Lead Opinion
Plaintiff brought a negligence action against defendants Phi Kappa Psi Fraternity (Phi Psi) and Phi Psi’s local chapter (Beta Chapter)
Defendants moved for summary judgment, arguing that the undisputed facts established that the risk of Sako’s sexual assault of plaintiff was not reasonably foreseeable to the chapter. Further, the chapter asserted that, as a matter of law, it had satisfied its duty to plaintiff, who was a social guest, to make the premises safe during the party. Beta Chapter also contended that it did not create an unreasonable risk of harm of the type that befell plaintiff, pointing to safety measures that it had implemented for the party, as well as its lack of knowledge of Sako’s (or any other chapter member’s) propensity for violence. Finally, the chapter asserted that, as to plaintiff’s negligence per se count
Plaintiff appeals, contending that the evidence, viewed in the light most favorable to her, was sufficient to create a genuine issue of material fact as to each of her claims. In particular, plaintiff contends that the chapter, as the possessor of the chapter house, owed plaintiff a duty to exercise reasonable care as to activities that occurred at the house; that the chapter knew or had reason to know of a reasonably foreseeable risk of sexuаl assault of a female guest in the circumstances of the party; and that the chapter’s conduct created an unreasonable risk of harm to plaintiff and fell below the applicable standard of care. She points to evidence in the summary judgment record and an affidavit filed under ORCP 47 E. As for her claims against Phi Psi, she maintains that there was sufficient evidence to create a question of fact as to whether the national organization had sufficient control of the chapter to be held vicariously liable for the chapter’s negligence and, alternatively, that there was sufficient evidence that Phi Psi undertook a duty to supervise and guide local chapter members, and that Phi Psi’s negligent performance of that duty led to the harm that plaintiff suffered.
Ultimately, we conclude that the trial court erred by granting summary judgment to Beta Chapter on plaintiffs
I. FACTS
On review from the grant of summary judgment, we review the summary judgment record in the light most favorable to the nonmoving party — in this case, plaintiff— and draw all reasonable inferences in her favor. Jones v. General Motors Corp.,
Phi Psi is headquartered in Indiana and has about 100 local chapters nationwide. As relevant here, its governing documents, including its constitution and bylaws, grant the national organization the power to create, suspend, and revoke local charters, and the power to suspend, expel, or otherwise discipline any fraternity member after due notice and a hearing. Phi Psi also has the power to appoint a committee of alumni to supervise the affairs of any chapter whenever necessary to correct conditions “prevailing at the time,” although the local chapter has “original jurisdiction” over the conduct of its undergraduate members, including the right to initiate, suspend, or expel a member.
Phi Psi requires local chapter officers to review and confirm receipt of the fraternity’s risk-management policy, whiсh includes sections on “Social Programming and Alcohol” and “Sexual Assault.” The policy is the “baseline,” (i.e., local chapters cannot adopt a policy that is contrary to it) and includes information and statistics related to “Greek-related accidents.” The policy explains various precautions that are necessary to establish an atmosphere that minimizes the likelihood of alcohol-related problems, including
Phi Psi also requires local chapter members to complete a computer-based educational program and to pass a related test to receive the fraternity’s full membership benefits. The program contains lengthy modules that aim to educate students on responsible alcohol use and preventing sexual assaults.
In 2008, Beta Chapter’s membership consisted of undergraduate students enrolled at OSU who had been initiated into Phi Psi. The chapter occupied a house in Corvallis that was owned by the House Corporation. The house consisted of a basement, as well as two floors that contained bathrooms, common areas, and private rooms. Although the local chapter had a “general policy” that underage members could not drink alcohol, that policy was not enforced. In fact, it was common for underage members to keep alcohol in their rooms and to drink it in their rooms and in the common areas of the house — although during some social events, members’ consumption of alcohol in the common areas was prohibited. At times, older chapter members purchased alcohol for underage members. The chapter president, Gerritz, had confiscated alcohol from a member on occasion when that member was “out of control,” but, otherwise, no restrictions were enforced on members’ consumption of alcohol in their private rooms. Gerritz was aware of policies that prohibited all access to private rooms during social events, particularly at sororities, but Phi Psi did not have such a rule.
Beta Chapter initiated Sako as a member of Phi Psi in April 2008 when he was 19 years old. He lived in the fraternity house with a roommate on the main floor. Sako and his roommate regularly possessed alcohol in their room and regularly consumed alcohol in their room and in the common areas of the house. In October 2008, Sako was generally drinking alcohol twice during the week and, on the weekends, would consume anywhere from 4 to “15 or 20 drinks.”
Beta Chapter, along with Delta Chi’s OSU chapter, hosted an invitation-only Halloween party on October 31, 2008, at the chapter’s house. The chapter hired two security guards for the party, who were tasked with patrolling the premises, enforcing “event policies,” reporting violations to Gerritz, ensuring that guests used a single entrance, handling potential problems, and calling the police if needed. Four members of the host fraternities served as “sober monitors” by checking in guests at the house entrance, tracking the number of guests, and directing guests to the basement where the party was held. Neither fraternity served alcohol at the party. Instead, guests age 21 and over could bring beer, check it at a bar that was monitored by the chapter’s members, and, after showing proof of age, retrieve one beer at a time. The fraternity designated the main floor bathroom for male guests and chapter members, and the second floor bathroom for female guests. Access to private rooms on the main and second floors was limited to chapter members and their guests.
II. ANALYSIS
Summary judgment is appropriate if there is no genuine issue of material fact for trial and the moving party is entitled to prevail as a matter of law. ORCP 47 C. For a plaintiff in a negligence action to avoid summary judgment, the plaintiff must show the existence of a factual question on all dispositive issues framed by the defendant’s motion. Two Two v. Fujitec America, Inc.,
A. Beta Chapter
We first address plaintiffs claims against Beta Chapter and then address her claims against Phi Psi. To start, we review the negligence theories advanced by plaintiff against Beta Chapter and the issues raised by the chapter in its summary judgment motion, because they frame the issues on appeal.
Plaintiff first alleged that Beta Chapter was negligent based on a theory of premises liability. Plaintiff alleged that as a social guest she was an “invitee” of the chapter, and that the chapter failed to satisfy its duty to make the property reasonably safe for her visit because it, among other things, (1) failed to properly monitor the party, (2) permitted underage members of the fraternity to possess and consume alcohol in their private rooms, and (3) allowed chapter members and their guests unmonitored access to private rooms.
Plaintiff also alleged that Beta Chapter was negligent based on the more general theory of “failure to control.” Under that theory, plaintiff asserted that the chapter knew or should have known in the exercise of reasonable care that there was a foreseeable risk of sexual assault of female guests during a party where (1) underage members had access to private alcohol supplies, (2) the party was not properly monitored, and (3) the chapter allowed members and their guests access to private rooms during the party. Plaintiff further alleged that the chapter’s conduct failed to protect her from the risk of that harm.
Finally, plaintiff alleged that Beta Chapter was liable under the theory of negligence per se. According to plaintiff, the chapter’s failure to comply with administrative rules that govern student social organizations violated, as a matter of law, the standard of care established by those rules. In particular, plaintiff claimed that the chapter violated applicable rules by serving alcohol to minors and visibly intoxicated persons, failing to provide security, failing to monitor for disorderly conduct, and failing to control access to alcohol in private rooms.
2. Summary judgment motion: Beta Chapter
Beta Chapter sought summary judgment, insisting that there is no genuine issue of material fact as to the chapter’s liability for Sako’s criminal conduct. It asserted that plaintiff, as a social guest, was a licensee — not an invitee — for purposes of premises liability. Accordingly, the
Similarly, Beta Chapter claimed that plaintiffs “failure to control” theory failed because, as a matter of law, it was not reasonably foreseeable to the chapter that plaintiff would be sexually assaulted at the party given that nobody knew of Sako’s propensity for violence or of any sexual assaults by other chapter members, and the mere serving of alcohol (which the chapter argued did not occur) does not crеate an unreasonable risk that a person will become violent. Beta Chapter argued alternatively that it did not unreasonably create the risk of the harm that occurred because it lacked knowledge of Sako’s propensity for violence and took precautionary steps to host a “good” party. Accordingly, the chapter explained that its conduct provided nothing more than “mere facilitation” of Sako’s’ criminal conduct, and that “mere facilitation” is not enough, as a matter of law, to demonstrate foreseeability.
As for plaintiffs negligence per se count, Beta Chapter contended that, because the administrative rules on which plaintiff relied had been repealed after the assault but before trial, plaintiff could not rely on those rules to sustain negligence per se. Alternatively, Beta Chapter maintained that there was no factual dispute that it had complied with the rules.
Plaintiff, in part, responded to Beta Chapter’s motion with a declaration under ORCP 47 E that she had retained an expert “who is available and willing to testify to admissible facts or opinions creating a question of
The trial court granted summary judgment and dismissed plaintiffs claims. Plaintiff appeals, and on appeal, the parties generally reprise and refine the arguments that they made to the trial court.
3. General negligence principles
We begin with some general negligence principles to provide context to the specific issues framed by plaintiffs claims and Beta Chapter’s summary judgment motion— specifically, foreseeability and standard of care. Under Oregon law,
“unless the parties invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant’s duty, the issue of liability for harm actually resulting from defendant’s conduct properly depends on whether that conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.”
Fazzolari v. Portland School Dist. No. 1J,
In this case, plaintiff invoked a special relationship under premises liability law, and the parties dispute how Beta Chapter’s duty as the possessor of property should be defined. Because the chapter’s duty to plaintiff and the scope of that duty are threshold issues that affect the rest of our analysis, we resolve them before further discussing the applicable negligence principles.
Plaintiff claims that, because she was a licensee under premises liability law, the chapter — as the possessor of the property — had a duty to exercise reasonable care for her protection as to activities that occurred on the land.
However, as to the scope of the chapter’s duty to plaintiff, even “when a special relationship is the basis for the duty of care owed by one person to another, * * * if the special relationship *** does not prescribe a particular scope of duty, then ‘[c]ommon law principles of reasonable care and foreseeаbility of harm are relevant.’” Oregon Steel Mills,
a. Foreseeability
However, they disagree as to whether, if the chapter was negligent in the manner alleged by plaintiff, the harm that plaintiff suffered was reasonably foreseeable. In cases where the “harm-producing force” is an intentional intervening criminal act of a third party, the defendant generally has a duty to protect against criminal conduct by third parties that the defendant reasonably could foresee. Stewart v. Kids Incorporated of Dallas, OR,
Accordingly, we examine whether there was evidence in the summary judgment record that would allow a reasonable factfinder to find or reasonably infer that the chapter knew or should have known that, if it was negligent as alleged by plaintiff, that negligence placed plaintiff at an unreasonable risk of criminal conduct. See, e.g., Chapman v. Mayfield,
Plaintiff concedes that there is no evidence that the chapter knew of Sako’s propensity for violence; nevertheless, she asserts that the chapter knew more generally about an epidemic of alcohol-related sexual assaults involving college fraternities, and that the chapter created an unreasonable risk of sexual assault by permitting underage members to consume alcohol and by allowing chapter members and their guests access to private rooms during parties where alcohol was available. Given that there was evidence of the chapter’s knowledge of the prevalence of alcohol-related sexual assaults, plaintiff asserts that that evidence, in conjunction with her ORCP 47 E affidavit, was sufficient to create a question of fact as to whether it was reasonably foreseeable that a female guest would be subject to sexual assault in the circumstances of the Halloween party.
Beta Chapter asserts that nothing it did could foreseeably have placed plaintiff in harm’s way and that the requisite foreseeability was not present as a matter of law. The chapter claims that plaintiffs reliance on the its knowledge of national statistics regarding the prevalence of alcohol-related sexual assaults involving fraternities is not enough to create a factual question on foreseeability. Defendants take the position that the court must look to case-specific facts and cannot rely on the broad proposition that, because alcohol-related sexual assaults are a problem nationally, such a risk of harm was foreseeable in this case.
To begin, we disagree with defendants that Oregon case law requires the conclusion that, in the absence of specific knowledge by the chapter of the propensity for violence of Sako or other chapter members, a risk of third-party criminal conduct is unforeseeable as a matter of law. We acknowledge that in many of our negligence cases, a defendant’s knowledge of a specific perpetrator’s propensity for violence provides the basis for establishing foreseeability of harm. See, e.g., Panpat v. Owens-Brockway Glass Container,
For example, in Torres v. United States Nat. Bank, we concluded that the plaintiff stated facts that, if proven,
Our recent decision in Chapman illustrates the different types of evidence that may be available to a plaintiff to prove foreseeability in a case involving third-party criminal conduct. There, we addressed whether it was foreseeable to the defendant tavern owner that serving a visibly intoxicated person could create an unreasonable risk that the person would engage in violent conduct. A patron of the defendant tavern had shot the plaintiffs after being served alcohol while visibly intoxicated. We noted that the plaintiffs could prove foreseeability by either (1) proving facts that showed that a tavern owner’s “general observations and experiences ‘in the business of serving alcohol’ gave that tavern owner reason to know that violence would be a foreseeable risk of serving alcohol to a visibly intoxicated person,” or (2) proving facts that “the tavern owner knew or had reason to know that the visibly intoxicated person in question had a propensity for violence that could be incited by further drinking.”
Central to our holding was the observation that the evidence would not allow a reasonable factfinder to infer the tavern owner’s knowledge of the risk. We noted that the factfinder would have had to infer that (1) the tavern owner would generally know what medical experts in alcohol physiology know about the connection between intoxication and violence, (2) that the medical, scientific, and lay literature would be read by persons in the business of serving alcohol, and (3) that there were enough similarities between the operations and clientele of the defendant tavern and the other “area bar” that the bartender’s observations at the “area bar” could be generalized to the defendant. Id. at 535-36. Because the evidence in the summary judgment record would have required a factfinder to make too many “intermediate inferences and assumptions” to reach a conclusion that the defendant should have known that serving a visibly intoxicated person would lead to the unreasonable risk that the person would act violently, we affirmed summary judgment. Id.
Here, however, the summary judgment record included evidence that would allow a reasonable factfinder to infer, without requiring “too many intermediate inferences and assumptions,” that the chapter could reasonably
Thus, the summary judgment record provides a basis for a reasonable factfinder to conclude that Beta Chapter knew that alcohol-related sexual assaults in college fraternities were a serious problem on college campuses nationwide and that precautions were necessary to minimize that risk. We do not understand prior Oregon cases to require a showing the chapter knew of specific members’ propensity for violence for plaintiff to demonstrate that the chapter reasonably could have foreseen a risk of sexual assault of female guests. As the Supreme Court stated in Fazzolari, “evidence of foreseeability will differ depending on whether the risk of injury is claimed to be specific to a school, or schools generally, or a neighborhood, or a class of potential victims such as women or particular ethnic groups.” 303 Or
Beta Chapter also contends that its conduct did not result in an “unreasonable risk of harm of the kind that plaintiff suffered,” see Towe, 357 Or at 86 (“[T]he more traditional duty-breach analysis *** is supplanted by the question whether the defendant’s conduct resulted in a foreseeable and unreasonable risk of harm of the kind that the plaintiff suffered.”), because the summary judgment record demonstrates that, at most, defendants provided “mere facilitation” of Sako’s criminal acts. See Buchler v. Oregon Corrections Div.,
As we recently explained in Piazza v. Kellim,
"While it is generally foreseeable that criminals may commit crimes and that prisoners may escape and engage in criminal activity while at large, that level of foreseeability does not make the criminal’s acts the legal responsibility of everyone who may have contributed in some way to the criminal opportunity. In other words, in our society it is foreseeable that crimes may occur and that the criminals perpetrating them may cause harm. Thus, in a general sense, it is foreseeable that anyone whose conduct may in any way facilitate the criminal in committing the crime has played some part in the resulting harm. But mere ‘facilitation’ of an unintended adverse result, where intervening intentional criminality of another person is the harm-producing force, does not cause the harm so as to support liability for it.”
Synthesizing Buchler in Cunningham, we stated that the
"plaintiff must establish that defendant’s act did more than merely facilitate the criminal acts of third parties. The Oregon Supreme Court has stated that a defendant cannot be held liable for all intervening intentional criminal conduct that might conceivably occur because of defendant’s acts or failures to act. ‘[M]ere “facilitation” of an unintended adverse result, where intervening intentional criminality of another person is the harm-producing force, does not cause the harm so as to support liability for it.’ Buchler,316 Or at 511-12 (rejecting ‘facilitation’ rationale of Kimbler v. Stillwell,303 Or 23 ,734 P2d 1344 (1987)). The court in Buchler held that, in order to survive a defendant’s motion for summary judgment in a case involving the criminal acts of third parties, there must be facts in the record to support a conclusion that the defendant couldhave reasonably foreseen, as a result of the defendant’s negligence, an unreasonable risk of such danger to the plaintiff. Id.”
As we understand the “mere facilitation” rationale in Buckler, the link between the defendant’s negligent conduct and the risk of harm must also be reasonably foreseeable because, at some point, charging a person “with responsibility for all intervening intentional criminal conduct that might conceivably occur” cannot be reconciled with “a foreseeability analysis that requires that a defendant, to be liable, must have unreasonably created the risk of the sort of harm to plaintiff that befell him.” Buchler,
In Buckler, a prisoner escaped from state custody when his crew supervisor left the keys to the state’s van in the ignition. Id. at 502. Two days after his escape, and 50 miles from the point of escape, the prisoner shot two people with a gun that he had stolen. Id. The estate of one of the victims sued the state, asserting negligence on the theory that the state had permitted the prisoner to escape, had failed to recapture him, and had failed to warn the public of his escape. The Supreme Court concluded that, as a matter of law, the harm that befell the plaintiff was not reasonably foreseeable to the state. As we noted in McPherson, in reaching that conclusion, the court emphasized that the harm that befell the plaintiff was “several steps removed from the conduct of the defendant: the defendant negligently left keys in a vehicle; a convict stole the vehicle; the convict then stolе a gun from his mother; the convict then shot the plaintiff with that gun.”
“[a]lthough the foreseeability of a convict escaping in an unattended vehicle with keys in it is relatively high, and the foreseeabilty of an escaped convict stealing a gun is relatively high, and the foreseeability of an armed escaped convict shooting a person is relatively high, the foreseeability of all three of those occurrences happening in sequence is ‘at the outer margins.’”
Id. (quoting Fazzolari,
The dissent concludes that Beta Chapter cannot be liable for plaintiffs injuries because, as a matter of law, it could not reasonably foresee a risk of sexual assault by a third party at the Halloween party. The dissent reaches that conclusion based on the lack of evidence that Beta Chapter had any knowledge of Sako’s propensity for violence, and on the failure of plaintiff to produce evidence of prior sexual assaults at the chapter house or at other fraternities or sororities at OSU. As for the lack of evidence of Sako’s рropensity for violence, the parties did not dispute that point, and our analysis does not touch on it. Rather, at the heart of our disagreement is the dissent’s conclusion that Beta Chapter cannot be liable under Oregon negligence law because plaintiff presented no evidence of prior sexual assaults at the house or at other fraternities or sororities
In short, as our discussion indicates, foreseeability in cases involving third-party criminal conduct is not so strictly limited. The relevant inquiry is ultimately whether there was evidence in the summary judgment record that would allow a reasonable factfinder to find or reasonably infer that the chapter knew or should have known that, if it was negligent in the manner alleged by plaintiff, that negligence placed plaintiff at an unreasonable risk of criminal conduct. Certainly evidence that Beta Chapter knew that prior criminal activity had occurred at a specific location is evidence that could satisfy that standard. But, evidence like that presented in this case — evidence that the chapter, as an organization that hosted social events attended by underage college students and their guests, had specific knowledge of the risk of criminal assault in circumstances like that of the Halloween party — is enough to create a jury question on foreseeability. Again, there was evidence in the summary judgment record that would allow a reasonable factfinder to conclude that Beta Chapter knew that alcohol-related sexual assaults were a foreseeable risk of hosting social events where alcohol is available, and that permissive alcohol use by underage members and access to private rooms during such social events increased the risk of sexual misconduct.
Accordingly, we do not share the dissent’s view that existing Oregon negligence law cuts off liability for third-party criminal conduct unless there is specific evidence of the criminal propensity of a third party under control of the defendant or evidence of past criminal activity at a specific location. To the extent that the dissent argues that Buckler drew that line, we disagree. First, as relevant here, we understand Buckler to stand for the propоsition that, at some point, harm that befalls a plaintiff that is “several
Finally, we briefly address the dissent’s discussion of the national statistic on alcohol-related sexual assault mentioned in Phi Psi’s risk-management policy. The dissent contends that the “incomplete and generalized” national statistic of sexual assaults at fraternities nationwide is “misunderstood” and “insufficient” evidence, and rebukes our reliance on that statistic as evidence to support the conclusion that a reasonable factfinder could find that Beta Chapter knew that there was a reasonably foreseeable risk of sexual assault of plaintiff at the Halloween party.
Defendants also appear to argue that, even if the risk of sexual assault was reasonably foreseeablе, no objectively reasonable juror could have concluded that the chapter failed to take reasonable steps to protect its guests from third-party criminal conduct.
To the extent that Beta Chapter is arguing that no reasonable factfinder could find that the chapter’s conduct violated the applicable standard of care, we reject that argument. Although the chapter certainly took numerous precautionary measures, it failed to take others — such as prohibiting access to private rooms during a party where alcohol use by underage members in private rooms was permitted and unmonitored — and a reasonable factfinder could view such measures as required under the applicable standard of care. As the Supreme Court stated in Fazzolari,
“‘[t]he jury is given a wide leeway in deciding whether the conduct in question falls above or below the standard of reasonable conduct deemed to have been set by the community. The court intervenes only when it can say that the actor’s conduct clearly meets the standard or clearly falls below it.’”
4. Negligence Per Se
Next, we address plaintiffs negligence per se count. To establish negligence per se, plaintiff must demonstrate that (1) defendants violated an administrative rule; (2) plaintiff was injured as a result of that violation; (3) plaintiff was a member of the class of persons meant to be protected by the rule; and (4) the injury plaintiff suffered is of a type that the rule was enacted to prevent. McAlpine v. Multnomah County,
Beta Chapter moved for summary judgment against plaintiffs negligence per se count, arguing that, as a matter of law, because the rules on which plaintiff relied had been repealed after the date of the Halloween party, those repealed rules could not sustain plaintiffs negligence per se count. Alternatively, Beta Chapter asserted that, as a factual matter, there was no evidence that it had failed to comply with the rules that plaintiff cited for negligence per se. The trial court granted summary judgment on plaintiffs negligence per se count, although it did not explain why it did so.
Beta Chapter relied on our decision in Greist v. Phillips,
Greist involved a wrongful death action against the driver and owner of a truck that struck a vehicle in which the decedent infant was a passenger.
Here, the parties dispute whether the rules at issue were procedural or substantive in nature. Beta Chapter
We also briefly address Beta Chapter’s alternative basis for summary judgment on the negligence per se count. In short, Beta Chapter argues that as a factual matter it “indisputably complied with the OARs,” and alternatively, that even if Beta Chapter violated any of the rules “plaintiff cannot prove that [Beta Chapter] failed to act reasonably under the circumstances.”
As for Beta Chapter’s “indisputable” compliance with the rules, there is evidence in the summary judgment record that creates a question of fact on that issue. For example,
Finally, we reject Beta Chapter’s contention that, as a matter of law, plaintiff could not show that it “failed to act reasonably” given the precautions and security measure undertaken by the chapter. See Bjorndal v. Weitman,
B. Phi Psi
Next we address whether the trial court correctly granted summary judgment as to plaintiffs claim against Phi Psi. Plaintiff alleged that Phi Psi was vicariously liable under an agency theory — that Phi Psi had authority to control Beta Chapter and that, because of the agency relationship between the local chapter and the national organization, Phi Psi should be liable for Beta Chapter’s negligence. Plaintiff also alleged a “negligent assumption of duty” theory against Phi Psi, contending that Phi Psi voluntarily undertook to provide supervision, control, and guidance to its local chapter members, including over member conduct in general and specifically with regard to responsible alcohol use and the prevention of sexual assault. Plaintiff claimed that Phi Psi negligently provided that supervision, control, and guidance because it failed to (1) monitor and enforce Beta Chapter’s compliance with required rules of conduct relating to responsible alcohol use, underage drinking, and the prevention of sexual assault; (2) establish, monitor, and enforce rules to prohibit and prevent guest access to private rooms at Beta Chapter during social events where alcohol is “permitted, available, and possessed and allowed to be
1. Vicarious Liability
We begin with the applicable legal principles that govern nonemployee agency relationships. At common law, “agency” was defined as a relationship that “‘results from the manifestation of consent by one person to another that the other shall act on behalf and subject to his control, and consent by the other so to act.’” Vaughn v. First Transit, Inc.,
Phi Psi contended in its summary judgment motion that, under Oregon agency law, even if Beta Chapter is an agent of Phi Psi, it was not actually or apparently authorized by Phi Psi to do the “acts” that led to plaintiffs injuries. In addition, relying on Oregon cases, Phi Psi asserted that there was no evidence that any right of Phi Psi to control Beta Chapter’s actions connected to the specific conduct that gave rise to plaintiffs negligence claims. Specifically, Phi Psi claims that the only evidence in the record was that it did not have day-to-day control over the local chapter or the
On appeal, plaintiff argues that an agency relationship existed between Phi Psi and Beta Chapter based on Phi Psi’s right to control intake, to suspend or expel members, and to revoke charters. Further, plaintiff asserts that the connection between Phi Psi’s right to control Beta Chapter and Beta Chapter’s negligent conduct is provided by evidence that Phi Psi imposed the risk-management policy on each chapter and required each chapter’s officers to attend training on implementing the policy. Plaintiff maintains that, because the policy specifically addressed alcohol abuse and sexual assault, and the local chapter was not permitted to vary from those policies, Phi Psi’s control over the chapter had a connection to the chapter’s negligent failure to protect plaintiff from a foreseeable risk of alcohol-related sexual assault. Finally, plaintiff asserts that the documents that govern the relationship between Phi Psi and Beta Chapter gave Phi Psi control to grant, to suspend, or to revoke Beta Chapter’s charter; the right to discipline individual members; and the right to appoint a committee to supervise the affairs of the chapter.
Thus, the issue framed below and on appeal is whether, on this record, a reasonable factfinder could find Phi Psi vicariously liable for the negligent conduct of Beta Chapter. Because defendants do not assert an absence of an agency relationship between Phi Psi and Beta Chapter, and because plaintiff acknowledges that the agency relationship between defendants is one of principal and nonemployee, the dispositive issue is whether there is sufficient evidence of a connection between Phi Psi’s “right to control” Beta Chapter’s actions and the specific conduct that gave rise to plaintiffs tort claim. See Vaughn,
Before we address the summary judgment record here, we examine Viado v. Domino’s Pizza, LLC,
That inquiry involved deciding whether there was evidence that would allow a jury to find that Domino’s had the right to control the physical details of the conduct that injured the plaintiff — i.e., the manner in which the driver carried out his driving duties. The record contained evidence that Domino’s asserted various “controls” over the franchisee’s drivers, including standards for hiring and training them, standards for delivery vehicles, and general driving safety standards. Id. at 551. We concluded that, although those “controls” touched on the delivery process, “none of them gave Domino’s the right to control the physical details of the manner of driving” Id. (emphasis in original). We explained that “[s]etting *** standards for a franchisee’s employees and having the right to actually control how the franchisee’s employees perform the physical details of driving are two different things.” Id. at 552. Instead of establishing standards as to the physical details of driving, such as prescribing the route that the franchisee’s employees must take, Domino’s required only that its franchisee’s drivers generally obey the rules of the road and drive safely. Id. at 552-53; cf. Miller v. McDonald’s Corp.,
Although Viado involved an agency relationship between entities that was based on a franchise agreement,
The evidence on which plaintiff relies — that Phi Psi had the right to control intake, to suspend or expel members, to revoke charters, and to impose fraternity-wide policies aimed at curbing alcohol abuse and preventing sexual assaults — is insufficient to support a finding that Phi Psi had the right to control Beta Chapter’s day-to-day operations such as the physical details of hosting a Halloween party. Rather, the evidence establishes only that Phi Psi’s powers, at least with respect to the type of day-to-day operations at issue here, were essentially remedial in nature. That is, Phi Psi could react to violations of its policies or to a chapter’s misconduct with punishment but, similar to Viado, the policies were generalized standards that allowed day-today control over the functions of Beta Chapter to remain with the local chapter. Although Phi Psi had the authority to appoint a committee to supervise the affairs of the chapter, which might have included supervising day-to-day activities, there is no evidence that Phi Psi had done that in this case at the time of the Halloween party. Accordingly, we conclude that no reasonable factfinder could find that Phi Psi hаd the right to control the physical details of hosting and monitoring the Halloween party to the extent necessary to find Phi Psi vicariously liable.
2. Direct Negligence
Finally, we address plaintiff’s negligence claim against Phi Psi. Our analysis is limited to the theory of negligence alleged by plaintiff against Phi Psi, as framed by defendants’ summary judgment motion and the parties’ arguments on appeal.
At the summary judgment stage, plaintiff clarified that her negligence claim against Phi Psi was based on the rule set out in the Restatement (Second) of Torts section 323 (1965) that
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking if
“(a) his failure to exercise such care increases the risk of such harm, or
“(b) the harm is suffered because of the other’s reliance upon the undertaking.”
Plaintiff pointed to evidence that Phi Psi knew of the alcohol-related sexual assault problem at college fraternities, and undertook a training program to reduce the risk of liability for injuries resulting from alcohol use and sexual assault. In particular, plaintiff pointed to evidence that Phi Psi’s Director of Expansion had visited Beta Chapter in 2008 and presented information about the fraternity’s risk-management program, that Phi Psi had developed a handbook that was designed to, among other things, provide chapter members with information about alcohol abuse and sexual assault, that Phi Psi required the local chapter to adopt the national risk-management policies, and finally, that Phi Psi’s bylaws require a chapter advisor who was supposed to
Phi Psi argued that it was entitled to summary-judgment on plaintiffs direct negligence claim because (1) there was no evidence that Phi Psi had assumed a duty to plaintiff, (2) as to any duty Phi Psi assumed to Beta Chapter, there was no evidence that Phi Psi had negligently performed any of the services that it undertook; and (3) plaintiff did not allege, nor could she prove, that Phi Psi’s conduct had unreasonably created a foreseeable risk of sexual assault to her.
We begin with the first issue raised by Phi Psi on summary judgment — that the authority on which plaintiff relied does not establish that Phi Psi had a duty to plaintiff.
Plaintiff disagrees, citing our decision in Peterson v. Mult. Co. Sch. Dist. No. 1,
On appeal, one of the issues was whether the court had incorrectly instructed the jury that, if OSAA “voluntarily undertook to regulate the matters alleged in the Plaintiffs complaint, that is, regarding practice and what you did at practice, * * * then they would have the responsibility to act reasonably in that regard, and would be liable for negligence in failing to act reasonably.” Id. at 92. OSAA argued that the instruction was legally incorrect because “the claimed negligence * * * was not an act of commission but an act of omission.” Id. at 93. Citing Restatement section 323 we explained:
“Assuming without deciding that the undertaking to act must always be affirmative in order for a volunteer to have a duty, once the duty is undertaken it can be breached by a negligent failure to perform, as well as by negligent performance. There was ample evidence from which the jurycould find that OSAA voluntarily undertook to make safety recommendations or to disseminate the safety recommendations of others to the schools and that its failure to follow that practice with respect to the [national organization’s] recommendations was negligent.”
Id. at 94 (emphasis in original). Accordingly, we rejected OSAA’s assignment of error challenging the jury instruction, and affirmed the jury’s verdict.
Plaintiff argues that Peterson stands for the proposition that a duty “to another” assumed under Restatement section 323 also covers liability for injuries sustained by a third party, such as the student athlete in Peterson. We disagree. There is no indication in Peterson that the discrete issue argued by the parties in this case — whether a duty voluntarily assumed under Restatement section 323 includes liability to third parties — was put at issue by OSAA or decided by us. Rather, we resolved a narrow assignment of error aimed at the trial court’s jury instruction. Accordingly, we reject plaintiffs argument that Peterson controls in this case.
Plaintiff, in her reply brief, cites to Restatement section 324A as additional support for her argument. That provision addresses liability to third persons for the negligent performance of an undertaking:
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
“(a) his failure to exercise reasonable care increases the risk of such harm, or
“(b) he has undertaken to perform a duty owed by the other to the third person, or
“(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”
The problem with plaintiffs reliance on Restatement section 324A, at least at this stage in the proceedings, is that plaintiff is raising it for the first time on appeal. Plaintiffs
We conclude that plaintiffs argument that Restatement section 324A imposes liability on Phi Psi is unpreserved. Plaintiff and defendants squared off on summary judgment exclusively over the assumption of a duty based on Restatement section 323. Plaintiffs failure to argue to the trial court the related theory that a voluntary undertaking for another can support liability as to a third party when the circumstances in Restatement section 324A are met, failed to satisfy the preservation rule’s prudential purpose of giving “a trial court the chance to consider and rule on a contention, thereby possibly avoiding an error altogether or correcting one already made, which in turn may obviate the need for an appeal.” Peeples v. Lampert,
Because it was not presented below, we do not address whether plaintiffs direct negligence claim against Phi Psi could have avoided summary judgment under general foreseeability principles, and because it was not preserved, we do not decide whether a claim under the principles in Restatement section 324A could have avoided summary judgment on this record. We simply conclude that the trial court did not err in granting summary judgment against plaintiffs claim under Restatement section 323.
In summary, we conclude that the trial court erred by dismissing plaintiffs negligence claim against Beta Chapter on summary judgment, but correctly granted summary judgment to Phi Psi.
Judgment in favor of Oregon Beta Chapter of Phi Kappa Psi Fraternity reversed and remanded; otherwise affirmed.
Notes
Plaintiff’s original complaint named Oregon Beta of Phi Kappa Psi Association (the House Corporation) as a defendant, as well as Phi Psi. The House Corporation owns the chapter house and is a separate entity from Beta Chapter. After defendants moved for summary judgment, plaintiff sought to amend her complaint to substitute Beta Chapter in place of the House Corporation. The court, over defendants’ objection, allowed plaintiff to amend her complaint. The court’s ruling on that matter is the subject of defendants’ cross-assignment of error, and we reject that cross-assignment without further discussion. Given our resolution of that issue against defendants, and to avoid confusion, we generally refer to Beta Chapter throughout the opinion as if plaintiff had named it as a defendant in the original complaint.
Plaintiff also asserted claims against Sako and the fraternity that cohosted the party but eventually dismissed those claims. Accordingly, neither are parties to this appeal.
“[Njegligence per se is not a separate claim for relief, but is simply shorthand for a negligence claim in which the standard of care is expressed by a statute or rule.” Abraham v. T. Henry Construction, Inc.,
For example, Delta Chi, the cohost of the Halloween Party, had a policy that no guests could enter a private room during a party.
ORCP 47 E provides:
“[Summary judgment motions] are not designed to be used as discovery devices to obtain the names of potential expert witnesses or to obtain their facts or opinions. If a party, in opposing a motion for summary judgment, is. required to provide the opinion of an expert to establish a genuine issue of material fact, an affidavit or a declaration of the party’s attorney stating that an unnamed qualified expert has been retained who is available and willing to testify to admissible facts or opinions creating a question of fact, will be deemed sufficient to controvert the allegations of the moving party and an adequate basis for the court to deny the motion. The affidavit or declaration shall be made in good faith based on admissible facts or opinions obtained from a qualified expert who has actually been retained by the attorney who is available and willing to testify and who has actually rendered an opinion or provided facts which, if revealed by affidavit or declaration, would be a sufficient basis for denying the motion for summary judgment.”
Plaintiff alleged in her complaint that she was an invitee and, in the trial court, the parties disputed whether plaintiffs status as a social guest would qualify her as a licensee or an invitee under premises liability law. On appeal, defendants again assert that plaintiff is a licensee. Plaintiff appears to have abandoned the argument that she made below, instead contending that the distinction between licensee and invitee is immaterial when an injury is sustained as a result of activities on the land as opposed to the condition of the land.
In so doing, the Supreme Court retreated from its reasoning in Kimbler v. Stillwell,
In the briefing, Beta Chapter’s standard-of-care argument is conflated with its argument as to whether its conduct unreasonably created a risk of the harm of the kind that plaintiff suffered. Those are distinct principles, and thus, by mixing them, the exact contours of the chapter’s arguments are blurred.
Beta Chapter did not seek summary judgment on the basis that, as a matter of law, plaintiff was not injured as a result of any violation of the rules; that plaintiff was not a member of the class of person meant to be protected by the rules; or that the injury plaintiff suffered is not the type of injury the rules were enacted to prevent. See McAlpine,
As the Supreme Court recently reiterated in Towe, the traditional duty-breach analysis is often, but not always, subsumed in the concept of reasonable foreseeability.
Concurrence in Part
concurring in part, dissenting in part.
This case considers the circles of blame for the criminal act of another person. When an injured plaintiff asks a court to hold a defendant financially liable for the criminal act of a third person, Oregon law has a test to decide whether the defendant shares blame. It is a test of general foreseeability, but, when a third person inflicted the injury, it is a test with a sharper focus. It is a test that considers the risk of a particular, violent person or of a location made unsafe by the violence of others. Did the defendant, who is to be faulted for the act of another person, actually know or have reason to know of the specific danger to the plaintiff posed by this third person or by an unknown person at this location?
I write separately, concurring with most of the majority’s analysis. I do not disagree with the majority’s disposition of the claim against the national fraternity. Nor do I disagree with the majority’s remand for further proceedings on the claim against the Beta Chapter for negligence per se based on the prospect of violation of former Oregon Administrative Rules. The defendant’s argument on appeal that plaintiff “could not show that her injury resulted from any [OAR] violation” was not made to the trial court in terms of an inability to show that she was in the class of persons meant to be protected by a rule or that a sexual assault was not the sort of injury that alcohol regulations were intended to prevent. Compare McAlpine v. Multnomah County,
As to the claim of ordinary negligence, I dissent to suggest that our case law requires more than plaintiff offers to hold the Beta Chapter liable. To have “facilitated” a crime, by having carelessly provided a setting or having made the crime more likely, does not mean, without more, that the defendant had rеason to foresee the crime and thereby become liable. Beyond that setting, the national statistic, to which plaintiffs claim reduces, does not mean what it might appear to mean, and it is insufficient evidence as a matter of law. To add that misunderstood and inadequate statistic to this setting does not mean that the local fraternity had reason to foresee the crime and become liable for it.
I. LIABILITY FOR ANOTHER’S INTENTIONAL ACT
A. Prototype Precedents
Two principal cases not only typify the lines of cases on an unsafe person or location, they are the modern source of Oregon’s law of negligence. In Fazzolari v. Portland School Dist. No. 1J,
In Buchler v. Oregon Corrections Div.,
The court began by rejecting the possibility that liability would follow from simply “facilitating” the harmful act, a distinction that is critical to the case at hand. Id. at 510. Previously, in Kimbler v. Stillwell,
“While it is generally foreseeable that criminals may commit crimes and that prisoners may escape and engage in criminal activity while at large, that level of foreseeability does not make the criminal’s acts the legal responsibility of everyone who may have contributed in some way to the criminal opportunity. In other words, in our society it isforeseeable that crimes may occur and that the criminals perpetrating them may cause harm. Thus, in a general sense, it is foreseeable that anyone whose conduct may in any way facilitate the criminal in committing the crime has played some part in the resulting harm. But mere ‘facilitation’ of an unintended adverse result, where intervening intentional criminality of another person is the harm-producing force, does not cause the harm so as to support liability for it.”
To find the defendant liable for the intentional act of a third person, the court required more than “facilitation” of the crime. The court required “evidence that defendant here either knew [or] had reason to know of the specific danger presented by the prisoner to plaintiffs.” Id. at 516 (emphasis added). Liability did not turn on hindsight, nor the perspective of an all-knowing “reasonable person.” Liability turned on what this particular defendant knew or had reason to know. The prisoner’s history gave the state no indication of violent crimes. The plaintiffs had not shown why the state should have known the prisoner would be near the plaintiffs, should have known where the prisoner’s mother lived, and should have known he would have stolen a gun. The court concluded that the state had “no duty to warn in the absence of [the] knowledge” of the specific danger presented to the plaintiffs by the prisoner. Id. The court affirmed a dismissal on summary judgment. Although Buckler dismissed the claims, its fact pattern typified which negligence cases could, with something more, find a defendant liable for the risk of a third person’s violence.
B. Liability for a Dangerous Person
Two lines of cases, involving a defendant’s liability either for a dangerous person or an unsafe location, resemble these two prototype cases, and both lines of cases contribute to the answer to the case at hand. I draw first from the cases
The fact patterns with dangerous third parties often involve alcohol, robbery, assault, and sexual violence. The decisions caution courts against making easy assumptions. In several cases involving alcohol, it did not suffice to allege that serving alcohol to an intoxicated person gave reason for a defendant to foresee that a third person would intentionally assault someone. In Moore v. Willis,
“The fact that someone is visibly intoxicated or underage, standing alone, does not make it foreseeable that serving alcohol to the person creates an unreasonable risk that the person will become violent.”
The court affirmed a judgment on the pleadings in favor of two tavern owners after a patron drew a gun and killed a taxi driver.
In Sparks v. Warren,
“The risk flowing from the negligence alleged here is not that a minor will drink but that someone predictably will be exposed to danger of an assault if defendants were negligent as alleged.”
Id. at 140. Because the plaintiff had failed to present evidence that the violence was foreseeable, we affirmed summary judgment for the defendants.
Recently, in Chapman v. Mayfield,
“to establish foreseeability, a plaintiff must first plead and then prove specific facts — beyond the fact of visibleintoxication — from which an objectively reasonable fact-finder could find or reasonably infer that the tavern owner who served the visibly intoxicated person knew or had reason to know that serving that person created the unreasonable risk that that person would become violent”
Id. at 531 (emphases added). Like Sako in the case at hand, the lodge did not know any “specific facts” about the patron, which would have made violence foreseeable. Like the Beta Chapter here, the lodge had suffered no prior incidents in which patrons, to whom the lodge had served alcohol, had become violent. And, like plaintiff here, the plaintiff in Chapman offered only generalized information. A medical doctor testified that “[i]ntoxicated drinkers frequently become violent,” and a bartеnder from a different bar testified that, when a patron becomes violent, “[t]hat’s the alcohol talking.” Id. at 532, 546.
We held “that evidence is insufficient to permit a rational factfinder to make the finding,” which the law requires, that the defendant, just by being in the alcohol business, had reason to foresee that serving an intoxicated patron would pose an unreasonable risk of violence. Id. at 533. The generalizations, whether from a doctor or a bartender, did not suffice to prevent summary judgment for the defendant, because “too many intermediate inferences and assumptions” or “guesswork” would be required to find that the defendant had knowledge or reason to know the risk from this patron.
In contrast to the alcohol cases from Moore to Chapman, the outcome favors the plaintiff when the plaintiff offers some evidence that the defendant knew or had
In McAlpine v. Multnomah County,
These cases involving a dangerous third person parallel the cases involving a location made unsafe by unknown persons. There is a similar requisite in common: In location cases, liability can arise when the defendant knew or had reason to know from specific evidence that the location presented a risk of criminal harm or violence from third persons, even if the identity of the bad actor could not have been foreseen. Two early cases, with contrasting outcomes, illustrate that local experience is the specific evidence needed. Two recent cases, with contrasting outcomes, will sharpen our focus.
In Uihlein v. Albertson’s, Inc.,
More specific evidence concerning the location produced a different outcome in Brown v. J. C. Penney Co.,
A more recent pair of contrasting cases provide a sharper focus for this case. In Stewart v. Kids Incorporated of Dallas, OR,
“a plaintiff must allege facts demonstrating that the harm by third-party criminal conduct was foreseeable to the defendant in a concrete way and may not rely on the abstract proposition that ‘crimes may occur and that the criminals perpetrating them may cause harm.’”
Piazza,
If the principles of these cases were applied to the facts here, the majority should have concluded that plaintiff has failed to offer evidence that the local fraternity knew or had reason to know of an unreasonable risk to plaintiff from a dangerous person or an unsafe location. Each alternative requires separate discussion.
A. No Knowledge or Reason to Know of a Dangerous Person
The majority opinion recites, and plaintiff concedes, that there was no evidence that the Beta Chapter had reason to know that Sako had a propensity for violence. Without contradiction, Gerritz, who was the chapter president at the time of the party, declared, “Mr. Sako had no known prior sexual assault record or any history of becoming violent with or without the influence of alcohol.” Absent any reason to know that Sako might assault plaintiff or another person, the chapter could not become liable, under the first line of cases, for the intentional or criminal act of a person who the chapter knew or should have known was dangerous. See Moore,
B. No Knowledge or Reason to Know of an Unsafe Location
The majority is quite right to the extent it observes that “a risk of third-party criminal conduct” is not limited to “a defendant’s knowledge of a specific perpetrator’s propensity for violence.”
Even at that, Torres drew a dissent, contending what later cases taught. The dissent declared that “ [p]lain-tiff should have pleaded with specificity that defendant knew, or should have known, that in the past [the] patrons at the 72nd and Fremont Branch had been robbed or assaulted while using the night depository.” Id. at 216 (Van Hoomissen, J., dissenting); see, e.g., Stewart,
Unlike Torres, the case at hand is not a pleading case. Defendant’s evidence challenged plaintiff to offer evidence to create a dispute of fact to show that the local fraternity was a location known or knowable by the local fraternity
Prior to this incident, there is no evidence whatsoever of sexual assault at the Beta Chapter. Gerritz recounted, “To my knowledge, the sexual assault committed by Mr. Sako during the event was the first and only known sexual assault to have occurred at the Phi Psi House and/or to have involved Mr. Sako or any other member of the Local Chapter.” Collinsworth, the executive director of the national fraternity organization, confirmed the same fact. Plaintiff offered no evidence of any violence of any kind at the local fraternity and, for that matter, no evidence of any sexual assault at frаternities, sororities, or dormitories at Oregon State University. Absent any evidence to dispute the Gerritz or Collinsworth reports, plaintiff failed to offer “specific facts” to show that the local fraternity knew or had reason to know from its experience that its location threatened plaintiff with an unreasonable risk of criminal assault. See Buchler,
A. Evidence Distinguished
The majority reaches a different conclusion, but our difference of opinion is not due to defense arguments that the local fraternity employed so many measures to manage the party. I concur with the majority’s rejection of those arguments on this issue of law. It is certainly true that the Beta Chapter followed the advice of the national fraternity by not furnishing alcohol at the party. Participants were required to bring their own beer, check it at the bar, and retrieve one beer at a time after showing proof of age. Four fraternity members served as “sober monitors,” and two security guards helped supervise the party. When circumstances outside the house became questionable, the fraternity shut down the party early.
Although those precautions would reduce the risk of misbehavior, they are simply evidence, albeit significant evidence, for a jury’s ultimate evaluation of the facts when deciding whether, all in all, the Beta Chapter breached its duty of care. Those precautionary measures may reduce some of the reasons that the Beta Chapter could foresee sexual assault in common areas, but those measures do not resolve foreseeability as a matter of law when the local fraternity allowed members to possess alcohol and invite guests into their rooms. I concur with the majority in distinguishing such evidence and leaving its significance for a jury.
B. Evidence Misconstrued
Where I respectfully disagree with the majority is in evaluating two matters: (1) the role of the setting and
1. Facilitation Is Not Foreseeabilty
The majority is not entirely misguided in recognizing the role of the setting. Kerr, the coordinator of “Greek Life” at Oregon State University, opined that it was his advice to fraternity presidents to close access to private rooms during social events with alcohol. In a private room, the sponsor’s “control disappears.” He said, “[T]he opportunity for there to be sexual misconduct rises because they’re no longer in an area that is managed.” Kerr’s evidence was simply that it was “good practice to close [the] private rooms” to preclude the “opportunity” of sexual misconduct.
When asked if he had relayed his advice to the Beta chapter, Kerr said he did not recall. Over the last 10 years he “probably” had the conversation with a representative of each fraternity. If he talked to the Beta Chapter, it may not have been during the tenure of its current, student officers. Gerritz, the Beta president, testified he had not heard of a fraternity at OSU closing its private rooms during a party, although he had heard of sororities doing that. When Kerr was asked again if he had given his advice to the Beta Chapter, he concluded, “[T]hat I can’t confirm.” Ultimately, it does not matter whether Kerr’s knowledge should be imputed to the Beta chapter, either as a matter of reasonable inference or as a matter of impermissible speculation. See Chapman,
Construing the evidence most favorably to plaintiff, the fraternity may have “facilitated” the sexual assault by tacitly permitting a fraternity member to keep alcohol in his room and to invite a party guest there. However, facilitating a crime, even carelessly, does not suffice to impose financial liability for a third person’s intentional act. Buchler,
We know from cases like J. C. Penney and Stewart that to provide a setting like a parking lot or a restroom, where the crime is easier to accomplish, is not enough to make a defendant liable for an unsafe location. And we know from Buckler, where leaving keys in the van hastened the escape, that carelessly facilitating a crime does not make that crime foreseeable by the defendant. Even when a defendant’s act is within the chain of causation, that does not make the defendant responsible for another’s intentional act. Buckler’s observation bears repetition:
“While it is generally foreseeable that criminals may commit crimes and that prisoners may escape and engage in criminal activity while at large, that level of foreseeability does not make the criminal’s acts the legal responsibility of everyone who may have contributed in some way to the criminal opportunity.”
Buchler,
2. A Statistic, Misunderstood and Insufficient
The majority concludes that the Beta Chapter “knew that alcohol-related sexual assaults were a foreseeable risk of hosting social events where alcohol is available, and that permissive alcohol use by underage members and access to private rooms during such social events increases the risk of sexual misconduct.”
The national statistic on alcohol-related sexual assault, offered'in this case, is not the same as plaintiffs argument about it. When properly understood, this incomplete and generalized statistic is not a substitute for the requisite, specific evidence of experience at this location. In its summary of facts, plaintiffs brief takes the liberty to argue that the national fraternity’s guide purportedly shows “both defendants’ knowledge of the epidemic of sexual assault and alcohol abuse at fraternities” in this nation. (Emphasis added.) The majority opinion succumbs to this tempting spin on a misconstrued statistic. In its analysis, the majority finds that plaintiff offered evidence “that the chapter knew that alcohol-related sexual assaults were a
The guide underscores the importance of its recommended precautions, like the measures used at this party, with an introduction on “social programming and alcohol.” It recounts:
“In the last decade, over 700 Greek-related accidents and injuries were reported. In many, insurance claims and/ or legal action resulted. Of the most serious incidents, alcohol was a factor in 96% of falls from roofs, 97% of sexual abuse, 96% of fights and 87% of automobile accidents.”
In a later section on sexual assault, the guide advises:
“As with so many problems on college campuses, alcohol plays a prevalent role in sexual assaults. Many campus rapes involve alcohol or, in some cases, drugs. One report estimates that 50% of the women who fall victim to rape attempts and 75% of their attackers have been drinking prior to the incidents. Of sexual abuse cases which have been brought against fraternities, 97% involved alcohol.”
These statistics speak of alcohol within a subset of injuries. These statistics do not speak of the larger set of individual and social activities with alcohol. Context is missing. These statistics tell how often alcohol is involved when some circumstances eventuated in falls, fights, automobile accidents, and sexual assaults, but these statistics do not foretell how often alcohol consumption, by how many tens of thousands of fraternity members and guests at how many thousands of organized social events and unplanned individual interactions over 10 years, resulted in 700 accidents and injuries. To say that alcohol was consumed in 97 percent of incidents of sexual abuse does not mean that 97 percent of fraternity members who consume any alcohol will commit rape. The guide does not report how many sexual assaults occurred, let alone how often they occurred in comparison to how often fraternity members consumed alcohol alone or with an acquaintance, friend, guest, or date. Without knowing the proportion of sexual abuse in the larger field of all
The guide introduces the topic of sexual assaults, saying “alcohol plays a prevalent role in sexual assaults.” It follows with the 97 percent statistic. In context, the term “prevalent role” refers to the statistic on the frequency of alcohol within the subset of injuries. The term does not mean that any alcohol consumption leads foreseeably to rape. Again, without knowing how often alcohol is consumed, it begs the question to say that alcohol use is “prevalent” in a high number of assaults.
In its section on “social programming and alcohol,” the guide does address the effects of alcohol, indicating:
“Alcohol is a depressant. It slows down your bodily functions and the ability to respond. It does not increase the sex drive, but will decrease your inhibitions.”
Although decreased inhibition suggests misjudgments, the statement still does not foretell the frequency of sexual assault in the larger context of all alcohol consumption. It is a statement, much too generalized, and insufficient to make a fraternity reader, who left alcohol in the possession of another fraternity member, legally liable for another member’s rape of a victim. See Chapman,
To be sure, no evidence in this record says that there is an “epidemic” of sexual abuse. The raw numbers and the proportions are not here. Nor is there any evidence in this record that alcohol-related sexual assaults were prevalent in fraternities on college campuses nationwide. To say so is to misconstrue the guide’s statistic. To say so is to speculate. To say so is to make an inference that is not rational or reasonable. See Chapman,
Liability for a third person’s intentional violence should not be easier to prove than liability for a third person’s drunk driving. Oregon cases have established that the risk of violence is not reasonably foreseeable simply from having served someone who is visibly intoxicated. See, e.g., Moore,
Even if plaintiff’s statistic were what it is not — a national statistic on the frequency of sexual assault among all occasions of alcohol consumption — it would only be the
The Beta Chapter correctly contended that plaintiffs reliance on a national statistic was too generalized to give it reason to have foreseen a crime which had no precedent in Sako’s past or in the group’s experience. We should remember from the cases on unsafe locations that “specific facts” showing a risk of crime at or near this location was necessary to show that a defendant had reason to foresee harm to plaintiff from an unexpected, third person. Uihlein,
III. CONCLUSION
I concur that the claim based on negligence per se cannot be dismissed for the reasons defendant had urged, but I cannot concur that the law permits a claim of ordinary negligence against the local fraternity. The offense is reprehensible, but on this record and on the negligence claim, the circle of blame for another’s crime should not go further than the offender. Therefore, I reluctantly dissent.
Speaking of cases without a special duty, the court commented that “the issue of liability for harm actually resulting from defendant’s conduct properly depends on whether that conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.” Fazzolari,
In Chapman, we recognized that ordinarily foreseeability is a jury question but noted that that principle “is not a rule of law, it is a rule of thumb.”
This line of cases involving specific knowledge of a dangerous person has extended to the negligence of an off-duty employee. The employer’s knowledge of an overworked employee’s schedule permitted the possibility of liability, when the weary, off-duty employee was involved in an auto accident. Faverty v. McDonald’s Restaurants of Oregon, Inc.,
In a variation on the unsafe location theme, the defendant’s summary judgment was reversed in Cunningham v. Happy Palace, Inc.,
Certain Rotary defendants, sponsors of the international exchange program in which the student participated, were also named defendants.
Dissenting, a member of this court was unpersuaded that the incidents at or around the nightclub gave the nightclub defendants reason to foresee the incident. Id.
The majority borrows instead from Chapman, a dangerous person case, to set up the majority’s proposition that this rape should have been foreseeable to the local fraternity by reason of its training about the general risk of alcohol-related misconduct. The majority holds that, notwithstanding Buchler or Moore, defendant’s imagined knowledge of the general risk of alcohol-related assault satisfies foreseeability to render a defendant liable for facilitating this crime.
Because it reverses, the majority opinion does not address the declaration of plaintiff’s counsel that plaintiff retained an expert to support the claims. Plaintiff indicated that the expert would testify that the fraternity breached a duty of care. Because the critical issue is what the Beta Chapter knew or had reason to know, and, because witnesses were deposed and provided concrete information on'what the local fraternity knew or had reason to know, an outside expert’s opinion would seem to amount to no more than the doctor or the bartender down the street in Chapman, who could offer little that was helpful to the requisite foreseeability involving what the local defendant knew or, by reason of local circumstances, should know. See Belgarde v. Linn,