                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 10-10996                ELEVENTH CIRCUIT
                                                            AUGUST 3, 2010
                         Non-Argument Calendar
                                                              JOHN LEY
                       ________________________
                                                               CLERK

                   D. C. Docket No. 7:06-cv-01774-RDP

RICHARD NEWKIRK WILDER,

                                                           Plaintiff-Appellant,

                                  versus

SIGMA NU FRATERNITY, INC.,
THETA CHAPTER OF SIGMA NU,
SIGMA NU CHAPTER HOUSE CO., INC.,
KENNETH R. GIPSON,

                                                        Defendants-Appellees.



                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________

                             (August 3, 2010)

Before DUBINA, Chief Judge, CARNES and MARCUS, Circuit Judges.

PER CURIAM:
       Richard Wilder appeals the district court’s grant of summary judgment to the

appellee organizations on his personal injury claims. An uninvited guest seriously

injured Wilder at a fraternity party, and Wilder sued the local, regional, and

national organizations alleging their negligent failure to protect him from the

injury. We conclude that the organization members owed Wilder no duty to

protect him from the criminal acts of third parties under Alabama law. As a result,

Wilder’s negligence, respondeat superior, negligent supervision, and wantonness

claims all fail. Accordingly, we affirm the district court’s grant of summary

judgment.

                                 I. BACKGROUND

       Kenneth Gipson stabbed Wilder in the head following a Sigma Nu fraternity

party in Tuscaloosa, Alabama, causing Wilder serious injury. Wilder was a guest

attending the fraternity party. Gipson and Reginald Barnes, who were not invited

to the fraternity party, decided to enter the premises toward its conclusion. In his

brief, Wilder describes the initial confrontation between Gipson and members of

the fraternity:

       Mobley [a fraternity officer], as he was exiting the front door of the
       Fraternity House, observed Gipson and Barnes entering the Fraternity
       House. Mobley was supsicious of Gipson and Barnes so he re-entered
       the Fraternity House in order to observe them. . . .
              Mobley solicited the help of McLin and Elmore [two other
       fraternity officers] to remove Barnes and Gipson from the Fraternity

                                           2
         House. Mobley, Elmore and McLin confronted Gipson and Barnes in
         the dining area of the Fraternity House. At that time, Barnes was
         pulling two bottles of beer out of an icemaker. . . .
                Mobley questioned Barnes and Gipson as to whose beers they
         were taking and who, if anyone, they knew at the Fraternity House.
         Mobley, Elmore and/or McLin used profanity and accused Gipson and
         Barnes of stealing beer. Mobley, Gipson and Barnes exchanged
         words, and the conversation became heated and everyone’s voices
         started to escalate. . . .
                Gipson then punched McLin in the neck, and a fight broke out
         between the two of them. Elmore broke up the fight and pushed
         McLin to the other side of the dining area. According to Gipson while
         in the kitchen area one of the individuals who confronted and
         represented himself as a member of the fraternity started using racial
         slurs directed towards him . . . .
                At some point in time during these events, Gipson pulled out
         from his pocket and opened a butterfly knife (the “Knife”). Gipson
         attempted to back away from the confrontation, using the Knife to
         ward off the group of individuals in the dining area.

(Appellant’s Br. at 8–10 (record citations omitted)).

         As Gipson and Barnes exited the house, they encountered more party-goers

who had exited the house but remained on the lawn. That group included Wilder.

Gipson issued general death-threats to those in hearing range as he walked toward

the street. Before their exit was complete, Barnes threw at least one beer bottle

toward fraternity members; the fraternity members returned in kind. Violence

erupted, and within moments Gipson stabbed Wilder in the head with his butterfly

knife.

                            II. STANDARD OF REVIEW



                                           3
      We review de novo a district court’s grant of summary judgment. Fanin v.

U.S. Dep’t of Veterans Affairs, 572 F.3d 868, 871 (11th Cir. 2009). “[W]e view all

evidence and factual inferences in the light most favorable to the nonmoving

party,” as reflected in our reliance on Wilder’s filings with this court for the

recitation of facts above. See Lofton v. Sec’y of Dep’t of Children & Family Servs.,

358 F.3d 804, 809 (11th Cir. 2004).

                                  III. DISCUSSION

      Wilder’s ability to recover against the local and national fraternity

organizations depends initially on his capacity to demonstrate that the fraternity’s

members acted negligently in allowing Gipson to assault him. See Ex Parte

Essary, 992 So. 2d 5, 9 (Ala. 2007) (explaining that, though wantonness and

negligence are distinct tort concepts, they both require the violation or omission of

some legal duty); Univ. of Ala. Health Servs. Found., P.C. v. Bush, 638 So. 2d 794,

799 (Ala. 1994) (“Under the doctrine of respondeat superior, the master cannot be

liable unless one of the master’s servants has been found to be negligent.”);

Hathcock v. Mitchell, 173 So. 2d 576, 595 (Ala. 1965) (“[T]he master is not liable

for having employed incompetent servants unless their incompetency was the

proximate cause of the injury . . . .”). Foundational to the existence of a negligence

claim is a legal duty flowing from one to another. “It is the general rule in



                                            4
Alabama that absent special relationships or circumstances, a person has no duty to

protect another from criminal acts of a third person.” Moye v. A.G. Gaston Motels,

Inc., 499 So. 2d 1368, 1370 (Ala. 1986).

      Wilder argues primarily that “special circumstances” arose on the night of

the fraternity party that created a legal duty on the part of the fraternity to take

affirmative action to prevent Gipson’s assault. In Alabama, these “special

circumstances” arise only when the defendant can foresee the probability of

conduct endangering the plaintiff. New Addition Club, Inc. v. Vaughn, 903 So. 2d

68, 73 (Ala. 2004). This foreseeability requires a three-part showing: “First, the

particular criminal conduct must have been foreseeable. Second, the defendant

must have possessed ‘specialized knowledge’ of the criminal activity. Third, the

criminal conduct must have been a probability.” Id. (internal quotation marks

omitted). The Alabama Supreme Court “has rarely held that the danger to an

invitee posed by the potential criminal act of a third person was so imminent that

the premises owner should have foreseen the eventual consequence.” Hail v.

Regency Terrace Owners Ass'n, 782 So.2d 1271, 1274–75 (Ala. 1999).

      Wilder argues that the question of duty, hinged on the issue of foreseeability,

is at least a factual question to be resolved by a jury. For the proposition, Wilder

relies on the appellate court decision in Whataburger, Inc. v. Rockwell, 706 So. 2d



                                            5
1220 (Ala. Civ. App. 1997). In Whataburger, the plaintiff sued a restaurant for

failing to intervene or solicit aid for him before he was injured in a fight on the

premises. Three young men harassed the plaintiff, and despite the plaintiff’s

request that the manager summon the police, the manager simply told the group to

“take it outside.” Id. at 1222. The court held that the foreseeability of the

plaintiff’s physical injury was a factual question to be resolved by the jury. Id. at

1224.

        We acknowledge that the decision in Whataburger implies a legal duty to

protect others when a premises owner has specific knowledge of probable physical

injury awaiting an invitee. But we are doubtful about the viability of its assertion

that debatable questions of foreseeability, and thus duty, are reserved for the jury in

light of more recent Alabama case law. “In Alabama, the existence of a duty is a

strictly legal question to be determined by the court.” Bryan v. Ala. Power Co., 20

So. 3d 108, 116 (Ala. 2009) (internal quotation marks omitted). Even when

addressing questions of foreseeability in the context of duties to third parties, the

Alabama Supreme Court has held that the question of duty “is a question of law to

be determined by the trial judge.” New Addition Club, 903 So. 2d at 73 (internal

quotation marks omitted); see also State Farm Fire & Cas. Co. v. Owen, 729 So.

2d 834, 837–39 (Ala. 1998) (observing the conflicting Alabama case law regarding



                                           6
whether the existence of a duty should be resolved by judge or jury and ultimately

holding “that the existence of a duty is a question of law to be determined by the

trial judge”). We think Alabama law sufficiently clarifies the court’s function as

the final arbiter of the foreseeability analysis in the context of determining legal

duty. Nevertheless, as we note below, even if Whataburger were controlling, our

result would be the same.

      Wilder attempts to cast the fraternity members as the instigators of both

confrontations to argue that the fraternity members had a duty to defuse the

situation they created. In his brief, Wilder takes some liberty with the facts to

make this characterization—the same facts we quoted from above. Wilder

contends that “[t]he Sigma Nu members’ racial epithets led to a fight that was

serious enough that Gipson threatened the Sigma Nu members with a knife.” He

further argues that “[t]he evidence, when viewed in a light most favorable to

Wilder, shows that one or more of the members called Gipson and Barnes

‘niggers,’ and incited the altercation with Gipson and Barnes.”

      Wilder’s factual characterizations cross the line from a “favorable light” to

an alternate reality. By Wilder’s own admission in his brief, the physical

confrontation between Gipson and the fraternity members developed after Gipson

threw the first punch. Moreover, Wilder’s own sequence of events suggests that



                                           7
Gipson did not hear the alleged racial epithets until after fraternity members had

intervened to break up the physical altercation. Wilder’s attempt to characterize

the fraternity members as the aggressors fundamentally ignores the fact that

Gipson and Barnes were trespassers who were confronted while stealing property,

a fact admitted by Wilder. At best for Wilder, all of the actors in the initial

confrontation were mutually responsible for the physical and verbal altercation.

      We now apply the relevant law to these facts to determine whether the

fraternity had a duty to protect Wilder from Gipson’s later actions. At bottom, we

must determine whether a premises owner, aware of a brief physical altercation on

his property, has reason to anticipate as probable another, nearly fatal altercation in

a different area of the property during the trespassers’ retreat. Alabama case law

leads us to conclude that Gipson’s assault on Wilder was not foreseeable.

      In New Addition Club, the plaintiff’s estate sued a bar after a bar patron

murdered the plaintiff. The plaintiff attempted to show that the murder was

foreseeable to the bar by introducing evidence that the patron had previously

brandished a shotgun at the bar, had assaulted his girlfriend in the bar’s parking lot,

and was known as “hot tempered.” 903 So. 2d at 75. The Alabama Supreme Court

held that none of the evidence sufficiently established the foreseeability of the

particular murder. Id. at 75–76.



                                           8
       The facts in New Addition Club contrast with those in Whataburger, where

the plaintiff actually requested that the premises manager intervene and call the

police. 706 So. 2d at 1223. The plaintiff contended that the manager failed to call

the police before the fight broke out, despite his pleas. Id. This, the appellate court

concluded, raised the factual possibility that the manager could have foreseen the

imminent probability of harm awaiting the plaintiff. Id. at 1224.

       In this case, the facts surrounding the fraternity member’s knowledge of the

dangerousness of the situation do not indicate that they were aware of the

probability of the specific harm that befell Wilder.1 In Whataburger, the premises

manager ignored the plaintiff’s pleas for intervention, but no such requests were

made here. Moreover, the manager in Whataburger had knowledge of the specific

circumstances that led to the plaintiff’s injuries because she observed both the

victim and the assailants interacting before the altercation occurred. Here,

however, the fraternity members might have observed a hostile trespasser, but they

had no reason to anticipate that his hostility would be taken out on a non-

participant in the initial confrontation.

       The circumstances here are more like those in New Addition Club, where the



       1
         We note that, even applying the standard set forth in Whataburger, we do not believe
that a genuine issue of material fact exists about the foreseeability of Gipson’s violent assault on
Wilder.

                                                  9
bar owner had knowledge of the assailant’s hostile temperament and possession of

a firearm. Here, according to Wilder, the fraternity members were aware of both

Gipson’s aggression and possession of a weapon. But, as in New Addition Club,

knowledge about temperament and weapons does not create the probability of a

particular type of criminal activity. Any fraternity member’s knowledge that

Gipson was a hostile, armed individual does not indicate that he should have

known the probability that Gipson would stab a bystander in the head during

Gipson’s exit. Because there are no “special circumstances” based on which the

fraternity or its members should have foreseen the probability of Gipson’s assault,

we hold that neither the fraternity nor its officers and members owed a duty to

protect Wilder from Gipson’s criminal acts.2

       Because no one at the fraternity party owed Wilder any legal duty to protect

him from the criminal acts of Gipson, no one acted negligently in failing to do so.

As a result, all of Wilder’s claims presented in this appeal must fail. Without

negligent conduct, there can be no direct claim for negligence or for vicarious



       2
          Wilder argues also that a “special relationship” existed between Wilder and the
fraternity because the fraternity incited the hostile situation but failed to intervene. As we
discussed above, Wilder’s contention that the fraternity incited the violence conflicts with his
own account of the facts. Moreover, under Alabama law the “special relationship” exception to
the duty rule appears to be too narrow to accomodate the facts here. See, e.g., Young v.
Huntsville Hosp., 595 So. 2d 1386, 1388–89 (Ala. 1992) (discussing a “dependence test” for the
“special relationship” exception and concluding that a hospital owes a duty of protection to an
anesthetized or sedated patient).

                                               10
liability. In the absence of negligent conduct, any negligent hiring, training, or

supervision could not have caused Wilder’s injuries. Finally, in the absence of a

legal duty to protect Wilder, no claim against the organizations for wantonness can

survive.

                                 IV. CONCLUSION

      Rarely does a premises owner have a legal duty to protect others from the

criminal acts of a third party. In circumstances like this, only when the party

knows or should know that a particular type of crime is probable does it have a

duty to protects its guests. The facts in this case fail to create the kind of

foreseeability necessary to impose on the fraternity and its members a duty to

protect their guests. In the absence of a legal duty, there can be no negligence,

negligent training, vicarious liability, or wantonness. Accordingly, we affirm the

district court’s grant of summary judgment in favor of the Appellees.

AFFIRMED.




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