psi.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Foreseeability and duty owed by Beta Chapter | Beta Chapter could foresee risk of sexual assault given alcohol use and room access. | Foreseeability required specific knowledge; no prior assaults or propensity shown. | Fact questions on foreseeability and duty remain |
| Negligence per se against Beta Chapter | Beta Chapter violated former OSU risk-management rules governing alcohol and safety. | Rules repealed; compliance disputed; rules procedural or substantive | Rules partly substantive; summary judgment improper |
| Vicarious liability of Phi Psi for Beta Chapter | Phi Psi had control rights over Beta Chapter; could be liable for negligent supervision. | No sufficient right to control day-to-day conduct; agency insufficient for vicarious liability | No reasonable basis for Phi Psi vicarious liability |
| Direct negligence by Phi Psi for undertaking to supervise | Restatement sections 323 or 324A impose duty when undertakings increase risk or induce reliance. | No direct duty to plaintiff; undertaking did not create foreseeability | Restatement 323 theory inadequate; 324A not preserved; no liability |
Key Cases Cited
- Fazzolari v. Portland School Dist. No. 1J, 303 Or 1 (Or. 1987) (foreseeability and duty when no special relationship)
- Buckler v. Reed, 316 Or 499 (Or. 1993) (mere facilitation of third-party crime not foreseeability)
- Buchler v. Oregon Corrections Div., 316 Or 499 (Or. 1993) (need for specific danger knowledge for liability)
- Chapman v. Mayfield, 263 Or App 528 (Or. App. 2014) (foreseeability requires specific facts showing risk from intoxicated patron)
- Piazza v. Kellim, 271 Or App 490 (Or. App. 2015) (unsafe-location foreseeability requires concrete, location-specific facts)
- Viado v. Domino’s Pizza, LLC, 230 Or App 531 (Or. App. 2009) (nonemployee agency and control over day-to-day operations)
- Sparks v. Warren, 122 Or App 136 (Or. App. 1993) (serving alcohol to underage not per se foreseeability)
- Moore v. Willis, 307 Or 254 (Or. 1988) (visibly intoxicated by itself does not make violence foreseeable)
- Torres v. United States Nat. Bank, 65 Or App 207 (Or. App. 1983) (place or character of business evidence for foreseeability)
- McPherson v. Oregon Dept. of Corrections, 210 Or App 602 (Or. App. 2007) (risk of criminal acts as foreseeability varies by proximity)