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Brown v. Delta

Supreme Judicial Court of Maine

June 18, 2015


Argued December 10, 2014.

Dismissal of vicarious liability claims affirmed. Summary judgment in favor of Delta Tau Delta on the premises liability claim vacated; summary judgment on the remaining counts affirmed. Summary judgment in favor of Delta Tau Delta Housing Corporation affirmed. Remanded for further proceedings consistent with this opinion.

On the briefs:

Thomas L. Douglas, Esq., and Anne E. Schools, Esq., Douglas McDaniel Campo & Schools LLC, PA, Westbrook, for appellant Elizabeth Brown.

Wendell G. Large, Esq., Carol I. Eisenberg, Esq., and Joseph L. Cahoon Jr., Esq., Richardson, Whitman, Large & Badger, Portland, for appellees Delta Tau Delta and Delta Tau Delta National Housing Corporation.

At oral argument:

Thomas L. Douglas, Esq., for appellant Elizabeth Brown.

Carol I. Eisenberg, Esq., for appellees Delta Tau Delta and Delta Tau Delta National Housing Corporation.

Panel: ALEXANDER, GORMAN, JABAR, HJELM, and CLIFFORD, JJ. Majority: GORMAN, JABAR, and HJELM, JJ. Concurrence/Dissent: ALEXANDER, J. Dissent: CLIFFORD, J.



[¶1] Elizabeth Brown appeals from the Superior Court's (Penobscot County, Cuddy, J. ) entry of a summary judgment in favor of Delta Tau Delta (DTD) and Delta Tau Delta National Housing Corporation (DTDNHC) on her claims arising out of events that occurred at the fraternal organization's Gamma Nu chapter[1] located on the University of Maine's Orono campus (UMO). Brown argues that the court erred in concluding that neither DTD nor DTDNHC owed her a duty of care sufficient to support her negligence claims, and in dismissing her claims seeking to hold DTD and DTDNHC vicariously liable. Because we conclude that DTD owed a duty to its collegiate chapters' social invitees sufficient to support Brown's claim based on premises liability, we vacate that portion of the summary judgment. We affirm the summary judgment on the remaining claims against DTD. We also affirm and do not further discuss the summary judgment as to DTDNHC because there is nothing in the record suggesting that the property-holding corporation had a duty, based on premises liability or otherwise, to Gamma Nu's social invitees.


[¶2] Viewed in the light most favorable to Brown, as the nonmoving party, the summary judgment record establishes the following facts. See Budge v. Town of Millinocket, 2012 ME 122, ¶ 12, 55 A.3d 484.

[¶3] On September 17, 2010, Gamma Nu hosted a party at its DTD fraternity house that was restricted to invited guests only. Brown, a UMO student, was invited to the party by Joshua Clukey, a member of Gamma Nu. Brown arrived at the fraternity house between 11:00 and 11:30 p.m. and found Clukey. Brown and Clukey, who had both been drinking alcoholic beverages, went upstairs to Clukey's room, past a fraternity member whose function was to limit access to the upper floors to residents and their guests. Inside his room, Clukey sexually assaulted Brown and prevented her from leaving the room for several minutes.

[¶4] The day after the party, Brown reported the incident to the fraternity president, who told her " the fraternity had been concerned about Clukey for a while" because he had developed a drinking problem and had recently caused property damage and engaged in fights with other fraternity brothers. The fraternity president reported the incident involving Brown to the chapter consultant, who is employed by the national fraternity, DTD. The following week, the local chapter expelled Clukey from the fraternity for engaging in conduct unbecoming a member and for violating the national fraternity's code of conduct and rules regarding alcohol and hazing. Clukey was notified of his expulsion by letter from the national fraternity.

[¶5] On September 11, 2012, Brown filed a civil complaint against Clukey, DTD,[2] and DTDNHC.[3] DTDNHC is an Indiana non-profit corporation that holds property for DTD and leases the fraternity house to Gamma Nu. DTD is a national non-profit corporation organized in New York and doing business in Indiana; Gamma Nu is its local chapter at UMO. DTD's purpose is to advance its mission and values by providing resources to local chapters and regulating them through risk management policies, a member code of conduct, and oversight by chapter consultants and alumni advisors. DTD's constitution and by-laws set forth an intricate hierarchy of rules and regulations " to provide for the effective organization of [fraternity] operations on the international, division, and chapter levels," including member initiation regulations, implementation of national Member Responsibility Guidelines (MRGs), and enforcement mechanisms.

[¶6] Brown's initial complaint alleged counts of assault and false imprisonment against Clukey, and vicarious liability against both DTD and DTDNHC. Through subsequent amendments to her complaint, Brown added counts of negligence, premises liability, and negligent infliction of emotional distress against Clukey, DTD, and DTDNHC, and requested recovery of punitive damages from Clukey.

[¶7] In October 2013, Clukey was dismissed from the case with prejudice following Brown's settlement of her claims against him. On January 29, 2014, the court granted DTD and DTDNHC's motion to dismiss with respect to the issue of vicarious liability and denied the motion in all other respects. After entry of this order, Brown's remaining counts against DTD and DTDNHC alleged negligence, negligent infliction of emotional distress, and premises liability. On March 17, 2014, the court granted DTD and DTDNHC's motion for summary judgment, concluding that neither DTD nor DTDNHC owed Brown a duty of care. Brown appeals.


[¶8] Because there is nothing in the record suggesting that Clukey was acting as an agent of DTD or DTDNHC at the time of the assault, we reject Brown's vicarious liability claims and focus only on her claims of negligence. We review de novo the court's entry of summary judgment in favor of DTD based upon the legal determination that DTD did not owe Brown a duty of care. See Estate of Cabatit v. Canders, 2014 ME 133, ¶ 8, 105 A.3d 439.

A. Duty

[¶9] Even though the issue is fact driven, the question of duty is a legal question decided by the court, not the jury. See Michaud v. Great N. Nekoosa Corp., 1998 ME 213, ¶ 15, 715 A.2d 955. Because it is a mixed question of law and fact, the facts in any given case will determine whether an entity has a duty to the putative plaintiff. See Cameron v. Pepin, 610 A.2d 279, 282 (Me. 1992). This is a multi-factored analysis that necessarily evokes policy-based considerations including the just allocation of loss. See id.

[¶10] The undisputed facts in this case do not give rise to a duty beyond that related to Brown's premises liability claim. Specifically, the summary judgment record reveals no " special relationship" between Brown and DTD sufficient to sustain Brown's general negligence claim, see DeCambra v. Carson, 2008 ME 127, ¶¶ 11-12, 953 A.2d 1163 (holding that, absent a special relationship between the parties, " there is no general obligation to protect others from the actions of third parties, even where one knows the third party is or could be dangerous" ), nor does it reveal a special relationship or facts that would give rise to bystander liability sufficient to support Brown's negligent infliction of emotional distress claim, see Curtis v. Porter, 2001 ME 158, ¶¶ 18-19, 784 A.2d 18 (holding that, except in bystander liability claims or when " a special relationship exists between the actor and the person emotionally harmed," there is " no . . . general duty to avoid negligently causing emotional harm to others" ). However, as our discussion will illustrate, the facts here give rise to a question of duty founded on premises liability. The issue is thus whether, based on the factual record, the national fraternity has a duty to exercise reasonable care for the safety of its local chapter's social invitees during functions sponsored by the local chapter and held at the DTD fraternity house.

[¶11] We have determined that a duty founded on premises liability exists between a university and its business invitees. Stanton v. Univ. of Me. Sys., 2001 ME 96, ¶¶ 8, 10, 773 A.2d 1045. In Stanton, a visiting student at the University of Southern Maine was sexually assaulted in her dormitory room. Id. ¶¶ 2-3. We held that, in light of the relationship between the University as the owner of the dormitory and the female student as its business invitee, as well as the foreseeability of a sexual assault occurring within a dormitory room, " the University owed a duty to reasonably warn and advise students of steps they could take to improve their personal safety." Id. ¶¶ 8-10; see also Schultz v. Gould Acad., 332 A.2d 368, 370 (Me. 1975) (" Plaintiff, as a student attending the defendant Academy, had the legal status of a business invitee, to whom defendant's employee owed a duty to exercise reasonable care in taking such measures as were reasonably necessary for [the student's] safety in light of all then existing circumstances." )

[¶12] Though we have not previously addressed the question of a national fraternity's duty to its local chapter's social invitees, courts in other jurisdictions condition the existence of a duty on the extent of the national fraternity's control over the local chapter. In Grenier v. Comm'r of Transp., 306 Conn. 523, 51 A.3d 367, 373-74, 389 (Ct. 2012), the Connecticut Supreme Court considered whether a national fraternity's level of involvement with its local chapter was sufficient to give rise to a duty of care owed by the fraternity to a local member who suffered fatal injuries in an automobile accident while returning from a chapter event. Noting that different courts had reached different conclusions, the Grenier court held,

Ultimately, whether a national fraternity may be held liable for the actions of one of its local chapters depends both on its ability to exercise control over the local chapter as well as its knowledge either that risk management policies are not being followed or that the local chapter is engaging in inappropriate behavior.

Id. at 388. In reversing summary judgment entered in favor of the national fraternity, the court considered evidence that the fraternity provided financial resources to, imposed risk management standards on, and maintained supervisory and enforcement authority over the local chapter. Id. at 389. It also considered evidence that the national fraternity conducted chapter leadership training and regulated member conduct through rules and regulations, including those related to the use of alcohol. Id.

[¶13] In Morrison v. Kappa Alpha Psi Fraternity, 738 So.2d 1105, 1118 (La. Ct.App. 1999), the Louisiana Court of Appeal determined that a national fraternity owed a duty to protect a pledge from injuries caused during its local chapter's hazing activities when the national organization was aware of prior hazing activities at that chapter. In that case, the national fraternity was " responsible for all that [went] on in its chapters, as it ha[d] the right to control intake, expel or suspend members, and revoke charters" ; had officers and alumni advisors responsible for auditing and supervising local chapters' compliance with fraternity rules; and had educational programs and workshops " to address the problem of hazing." Id. But see Walker v. Phi Beta Sigma Fraternity, 706 So.2d 525, 529 (La. Ct.App. 1997) (concluding that a national fraternity with no notice of hazing activities and no authority to control the day-to-day activities of a local chapter had no duty to protect a member from hazing injuries despite the national organization's general anti-hazing policy).

[¶14] As these cases illustrate, the inquiry as to the existence of a duty is fact-intensive. Here, we look to general principles of duty, with particular emphasis on the undisputed facts relevant to foreseeability, control, and the relationship of the parties, in determining whether a duty founded on premises liability exists between DTD and its local chapter's social invitees. See Stanton, 2001 ME 96, ¶ 8, 773 A.2d 1045; Hughes v. Beta Upsilon Bldg. Ass'n, 619 A.2d 525, 527 (Me. 1993) (" [Duty] arises only from a relationship that society recognizes as sufficient to create the duty. Just as control and foreseeability are factors in a duty analysis, so is the relationship of the parties." ). For the following reasons, the facts in this case dictate our holding.

1. Foreseeability

[¶15] Over a decade ago, we recognized that sexual assaults could foreseeably occur in a dormitory room on a college campus. Stanton, 2001 ME 96, ¶ 10, 773 A.2d 1045. Certainly, nothing has occurred during the past fourteen years to make such events less foreseeable. It is similarly foreseeable that allowing a group of eighteen-to-twenty-year-olds control over a residence where alcohol-related parties are held presents the potential for misconduct, including sexual assault. A national fraternity knows, or should know, that social events carried on in a building that houses one of its local chapters presents the potential for sexual assault, particularly where alcohol consumption is an integral part of the event.

[¶16] The mechanisms through which DTD controls the behavior of its members, discussed below, demonstrate its awareness of these potential problems. DTD's " Policy on Alcohol and Substance Abuse," which is integrated into the MRGs, recognizes that the " well known dangers of alcohol and substance abuse" may be manifested by " relationship problems, including inappropriate sexual behavior [or] harassment." The MRGs also state:

The Fraternity will not tolerate or condone any form of abusive behavior, including sexist or sexually abusive behavior, on the part of its members, whether physical, mental or emotional . . . . This is to include any actions, activities, or events, whether on chapter premises or an off-site location directed toward members or non-members or any actions which are demeaning to women or men . . . . Such behavior includes . . . sexual assault.

[¶17] DTD's policies recognize the self-evident potential for excessive drinking and sexual abuse within the fraternity setting. These policies would make little sense unless such activities were foreseeable. See Stanton, 2001 ME 96, ¶ 10, 773 A.2d 1045 (" That a sexual assault could occur in a dormitory room on a college campus is foreseeable and that fact is evidenced in part by the security measures that the University had implemented." ); Mullins v. Pine Manor Coll., 389 Mass. 47, 449 N.E.2d 331, 337 (Mass. 1983).

2. Control

[¶18] The undisputed facts of this case demonstrate both DTD's authority to control its members as well as its actual control. Through its constitution, by-laws, and administrative connection to its local chapters' day-to-day activities, DTD ...

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