The Indiana Southern District Court has partially denied summary judgment to an Indiana University fraternity implicated in a campus sexual assault after finding “open issues” in the applicability of Indiana Supreme Court precedent concerning foreseeability in the context of duty.
Chief Judge Jane Magnus-Stinson certified several questions to the Indiana Supreme Court in her Tuesday order in Jane Doe No. 62 v. Delta Tau Delta Beta Alpha Chapter, 1:16-cv-01480, which traces back to the April 2015 sexual assault of an IU student identified as Jane Doe. Doe was attending an event at the Delta Tau Delta fraternity house and had been consuming alcohol before and during the assault.
Doe was seen entering the house with fraternity member John Enochs and later called police to report that Enochs had sexually assaulted her. Enochs eventually pleaded guilty to battery.
Doe also sued the fraternity, alleging four forms of negligence rising from its alleged failure to protect her from the assault. Doe maintained that because the fraternity had been made aware of a previous assault allegedly committed by Enochs — against another student, M.S., in October 2013 — it owed her a duty of care.
DTD, however, maintained that the harm Doe suffered was not foreseeable, so she was owed no duty of care. The fraternity moved for summary judgment on those grounds.
Magnus-Stinson used those arguments to delve into a discussion of Indiana precedent regarding the role foreseeability plays in negligence claims. The most recent Supreme Court discussion of that issue came through two 2016 companion cases, Goodwin v. Yeakle’s Sports Bar & Grill, 62 N.E.3d 384 and Rogers v. Martin, 63 N.E.3d 316. The court in those cases concluded that in the context of duty, “foreseeability is a general threshold determination that involves an evaluation of (1) the broad type of plaintiff and (2) the broad type of harm.”
However, those cases did not make clear what role prior notice or actual knowledge play in the analysis, Magnus-Stinson wrote. She pointed to Hamilton v. Steak ‘n Shake Operations, Inc., 92 N.E.3d 1166 (Ind. Ct. App. March 7, 2018) — which overturned summary judgment for Steak ‘n Shake after employees failed to prevent an escalating conflict that resulted in a patron being shot in the face — as an example of a state case that grapples with those “open questions.” A petition to transfer Hamilton is pending before the Supreme Court.
Looking to the instant case, Magnus-Stinson said she would define the broad type of plaintiff as a “female social invitee” and the broad type of harm as “sexual assault.” However, she also said it is not clear how the justices would rule on the question presented here — whether a fraternity chapter owes a duty to protect female social invitees from sexual assault.
“The Court could decide these issues in the first instance, but doing so would deprive the Indiana Supreme Court of the opportunity to address these legal questions in light of the relatively new and unexplored precedent presented by Rogers and Goodwin,” Magnus-Stinson wrote before certifying four questions to the Indiana Supreme Court, including:
• “Under the standard articulated in Rogers and Goodwin, may a court consider the actual knowledge of a defendant in determining the foreseeability of any event in the context of a duty analysis? If so, does it properly do so by framing either the class of plaintiff or the harm in terms of that knowledge?”
• “Under Indiana law, does a fraternity owe a duty to a female social invitee to protect her from sexual assault by a member of the fraternity during a fraternity-sponsored event?”
• “Does the analysis change where there is evidence that prior to the event some fraternity members were told by a third party that the fraternity member had on an earlier occasion sexually assaulted a female?”
• “Is the analysis impacted by evidence that the female social invitee may have been under the influence of alcohol, most of which was consumed off premises, at the time of the sexual assault?”
Given that certification, the district court denied Delta Tau Delta’s motions for summary judgment on Doe’s claim of premises liability negligence, general negligence, and willful, wanton and reckless misconduct, but without prejudice to further argument after Indiana Supreme Court review. However, the chief judge granted summary judgment on Doe’s negligent retention and supervision claim because there is no legal basis to extend employer-employee duty to the context of a fraternity chapter and its members.