United States District Court, M.D. Tennessee, Nashville Division
L. COLLIER UNITED STATES DISTRICT JUDGE.
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
Jane Doe (“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
National and the Standards
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.
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.)
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
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
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
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,
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).)
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.
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.)
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.
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
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.
The House Corporation and the Lease
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. (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.)
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
The Party and the Alleged Sexual Assault
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.
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.
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.
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
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.
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.
asserts she does not remember anything that happened between
when she left the porch and the next morning because she was
“blackout” drunk. 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.
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.
was suspended by the Chapter in April 2015.
STANDARD OF REVIEW
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
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).
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, ...