Smith, District Judge.
This tragic case arises from a man's brutal murder of his 18-year-old girlfriend in her university dorm room after they attended a fraternity party together. The victim's parents attribute some responsibility for the murder to the university, the local fraternity chapter and certain of its members who hosted the party their daughter and her boyfriend attended, and that chapter's national fraternal organization. Specifically, they assert negligence claims against each of the fraternity defendants and a Title IX claim against the university. At bottom, the plaintiffs believe that each of the defendants, through their own actions, contributed to the chain of events that allowed their daughter's boyfriend to strangle her to death in the early morning hours of February 8, 2015. The defendants respond that these events, while undoubtedly heart-rending, can only legally be attributed to the boyfriend and his unforeseeable, extraordinary act of murder. Thus, they have moved for summary judgment in their favor.
While undoubtedly sympathetic to the plaintiffs' loss, the court is constrained to agree with the defendants. As to the national fraternity, the Pennsylvania Supreme Court has unequivocally held that a
The court emphasizes the limited nature of its role in assessing the events at issue. The question for the court to answer is not whether everyone who played any role in the events acted ethically but only whether the facts here can establish civil liability. Ultimately, the answer to that limited question is no. Therefore, the court will grant the defendants' motions for summary judgment.
The plaintiffs, Jeannette A. Hall and John J. Hall, as administrators and personal representatives of the Estate of Karlie A. Hall, and in their own right as the decedent's heirs-at-law, commenced this action by filing a complaint on January 17, 2017. Compl., Doc. No. 1. The complaint asserted claims for deliberate indifference under Title IX, substantive due process violations and state-created danger under 42 U.S.C. § 1983, and a survival action against Millersville University ("Millersville" or the "University") and Sara Wiberg ("Wiberg")—the resident assistant for the dormitory where the decedent, Karlie A. Hall ("Karlie"), lived; as well as a survival action under negligence and negligence per se theories against Acacia National Fraternity ("Acacia"); Acacia Fraternity, Millersville Chapter ("Chapter 84" or the "Chapter"); and Chapter 84 individual members Colin Herbine ("Herbine"), Jack Milito ("Milito"), Nicholas Hench ("Hench"), Sean Ebert ("Ebert"), Nigale Quiles ("Quiles"), and John Does 1-5. Id. at ¶¶ 8-19, 88-154. The plaintiffs also asserted wrongful death claims against all defendants. Id. at ¶¶ 145-54.
Ebert, Millersville and Wiberg, and Hench filed separate motions to dismiss the complaint for failure to state a claim on February 27, 2017, March 7, 2017, and March 13, 2017, respectively. Doc. Nos. 23, 44, 45. On March 13, 2017, the plaintiffs filed a response in opposition to Ebert's motion to dismiss. Doc. No. 46. Chapter 84 and the individual member defendants filed a joint motion to dismiss on March 20, 2017.
On April 21, 2017, the court granted the plaintiffs' motions for leave to file sur-replies to Milito's and Millersville and Wiberg's replies to their opposition briefs, which they filed on May 1, 2017. Doc. Nos. 69-72, 75. Chapter 84 (with the individual members) and Hench filed their separate replies to the plaintiffs' oppositions on April 24, 2017. Doc. Nos. 73-74. The court granted the plaintiffs' motion for leave to file a sur-reply to Chapter 84 and the individual members' reply on May 2, 2017, which the plaintiffs filed on May 12, 2017. Doc. Nos. 78, 80. The plaintiffs filed their response in opposition to Acacia's motion to dismiss on May 10, 2017. Doc. No. 79. Chapter 84 (with the individual members) and Acacia filed their responses in further support of their motions to dismiss on May 12, 2017, and June 16, 2017, respectively. Doc. Nos. 80, 83.
After oral argument on July 27, 2017, the court denied the motions to dismiss separately filed by Ebert, Hench, Chapter 84 (with its individual members), and Acacia, without prejudice to these defendants re-raising their arguments in motions for summary judgment. Sept. 29, 2017 Order at 2, 4, Doc. No. 87. The court also denied in part and granted in part Millersville and Wiberg's motion, dismissing with prejudice the Title IX claims against Wiberg (to which the plaintiffs did not object), the section 1983 individual liability claims against Wiberg based on qualified immunity, and the section 1983 official capacity claims against Wiberg. Id. at 2-3 and n.1, 2. The court further dismissed without prejudice the section 1983 claim against Millersville based on Eleventh Amendment immunity. Id. at 3 and n.3.
The defendants then filed separate answers to the complaint between October 11 and 13, 2017. Doc. Nos. 88-95. On October 31, 2017, the court entered a scheduling order allowing the plaintiffs to file an amended complaint to identify the fictitious defendants by March 2, 2018, Scheduling Order at 2, Doc. No. 98, but the plaintiffs declined to do so. By stipulation of the parties, the court dismissed Milito from the action on February 15, 2018, and Ebert from the action on September 4, 2018. Doc. Nos. 108, 137.
Millersville filed a motion for summary judgment on September 17, 2018. Doc. No. 147. The plaintiffs filed a response in opposition on October 17, 2018. Doc. No. 148. Acacia filed its motion for summary judgment on October 19, 2018. Millersville filed a reply in response to the plaintiffs' opposition brief on November 9, 2018. Doc. No. 151. The plaintiffs filed a response in opposition to Acacia's summary judgment motion on November 9, 2018. Doc. No. 152. The plaintiffs filed a response in opposition to Chapter 84 and the remaining individual members' (Herbine and Quiles) motion for summary judgment on November 9, 2018. Doc. No. 153. Acacia and Chapter 84 filed separate replies in further support of their summary judgment motion on November 16, 2018. Doc. Nos. 157, 158. The court heard oral argument on the parties' briefing on November 29, 2018. The summary
Karlie met and began dating Gregorio Orrostieta ("Orrostieta") in March 2014, towards the end of her senior year of high school. Millersville University's Statement of Material Facts in Supp. of its Mot. for Summ. J. ("Millersville SOF") at ¶ 1, Doc. No. 147-2; Pls.' Response to Def. Millersville University's Statement of Material Facts in Supp. of its Mot. for Summ. J. ("Pls.' Resp. to Millersville SOF") at ¶ 1, Doc. No. 148-3. Over that summer, Orrostieta regularly stayed at the Hall home. Millersville SOF at ¶ 3; Pls.' Resp. to Millersville SOF at ¶ 3. On one occasion, Karlie was in the shower when her twin sister, Kristen Hall ("Kristen"), heard Orrostieta screaming at her about text messages she had sent. Millersville SOF at ¶ 4; Pls.' Resp. to Millersville SOF at ¶ 4. At one point during the fight, Kristen heard Karlie yell, "you hit me." Millersville SOF at ¶ 5; Pls.' Resp. to Millersville SOF at ¶ 5. Kristen does not recall whether she ever discussed the fight with Karlie. Millersville SOF at ¶ 6; Pls.' Resp. to Millersville SOF at ¶ 6.
At another point that summer, Orrostieta and Karlie were locked in a room during a party at the Hall home, when Kristen heard "a lot of banging," which worried her. Millersville SOF at ¶ 8 (quoting Kristen's deposition testimony); Pls.' Resp. to Millersville SOF at ¶ 8. Kristen did not discuss the incident with Karlie or their mother. Millersville SOF at ¶ 9; Pls.' Resp. to Millersville SOF at ¶ 9. After Karlie's death, her mother learned from reviewing Karlie's Facebook messages with Orrostieta that he had physically abused her on multiple occasions. Millersville SOF at ¶ 12; Pls.' Resp. to Millersville SOF at ¶ 12.
That fall, Karlie and Kirsten started as freshmen at Millersville, with Karlie living in a dorm room in Bard Hall. Millersville SOF at ¶ 13; Pls.' Resp. to Millersville SOF at ¶ 13. She and Orrostieta continued their relationship, and he frequently visited her and stayed as her guest in her dorm room. Millersville SOF at ¶ 15; Pls.' Resp. to Millersville SOF at ¶ 15.
On October 4, 2014, Karlie and Orrostieta returned to her room from a party, at which time Karlie's roommate, Tina Flexer ("Tina"), noticed Karlie was crying. Millersville SOF at ¶ 18; Pls.' Resp. to Millersville SOF at ¶ 18. Karlie then left the room and went to the bathroom. Dep. of Tina Flexer ("Tina Dep.") at 46:14-23, Doc. No. 147-8. Tina left the room and ran into Karlie in the hallway, at which point she told Tina that she had had a verbal fight with Orrostieta. Id. at 47:5-18. Wiberg had also seen Karlie crying in the hallway, and she asked to speak to Tina in
Wiberg then knocked on the door. Millersville SOF at ¶ 20; Pls.' Resp. to Millersville SOF at ¶ 20. When Orrostieta answered, Karlie was in bed with her back to them. Millersville SOF at ¶ 20; Pls.' Resp. to Millersville SOF at ¶ 20. Orrostieta explained that the noises were from him trying to "force himself into bed" with Karlie, and that "things got a little physical" when Karlie "pushed him away." Millersville SOF at ¶¶ 20-21; Pls.' Resp. to Millersville SOF at ¶¶ 20-21. Wiberg testified that at one point, Orrostieta "put his hand on [Wiberg's] shoulders," and that she perceived him as trying to "shift[ ] the focus" when she asked why Karlie had yelled "ow." Pls.' Resp. to Millersville SOF at ¶¶ 20-21; Wiberg Dep. at 56:14-15, 79:14-21.
Wiberg testified that when she approached Karlie, she saw her face was "red and puffy" as if she had been crying, but she did not see any physical injuries. Millersville SOF at ¶ 22; Pls.' Resp. to Millersville SOF at ¶ 22. Tina testified she and Wiberg both observed an injury to Karlie's eye and that they got an ice pack to put on Karlie's face. Pls.' Resp. to Millersville SOF at ¶ 22; Tina Dep. at 124:5-20. Karlie then told Wiberg that she wanted Orrostieta to leave but would not say anything else. Millersville SOF at ¶ 23; Pls.' Resp. to Millersville SOF at ¶ 23. In the hallway, Orrostieta begged Wiberg to allow him to stay, but as Karlie had said she wanted him to leave, he could no longer be her guest, so Wiberg called the police. Millersville SOF at ¶ 24; Pls.' Resp. to Millersville SOF at ¶ 24.
Officer Brian Liddick of the Millersville University Police responded to a call for "subject refusing to leave campus." Millersville SOF at ¶¶ 25, 26; Pls.' Resp. to Millersville SOF at ¶¶ 25, 26. Officer Liddick drove Orrostieta to a nearby gas station, where a friend had agreed to pick him up. Millersville SOF at ¶ 27; Pls.' Resp. to Millersville SOF at ¶ 27. Wiberg created an Incident Report, which she submitted to Assistant Director of Judicial Affairs Ron Wiafe. Millersville SOF at ¶ 29; Pls.' Resp. to Millersville SOF at ¶ 29. Officer Liddick did not create an incident report until after the murder. Millersville SOF at ¶ 28; Pls.' Resp. to Millersville SOF at ¶ 28.
Tina returned to the dorm room later and spoke to Karlie about the incident. Millersville SOF at ¶ 30; Pls.' Resp. to Millersville SOF at ¶ 30. Karlie kept her back to Tina, but Tina eventually saw that "there was something weird with her eye" and it "was really red." Millersville SOF at ¶ 30 (quoting Tina Dep. 61:1-19); Pls.' Resp. to Millersville SOF at ¶ 30. Karlie told Tina that Orrostieta had "pushed with the heel of [his] hand on her eye" and "push[ed] her down into the pillow." Millersville SOF at ¶ 31; Pls.' Resp. to Millersville SOF at ¶ 31.
Tina called her mother, Renea Flexer ("Renea"), to describe the incident the next day, because she was concerned about Karlie and believed that Orrostieta may have hit her. Millersville SOF at ¶ 36; Pls.' Resp. to Millersville SOF at ¶ 36. Renea
From the night of February 7, 2015, to the early morning hours of February 8, 2015, Karlie and Orrostieta attended a party with a group of friends, including Karlie's sister, Kristen. Millersville SOF at ¶ 51; Pls.' Resp. to Millersville SOF at ¶ 51. Members of one of Millersville's fraternities, Acacia Chapter 84, hosted the party at their house, which was decorated with Acacia paraphernalia and symbols and known locally as the "Acacia House." Acacia Fraternity Chapter Number 84, Colin Herbine and Nigale Quiles' Statement of Material Facts in Supp. of Their Mot. for Summ. J. ("Chapter 84 SOF") at ¶ 8, Doc. No. 149-2; Pls.' Resp. to Acacia Frat[ern]ity Chapter Number 84, Colin Herbine and Nigale Quiles' Statement of Material Facts in Supp. of Their Mot. for Summ. J. ("Pls.' Resp. to Chapter 84 SOF") at ¶ 8, Doc. No. 153-2. Witnesses testified that Karlie and Orrostieta purchased cups at the party for $5, which would allow them to consume alcohol while there. Pls.' Resp. to Chapter 84 SOF at ¶ 10.
After arriving at the party, one member of Karlie's friend group, Kyle Smith ("Smith"), witnessed Orrostieta "viciously" yell at Karlie, point his finger in front of her face, and then "push her into the wall pretty hard" before walking away. Chapter 84 SOF at ¶ 11; Pls.' Resp. to Chapter 84 SOF at ¶ 11. Smith testified that he was between five and ten feet away from Karlie and Orrostieta at the time, and he could not hear what Orrostieta was saying to Karlie but could tell from his demeanor that he was yelling. Pls.' Resp. to Chapter 84 SOF at ¶ 11; Dep. of Kyle Smith ("Smith Dep.") at 52:15-53:14, 88:15-23, Doc. No. 152-8. He did not know whether anyone else witnessed the altercation and did not tell any members of Chapter 84 what he had seen, including any of the "sober brothers" who were tasked with monitoring the party. Chapter 84 SOF at ¶ 11; Pls.' Resp. to Chapter 84 SOF at ¶ 11. A Chapter 84 member, Adam Krull ("Krull"), testified that, if an "assault"
After Karlie and Orrostieta returned to Karlie's dorm room, Karlie's neighbors reported to Wiberg that they heard furniture being moved in Karlie's room. Millersville SOF at ¶ 52; Pls.' Resp. to Millersville SOF at ¶ 52. Another student in a room next door reported to the police after the murder that he and a friend heard a "loud bump" that shook the wall, which was loud enough that another neighbor knocked on his friend's door to ask whether they had heard the noise as well. Voluntary Statement of Gerald Sanders, Doc. No. 148-17. They all then "heard the girl screaming for help." Id. Wiberg knocked on the door but heard nothing and did not pursue the matter further. Millersville SOF at ¶ 53; Pls.' Resp. to Millersville SOF at ¶ 53. Orrostieta had killed Karlie through "strangulation and multiple traumatic injuries," and he potentially sexually assaulted her. Millersville SOF at ¶ 54; Pls.' Resp. to Millersville SOF at ¶ 54 (quoting Postmortem Report, Doc. No. 148-18). He was later convicted of third-degree murder. Millersville SOF at ¶ 56; Pls.' Resp. to Millersville SOF at ¶ 56.
Acacia is an Illinois non-profit corporation headquartered in Indianapolis, Indiana, which operates as a men's collegiate fraternity. Acacia Fraternity, Inc.'s Statement of Undisputed Facts in Supp. of its Mot. for Summ. J. or, Alternatively, for Partial Summ. J. ("Acacia SOF") at ¶ 22, Doc. No. 150-2; Pls.' Resp. to Acacia Inc.'s Statement of Undisputed Material Facts in Supp. of its Mot. for Summ. J. or, Alternatively, for Partial Summ. J. ("Pls.' Resp. to Acacia SOF") at ¶ 22, Doc. No. 152-2. Acacia currently has approximately 30 local undergraduate chapters at various colleges and universities across the United States and Canada, with 1100 active undergraduate members and seven full-time paid staff. Acacia SOF at ¶ 22; Pls.' Resp. to Acacia SOF at ¶ 22. Acacia issues charters to local chapters, and these charters allow the local chapters to use its name, traditions, rituals, and insignia. Acacia SOF at ¶ 23; Pls.' Resp. to Acacia SOF at ¶ 23. Like most national fraternities, Acacia has a Risk Management Policy, which states that it "shall apply to all fraternity entities and all levels of fraternity membership." Acacia SOF at ¶ 23 (citing Decl. of Patrick McGovern at ¶ 4, Doc. No. 150-3); Pls.' Resp. to Acacia SOF at ¶ 23 (quoting Dep. of Patrick McGovern ("McGovern Dep.") at 95:15-96:1, Doc. No. 152-10, and citing McGovern Dep. at 88:15-90:10, 123:21-124:14). Acacia is an educational self-governance organization, and each chapter "ha[s] exclusive jurisdiction over local affairs, except as provided for by the Laws of Acacia." Acacia SOF at ¶ 24 (citation and internal quotation marks omitted); Pls.' Resp. to Acacia SOF at ¶ 24. Acacia's International President—the chief executive officer of the fraternity responsible for chapter inspections and matters pertaining to chapter members—oversees the International Council, which, in turn, oversees the Executive Director—who manages the daily operations of the international headquarters, chapter operations and expansions, membership records, leadership consultants, and office staff. Pls.' Resp. to Acacia SOF at ¶ 24.
Acacia does not have any staff on location at any of the local chapters to monitor daily activities and cannot influence the individual chapters other than by imposing discipline after a violation. Acacia SOF at ¶ 26; Pls.' Resp. to Acacia SOF at ¶ 26. Regarding Chapter 84, Acacia assisted the
A district court "shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Additionally, "[s]ummary judgment is appropriate when `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Wright v. Corning, 679 F.3d 101, 103 (3d Cir. 2012) (quoting Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir. 1995)). An issue of fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law." Id.
The party moving for summary judgment has the initial burden "of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). Once the moving party has met this burden, the non-moving party must counter with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation marks and citation omitted); see Fed. R. Civ. P. 56(c) (stating that "[a] party asserting that a fact ... is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record ...; or ... [by] showing that the materials cited do not establish the absence ... of a genuine dispute"). The non-movant must show more than the "mere existence of a scintilla of evidence" for elements on which the non-movant bears the burden of production. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Bare assertions, conclusory allegations, or suspicions are insufficient to defeat summary judgment. See Fireman's Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982) (indicating that party opposing a motion for summary judgment may not "rely merely upon bare assertions, conclusory allegations or suspicions"); Ridgewood Bd. of Educ. v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir. 1999) (explaining that "speculation and conclusory allegations" do not satisfy non-moving party's duty to "set forth specific facts showing that a genuine issue of material fact exists and that a reasonable factfinder could rule in its favor"). Additionally, the non-moving party "cannot rely on unsupported allegations, but must go beyond pleadings and provide some evidence that would show that there exists a genuine issue for trial." Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d
"When considering whether there exist genuine issues of material fact, the court is required to examine the evidence of record in the light most favorable to the party opposing summary judgment, and resolve all reasonable inferences in that party's favor." Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). The court must decide "not whether ... the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Anderson, 477 U.S. at 252, 106 S.Ct. 2505. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial'" and the court should grant summary judgment in favor of the moving party. Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348 (citation omitted). Further, when one party's claims are "blatantly contradicted by the record, so that no reasonable jury could believe it," the court should not take those claims as true for the "purposes of ruling on a Motion for Summary Judgment." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
Generally, a social host in Pennsylvania who serves alcohol to an intoxicated person is not liable for any damages that intoxication causes, whether to the intoxicated person herself or to a third-party. See Klein v. Raysinger, 504 Pa. 141,470 A.2d 507, 510-11 (1983) ("We agree with this common law view, and consequently hold that there can be no liability on the part of a social host who serves alcoholic beverages to his or her adult guests."). Under this social host doctrine,
In Alumni Association v. Sullivan ("Sullivan"), the plaintiff sought to extend the Social Host Doctrine established in Congini to hold that a national fraternity
Id. at 1213.
The Sullivan Court agreed with the Third Circuit's logic in Fassett v. Delta Kappa Epsilon (New York), 807 F.2d 1150 (1986), and Macleary v. Hines, 817 F.2d 1081 (1987), that to qualify as a social host, the defendant must have "intentionally and substantially aided and encouraged the consumption of alcohol by a minor guest...." Id. at 1212 (quoting Macleary, 817 F.2d at 1084). Social hosts are those who "participated in the planning and the funding of social events where alcohol was consumed by minors [and were] ... aware of the degree of consumption by the minors." Id. (citing Macleary, 817 F.2d at 1084; Fassett, 807 F.2d at 1162-63). Applying this standard, the Sullivan Court held that neither the university nor the national fraternity were social hosts, because "there [we]re no allegations that either the fraternity or the University was involved in the planning of these events or the serving, supplying, or purchasing of liquor." Id. at 1213.
The Superior Court of Pennsylvania applied Sullivan to reach a similar conclusion in Millard v. Osborne, 416 Pa.Super. 475, 611 A.2d 715 (1992). In that case, the estate of a minor who was killed in a motorcycle accident after consuming alcohol at a fraternity house sued the college, which then joined the national fraternity. 611 A.2d at 715-16. The plaintiff argued that "the national fraternity rendered substantial assistance in consumption of alcohol by a minor in that it counseled the chapter how to conduct parties and avoid civil liability," id. at 719, but the court rejected this argument, in part because "the national fraternity counsel[ed] against the use of alcohol." Id. (citing national fraternity resolution requiring consumption and distribution of alcohol to be consistent
The plaintiffs do not dispute that Sullivan held that national fraternities are not liable under the Social Host Doctrine but argue that this case is distinguishable because, here, Acacia chose to engage with Chapter 84 more closely than in a typical national fraternity-local chapter relationship. See Pls.' Mem. of Law in Support of its Mot. Opposing Acacia Fraternity Inc.'s Mot. for Summ. J. or, Alternatively, for Partial Summ. J., ("Acacia Opp.") at 9, Doc. No. 152-1 ("What should be taken from this statement by the Pennsylvania Supreme Court [in Sullivan] is that [ ] typically a national entity does not have the ability to monitor the activities of their chapters[.]"). Specifically, the plaintiffs assert that Acacia's decision to work with Chapter 84 after its 2011 deactivation meant that it "assumed a duty to ensure no harm came from Chapter 84's conduct and concurrently assumed the role of principal in an agency relationship that will see them vicariously liable for Chapter 84's misconduct." Id. at 4.
But nothing in either Sullivan or Millard invites the case-by-case inquiry into the relationship between each individual chapter and its national entity that the plaintiffs seek.
The plaintiffs here seem to argue that unlike in Millard, Acacia had reason to know that Chapter 84 was not complying with the Risk Management Policy because of the 2011 party that led to its deactivation and updates it received from Chapter 84 in the months before Karlie's death. Specifically, they point to Chapter 84 member Kevin Mynaugh's ("Mynaugh") statement in a monthly report to Acacia for August/September 2014 that the Chapter "fe[lt] as a Fraternity that the way we had been running things w[as] not safe for us as a Fraternity and the people who were involved outside of the Fraternity." Acacia Opp. at 14 (quoting Acacia Fraternity Millersville Chapter; Monthly Report ("Chapter 84 Monthly Report"), Doc. No. 152-26). But the Sullivan Court explicitly rejected the plaintiff's argument that a social host may be held liable if it "knew or should have known" minors were being served alcohol, holding instead that "[t]he `knowingly furnished' standard requires actual knowledge on the part of the social host as opposed to imputed knowledge imposed as a result of the relationship." 572 A.2d at 1212. It is not enough to suspect that minors are being served alcohol; rather, the defendant "must have `intentionally and substantially aided and encouraged the consumption of alcohol by a minor guest....'" Id. (quoting Macleary, 817 F.2d at 1084)). Like the defendants found not to be social hosts in Sullivan, Fassett, and Maclearly, Acacia played no role "in the planning of [the party] or the serving, supplying, or purchasing of liquor." Id. at 1213. Nor did Acacia "substantially aid[ or] encourage" Karlie's, Orrostieta's, or any other party guest's liquor consumption; to the contrary, like the national fraternity in Millard, it specifically counseled and instituted a policy against such activities. Thus, the plaintiffs' attempt to distinguish the facts here from those in Sullivan and the related precedent are unavailing.
In the alternative, the plaintiffs argue that Acacia assumed a duty pursuant to Section 877 of the Restatement (Second) of Torts. Acacia Opp. at 9. That section states,
Restatement (Second) of Torts § 877. Assuming here that Chapter 84's conduct towards Karlie was tortious, as to subsection (d), again, the evidence does not show that Acacia controlled Chapter 84. The plaintiffs point to evidence that Chapter 84 provided monthly reports to Acacia, in connection with a debt repayment plan, and that Chapter 84 would include information about its risk management practices in those reports. Acacia Opp. at 2-3 (quoting McGovern Dep.). But that evidence demonstrates that, if anything, Acacia worked with Chapter 84 to provide regular check-ins, advice, and feedback, not that Acacia controlled the Chapter's day-to-day activities. Id. Nor does the evidence suggest that Acacia had the power to contemporaneously discipline Chapter 84 for any failure to comply with its Risk Management
The plaintiffs suggest that the Allegheny County Court of Common Pleas' holding that section 877 applied in M.L. v. University of Pittsburgh, 26 Pa. D. & C. 4th 106 (1995), abrogated on other grounds by Elias v. Lancaster General Hospital, 710 A.2d 65 (Pa. Super. 1998), supports such a holding here, but that case involved a wholly different set of facts and theory of liability. M.L. held the chapter of the fraternity, "whose premises were used for the [party and was thus] a `possessor of land' within the meaning of section 314A(3)," was potentially liable for its members' and their guests' sexual assault of the plaintiff on fraternity property. 26 Pa. D. & C. 4th at 111. The court explicitly distinguished Sullivan on the grounds that the national fraternity was not a defendant: "The Supreme Court balanced the cost to universities and the national fraternal organizations (who are not defendants herein) with what it perceived were `relatively rare, regrettable incidents' and concluded that `the increased cost which would enure to such bodies could seriously impede the mission of these institutions...." Id. at 113 (quoting Sullivan, 572 A.2d at 1213). Thus, M.L. is inapplicable to the plaintiffs' claim against Acacia.
The plaintiffs also argue that Section 323 of the Restatement (Second) of Torts applies here. Acacia Opp. at 10-11. Section 323 provides as follows:
Restatement (Second) of Torts § 323. The plaintiffs do not provide any analysis about how section 323, which is generally considered part of the Good Samaritan Rule, see Patentas v. United States, 687 F.2d 707, 710 (3d Cir. 1982) (describing appellants' second argument, under section 323, as being "based on the familiar tort doctrine of good samaritan liability"), is at all applicable here. More importantly, section 323 cannot "be invoked to create a duty where one does not exist." Morena v. South Hills Health Sys., 501 Pa. 634, 462 A.2d 680, 684 (1983) (citations omitted). Moreover, the plaintiffs' argument is that Acacia undertook to provide services to Chapter 84, and
Lastly, the plaintiffs argue that the court must conduct the balancing test established in Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166 (2000) to determine whether a duty exists, as the Superior Court of Pennsylvania did in Kenner, 808 A.2d at 182. Acacia Opp. at 18-23. In Kenner, the plaintiff sued multiple defendants, including a national fraternity, for serious injuries he suffered during a hazing ritual. 808 A.2d at 180. The Court of Common Pleas dismissed the national fraternity from the action under Sullivan, but the Superior Court reversed, holding the case was distinguishable because it did not involve the Social Host Doctrine. See id. at 182 ("As this case does not involve the Social Host Doctrine, Sullivan does not bind us in the present matter."). The court then applied the Althaus test, under which the court balances, "`(1) the relationship between the parties; (2) the social utility of the actor's conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution.'" Id. (quoting Althaus, 756 A.2d at 1169). The Kenner court concluded that the Althaus factors supported imposing a duty in that case, because (1) the plaintiff paid the national entity an application fee and signed a membership agreement, creating a contractual relationship between the parties; (2) it was undisputed that a national fraternity should seek to prevent hazing; (3) the plaintiff's injuries were foreseeable to the national fraternity, because pledges at other chapters had previously suffered similar injuries or even died from hazing;
Even if Sullivan did not control, this court disagrees with the plaintiffs' assessment that the Althaus factors warrant a holding that a national fraternity owes third parties a duty to protect them from another third party's intentional bad acts off fraternity property. First, unlike in Kenner, neither Karlie nor the bad actor
The plaintiffs propose this court adopt a standard—unrecognized by any Pennsylvania court—that a national fraternal organization may be liable for harms a third-party guest suffers at the hands of another third-party off fraternity property, merely because the national organization engaged in regular communications with the local chapter about its risk management practices on some general level.
Even if Acacia had a duty to Chapter 84's party guests, the facts here
In Pennsylvania, courts use the Restatement (Second) of Torts' "substantial factor" test to determine whether proximate cause exists. Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111, 114 (1977) (citing to Restatement (Second) of Torts § 431). When determining whether negligent conduct is a substantial factor in producing the injury,
Restatement (Second) of Torts § 433 ("section 433"). Whether a third party's conduct breaks the chain of causation depends on whether the conduct amounted to a superseding cause, or a mere intervening force. "A superseding cause is an act of a third person or other force which, by its intervention, prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about." Von der Heide v. Com., Dep't of Transp., 553 Pa. 120, 718 A.2d 286, 288 (1998) (quoting Restatement (Second) of Torts § 440 and citing Trude v. Martin, 442 Pa.Super. 614, 660 A.2d 626, 632 (1995)). To determine whether a subsequent occurrence is an intervening or superseding cause, courts consider "whether the force is operating independently of any situation created by the first actor's negligence and whether it is a normal result of that situation." Trude, 660 A.2d at 632 (citations omitted). Not every third-party criminal act is a superseding cause. "[T]he proper focus is not on the criminal nature of the negligent act, but instead on whether the act was so extraordinary as not to be reasonably foreseeable." Powell v. Drumheller, 539 Pa. 484, 653 A.2d 619, 624 (1995).
In Heeter, the Third Circuit applied section 433 to affirm the district court's holding that there was no proximate cause where the plaintiff alleged that the failure of the alarm system she purchased from the defendants allowed an intruder to steal firearms from her home, which he then used to murder her son in a different location. 706 F. App'x at 65. The plaintiff told the defendants when discussing potentially purchasing an alarm system that she was concerned about a neighbor, the eventual intruder and murderer, who had a "tortured past" and a "conscious disregard for the well-being of others and in particular, her son, Bryan Harris." Id. (quoting case record). In response, the defendants confirmed that the alarm system would alert her immediately if there was a break-in, and the plaintiff agreed to purchase the system. Id. Despite those assurances, the neighbor was able to break into the home, disable the alarm, and steal the plaintiffs'
The Third Circuit agreed that all three section 433 factors weighed against the existence of proximate cause. First, "myriad other matters[—all relating to the decisions the murderer had made—]had a far greater effect on the murder of Harris than the conduct of the [defendants]." Id. at 67; see also Van Mastrigt, 393 Pa. Super. at 151, 573 A.2d 1128 (1990) ("None of the defendants put a knife in [the murderer's] hand. None of the defendants were responsible for the act of killing [the victim]. A court determined that [the murderer] alone was responsible for the actual murder of [the victim]."). Second, "[t]he chain of events on the day of Harris's murder did not begin with the faulty alarm system." 706 F. App'x at 67. Finally, the passage of time between the failure of the alarm system and the murder although "not dispositive on its own, ... work[ed] in concert with the other two considerations to negate proximate cause in this case." Id. (citing Am. Truck Leasing, Inc. v. Thorne Equip. Co., 400 Pa.Super. 530, 583 A.2d 1242, 1243-44 (1991)). In addition to these factors, the court noted that the neighbor's conduct "was not foreseeable and constitute[d] a superseding cause. Intervening criminal action is not per se superseding, but becomes so when, `looking retrospectively from the harm through the sequence of events by which it was produced, it is so extraordinary as not to have been reasonably foreseeable.'" Id. (quoting Vattimo v. Lower Bucks Hosp., Inc., 502 Pa. 241, 465 A.2d 1231, 1237 (1983) and citing Powell, 653 A.2d at 624).
In holding proximate cause did not exist over the plaintiff's claims in Heeter, the district court relied on the Superior Court's holding in Brown v. Philadelphia College of Osteopathic Medicine, 760 A.2d 863 (2000), which this court likewise finds applicable here. In that case, the defendant hospital misdiagnosed the plaintiffs' baby with syphilis, which led to the wife discovering her husband's infidelity, the couple frequently fighting, the husband physically abusing the wife, and the wife losing her job as a police officer after firing a gun at the husband. 760 A.2d at 865-67. The court held that it was "abundantly clear" that preexisting problems in the plaintiffs' relationship "had a far greater effect in producing the harm" than the erroneous test result. Id. at 869. The fact that the hospital's incorrect test results exacerbated those relationship problems did not change that result.
The plaintiffs cite to cases which they assert demonstrate that "Pennsylvania courts have long held that violence and injury, and even criminal misconduct, are foreseeable consequences stemming from the service of alcohol." Acacia Opp. at 24 (citing Corcoran v. McNeal, 400 Pa. 14, 161 A.2d 367 (1960) (imposing liability on bar owner for injuries suffered during attack on bar premises during which bar staff repeatedly ignored requests for help); Schelin v. Goldberg, 188 Pa.Super. 341, 146 A.2d 648 (1958) (holding bar was subject to Dram Shop liability for overserving patron who caused plaintiff injuries in bar fight); Rommel v. Schambacher, 120 Pa. 579,11 A. 779 (1887) (imposing liability on bar owner who saw patron light other patron on fire and "did not interfere to protect his guest from so flagrant an outrage");
Nor does the plaintiffs' argument that "all parties seemingly agree that drinking, and underage drinking in particular, is risky behavior and/or can lead to violence, injury or death," Acacia Opp. at 26-27, change the analysis.
Applying the factors the court described in Trude, first, Orrostieta's abuse "operat[ed] independently" from Acacia's and Chapter 84's purported conduct, because his abusive behavior began months before
Second, murder is not the "normal result" of underage drinking. Every weekend on college campuses across America, countless students face the risks of underage binge drinking, which includes the "normal," if often tragic, risks of alcohol poisoning, car accidents, slip and falls, and even sexual assault. But no reasonable finder of fact could include murder on that list. Indeed, as with the murderer in Heeter, Orrostieta's own decision to beat and strangle Karlie on February 8, 2015 was so extraordinary and so beyond the realm of any consequence a reasonable person would anticipate from underage drinking, that no reasonable factfinder could disagree that it was a superseding cause that breaks the chain of causation.
Of course, the plaintiffs here do not seek damages for harms that a party guest suffered on fraternity property or at the hands of fraternity members. Such distinct facts may very well call for a different result. See Heeter, 706 F. App'x at 67 ("Had the harm to Harris occurred near the Heeters' residence, which ADT was contracted to protect, the question of proximate cause might well have been one for a jury to decide. Harm inflicted this far from the residence is another matter."). But isolated to these particular facts—where the crime took place off fraternity property, entirely between non-fraternity members, after a party of which the national fraternity had no knowledge—the court cannot conclude that the law supports imposing liability here despite the tragic events which occurred.
The plaintiffs acknowledge that "Pennsylvania courts have not determined whether a national fraternity may be held liable on the basis of an agency relationship," and invite this court to allow such a theory of liability to move forward here. Acacia Opp. at 30-36. As a federal court sitting in diversity over causes of action that are the within the fundamental provenance of the state, this court declines to do so. If anything, Sullivan and Millard suggest
In support of their argument, the plaintiffs point to the facts that a chapter member is considered to be a member of Acacia, students and fraternity members referred to the house where the party was held as the "Acacia house," Chapter 84 decorated the house with Acacia paraphernalia, chapters paid Acacia dues, Acacia had a general oversight body, and Acacia had a Risk Management Policy that applied to its chapters. Acacia Opp. at 31-32. But the plaintiffs make no effort to show that any of these features are unique to Acacia and Chapter 84, as opposed to any fraternity and its local chapters. See, e.g., Abraham v. Alpha Chi Omega, 781 F.Supp.2d 396, 401 (N.D. Tex. 2011) (discussing general practice of fraternity and sorority members displaying Greek letters of their organizations); Fiacco v. Sigma Alpha Epsilon Fraternity, No. Civ. 1:05-145-GZS, 2006 WL 890686, at *2 (D. Me. Mar. 31, 2006) ("The national fraternity establishes the dues, fines and fees structure for its local chapters."); Smith v. Delta Tau Delta, Inc., 9 N.E.3d 154, 163 (Ind. 2014) ("There is no designated evidentiary material that shows that the national fraternity had a right to exercise direct day-to-day oversight and control of the behavior and activities of the local fraternity and its members. Like Yost [v. Wabash College, 3 N.E.3d 509 (Ind. 2014)], the specific duty undertaken in regards to the policies on hazing and underage and irresponsible drinking was an educational one without any power of preventative control."); Rogers v. Sigma Chi Int'l Fraternity, 9 N.E.3d 755, 765 (Ind. Ct. App. 2014) ("Rogers correctly notes there were fraternity `letters and memorabilia' inside the house, as was the fraternity checkbook, but he offers no argument or explanation why these amounted to manifestations `from the agent's principal', that could give rise to apparent agency." (internal citations omitted)); Stein v. Beta Rho Alumni Ass'n, Inc., 49 Or.App. 965, 621 P.2d 632 (1980) (declining to impose vicarious liability even though "dues of the local fraternity were paid to the national fraternity in Oxford, Ohio [and t]he national fraternity set the rules and regulations for the local fraternity."). Indeed, the national fraternity defendant in Millard counseled against the use of alcohol and had a policy that forbid illegal alcohol consumption, but the court did not even discuss whether such considerations were relevant to an agency analysis. 611 A.2d at 719 & n.4.
Like Acacia, Chapter 84 contends that, as a matter of law, their purported conduct could not be the proximate cause of Orrostieta murdering Karlie. Mem. of Law in Supp. of Acacia Fraternity Chapter Number 84, Colin Herbine and Nigale Quiles' Mot. for Summ. J. ("Chapter 84 Br.") at 8, Doc. No. 149-1 ("[T]he Restatement (Second) states specifically that in that specific situation, if the harm is intentionally caused (such as third degree murder) and is not within the scope of risk created by the negligent conduct then the defendant is relieved of liability." (citing Restatement (Second) of Torts § 422B; Ford, 379 A.2d at 115)).
In Trude, the plaintiff sought damages from the owner of a restaurant after he fell from a brick wall with a loose capstone. 660 A.2d at 628. The restaurant owner argued that another man's illegal act of pushing the plaintiff from the wall broke the chain of causation, but the court rejected that argument, reasoning that although the man's push was an intervening force, "the consequences of this act were not so extraordinary or unforeseeable as to render it a superseding cause." Id. at 632 (citation omitted). Likewise, in Ford, the Pennsylvania Supreme Court rejected the defendant's argument that his negligent failure to maintain his property, ultimately leading to a fire that spread to the plaintiff's property, was not proximately related to the plaintiff's harm "simply because the actual physical force that started the fire [wa]s unknown...." 379 A.2d at 114. The
Id. at 115 (quoting Restatement (Second) of Torts § 422B cmt. B). The plaintiffs interpret this caselaw as holding that because violence, injury, and death generally are foreseeable consequences of consuming alcohol, proximate cause exists over Orrostieta's conduct and Karlie's corresponding death, even if Chapter 84 could not have predicted the precise nature of that violence or death.
But precedent does not support such a seemingly limitless interpretation. In Reilly v. Tiergarten Inc., 430 Pa.Super. 10, 633 A.2d 208 (1993), the Superior Court of Pennsylvania held that the defendants' negligent provision of alcohol to the minor plaintiff under the Dram Shop Act was not the proximate cause of injuries the minor suffered after being shot by police. After consuming alcohol that all three defendants provided, the plaintiff walked home, where he got in an argument with his father, which culminated in him pulling a knife, cutting himself, and shoving his father into a fireplace. Id. at 209. When the police arrived, the plaintiff refused to surrender the knife, and they were forced to shoot him, causing severe and permanent injuries. Id. The court agreed with the defendants that the plaintiff's own intentional, violent actions were so remote from the service of alcohol that proximate cause did not extend to his injuries. Id. at 210.
The plaintiffs acknowledge that Reilly "involve[d] an injury that [wa]s far removed from the service of alcohol both temporally and geographically," but then offer only a conclusory statement that "[w]hile the criminal act [here] occurred in a geographically different place it was hardly remote and the chain of events is clearly more direct when compared to Reilly." Chapter 84 Opp. at 14. The court cannot agree with the plaintiffs' distinction. First, like in Reilly (and unlike in all the cases the plaintiffs cite), the confrontation that caused the underlying harm did not occur at the location where Karlie and Orrostieta consumed alcohol, but only after they returned home to Karlie's dormitory. Also like in Reilly, the plaintiffs do not suggest that any defendant had any additional involvement with Karlie or Orrostieta after they left the party. Millersville SOF at ¶¶ 51-54; Pls. Resp. to Millersville SOF at ¶¶ 51-54. Second, regardless of any factual distinctions, Reilly disproves the plaintiffs' argument that proximate cause always exists over cases involving violence, injury, or death, simply because individuals (like the deposed Chapter 84 members) recognize that alcohol consumption poses a general risk of their occurrence. Certainly, there are situations in which serving alcohol, especially to minors, exposes the consumer to risks for which the provider must be held responsible. Car accidents and bar fights undoubtedly fit within that framework. Likewise, this court agrees with the Court of Common Pleas' analysis in M.L. that a rape at a fraternity party perpetuated by fraternity members is a foreseeable result of underage binge drinking. 26 Pa. D. & C.4th at 112.
But, as prior courts have recognized, the law draws the line at a third party's extraordinary criminal behavior. Powell, 653 A.2d at 624 ("Instead, the proper focus is not on the criminal nature of the negligent act, but instead on whether the act was so
The plaintiffs suggest that Chapter 84 "created an atmosphere where injury was an inevitability," Chapter 84 Opp. at 18, but they point to no caselaw that suggests that either a business or a social host are responsible for intentional crimes an intoxicated minor or adult commits at an entirely different location, and no reasonable jury could conclude that murder was an inevitable result of a fraternity party. Certainly, individuals—especially minors—expose themselves to risk when consuming alcohol, and we, as a society, are generally aware of the nature of those risks. A drunk driving accident? Certainly. A drunken fight at the party? Absolutely. A rape on fraternity property? Sadly, yes.
In addition to their argument about the well-recognized dangers of alcohol, the plaintiffs argue that the murder was particularly foreseeable here because a reasonable factfinder could conclude that a Chapter 84 member witnessed Orrostieta shove Karlie. First, the court considers whether plaintiffs have produced evidence sufficient to challenge the credibility of the Chapter 84 member's testimony that they did not witness any altercation at the party. Second, the court considers whether that fact makes any difference to the legal analysis.
At the summary judgment stage, "[w]hen a witness's credibility is critical to supporting the necessary findings of fact, the District Court must consider whether there are sufficient grounds for impeachment that would place the facts to which he testifies in legitimate dispute." El v. SEPTA, 479 F.3d 232, 237 (3d Cir. 2007) (citation omitted); see also NTP Marble, 2012 WL 607975, at *4 ("[T]here must be more than mere allegations in a memorandum of law to place credibility in issue and preclude summary judgment." (citation omitted)). Here, no Chapter 84 member—or indeed, any individual other than Smith—testified that he witnessed any altercation between Karlie and Orrostieta. Krull testified, "[w]e didn't notice any issues at the party on February 7th to the 8th," Krull Dep. at 53:16-20, and that Chapter 84 "didn't even know [Karlie] was there until the media broke." Id. at 59:2-4.
Chapter 84 Opp. at 21-22 (citing responsive statement of facts and deposition testimony). And yet, despite the purported obviousness of Orrostieta's assault on Karlie, they did not identify any other witness who claimed to have seen the incident. Counsel asked Smith specifically during his deposition whether he knew if anyone else saw the altercation. Rather than testify that one of the several other people in the basement must also have seen it, given the conditions of the party, he testified
The one other piece of evidence the plaintiffs rely on for their assertion that a Chapter 84 member must have seen the altercation is Krull's deposition testimony, which they cite for the proposition that "[w]hen th[e] assault occurred, it would have been observed by those sober brothers assigned to patrol the party." Pls.' Resp. to Chapter 84 SOF at ¶ 11 (citing Krull Dep. at 143:3-147:18). But Krull's testimony established no such fact. First, counsel asked Krull whether it would be "fair to say that if [an assault] did happen, that it most likely would have been witnessed by one of the brothers, either a sober brother who was monitoring the floor, or a brother who was just participating at the party?" Krull Dep. at 143:3-9 (emphasis added). Krull answered, "[i]f there wasn't a clear sight line to them, there's probably a space where it could have happened." Id. at 143:15-17. He then described a corner of the basement that was blocked by either a gas heater or an air cooler. Id. at 143:19-144:4. Counsel then asked, "[i]f it was in any other section of the basement, you would typically be able to see it?" to which Kull answered "[i]t would have been flagged, yeah, if we saw it." Id. at 144:8-12 (emphasis added). After describing the layout of the basement further, Krull testified, "[b]ut there's plenty of people there. If it happened — if something happened, somebody would have, you know, more than likely somebody would have saw [sic] it." Id. at 147:14-18 (emphasis added).
Krull never testified that a sober brother necessarily would have witnessed the altercation between Karlie and Orrostieta. Rather, he testified that if an assault occurred, "more than likely somebody would have saw [sic] it." Id. In asking these questions, counsel did not describe the duration, severity, or nature of the altercation that actually occurred (and Krull himself recognized that "assault's a very broad term," that covers a wide range of conduct, Krull Dep. at 43:22-44:5, so there is no way to know whether Smith's "quick whatever" description would have changed Krull's answer. Regardless, he only testified that someone (whether a partygoer or a member) likely would have witnessed it, and Chapter 84 would have done something if they did. The plaintiffs have not identified the time when the altercation occurred, which Chapter 84 members would have been in the basement at that time, where the members would have been in relation to Orrostieta and Karlie and which direction they would have been facing, or whether any members in the area
Moreover, even if the Chapter 84 members had witnessed the shove, that would not have made Karlie's later murder in a different location foreseeable. The plaintiffs argue that Rabutino v. Freedom State Realty Co., Inc., 809 A.2d 933 (Pa. Super. 2002), "is no different [from this case] when it comes to the dangerous atmosphere that existed and the violent act preceded by a confrontation that would have been seen by many." Chapter 84 Opp. at 20. To the contrary, Rabutino could not be more different than the facts here. In that case, a minor partygoer shot and killed the plaintiff's son in a race-based fight at a hotel. 809 A.2d at 935-36. The plaintiff attributed her son's death, in part, to the defendants', the hotel management and security companies, failure to intervene in the party. Id. at 936. The Superior Court held that the shooting death was foreseeable to the defendants, where employees of the hotel "heard gunshots audible throughout the hotel being fired out of hotel windows prior the incident in question and ... retrieved several of the bullet casings outside of the hotel." 809 A.2d at 940 n.5 (citing deposition testimony). Indeed, a deponent "described the fearful state of mind of fellow [hotel] employees and another lodger who refused to go on the fifth floor." Id. (citation omitted). Thus, the plaintiff's shooting death was undeniably foreseeable to the defendants, as they knew intoxicated minors not only were carrying, but actively shooting, guns.
Here, in contrast, Smith testified that he sought to assist Karlie immediately after the altercation. He stated that he asked her whether she was alright and what was happening, and she confirmed that she was fine. Id. at 53:23-54:5. He estimated that he was at the party for a total of approximately two hours, and the shove occurred perhaps 30 to 60 minutes after they arrived. Id. at 92:2-17. Smith then tried to "keep tabs on" Karlie and Orrostieta for the remainder of the party to confirm there were no additional altercations. Id. at 54:14-18. As he was leaving, he sought to confirm that Karlie was alright one last time, and he saw she was dancing with Orrostieta and he "guess[ed] everything [was] good." Id. at 58:7-13. He explained,
After the party, Smith met with a friend of Kristen's and told him what he had witnessed, and they decided to go to Kristen's room to tell her what had happened. Id. at 61:2-9. Smith testified that Kristen told him, "we thought something was going on between [Orrostieta and Karlie] for awhile," and the group agreed that the next morning, Smith and the friend would confront Orrostieta about his behavior. Id. at 61:13-22. Smith testified that Kristen had not told him that she believed Orrostieta had been "abus[ing]" Karlie, and if she had they would have done something "immediately." Id. at 62:5-12. Thus, none of these individuals—including the one who saw the altercation—believed that what happened at the party suggested that Karlie was in imminent danger. If the murder was not foreseeable to Smith, who witnessed the entire event and spoke to Karlie about it, or to Kristen, who had at least heard previous incidents between Orrostieta and her sister, it could not possibly have been foreseeable to a Chapter 84 member who would have had, at best, a small fraction of the information known to those two individuals. Certainly, a different set of facts where a Chapter 84 member had witnessed Orrostieta attack Karlie and then immediately try to leave with her, or a situation where Karlie asked for help (or was so incapacitated that she could not ask for help) could warrant a different result. But given the facts here, even if a Chapter 84 member knew Orrostieta shoved Karlie, Orrostieta's later behavior in beating and strangling her to death was such an extraordinary departure that no one—not Smith, Kristen, or any member of Chapter 84—could have predicted it.
Alternatively, the plaintiffs argue that Chapter 84 had a duty to intervene because a special relationship existed between it and Karlie. Chapter 84 Opp. at 25-31 "Generally, absent a pre-existing duty, a party cannot be held liable for the criminal actions of a third party. However, in certain situations, a special duty may arise." McCann v. Miller, Civ. A. No. 08-561, 2009 WL 4641713, at *2 (E.D. Pa. Dec. 7, 2009) (internal citation omitted). Section 314A of the Restatement (Second) of Torts recognizes four types of relationships that create these special duties: (1) a common carrier's duty to its passengers; (2) an innkeeper's duty to its guests; (3) a possessor of land's duty to members of the public it invites onto that land; and (4) "[o]ne who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection" to "the other." Restatement (Second) of Torts § 314A ("section 314A").
On the one hand, the plaintiffs assert that Chapter 84 was a possessor of land under section 314A(3). Although such a theory of liability could potentially succeed for injuries stemming from the shove at the party (assuming the plaintiffs could show Chapter 84 could have reasonably prevented it, see Section 314A cmt. e ("The duty in each case is only one to exercise reasonable care under the circumstances."), the plaintiffs are seeking to impose liability on Chapter 84 for harms that occurred after Karlie left the party. Section 314A does not allow such a result. See Section 314A cmt. c ("Nor is a possessor of land under any such duty to one who has ceased to be an invitee."). That is why the plaintiffs' reliance on M.L. is misplaced: in that case, the plaintiff was gang raped on fraternity property by assailants "including members or guests of defendant fraternities."
On the other hand, the plaintiffs seem to recognize that none of the section 314A categories apply to the harms asserted here, and suggest that "although there are four enumerated special relationships giving rise to a duty of care, the list is not exhaustive and `there may be other such relations[hips] ... where the duty is recognized...[.]" Chapter 84 Opp. at 28 (quoting Section 314A cmt. b). Unfortunately for the plaintiffs, the one case they cite for this point (Coath v. Jones, 277 Pa.Super. 479, 419 A.2d 1249 (1980)) is in no way analogous to the facts here. In Coath, the Superior Court reversed the trial court and held that the defendant employer could be liable for its former employee's sexual assault of its customer, where the plaintiff let the employee into her home because he represented he was there at the defendant's direction. 419 A.2d at 1250-52. The court held that a special relationship exists where the defendant's business requires its customers to admit its employees into their homes. Id. at 1251-52. Obviously, Chapter 84 played no role in Orrostieta gaining access to Karlie's dorm room.
The plaintiffs also argue that Chapter 84 had a duty to rescue Karlie under Restatement (Second) of Torts Section 322 ("section 322"). Section 322 states,
Rest (Second) of Torts § 322. Obviously, it was Orrostieta, not Chapter 84, who subjected Karlie to the bodily harm for which the plaintiffs seek damages, namely her brutal strangling death. To the extent the plaintiffs are suggesting that Chapter 84 somehow indirectly caused Karlie bodily harm by providing Orrostieta alcohol, the court has already rejected that argument, and neither of the cases the plaintiffs cite suggest an "indirect bodily harm" theory is somehow viable under section 322 in any event. See DiTullio v. Pizzo, Civ. A. No. 89-5673, 1991 WL 129860, *4 (E.D. Pa. July 11, 1991) (holding defendant potentially liable under section 322 for coercing plaintiff into car at gunpoint, engaging in highspeed chase which led to plaintiff being shot, and then delaying taking to her to hospital for desperately needed medical treatment); Herr v. Booten, 398 Pa.Super. 166, 580 A.2d 1115, 1121 (1990) (holding section 322 potentially applies to party who directly caused bodily harm to minor by providing alcohol that caused alcohol poisoning).
Finally, the plaintiffs mention in passing that "the Restatement (Second) of Torts § 344 [("section 344")] imposes a duty upon a possessor of land to exercise reasonable care to warn against the `accidental, negligent, or intentionally harmful acts of third persons.'" Chapter 84 Opp. at 30 (quoting T.A. v. Allen, 447 Pa.Super. 302, 669 A.2d 360, 364 (1995)). Section 344 only applies to a possessor of land who holds open his property to the public "for his business purposes...." Rest. (Second) of Torts § 344. The plaintiffs provide no analysis of whether Chapter 84 charging $5 a cup (presumably to cover the cost of alcohol) constitutes a "business purpose," and, in any event, section 344 clearly states that the duty applies "while they are upon
The plaintiffs do not point to any specific facts that render Quiles uniquely liable for Karlie's death (or even any evidence that he attended the party), but instead state that "a jury could find that [his] [unspecified] conduct, as with all individual members of Chapter 84, substantially aided Orrostieta's consumption of alcohol in this case." Chapter 84 Opp. at 32. Regardless of Chapter 84's overall liability, the court would therefore conclude that these generalized, unsupported claims are insufficient to keep Quiles in the case. Accordingly, Quiles is entitled to summary judgment in his favor on the plaintiffs' claims.
The plaintiffs' final cause of action is a Title IX claim against Millersville. Title IX establishes that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]" 20 U.S.C. § 1681(a). Title IX includes an implied private right of action against educational institutions for money damages, Cannon v. University of Chicago, 441 U.S. 677, 688-89, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), where the institution "had adequate notice that [it] could be liable for the conduct at issue." Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 640, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) ("Davis"). Whether the institution will be liable depends on whether an institution official "who at a minimum has authority to institute corrective measures on the [institution's] behalf ha[d] actual notice of, and [wa]s deliberately indifferent to, the [harasser's] misconduct." Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 277, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). For sexual harassment to amount to a Title IX violation, it must be "so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school." Davis, 526 U.S. at 650, 119 S.Ct. 1661.
The question here is whether Title IX liability applies where the harasser was the student's own guest. The plaintiffs suggest that imposing liability here would not extend Title IX liability but merely "apply the law to a specific set of facts not addressed by [the Davis or the Gebser] Court[s]." Pls.' Mem. of Law in Supp. of its Mot. Opposing Millersville University's Mot. for Summ. J. ("Millersville Opp.") at 6, Doc. No. 148-1. Millersville, in contrast, argues that the plaintiffs' "claim requires this [c]ourt to establish an entirely new
Under certain circumstances, Title IX liability extends to harassment at the hands of both teachers or other students, but
Davis, 526 U.S. at 630, 119 S.Ct. 1661. The defendant's "substantial" control must extend both to "the harasser and the context in which the known harassment occurs." Id.
In extending Title IX liability to include certain student-on-student harassment, the Davis Court considered that "the regulatory scheme surrounding Title IX has long provided funding recipients with notice that they may be liable for their failure to respond to the discriminatory acts of certain nonagents." Id. at 643, 119 S.Ct. 1661. Specifically, the Court identified Department of Education regulations that reference "any agency, organization, or person which discriminates on the basis of sex in providing any aid, benefit or service to students or employees (34 C.F.R. § 106.31(b)(6)); "education program[s] or activit[ies] not operated wholly by [the] recipient," such as an educational consortia, cooperative employment, or student-teaching assignments (34 C.F.R. § 106.31(d)); a "foundation, trust, agency, organization, or person which provides [financial] assistance to any of [the] recipient's students" (34 C.F.R. § 106.37(a)(2)); "any agency, organization or person [that] mak[es] employment available to any of its students" (34 C.F.R. § 106.38(a)); or contractual relationships the institution enters, such as "employment and referral agencies, ... labor unions, and ... organizations providing or administering fringe benefits to employees of the recipient" (34 C.F.R. § 106.51(a)(3)). Id. at 664, 119 S.Ct. 1661.
The Court also cited to common law, namely Comment a to Section 320 of the Restatement (Second) of Torts, which references "teachers or other persons in charge of a public school." Id. at 644, 119 S.Ct. 1661; Rest. (Second) of Torts 320 cmt. a. Along those same lines, the Court pointed to "state courts routinely uphold[ing] claims alleging that schools have been negligent in failing to protect their students from the torts of their peers." 526 U.S. at 644, 119 S.Ct. 1661 (citing Rupp v. Bryant, 417 So.2d 658, 666-67 (Fla. 1982) (failure to supervise extracurricular activity where fellow students hazed plaintiff); Brahatcek v. Millard Sch. Dist., 202 Neb. 86, 273 N.W.2d 680, 688 (1979) (failure to supervise physical education class where fellow student fatally struck plaintiff's decedent with golf club); McLeod v. Grant Cty. Sch. Dist. No. 128, 42 Wn.2d 316, 255 P.2d 360, 362-63 (1953) (en banc) (failure to supervise recess where fellow students
These guidelines also reference third parties, but in a similarly limited context:
Office for Civil Rights; Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 62 Fed. Reg. 12034-01 at 12040 (Mar. 13, 1997) (footnotes omitted).
Contrary to the plaintiffs' argument, it is not just that "this guidance does not specifically speak to liability for a `student's guest,'" Millersville Opp. at 7; it is that neither of the examples are at all analogous to a student's own guest and are inconsistent with the guidelines' reference to "school programs and activities," as opposed to the school environment more generally. The plaintiffs then cite to Millersville's own Title IX Policy, which they assert, together with Millersville's Corporate Designee, Elizabeth Swantek's, testimony, establishes that "Millersville was undoubtedly on notice that their failure to respond to known acts of harassment could create liability under Title IX." Id. at 9. But Millersville does not dispute that point. Instead, Millersville argues that although it had notice that it could be held liable for failing to adequately respond to harassment from teachers, fellow students, or third parties whom the University brought to campus (like a visiting speaker or athlete), it did not have notice of liability for this category of harasser, i.e., a student's own guest.
That said, if the Third Circuit or the Supreme Court were to extend Title IX liability to cover harassment by a student's own guest, this court would conclude that the plaintiffs here satisfied the other elements necessary to defeat summary judgment. The University argues that no "appropriate person at Millersville had actual knowledge" of the harassment, Millersville Br. at 12, but the evidence creates, at the very least, a disputed issue of material fact about that conclusion.
An appropriate person at the education institution must have "actual notice" of the harassment for liability to attach. Gebser, 524 U.S. at 285, 118 S.Ct. 1989. That appropriate person is "at a minimum, an official of the recipient entity with authority to take corrective action to end the discrimination." Id. at 290, 118 S.Ct. 1989.
There are two potential ways that a jury could reasonably find that the University knew "underlying facts indicating" that
Next, a jury could find that Millersville had actual notice of the abuse through Renea's reports. Millersville Opp. at 19. Shortly after the October 4-5 incident, Tina called Renea and told her about the fight and that "[Orrostieta] must have struck [Karlie] because she had a black eye." Deposition of Renea Flexer ("Renea Dep.") at 12:19-24, Doc. No. 147-6. Renea then contacted the University Police to ask, "how can we get Karlie help, that she needs to know that she shouldn't be treated like this, and that [Renea] wanted somebody to reach out to her." Id. at 18:19-22. Renea testified that she told the police, "you had an incident there ... and you needed — for a domestic problem and you've removed [Orrostieta] from the campus. And it ends up that, you know, he did physically abuse her, and she has a black and blue eye — visible black and blue eye...." Id. at 20:10-16. The police told Renea there was nothing they could do unless Karlie contacted them herself but recommended that Renea contact the counseling department at Millersville. Id. at 21:8-16. Renea then called the counseling department and described the incident —including that the police needed to remove Orrostieta—but the counseling department also told her that Karlie would
Renea's testimony reveals a concerned parent (of another student) going out of her way to assist a young woman in need, and encountering resistance from Millersville, until she concluded that her only possible avenue of helping Karlie was advising her daughter to encourage Karlie to seek help. Renea, who certainly owed no legal obligation to Karlie, acted with diligence and compassion to try to help this vulnerable young woman, but Millersville's indifference ensured her efforts were to no avail. Millersville characterizes Renea's repeated attempts to get Karlie help as "speculation—she had heard from her daughter that [Karlie] had suffered injuries from abuse, although [Karlie] had denied any abuse." Millersville Br. at 12. To claim that Karlie denied to Tina that she suffered any abuse—or that Renea reported to University officials mere "speculation" —is a gross mischaracterization of the record.
Tina testified that Karlie told her that Orrostieta "just pushed with the heel of h[is] hand on her eye" and "push[ed] her down into the pillow." Tina Dep. at 61:21-25, 62:8. Millersville seems to suggest that the fact that Orrostieta "just" did these things, as opposed to punching Karlie, means his conduct did not amount to abuse. Millersville SOF at ¶¶ 31, 33, 36. To be clear, a grown man shoving the heel of his hand into a woman's eye socket—hard enough to cause a black eye—is, beyond any shadow of a doubt, just as abusive and horrifying as if he had struck her.
Likewise, Tina's and Renea's testimony clearly contradicts Millersville's assertion that "no one saw physical injuries indicative of assault on Karlie in the days after October 5." Millersville SOF at ¶ 34. Tina testified that the injury, which eventually developed into a black eye, lasted "about a week." Tina Dep. at 123:16-18. Karlie tried to hide that black eye, especially from her sister, but Tina clearly saw it, which she reported to her mother who, in turn, reported it to the University. The University is not a court of law, free to disregard hearsay testimony unless it fits within an applicable exception. Renea, through her daughter, presented to multiple University channels credible, specific facts about an incident of domestic abuse on Millersville's campus that was serious enough to give Karlie a black eye. The University already knew, through its own police department
Title IX "confines the scope of prohibited conduct based on the recipient's degree of control over the harasser and the environment in which the harassment occurs." Davis, 526 U.S. at 644, 119 S.Ct. 1661. Absent that control, the educational institution would not have "`expose[d]' its students to harassment or `cause[d]' them to undergo it `under' the recipient's programs." Id. at 645, 119 S.Ct. 1661. Millersville cites to cases concerning students' privacy rights in their dorm rooms generally to suggest that it had no control over what occurred in Karlie's dorm room. Millersville Br. at 8-9 (citing Bradshaw v. Rawlings, 612 F.2d 135, 139-40 (3d Cir. 1979), cert. denied, 446 U.S. 909, 100 S.Ct. 1836, 64 L.Ed.2d 261 (1980); Wagner v. Holtzapple, 101 F.Supp.3d 462, 473 (M.D. Pa. 2015); Am. Future Sys., Inc. v. Pa. State Univ., 688 F.2d 907, 915 (3d Cir. 1982)). But this case does not ask whether Millersville responding to the abuse would have violated Karlie's privacy rights; it asks whether under the context in which the abuse occurred, the University could have exercised some control to try to prevent its recurrence.
Millersville's argument that "all the harassment and abuse alleged here occurred in the most private circumstances possible—in Karlie's dorm room, late at night, behind a closed door," Millersville Br. at 9, ignores the fact that knowledge of that abuse did, in fact, spread outside the boundaries of that dorm room, through Wiberg's and Officer Liddick's observations and through Renea's call to three separate University channels. Millersville seems to assume that the plaintiffs would need to show that the University had contemporaneous control over the dorm room to prevent Karlie's murder, but the plaintiffs' argument is that Orrostieta never should have been in the dorm room in the first place—either because the University reached out to Karlie or her mother about his domestic abuse earlier or because the University should not have allowed him to bypass the guest check-in process and stay in Karlie's room after the October 2014 incident. Millersville Opp. at 14-15. Indeed, Millersville's Title IX coordinator testified that someone from the University should have contacted both Karlie and Orrostieta in light of Wiberg's incident report. Dep. of Elizabeth Swantek at 130:20-24; 151:2-21, Doc. No. 148-20.
In Swanger v. Warrior Run School District, the United States District Court for the Middle District of Pennsylvania described the "control" necessary in a Title IX case to be a "causation element [which] results in a requirement that harassment, or the likelihood or vulnerability of a student to be subjected to it, must occur subsequent to an official's decision not to remedy a known violation." 346 F. Supp. 3d at 705.
Applying that logic here, it would not be the fact that Orrostieta murdered Karlie on school property that subjected Millersville to Title IX liability. Rather, it would be the fact that the University already knew that Karlie was suffering harassment from the October incident, and—because it did nothing in response— Karlie was subjected to further harassment and, ultimately, her murder. In seeking to limit the question to whether it had the power to contemporaneously know of and stop the murder, Millersville, like the defendant in Farmer, considers the issue of "control" too narrowly. The plaintiffs have presented evidence that Millersville exercised control over who entered and stayed in its dormitories, including requirements that guests sign in and policies prohibiting a guest from staying in a dorm room for too long or at certain points in the year. The October 2014 incident itself establishes that Millersville's agents, including Wiberg and the Millersville police, had some supervisory authority over what occurred in the dorms. As she did during the October altercation, Wiberg at least seems to have attempted to control the incident by knocking on the door in response to Karlie's neighbors' reports that they had heard banging and furniture being moved. Wiberg Dep. at 129:6-130:2. Wiberg could have continued to knock on the door and, if she still received no response, announce to any occupants that she would call the police (again, as she did in October) if no one opened the door.
The burden that the Davis court placed upon educational institutions to address peer sexual harassment was not high: the institution "must merely respond to known peer harassment in a manner that is not clearly unreasonable." 526 U.S. at 649, 119 S.Ct. 1661. A genuine issue of material fact certainly would exist as to whether doing nothing in response to evidence that a student is being abused, on campus property, within earshot of her resident advisor, as confirmed by her roommate's mother after the fact, was clearly unreasonable. Millersville's argument that "there were no eyewitness reports of any abuse, and [Karlie] refused to confirm to
The fact that a reasonable trier of fact could conclude that Millersville's indifference in the wake of the October 2014 incident subjected Karlie to further abuse—ultimately culminating in her murder —means that, contrary to Millersville's argument, the jury would not be limited to consideration of classes Karlie missed specifically because of the October injury. As the jury could also consider her death, there would no question that they could reasonably conclude that the harassment was adequately severe. See Doe v. Pennridge Sch. Dist., Civ. A. No. 17-3570, 2019 WL 2011069, at *7 (E.D. Pa. May 7, 2019) (holding reasonable jury could find harassment was sufficiently "severe or pervasive" where plaintiff alleged abusive former boyfriend
In the wake of tragedy, it is natural to ask whether someone could or should have done something differently. But it is not for the court to determine whether someone should have taken some action. The court's analysis is limited to whether someone was obligated to do something as a matter of law and whether these particular plaintiffs can obtain relief from these particular defendants for the particular acts at issue here. In this case, there is no evidence that Acacia played any meaningful role in the events that led to Karlie's death. No one at the organization had any way to know about or control the party on February 7-8, 2015, and certainly no one knew that among the partygoers would be an individual capable of murdering his girlfriend. Likewise, the members of Chapter 84—who, indisputably, should not have served alcohol to minors and, in fact, violated the law in doing so—nonetheless could not possibly have foreseen that Orrostieta would leave the party and perform such a heinous, unspeakable act.
In contrast, the Flexers were on notice of the abuse, and they did everything in their power to try to help Karlie. Undoubtedly, they were under no legal obligation whatsoever to do so, but they nonetheless acted with sympathy and compassion in trying to get her help. It is impossible to say what would have happened had Millersville been at all receptive to their attempts. For of all the defendants here, only Millersville knew facts indicating Karlie was in substantial danger and had the power to offer any not clearly unreasonable response. However, considering the relevant judicial precedent and regulatory guidance, the court cannot conclude that the University was on notice of potential liability stemming from this particular category of harasser, namely a student's guest. Certainly, this case could have had an entirely different result if Orrostieta fell into a category of third party whose acts may create Title IX liability. But those are not the facts here, and so the court must also grant Millersville's motion for summary judgment.
The court will enter a separate order.
Acacia Opp. at 14-15 (citations omitted). But even assuming that was true, the report demonstrates that in the fall of 2014, several months before Karlie's murder, Chapter 84 was representing to Acacia that it would no longer have open parties with open-source alcohol. The plaintiffs assert, "it strains credulity to suggest that Acacia, having assumed the obligation of repeated contacts to hold Chapter 84 accountable, was not aware of the risk management policies being broken." Acacia Opp. at 17. But they cite to no evidence to support that assertion beyond the party that led to Chapter 84's deactivation three years before and the monthly report, which again, represents that Chapter 84 would cease participating in such activities months before Karlie's murder. See NTP Marble, Inc. v. AAA Hellenic Marble, Inc., Civ. A. No. 09-5783, 2012 WL 607975, at *4 (E.D. Pa. Feb. 27, 2012) ("[T]here must be more than mere allegations in a memorandum of law to place credibility in issue and preclude summary judgment. Specific facts must be produced." (citation omitted)). Regardless, an argument that Acacia "should have known" that Chapter 84 was serving alcohol to minors is insufficient under Sullivan.
Similarly, the plaintiffs point to the Superior Court's decision that the minor's setting fire to a neighboring property was reasonably foreseeable in Sullivan, 535 A.2d at 1100. The court noted "[t]he propensities of alcohol consumption to create aggressive, combative, and often reckless behavior," and saw "no meaningful distinction between the conclusion reached by the Congini Court, i.e., that intoxicated minors are likely to operate motor vehicles under the influence, creating a foreseeable risk of harm to life and property, and the likelihood that intoxicated minors will damage property through other means." Id. Here, Orrostieta's actions were not merely aggressive, combative, or reckless, as in a bar fight; they were willfully vicious, cruel, and shocking in a way no one could have predicted.
