MAINE SUPREME JUDICIAL COURT                                                        Reporter of Decisions
Decision: 2015 ME 75
Docket:   Pen-14-139
Argued:   December 10, 2014
Decided:  June 18, 2015

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



                                      ELIZABETH BROWN

                                                    v.

                                   DELTA TAU DELTA et al.

JABAR, J.

        [¶1]     Elizabeth Brown appeals from the Superior Court’s (Penobscot

County, Cuddy, J.) entry of a summary judgment in favor of Delta Tau Delta

(DTD) and Delta Tau Delta National Housing Corporation (DTDNHC) on her

claims arising out of events that occurred at the fraternal organization’s Gamma

Nu chapter1 located on the University of Maine’s Orono campus (UMO). Brown

argues that the court erred in concluding that neither DTD nor DTDNHC owed her

a duty of care sufficient to support her negligence claims, and in dismissing her

claims seeking to hold DTD and DTDNHC vicariously liable.                                 Because we
   1
      Because the fraternity’s local chapter is an unincorporated association of undergraduate students, it
is not susceptible to being sued in its own name, though its individual members are amenable to suit for
their individual negligent conduct. See K & S Servs., Inc. v. Schulz Elec. Grp. of Cos., 670 F. Supp. 2d
91, 93 (D. Me. 2009); Tisdale v. Rawson, 2003 ME 68, ¶ 15, 822 A.2d 1136; Libby v. Perry,
311 A.2d 527, 534 (Me. 1973).
2

conclude that DTD owed a duty to its collegiate chapters’ social invitees sufficient

to support Brown’s claim based on premises liability, we vacate that portion of the

summary judgment. We affirm the summary judgment on the remaining claims

against DTD. We also affirm and do not further discuss the summary judgment as

to DTDNHC because there is nothing in the record suggesting that the

property-holding corporation had a duty, based on premises liability or otherwise,

to Gamma Nu’s social invitees.

                                 I. BACKGROUND

      [¶2] Viewed in the light most favorable to Brown, as the nonmoving party,

the summary judgment record establishes the following facts.         See Budge v.

Town of Millinocket, 2012 ME 122, ¶ 12, 55 A.3d 484.

      [¶3]   On September 17, 2010, Gamma Nu hosted a party at its DTD

fraternity house that was restricted to invited guests only. Brown, a UMO student,

was invited to the party by Joshua Clukey, a member of Gamma Nu. Brown

arrived at the fraternity house between 11:00 and 11:30 p.m. and found Clukey.

Brown and Clukey, who had both been drinking alcoholic beverages, went upstairs

to Clukey’s room, past a fraternity member whose function was to limit access to

the upper floors to residents and their guests. Inside his room, Clukey sexually

assaulted Brown and prevented her from leaving the room for several minutes.
                                                                                                     3

       [¶4] The day after the party, Brown reported the incident to the fraternity

president, who told her “the fraternity had been concerned about Clukey for a

while” because he had developed a drinking problem and had recently caused

property damage and engaged in fights with other fraternity brothers.                             The

fraternity president reported the incident involving Brown to the chapter

consultant, who is employed by the national fraternity, DTD. The following week,

the local chapter expelled Clukey from the fraternity for engaging in conduct

unbecoming a member and for violating the national fraternity’s code of conduct

and rules regarding alcohol and hazing. Clukey was notified of his expulsion by

letter from the national fraternity.

       [¶5] On September 11, 2012, Brown filed a civil complaint against Clukey,

DTD,2 and DTDNHC.3 DTDNHC is an Indiana non-profit corporation that holds

property for DTD and leases the fraternity house to Gamma Nu. DTD is a national

non-profit corporation organized in New York and doing business in Indiana;

Gamma Nu is its local chapter at UMO. DTD’s purpose is to advance its mission

and values by providing resources to local chapters and regulating them through

risk management policies, a member code of conduct, and oversight by chapter

   2
     According to DTD, it was inaccurately named in the complaint; its name is actually Delta Tau Delta
Fraternity, Inc.
   3
     DTDNHC was substituted as a defendant for Delta Tau Delta Building Corp. (DTDBC), which was
named in the original complaint. DTDBC is a now-defunct Maine non-profit corporation that leased
property to Gamma Nu in Orono in the 1990s, but sold the property to DTDNHC in 1998.
4

consultants and alumni advisors. DTD’s constitution and by-laws set forth an

intricate hierarchy of rules and regulations “to provide for the effective

organization of [fraternity] operations on the international, division, and chapter

levels,” including member initiation regulations, implementation of national

Member Responsibility Guidelines (MRGs), and enforcement mechanisms.

      [¶6]    Brown’s initial complaint alleged counts of assault and false

imprisonment against Clukey, and vicarious liability against both DTD and

DTDNHC.      Through subsequent amendments to her complaint, Brown added

counts of negligence, premises liability, and negligent infliction of emotional

distress against Clukey, DTD, and DTDNHC, and requested recovery of punitive

damages from Clukey.

      [¶7] In October 2013, Clukey was dismissed from the case with prejudice

following Brown’s settlement of her claims against him. On January 29, 2014, the

court granted DTD and DTDNHC’s motion to dismiss with respect to the issue of

vicarious liability and denied the motion in all other respects. After entry of this

order, Brown’s remaining counts against DTD and DTDNHC alleged negligence,

negligent infliction of emotional distress, and premises liability. On March 17,

2014, the court granted DTD and DTDNHC’s motion for summary judgment,

concluding that neither DTD nor DTDNHC owed Brown a duty of care. Brown

appeals.
                                                                                  5

                                  II. DISCUSSION

      [¶8] Because there is nothing in the record suggesting that Clukey was

acting as an agent of DTD or DTDNHC at the time of the assault, we reject

Brown’s vicarious liability claims and focus only on her claims of negligence. We

review de novo the court’s entry of summary judgment in favor of DTD based

upon the legal determination that DTD did not owe Brown a duty of care. See

Estate of Cabatit v. Canders, 2014 ME 133, ¶ 8, 105 A.3d 439.

A.    Duty

      [¶9] Even though the issue is fact driven, the question of duty is a legal

question decided by the court, not the jury. See Michaud v. Great N. Nekoosa

Corp., 1998 ME 213, ¶ 15, 715 A.2d 955. Because it is a mixed question of law

and fact, the facts in any given case will determine whether an entity has a duty to

the putative plaintiff. See Cameron v. Pepin, 610 A.2d 279, 282 (Me. 1992). This

is a multi-factored analysis that necessarily evokes policy-based considerations

including the just allocation of loss. See id.

      [¶10] The undisputed facts in this case do not give rise to a duty beyond that

related to Brown’s premises liability claim. Specifically, the summary judgment

record reveals no “special relationship” between Brown and DTD sufficient to

sustain Brown’s general negligence claim, see DeCambra v. Carson,

2008 ME 127, ¶¶ 11-12, 953 A.2d 1163 (holding that, absent a special relationship
6

between the parties, “there is no general obligation to protect others from the

actions of third parties, even where one knows the third party is or could be

dangerous”), nor does it reveal a special relationship or facts that would give rise to

bystander liability sufficient to support Brown’s negligent infliction of emotional

distress claim, see Curtis v. Porter, 2001 ME 158, ¶¶ 18-19, 784 A.2d 18 (holding

that, except in bystander liability claims or when “a special relationship exists

between the actor and the person emotionally harmed,” there is “no . . . general

duty to avoid negligently causing emotional harm to others”). However, as our

discussion will illustrate, the facts here give rise to a question of duty founded on

premises liability. The issue is thus whether, based on the factual record, the

national fraternity has a duty to exercise reasonable care for the safety of its local

chapter’s social invitees during functions sponsored by the local chapter and held

at the DTD fraternity house.

      [¶11] We have determined that a duty founded on premises liability exists

between a university and its business invitees.       Stanton v. Univ. of Me. Sys.,

2001 ME 96, ¶¶ 8, 10, 773 A.2d 1045. In Stanton, a visiting student at the

University of Southern Maine was sexually assaulted in her dormitory room. Id.

¶¶ 2-3. We held that, in light of the relationship between the University as the

owner of the dormitory and the female student as its business invitee, as well as the

foreseeability of a sexual assault occurring within a dormitory room, “the
                                                                                     7

University owed a duty to reasonably warn and advise students of steps they could

take to improve their personal safety.” Id. ¶¶ 8-10; see also Schultz v. Gould

Acad., 332 A.2d 368, 370 (Me. 1975) (“Plaintiff, as a student attending the

defendant Academy, had the legal status of a business invitee, to whom

defendant’s employee owed a duty to exercise reasonable care in taking such

measures as were reasonably necessary for [the student’s] safety in light of all then

existing circumstances.”)

      [¶12] Though we have not previously addressed the question of a national

fraternity’s duty to its local chapter’s social invitees, courts in other jurisdictions

condition the existence of a duty on the extent of the national fraternity’s control

over the local chapter. In Grenier v. Comm’r of Transp., 51 A.3d 367, 373-74, 389

(Ct. 2012), the Connecticut Supreme Court considered whether a national

fraternity’s level of involvement with its local chapter was sufficient to give rise to

a duty of care owed by the fraternity to a local member who suffered fatal injuries

in an automobile accident while returning from a chapter event.           Noting that

different courts had reached different conclusions, the Grenier court held,

      Ultimately, whether a national fraternity may be held liable for the
      actions of one of its local chapters depends both on its ability to
      exercise control over the local chapter as well as its knowledge either
      that risk management policies are not being followed or that the local
      chapter is engaging in inappropriate behavior.
8

Id. at 388.   In reversing summary judgment entered in favor of the national

fraternity, the court considered evidence that the fraternity provided financial

resources to, imposed risk management standards on, and maintained supervisory

and enforcement authority over the local chapter. Id. at 389. It also considered

evidence that the national fraternity conducted chapter leadership training and

regulated member conduct through rules and regulations, including those related to

the use of alcohol. Id.

      [¶13] In Morrison v. Kappa Alpha Psi Fraternity, 738 So. 2d 1105, 1118

(La. Ct. App. 1999), the Louisiana Court of Appeal determined that a national

fraternity owed a duty to protect a pledge from injuries caused during its local

chapter’s hazing activities when the national organization was aware of prior

hazing activities at that chapter.      In that case, the national fraternity was

“responsible for all that [went] on in its chapters, as it ha[d] the right to control

intake, expel or suspend members, and revoke charters”; had officers and alumni

advisors responsible for auditing and supervising local chapters’ compliance with

fraternity rules; and had educational programs and workshops “to address the

problem of hazing.” Id. But see Walker v. Phi Beta Sigma Fraternity, 706 So.

2d 525, 529 (La. Ct. App. 1997) (concluding that a national fraternity with no

notice of hazing activities and no authority to control the day-to-day activities of a
                                                                                     9

local chapter had no duty to protect a member from hazing injuries despite the

national organization’s general anti-hazing policy).

      [¶14] As these cases illustrate, the inquiry as to the existence of a duty is

fact-intensive.    Here, we look to general principles of duty, with particular

emphasis on the undisputed facts relevant to foreseeability, control, and the

relationship of the parties, in determining whether a duty founded on premises

liability exists between DTD and its local chapter’s social invitees. See Stanton,

2001 ME 96, ¶ 8, 773 A.2d 1045; Hughes v. Beta Upsilon Bldg. Ass’n,

619 A.2d 525, 527 (Me. 1993) (“[Duty] arises only from a relationship that society

recognizes as sufficient to create the duty. Just as control and foreseeability are

factors in a duty analysis, so is the relationship of the parties.”). For the following

reasons, the facts in this case dictate our holding.

      1.      Foreseeability

      [¶15]       Over a decade ago, we recognized that sexual assaults could

foreseeably occur in a dormitory room on a college campus. Stanton, 2001 ME 96,

¶ 10, 773 A.2d 1045. Certainly, nothing has occurred during the past fourteen

years to make such events less foreseeable. It is similarly foreseeable that allowing

a group of eighteen-to-twenty-year-olds control over a residence where

alcohol-related parties are held presents the potential for misconduct, including

sexual assault. A national fraternity knows, or should know, that social events
10

carried on in a building that houses one of its local chapters presents the potential

for sexual assault, particularly where alcohol consumption is an integral part of the

event.

         [¶16] The mechanisms through which DTD controls the behavior of its

members, discussed below, demonstrate its awareness of these potential problems.

DTD’s “Policy on Alcohol and Substance Abuse,” which is integrated into the

MRGs, recognizes that the “well known dangers of alcohol and substance abuse”

may be manifested by “relationship problems, including inappropriate sexual

behavior [or] harassment.” The MRGs also state:

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

         [¶17]   DTD’s policies recognize the self-evident potential for excessive

drinking and sexual abuse within the fraternity setting. These policies would make

little sense unless such activities were foreseeable. See Stanton, 2001 ME 96, ¶ 10,

773 A.2d 1045 (“That a sexual assault could occur in a dormitory room on a

college campus is foreseeable and that fact is evidenced in part by the security

measures that the University had implemented.”); Mullins v. Pine Manor Coll.,

449 N.E.2d 331, 337 (Mass. 1983).
                                                                                  11

      2.     Control

      [¶18] The undisputed facts of this case demonstrate both DTD’s authority to

control its members as well as its actual control. Through its constitution, by-laws,

and administrative connection to its local chapters’ day-to-day activities, DTD

exercises significant control over its individual members.

      [¶19] DTD requires each local chapter to adopt local by-laws that do not

conflict with the national constitution or by-laws.     Local chapter by-laws are

expected to address local risk management plans that supplement the national

MRGs; implement DTD’s alcohol education program, Delts Talking About

Alcohol; and require all members to sign the national code of conduct. Each

chapter must provide a certified copy of its by-laws, and any amendments thereto,

to the national central office.

      [¶20] As part of the chapter accreditation process, the MRGs must be

presented to the local chapters’ pledges and members by October 25 of each year.

The MRGs set out the rules and regulations to which every member is expected to

adhere. In addition to those provisions already discussed, they provide that:

      9.    Drunkenness by members and pledges will be classified as
            “conduct unbecoming a member of the Fraternity” as defined in
            . . . the Fraternity’s Constitution.

      10. Every chapter will implement the Fraternity’s primary alcohol
          education program . . . .
12

      11. No members . . . shall purchase for, serve to, or sell alcohol
          beverages to any minor . . . .

      12. No member . . . shall permit, tolerate, encourage or participate in
          “drinking games.”

The MRGs also set out specific rules and regulations pertaining to conduct by its

members at social events held by the local chapter.

      [¶21]   The national code of conduct, which DTD requires each of its

members to sign, sets out the behavioral standards to which every member is

expected to conform. The code requires members to refrain from sexual abuse and

the abuse of alcohol, and also prohibits physical or psychological hazing and the

use of illegal drugs. DTD requires each chapter president to, among other things,

enforce compliance with the code of conduct and DTD’s rules and regulations.

      [¶22] DTD’s constitution also provides that each local chapter shall have an

alumni advisor, who acts within the local chapter as a deputy for the Arch Chapter,

which is the national organization’s governing body. The chapter advisor’s duties

include overseeing and advising the local chapter to ensure compliance with the

rules and guidelines set forth by the national organization and reporting back to

DTD regarding the chapter’s activities. In addition, a chapter consultant visits

each local chapter at least once per semester. Chapter consultants meet with local

fraternity leadership and alumni advisors, inquire into chapter operations, provide

feedback for improvements, and report back to DTD’s central office.             These
                                                                                 13

consultants also report potential violations of DTD rules by the local chapters to

their supervisors at DTD, who then investigate the infractions and sanction the

chapter as necessary.

      [¶23] DTD also has a comprehensive process for disciplining members who

violate its rules or regulations. The MRG enforcement criteria designate three

categories of MRG violations of increasing severity. All incidents of misconduct

must be reported to the national office, and a member charged with an infraction

has due process rights to notice and a hearing, which necessarily run through the

Arch Chapter. DTD has broad authority to impose sanctions, which may include

mandating educational workshops, imposing fines, conducting membership

review, revoking a chapter’s privilege to hold events with alcohol, revoking a

chapter’s charter, or suspending or expelling individual members. In short, the

national fraternity does more than simply suggest that its members conform to

certain norms; it enforces its rules, regulations, and codes of conduct through

constant monitoring, oversight, and intervention.

      3.    Relationship

      [¶24] The same elements by which DTD controls its members—its chain of

command, its articulation and imposition of its code of conduct, and its process for

disciplining members who do not comply with its rules—also establish a close

relationship between the national fraternity and its local chapters and individual
14

members. DTD imposes a complex hierarchy of rules and regulations upon its

local chapters and individual members, and its constitution sets out a clear

command structure to which local chapters must adhere.

      [¶25] In addition to the alumni representatives that the national fraternity

requires within each chapter, the national chain of command provides for a chapter

advisor whose full-time job is to monitor and provide oversight of the functioning

of the local chapter, to “assist the undergraduate chapter in understanding and

living the Mission and Values of the Fraternity,” and to report to DTD on a regular

basis. The DTD constitution provides that the division president, an officer of the

national fraternity, appoints these advisors, as well as the assistant chapter

advisors. These constitutional officers provide a direct link between the national

fraternity and each local chapter.

      [¶26]    Through its comprehensive articles and clearly defined power

structure, DTD expressly reaches into the day-to-day affairs of its local chapters

and creates a close, mutually beneficial relationship with its individual members.

B.    Conclusion

      [¶27] We conclude that the foreseeability, control, and relationship factors

present here are sufficient to impose upon DTD a duty founded on premises

liability. See Stanton, 2001 ME 96, ¶¶ 8, 10, 773 A.2d 1045. This case involves

the responsibility of a national organization, DTD, which provided its name, its
                                                                                 15

credibility, its corporate structure, and its code of conduct to a local branch on a

college campus. DTD effectively handed over a residential building to a group of

college students, and in doing so it should have anticipated that alcohol-related

parties on the premises would follow, as could the social problems that accompany

such activities. It therefore had a duty to exercise reasonable care in providing a

reasonably safe environment for any social invitee to an event at the fraternity

house. Imposing upon a national fraternity that integrates itself into its local

chapter and onto a college campus a duty to take reasonable steps to protect the

safety of social invitees at its fraternity house is no more onerous or unexpected

than the duty society imposes upon a university to exercise care in the

administration of its dormitories.

      [¶28] DTD had the authority to control its individual members, and actually

did so through implementation and enforcement of its rules and regulations. DTD

also had a close, integrated relationship with Gamma Nu, as demonstrated by

DTD’s corporate structure.      Finally, it is certainly foreseeable that turning a

fraternity house over to college students, where parties and alcohol-related events

are likely to occur, creates the potential for sexual misconduct—a known safety

issue on college campuses.

      [¶29] We conclude that DTD had a duty to exercise reasonable care and

take reasonable steps to provide premises that are reasonably safe and reasonably
16

free from the potential of sexual misconduct by its members, for all social invitees

to chapter-sponsored events. Our finding of a duty does not establish any liability

on the part of DTD. Brown still has the obligation to convince a fact-finder that

there was a breach of that duty, and that the breach was the cause of her injuries.

      The entry is:

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




ALEXANDER, J., concurring/dissenting.

      [¶30] The Court has thoroughly researched the law and presented the facts

of this case. I concur with the Court that we must vacate the trial court’s judgment.

However, based on the facts and conclusions stated in the Court’s opinion, and the

law the Court’s opinion cites, I must respectfully dissent from the Court’s holdings

that only a premises liability claim against Delta Tau Delta (DTD) should proceed

to trial and that the Delta Tau Delta National Housing Corporation (DTDNHC), the

owner of the building, should be dismissed from the case entirely.           Because

important disputes as to material facts remain, the premises liability, negligence,
                                                                                   17

and negligent infliction of emotional distress claims against DTD and DTDNHC

should be left for a jury to decide.

                               I. RELEVANT FACTS

      [¶31] Foreseeability is one of the touchstones for attaching legal liability.

Stanton v. Univ. of Me. Sys., 2001 ME 96, ¶¶ 8, 10, 773 A.2d 1045. As the Court’s

opinion recognizes, sexual assault on college and university campuses is,

unfortunately, a foreseeable event. To begin the discussion, it is important to quote

the facts and conclusions stated in the Court’s opinion that, in my view, support the

conclusion that a jury should be allowed to decide the claims against both

defendants.

      (1) “A national fraternity knows, or should know, that social events carried

on in a building that houses one of its local chapters presents the potential for

sexual assault, particularly where alcohol consumption is an integral part of the

event.” Court’s Opinion ¶ 15.

      (2)     “It   is   similarly     foreseeable   that   allowing   a   group   of

eighteen-to-twenty-year-olds control over a residence where alcohol-related parties

are held presents the potential for misconduct, including sexual assault.” Court’s

Opinion ¶ 15.

      (3) “[I]t is certainly foreseeable that turning a fraternity house over to

college students, where parties and alcohol-related events are likely to occur,
18

creates the potential for sexual misconduct—a known safety issue on college

campuses.” Court’s Opinion ¶ 28.

      (4) “DTD effectively handed over a residential building to a group of

college students, and in doing so it should have anticipated that alcohol-related

parties on the premises would follow, as could the social problems that accompany

such activities. It therefore had a duty to exercise reasonable care in providing a

reasonably safe environment for any social invitee to an event at the fraternity

house.” Court’s Opinion ¶ 27.

      (5) “Imposing upon a national fraternity that integrates itself into its local

chapter and onto a college campus a duty to take reasonable steps to protect the

safety of social invitees at its fraternity house is no more onerous or unexpected

than the duty society imposes upon a university to exercise care in the

administration of its dormitories.” Court’s Opinion ¶ 27.

      (6) “DTD had the authority to control its individual members, and actually

did so through implementation and enforcement of its rules and regulations. DTD

also had a close, integrated relationship with Gamma Nu, as demonstrated by

DTD’s corporate structure.” Court’s Opinion ¶ 28.

      (7) “DTD had a duty to exercise reasonable care and take reasonable steps

to provide premises that are reasonably safe and reasonably free from the potential
                                                                                 19

of sexual misconduct by its members, for all social invitees to chapter-sponsored

events.” Court’s Opinion ¶ 29.

      (8) “DTD is a national non-profit corporation organized in New York and

doing business in Indiana; Gamma Nu is its local chapter at UMO.” Court’s

Opinion ¶ 5.

      (9) “DTDNHC is an Indiana non-profit corporation that holds property for

DTD and leases the fraternity house to Gamma Nu.” Court’s Opinion ¶ 5.

      (10) “Because the fraternity’s local chapter is an unincorporated association

of undergraduate students, it is not susceptible to being sued in its own name,

though its individual members are amenable to suit for their individual negligent

conduct.” Court’s Opinion ¶ 1 n.1.

      (11) “The same elements by which DTD controls its members—its chain of

command, its articulation and imposition of its code of conduct, and its process for

disciplining members who do not comply with its rules—also establish a close

relationship between the national fraternity and its local chapters and individual

members.” Court’s Opinion ¶ 24.

      (12) “DTD imposes a complex hierarchy of rules and regulations upon its

local chapters and individual members, and its constitution sets out a clear

command structure to which local chapters must adhere.” Court’s Opinion ¶ 24.
20

      (13) “Brown and Clukey, who had both been drinking alcoholic beverages,

went upstairs to Clukey’s room, past a fraternity member whose function was to

limit access to the upper floors to residents and their guests. Inside his room,

Clukey sexually assaulted Brown and prevented her from leaving the room for

several minutes.” Court’s Opinion ¶ 3.

      (14) “The day after the party, Brown reported the incident to the fraternity

president, who told her ‘the fraternity had been concerned about Clukey for a

while’ because he had developed a drinking problem and had recently caused

property damage and engaged in fights with other fraternity brothers.” Court’s

Opinion ¶ 4.

      [¶32] These facts and conclusions, quoted from the Court’s opinion, support

the three theories of liability against both defendants. They also support several

inferences from the facts that, according to the reasonable dispute as to material

fact standard, are sufficient to avoid a summary judgment. Those inferences are:

      [¶33] First, DTDNHC’s ownership of the Orono chapter’s real estate, and

creation of the local chapter as an unincorporated association of students, is part of

a sophisticated legal mechanism, managed by DTD, to attempt to immunize its

local chapter real estate from court process and liability for foreseeable lawsuits

claiming injury from underage drinking, excessive drinking, sexual assaults, and
                                                                               21

other claims that, as the Court recognizes, are the foreseeable result of ceding

control of the real estate to eighteen- to twenty-two-year-olds.

      [¶34]     Second, considering the risks that the Court recognizes are

foreseeable, DTD knows or should know that its so-called member responsibility

guidelines will not be enforced.

      [¶35] Third, the stairs monitor, who apparently was tasked with watching

for potential problems, allowed a person who was known to be destructive and

have a drinking problem—and who had been drinking that night—to take a young

woman upstairs to the bedroom areas of the fraternity.

                              II. LEGAL ANALYSIS

      [¶36] The record demonstrates that DTD and DTDNHC are closely related

entities, with DTDNHC being DTD’s agent for owning the real estate of its local

chapters. As the owner of the real estate, DTDNHC, like DTD, is charged with

knowledge of the foreseeable risks from use of its real estate, and is responsible

when there is injury resulting from a breach of the duty of care to guard against

those foreseeable risks. To hold otherwise, as the Court suggests, would declare

that an owner of a premises is not liable for a premises liability claim.

      [¶37]    To establish liability for DTDHNC, one need look only to the

principal precedent cited by the Court, Stanton, 2001 ME 96, 773 A.2d 1045. The

Court’s opinion recognizes that in Stanton, the University, “as the owner of the
22

dormitory,” Court’s Opinion ¶ 11, was the entity with legal responsibility in the

action for sexual assault arising from a breach of the University’s duty of care.

Stanton, 2001 ME 96, ¶¶ 8-10, 773 A.2d 1045. DTDNHC, the “owner of the

dormitory” here, is similarly liable to respond to the pending claims for premises

liability, negligence, and negligent infliction of emotional distress.

      [¶38] We have long held that owners of educational institution property

have a legal duty to exercise reasonable care toward students and others reasonably

anticipated to be on the premises. See Schultz v. Gould Acad., 332 A.2d 368, 369,

372 (Me. 1975) (reinstating a jury verdict resulting from the sexual assault of a

student in a school dormitory). “[T]he law of Maine is that the owner of premises

owes a legal duty to his business invitees to protect them from those dangers

reasonably to be foreseen . . . .” Id. at 371; see also Isaacson v. Husson Coll.,

332 A.2d 757, 759, 765 (Me. 1975) (affirming a verdict resulting from a student’s

slip and fall on a college walkway).          Owners of fraternity property, here

DTDNHC, have similar responsibility.

      [¶39] Our opinions in Schultz, 332 A.2d at 369, and Isaacson, 332 A.2d at

758, described them as negligence actions, not premises liability actions. Here, the

Court attempts to distinguish the premises liability and negligence claims and

holds that the premises liability claim may proceed, but the negligence claim may

not. To do so, the Court cites Stanton, 2001 ME 96, ¶¶ 8, 10, 773 A.2d 1045,
                                                                                   23

apparently to suggest that there is some distinction between premises liability and

negligence. If that is the suggestion, it is a misreading of Stanton. In Stanton, we

characterized the legal question presented as one of “Negligence,” and we

described “a prima facie case of negligence.” Id. ¶ 7. Then we stated: “We have

determined that a duty founded on premises liability exists between a student and a

college or other educational institution.” Id. ¶ 8. (citing Schultz, 332 A.2d at 370).

Concluding the negligence–premises liability discussion, we observed: “[T]he

court erred in granting summary judgment to the University on the negligence

claim.” Id. ¶ 11 (emphasis added).

      [¶40] In our prior opinions, we have not established any distinct elements

separating a negligence claim from a premises liability claim. “A prima facie case

of negligence requires a plaintiff to establish the following elements: a duty owed,

a breach of that duty, and an injury to the plaintiff that is proximately caused by a

breach of that duty.” Stanton, 2001 ME 96, ¶ 7, 773 A.2d 1045. The facts and

conclusions stated in the Court’s opinion establish the duty, and that there is a

dispute of material fact as to breach of that duty causing injury to the plaintiff.

Brown’s negligence claim and premises liability claim, if there is any distinction

between the two, against both DTD and DTDNHC, have disputes of material fact

regarding breach of duty and causation that bar summary judgment in favor of

either defendant.
24

      [¶41] To prevail on her negligent infliction of emotional distress claim,

Brown will have to prove by a preponderance of the evidence that:

      (1) DTD and/or DTDNHC were negligent;

      (2) Emotional distress to Brown was a reasonably foreseeable result of the

defendants’ negligent conduct; and

      (3) Brown suffered serious emotional distress as a result of the defendants’

negligence.

See Maine Jury Instruction Manual § 7-70 at 7-95 (2015 ed.).

      [¶42] The above discussion demonstrates that Brown is entitled to a trial on

her negligence claims against DTD and DTDNHC. If she proves negligence, then

it is likely that Brown would be able to prove foreseeability and serious emotional

distress if, as the record suggests, Brown was sexually assaulted, held against her

will, and placed in fear of an imminent, more serious sexual attack. Certainly, at

this pretrial stage, there remains a dispute of material fact as to these issues.

      [¶43] Accordingly, with fact disputes remaining, the trial court’s grant of

summary judgment should be vacated and Brown’s claims of premises liability,

negligence, and negligent infliction of emotional distress should proceed to trial

against both DTD and DTDNHC.
                                                                                 25

CLIFFORD, J., dissenting.

      [¶44]   Because I agree with the Superior Court that Delta Tau Delta

Fraternity, Inc. (DTD) did not have a duty of care running to social invitees of

members of the fraternal organization’s Gamma Nu chapter located on the

University of Maine at Orono campus, I respectfully dissent. I agree with the

Court’s determinations that the entry of summary judgment in favor of Delta Tau

Delta National Housing Corporation was proper, and that DTD did not have a duty

of care for purposes of Brown’s negligence and negligent infliction of emotional

distress claims. I disagree, however, that DTD had a duty of care to prevent the

intentional torts of a member against that member’s social invitee for purposes of a

premises liability claim. The undisputed facts demonstrate that (A) DTD did not

have control of the premises or the resident members of the local chapter; (B) there

was no special relationship between DTD and Brown, the injured party in this case,

that would create a duty in DTD to protect her—a member’s social invitee—from

the member’s intentional torts; and (C) DTD did not assume a duty. Finally, even

if there were a duty, I disagree with the overly expansive description of that duty

provided by the Court in its opinion.

                     I. EXISTENCE OF A DUTY OF CARE

      [¶45] To succeed in a premises liability claim, which is a particularized

application of general negligence law, Brown must first establish the existence of a
26

duty in DTD “to use reasonable care to all persons lawfully on the premises.”

Quadrino v. Bar Harbor Banking & Trust Co., 588 A.2d 303, 304 (Me. 1991)

(quotation marks omitted). This duty must run from DTD to Brown, who was a

social invitee of a member of a local chapter who resided in a building owned by a

holding company affiliated with DTD and occupied by local chapter members.

      [¶46] There are no material disputes regarding the facts that are relevant in

determining whether DTD had a duty of care, and the court’s entry of summary

judgment in favor of DTD on the legal question of duty is reviewed de novo. See

Estate of Cabatit v. Canders, 2014 ME 133, ¶ 8, 105 A.3d 439 (stating that a

plaintiff has the burden, in defending against a defendant’s motion for summary

judgment, “to make out the prima facie case”); Estate of Cummings v. Davie,

2012 ME 43, ¶ 9, 40 A.3d 971 (stating that the question of duty is a legal question).

      [¶47] For purposes of determining, as a matter of law, whether there is a

duty, the relevant considerations are the degree of control exercised by the

defendant, the foreseeability of injury, and the relationship of the parties.

Hughes v. Beta Upsilon Bldg. Ass’n, 619 A.2d 525, 527 (Me. 1993).            A duty

“arises only from a relationship that society recognizes as sufficient to create the

duty. Just as control and foreseeability are factors in a duty analysis, so is the

relationship of the parties.” Id.
                                                                               27

      [¶48] There is no real question that the type of injury suffered by Brown

was foreseeable.    See Stanton v. Univ. of Me. Sys., 2001 ME 96, ¶ 10,

773 A.2d 1045 (holding that sexual assaults in college housing are foreseeable).

Thus, to determine whether DTD had a duty of reasonable care to provide safe

premises free from members’ tortious conduct, the relevant considerations are

(A) the degree of control exerted by DTD over the premises, (B) the nature of the

relationship that DTD had with social invitees visiting Gamma Nu’s members in

the building, and (C) whether, although no duty otherwise existed, DTD

voluntarily assumed a duty of reasonable care to provide safe premises.

A.    Degree of Control Exercised by DTD

      [¶49]   In a premises liability case, a plaintiff must establish that the

defendant was in control of the premises. See Stewart v. Aldrich, 2002 ME 16,

¶ 10, 788 A.2d 603 (holding that a landlord is generally not responsible for a

dangerous condition that starts after a tenant “takes exclusive possession and

control of the premises”); see also Rogers v. Sigma Chi Int’l Fraternity, 9 N.E.3d

755, 760 (Ind. Ct. App. 2014) (“In order to have the occupation or control of

premises necessary to impose a legal duty with respect to the condition or use of

those premises, one must ordinarily have the power and the right to admit

individuals to the premises, or to exclude them from the premises.” (quotation

marks omitted)).   As the Restatement (Third) of Torts: Liability for Physical
28

& Emotional Harm § 49 (2012) provides, a “possessor of land” is generally “a

person who occupies the land and controls it.”

      [¶50] In each of the cases cited by the Court, the duty of care under

consideration was a general negligence duty of care not connected to control of the

premises.   See Grenier v. Comm’r of Transp., 51 A.3d 367, 372-74, 387-89

(Conn. 2012) (reviewing a summary judgment on a negligence claim arising from

an automobile collision that occurred off the premises and resulted in a pledge’s

death); Morrison v. Kappa Alpha Psi Fraternity, 738 So. 2d 1105, 1110, 1117-20

(La. Ct. App. 1999) (reviewing a jury verdict on negligence claims arising from an

assault, in a university dormitory room, on a student who was interested in

membership).

      [¶51] DTD is not the possessor, or even the owner, of the premises at issue

and did not have control over the premises. An entity that is not in possession or

control of the premises can be held liable in premises liability only if that party

“negligently create[d] a dangerous condition on the land,” in which case the party

“may be liable for reasonably foreseeable harms.” Colvin v. A R Cable Servs.-ME,

Inc., 1997 ME 163, ¶ 7, 697 A.2d 1289. The case in which this holding was

reached involved allegations that a cable company negligently installed a cable box

in a location that caused injury to the building manager. Id. ¶¶ 2-4. The facts

alleged here are dissimilar because they arise not from an alteration to the premises
                                                                                    29

that rendered it unsafe but instead from the intentional conduct of an individual

actually in possession of the premises.

      [¶52] A national fraternity that does not own, possess, or control the house

occupied by its members has no duty in premises liability to a local chapter’s

social invitees. See Ostrander v. Duggan, 341 F.3d 745, 748 (8th Cir. 2003)

(holding that a national fraternity had no duty in premises liability in part because

it did not own, possess, or control the house); see also Yost v. Wabash Coll.,

3 N.E.3d 509, 513, 516 (Ind. 2014) (holding, in a premises liability case, that a

college was not liable for injuries to a fraternity pledge because it was not in

control of premises leased to a local chapter of a fraternity, which had the

exclusive right to possess and control the premises); Rogers, 9 N.E.3d at 759-61

(holding that an international fraternity had no premises liability for an assault that

occurred at a local chapter’s fraternity party because the premises were not owned

by the fraternity or any related party and the fraternity did not exercise control over

the premises).

      [¶53] Here, DTD may have had some influence on its individual members’

conduct, and it did have an affiliation with the owner of the premises, but neither

of those facts demonstrates that DTD had the authority to control activities on the

premises or its members’ intentional conduct toward those members’ social

invitees. See Shaheen v. Yonts, 394 F. App’x 224, 229-30 (6th Cir. 2010) (holding
30

that a duty should not be imposed if a party has no real means of controlling

behavior); Yost, 3 N.E.3d at 521 (holding that the national fraternity did not have a

duty to a social invitee when it “lacked any direct oversight and control of the

individual fraternity members”).4 In the absence of an ability to control activities

on the premises, DTD has no duty in premises liability.

B.       Relationship Between DTD and Social Invitees of DTD Members

         [¶54] I also disagree with the Court’s conclusion that a special relationship

existed. The Court speaks only of the relationship between DTD and its members.

The pertinent question, however, is whether there is a special relationship between

DTD and Brown, who seeks to recover damages based on her status as a social




     4
      Even in ordinary negligence cases unrelated to premises liability, national fraternities and building
associations have consistently been determined not to have a duty to a local chapter’s social invitees when
they do not provide oversight or exercise control. See Shaheen v. Yonts, 394 F. App’x 224, 227-31
(6th Cir. 2010) (holding that neither the national fraternity nor the holding company for fraternity
property had a presence at the local chapter house that would generate a duty to supervise and control
drinking at a party in that house to prevent injury to a social invitee); Yost v. Wabash Coll., 3 N.E.3d 509,
513, 520-21 (Ind. 2014) (holding that the national fraternity did not have or assume a duty to a fraternity’s
pledge because the national fraternity did not oversee and control individual fraternity members or
involve itself in the local chapter’s day-to-day management); Grand Aerie Fraternal Order of Eagles v.
Carneyhan, 169 S.W.3d 840, 848-54 (Ky. 2005) (holding that the fraternal organization had no duty to a
social invitee at a local event because it had no ability to control the local chapter alleged to have caused
the harm); Pingeton v. Erhartic, 12 Mass. L. Rptr. 644 (Mass. Super. Ct. 2001) (concluding that, although
the national fraternity had an alcohol policy for its local chapters and could discipline local chapters and
members, it had no duty to social invitees because it was not present on a day-to-day basis and could not
enforce discipline until after violations had occurred); Sparks v. Alpha Tau Omega Fraternity, Inc.,
255 P.3d 238, 244-46 (Nev. 2011) (holding that the national fraternity did not have a duty to third parties
because it did not control or monitor those who attended events organized by a local chapter);
Alumni Ass’n v. Sullivan, 572 A.2d 1209, 1209-10, 1212-13 (Pa. 1990) (holding that the national
fraternity had no duty to those injured by a social invitee after drinking alcohol because it had no ability
to monitor its chapters’ activities and had the power to discipline only after the fact).
                                                                                   31

invitee of a local chapter member when DTD did not itself invite her to the

premises.

         [¶55]   A national fraternity such as DTD may well have a special

relationship with its own members, but that relationship does not automatically

translate into a special relationship with social invitees of those members for

purposes of premises liability. This is not a case involving a local fraternity’s

hazing of its pledges, cf. Grenier, 51 A.3d at 387-89, or of those interested in

membership, cf. Morrison, 738 So. 2d at 1110. Instead, this is a case involving an

individual member’s commission of intentional torts against the member’s own

guest.

         [¶56] For purposes of premises liability claims, “[o]nly when there is a

special relationship, may the actor be found to have a common law duty to prevent

harm to another, caused by a third party.” Belyea v. Shiretown Motor Inn, LP,

2010 ME 75, ¶ 9, 2 A.3d 276 (quotation marks omitted). “There is simply no duty

so to control the conduct of a third person as to prevent him from causing physical

harm to another unless . . . a special relation exists . . . .” Id. (alterations in

original) (quotation marks omitted); see also Hughes, 619 A.2d at 527 (holding

that nonfeasance cannot render a defendant liable unless the defendant had a duty

to affirmatively protect the plaintiff from a danger that it did not create because of

a special relationship with that plaintiff).
32

      [¶57] Only “[c]ertain narrowly defined, special relationships give rise to an

affirmative duty to aid and protect, such as the relationship between a common

carrier and passenger, employer and employee, parent and child, or innkeeper and

guest.” Estate of Cilley v. Lane, 2009 ME 133, ¶ 17, 985 A.2d 481 (footnotes

omitted); see also Stanton, 2001 ME 96, ¶ 10, 773 A.2d 1045 (holding that the

University of Maine had a duty to reasonably warn and advise a student of safety

measures); Schultz v. Gould Acad., 332 A.2d 368, 370 (Me. 1975) (holding that a

boarding school that provided security staff to protect its residents could be held

liable for a failure to provide security “even though a wilful or negligent or

criminal act by a third person intervened and contributed to the harm”).

      [¶58] In distinguishing among relationships to determine whether a duty

exists, we have held that, although an innkeeper has a duty to a guest to proactively

prevent an assault if it is reasonably foreseeable, it does not have a similar duty to a

patron of a lounge that operates on the inn’s premises because there is no special

relationship. Belyea, 2010 ME 75, ¶¶ 10-12, 2 A.3d 276. We noted in that case

that “a landlord’s mere ability to control [an activity of its tenant] does not give

rise to a legal duty.” Id. ¶ 13 (alteration in original) (quotation marks omitted).

Thus, even if DTD had some degree of control over activities on the premises, no

duty can arise absent the necessary relationship with the injured party.
                                                                                  33

      [¶59] Here, DTD did not invite Brown to the premises, and for purposes of

premises liability, she was not, as the social invitee of a fraternity member, in a

special relationship with DTD, which did not own, possess, or control the local

chapter house in which the intentional torts occurred. Unlike an innkeeper in a

direct contractual relationship with a lodger, see id., or a boarding school or

University that provides housing for its students, see Stanton, 2001 ME 96, ¶ 10,

773 A.2d 1045; Schultz, 332 A.2d at 369-70, DTD had no direct relationship with

Brown as a social invitee of a member living in a house owned by a separate entity

affiliated with DTD and possessed by local chapter members. The students who

were injured in Stanton and Schultz were each lodgers in school-owned dormitories

in which assaults occurred. Stanton, 2001 ME 96, ¶¶ 2-3, 10, 773 A.2d 1045;

Schultz, 332 A.2d at 369-70. Brown was instead a social invitee of a member of a

local chapter of a fraternity affiliated with the holding company that owned the

premises. See Delta Tau Delta v. Johnson, 712 N.E.2d 968, 970-75 (Ind. 1999)

(holding that, although the local chapter, which owned and occupied the fraternity

house, had a duty to a social invitee to keep the premises safe against foreseeable

sexual assault, the national fraternity did not undertake to provide security and did

not assume such a duty).

      [¶60]   I would conclude that, in addition to failing to demonstrate the

necessary degree of control over the premises in DTD, Brown has provided
34

insufficient facts to support the existence of a duty because no special relationship

has been shown to exist between Brown and DTD.

C.    Assumption of Duty

      [¶61] The facts presented on summary judgment also do not raise a genuine

issue of material fact with respect to whether, although no duty otherwise existed,

DTD voluntarily assumed a duty of care to protect members’ social invitees

against members’ torts on the premises. See Smith v. Delta Tau Delta, Inc.,

9 N.E.3d 154, 160 (Ind. 2014). DTD did not undertake to provide security, and the

undisputed facts demonstrate only that DTD adopted disciplinary standards and

implemented educational programs that were designed to promote proper conduct.

A national fraternity that implements clear discipline policies and educates against

sexual violence and excessive drinking should not be deemed to have thereby

assumed a legally enforceable duty of care to all social invitees of individual

members of local chapters. As the Indiana Supreme Court stated, a “national

organization . . . should be encouraged, not disincentivized, to undertake programs

to promote safe and positive behavior and to discourage hazing and other

personally and socially undesirable conduct,” which it might not do if those efforts

would render it liable for any misconduct of local members. Yost, 3 N.E.3d at 521.
                                                                                   35

                      II. SCOPE OF ANY DUTY OF CARE

      [¶62] Finally, the extent of the duty defined by the Court today is distinct

from the duties determined to exist in Stanton and Schultz.          In Stanton, the

University was determined to have “a duty to reasonably warn and advise students

of steps they could take to improve their personal safety” in college

dormitories—not a duty to prevent any individuals’ commission of torts against

other individuals. 2001 ME 96, ¶ 10, 773 A.2d 1045. In Schultz, the duty at issue

was a duty of care to prevent an assault “reasonably to be foreseen” based on a

school security agent’s observation of specific evidence of an intrusion into the

girls’ dormitory—not a generalized duty to prevent a sexual assault from occurring

against a social invitee of an adult resident in a building that was not posted with a

security guard. 332 A.2d at 371; see also Johnson, 712 N.E.2d at 975 (holding that

a national fraternity that does not undertake to provide security services does not

assume a duty of care).

      [¶63] If the Court is correct that the duty imposed is “no more onerous or

unexpected than the duty society imposes upon a university to exercise care in the

administration of its dormitories,” Court’s Opinion ¶ 27, then the duty imposed

must be similar to the duty to warn of steps that could improve personal safety, see

Stanton, 2001 ME 96, ¶ 10, 773 A.2d 1045, or the duty to prevent an assault if the

national fraternity provides security services in the local chapter’s house and
36

observes evidence of misconduct, see Schultz, 332 A.2d at 371.               No facts

demonstrating a breach of such a limited duty have been presented on summary

judgment.

      [¶64] The duty that the Court adopts today is, instead, a more expansive

duty “to exercise reasonable care and take reasonable steps to provide premises

that are reasonably safe and reasonably free from the potential of sexual

misconduct    by   [the   fraternity’s]   members,   for   all   social   invitees   to

chapter-sponsored events.” Court’s Opinion ¶ 29. This broad and vaguely defined

duty is fundamentally at odds with basic principles of tort law. The duty of

reasonable care in providing a reasonably safe premises “is not one of absolute

care or of an insurer.” Simmons, Zillman & Gregory, Maine Tort Law § 8.02 at

8-3 (2004 ed.). On the summary judgment record presented, the Court can only be

understood to suggest that a national fraternity is such a general insurer, given that

the Court has not identified which facts presented on summary judgment would, if

believed, demonstrate any breach of the amorphous duty announced. See Estate of

Cabatit, 2014 ME 133, ¶ 8, 105 A.3d 439 (requiring a plaintiff to present facts

demonstrating a prima facie case for a claim to survive a defendant’s motion for

summary judgment).        It is unclear what measures DTD was duty-bound to

undertake, and it is even less clear how the evidence presented on summary

judgment could demonstrate that DTD failed to undertake any such measures.
                                                                                 37

      [¶65] Thus, even if any duty did exist, I would conclude that the scope of

that duty could not be so broad as to require DTD, which was not present at the

social gathering, to generally insure against the risk of sexual misconduct being

committed on the premises by a member against a social invitee during the event.

The evidence presented by Brown to establish a prima facie case is inadequate to

demonstrate a breach of any appropriately limited duty that could be imposed on

DTD for purposes of premises liability.

                               III. CONCLUSION

      [¶66] In summary, I would hold that a national fraternity does not have an

expansive duty of care in premises liability running to a social invitee of an

individual member of a local chapter to protect against the potential of sexual

misconduct by that member when the national fraternity does not own or exercise

control over the premises, does not have a special relationship with the member’s

social invitee, and has not assumed a duty by undertaking to provide security for or

other oversight of the building. Accordingly, I would affirm the judgment of the

Superior Court.
38

On the briefs:

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

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


At oral argument:

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

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



Penobscot County Superior Court docket number CV-2012-132
FOR CLERK REFERENCE ONLY
