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Doe v. Andrews

United States District Court, M.D. Tennessee, Nashville Division

August 9, 2017

JANE DOE, Plaintiff,
JOSEPH McGREGOR ANDREWS, et al., Defendants.



         Before the Court are motions for summary judgment filed by each of the three organizational defendants in this diversity action arising out of an alleged sexual assault at a college fraternity house.

         Plaintiff Jane Doe[1] (“Doe”) brings causes of action for negligence and gross negligence against Defendants The Pi Kappa Alpha International Fraternity, Inc. (“National” or “Pi Kappa Alpha”), The Delta Epsilon Chapter of Pi Kappa Alpha International Fraternity, Inc. (the “Chapter”), and Delta Epsilon House Corporation (the “House Corporation”; and collectively with National and the Chapter, the “Fraternity Defendants”). Each of the Fraternity Defendants moves for summary judgment on Doe's causes of action against them for negligence and gross negligence, as well as on any implied claims she may have made for vicarious liability and negligent infliction of emotional distress. (Docs. 141, 144, and 147.) Doe filed a collective response to the motions (Doc. 159), and the Fraternity Defendants filed a joint reply (Doc. 169). The Court will GRANT the Fraternity Defendants' motions.

         I. BACKGROUND

         A. National and the Standards

         National is a collegiate fraternal organization whose stated purpose is to advance its members' educational interests, their leadership skills, and their standards of life, happiness, and integrity. It is a Tennessee corporation headquartered in Memphis, Tennessee. Its executive or governing board is known as its Supreme Council.

         The relationship between National and its respective chapters is described in a document entitled “Explanation of the Relationship Between The Pi Kappa Alpha International Fraternity & Chapters.” (See Doc. 147-9 at 4-11.) This document has been adopted by National and each of its chapters. National also makes available to its chapters a document they may use entitled “Explanation of the Relationship Between Chapters of The Pi Kappa Alpha International Fraternity & Members” discussing the relationship between chapters and their respective members. (See Doc. 147-9 at 12-20.)

         A local chapter must maintain certain standards as part of its charter in order to operate as a chapter of Pi Kappa Alpha in good standing. Those standards are set out in a one-page document entitled “The Pi Kappa Alpha International Fraternity Standards” (the “Standards”). (Doc. 147-9 at 21.) The Standards are drafted, presented, voted on, and adopted by the chapters at a biennial convention.

         The topics addressed in the Standards are “Alcohol & Drugs, ” “Hazing, ” “Sexual Abuse, ” “Fire, Health, & Safety, ” and “Education.” The first standard under “Alcohol & Drugs” is that “[t]he possession, use, and/or consumption of alcoholic beverages, while on chapter premises, during an official chapter event, or in any situation sponsored or endorsed by the chapter, must be in compliance with any and all applicable laws of the state, county, city and university.” (Id.) Other “Alcohol & Drugs” standards include prohibitions on drinking games, illegal drugs, the purchase of alcohol with chapter funds or in the name of the chapter, and the use of alcohol at recruitment, rush, or new member programs.

         The two standards under “Sexual Abuse” are:

1. No chapter shall tolerate or condone any form of sexually abusive behavior, whether physical, mental or emotional. This includes any actions that are demeaning to individuals, including but not limited to sexual assault, and sexual harassment.
2. Each member and new member shall refuse to engage in any sexually abusive behavior.

(Id.) The “Education” standards require the chapter president to present the Standards to the members at the beginning of each academic period, to educate each member and new member on risk management practices annually, and to adopt a chapter-specific health and safety program annually. The Standards end with certain disclaimers, including that

Each chapter . . . and its members are self-operated by adult college students, which means that these standards are self-enforcing by the chapters . . . and their members. It should be understood that the Fraternity DOES NOT and CANNOT oversee, monitor, supervise or direct the daily or any other activities of hundreds of chapters and thousands of members . . . .

(Id. (emphasis in original).)

         A chapter may choose not to adopt or adhere to the Standards at any time. The chapter would then lose the right to use the name, logo, trademark, educational materials, or any other intellectual property associated with National and would risk having its charter suspended or revoked. The Supreme Council has the authority to suspend a chapter's charter. A chapter's charter may only be revoked by chapter representatives during a biennial convention. Revocation or suspension of a chapter's charter does not affect the chapter's ability to function as an unincorporated entity under a different name.

         National does not have the ability to discipline, suspend, or revoke individual members of its chapters. (Doc. 162 [Pl.'s Resp. to Statement of Undisputed Facts] ¶ 15.)

         According to the deposition testimony of National's Rule 30(b)(6) witness, as of April 11, 2015, the date on which Doe alleges she was assaulted, National had knowledge of two sexual-misconduct allegations that had led to the discipline of a member or a chapter: first, a chapter had expelled a member based on a criminal sexual assault charge in Utah in 2014; second, National had suspended a chapter's charter in Florida in 2014 based on sexual misconduct allegations. In addition, National had knowledge of sexual assault allegations against a member in California in 2014, and it had knowledge of an alleged sexual assault at a chapter party in Montana in 2013.[2]

         B. The Chapter

         The Chapter is a Pi Kappa Alpha chapter in good standing with National. It operates on or near the campus of the University of Tennessee at Chattanooga (“UTC”). Individual members of the Chapter pay dues to the Chapter, and the Chapter pays fees to National. The Chapter posted a copy of the Standards in its off-campus fraternity house (the “House”).

         As of April 11, 2015, National had no knowledge of any allegations of sexual assault regarding the Chapter or any member of the Chapter. Also as of April 11, 2015, the local president of the Chapter had heard no allegations or suspicions of sexual misconduct by a member of the Chapter.

         C. The House Corporation and the Lease

         The House Corporation owns the House and leases it to the Chapter under a lease (the “Lease”) dated February 15, 2010. The Lease requires the Chapter to pay monthly installments of rent to the House Corporation in exchange for the right to occupy the House.[3] (Doc. 145-1 at 1.) The Chapter is generally responsible for upkeep of the House, including collecting rent from resident members, lawn care, routine maintenance, plumbing, routine heating and air repairs, and utilities. (Id. ¶¶ 2-9.) The House Corporation is responsible for maintaining structural systems, namely the roof, exterior walls, and the foundation; replacing mechanical systems if the need for replacement results from normal wear and tear; property taxes; and any mortgage payments on the House. (Id. ¶¶ 12, 15, 16.) The House Corporation is responsible for fire insurance, the Chapter is responsible for liability insurance, and individual tenants are responsible for any personal property insurance they wish to procure. (Id. ¶ 14.)

         The Lease also includes the following conditions:

That the Chapter use and permit the use of the Premises only as a fraternity house for the Chapter and in compliance with all Federal, State or Province, and local laws, regulations and ordinances, as well as the “Standards for retention of Membership, Officer Status and Chapter Charter in Good Standing” of the Pi Kappa Alpha International Fraternity, and any applicable and relevant rules of the Chapter's host institution (University or College) and any duly authorized governing bodies of the Fraternity system in which the Chapter has membership. The Chapter shall have the sole responsibility of insuring that the members comply with this provision and a violation of this covenant shall result in the immediate termination of all the Chapter's rights to possess and use the property as is provided below.
. . .
That the duly authorized agents and representatives of the Corporation and/or University and/or Pi Kappa Alpha Fraternity have the right at any time to enter upon and in (sic) the Premises for the purpose of inspecting them.

(Id. ¶¶ 10, 19.) As of April 11, 2015, the House Corporation was not aware of any violations of the Lease or of any allegations of underage drinking at the House.

         D. The Party and the Alleged Sexual Assault

         In the spring of 2015, Defendant Joseph McGregor Andrews (“Andrews”) was a UTC student and a member of the Chapter. On April 11, 2015, he attended a “rave” themed party the Chapter hosted at the House. The Chapter had roped off the party area with caution tape and locked non-public entrance doors to ensure guests checked into the party. The Chapter's risk-management team checked guests' identification at the entrance to the party and placed an X on guests who were under twenty-one using an indelible black marker and placed a wristband on guests who were of drinking age. The Chapter used “sober monitors” stationed around the party to monitor the guests. Sober monitors were responsible for turning people away from the party or removing them from the party when they appeared to be too intoxicated.

         The Chapter did not purchase alcohol for the party. Guests who brought alcohol had to check that alcohol in with sober monitors, and it was kept behind a table. Guests wearing an “above age” wristband could check their alcohol back out when they wanted to drink it.

         Doe attended the party as Andrews's guest. She had consumed some alcohol voluntarily before arriving at the House. Andrews had been drinking at the House throughout the day. Both Doe and Andrews were under twenty-one years old and therefore under age for drinking alcohol.

         In the car on the way to the party, Andrews said he wanted Doe to get black out drunk and he wanted to hook up with her. Given the context, it is reasonable to infer in Doe's favor for purposes of the Fraternity Defendants' motions that Andrews was referring to sexual activity. Doe asked the driver of the car to look out for her, and he agreed to do so.

         After initially arriving at the House, Doe went back out with Andrews to buy more alcohol. On returning to the House, Doe and Andrews stayed on the porch for a time. The porch was not roped off and was not considered part of the party area. While on the porch, Doe consumed fewer than four swigs of whiskey. Andrews encouraged her to keep drinking, at times holding the bottle to her mouth for her to drink. All of the alcohol Doe consumed that night was provided by Andrews, not by the Chapter.[4]

         While on the porch, Doe told Andrews that his longtime girlfriend, Haley Smith, had been cheating on him. Andrews became upset. Sometime after this, Andrews and Doe went from the porch into the party area.

         Doe asserts she does not remember anything that happened between when she left the porch and the next morning because she was “blackout” drunk.[5] She asserts, however, that Andrews sexually assaulted her in a locked bathroom of the House, breaking one of her teeth in the process. The Fraternity Defendants admit only for purposes of their motions for summary judgment that Andrews committed a sexual assault on Doe in the bathroom of the House.

         Andrews then obtained a sober ride and took Doe back to his apartment. Once there, Doe vomited on herself from alcohol consumption. A female friend of Doe's picked Doe up from Andrews's apartment and the two women slept in their car. The next morning, they returned to their college in Birmingham, Alabama. Doe discovered her chipped tooth around noon that day and inquired into her actions of the night before. Doe was then confronted by Andrews's ex-girlfriend, Smith, who was angry about a picture Andrews had sent Smith showing Doe lying in his bed. Doe asked Andrews that afternoon if they had had sex, and he told her they sort of had sex in the bathroom of the House. Doe went to a rape crisis center and made complaints of sexual assault to UTC and law enforcement.

         Andrews was suspended by the Chapter in April 2015.


         Summary judgment is proper when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the burden of demonstrating no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003). A factual dispute is “material” only if its resolution might affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court should view the evidence, including all reasonable inferences, in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat'l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001).

         To survive a motion for summary judgment, “the non-moving party must go beyond the pleadings and come forward with specific facts to demonstrate that there is a genuine issue for trial.” Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002). Indeed, a “[plaintiff] is not entitled to a trial on the basis of mere allegations.” Smith v. City of Chattanooga, No. 1:08-cv-63, 2009 WL 3762961, at *2-3 (E.D. Tenn. Nov. 4, 2009) (explaining the court must determine whether “the record contains sufficient facts and admissible evidence from which a rational jury could reasonably find in favor of [the] plaintiff”). In addition, should the non-moving party fail to provide evidence to support an essential element of its case, the movant can meet its burden of demonstrating no genuine issue of material fact exists by pointing out such failure to the court. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).

         At summary judgment, the Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). The Court may not weigh the evidence or make credibility determinations. Id. at 255. If the Court concludes a fair-minded jury could not return a verdict in favor of the non-movant based on the record, ...

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