PORTLAND, Maine — In a case that could create a nationwide legal ripple effect, justices with the Maine Supreme Judicial Court on Wednesday grappled with questions about who could — or should — have foreseen an assault that took place inside the Delta Tau Delta fraternity house in Orono.
The attorney representing the victim of the crime argued during a hearing Wednesday in Portland that his client should be allowed to sue the international organization Delta Tau Delta Fraternity Inc. — as well as its Delta Tau Delta National Housing Corp. arm — for what happened to her during an incident at the Orono house in 2010.
An attorney representing Delta Tau Delta countered, however, that allowing a lawsuit against the larger organization would not only be unreasonable, it could trigger a landslide of lawsuits against any group that oversees and sets standards for — but can’t ultimately control — lower level members.
“We’d have to hold the medical board liable to patients for cases of medical malpractice by individual doctors,” said attorney Carol Eisenberg, who represented the fraternity in court Wednesday.
Previous attempts around the country to hold parent fraternities legally responsible for what takes place at their local chapters, such as a lawsuit against Delta Tau Delta earlier this year over an alleged hazing death in Indiana, have met defeat in the courts.
Attorney Thomas Douglas, on behalf of the victim, said the Maine case is different.
“What distinguishes this from other cases against Delta Tau Delta is the specific foreseeability of this crime,” Douglas told the justices Wednesday. “This is not an isolated case where they could say, ‘How could we have possibly known this person was dangerous?’”
During the weeks leading into the assault, the perpetrator, local fraternity member Joshua Clukey, had allegedly consumed excessive amounts of alcohol, fought with fellow chapter members and damaged the fraternity house, Douglas said. Each of those incidents should have been considered a Level II violation of Delta Tau Delta’s membership responsibility guidelines, and Clukey should have been expelled from the fraternity before he ever had a chance to commit the assault, the attorney argued.
“They had these rules, and they failed to enforce them,” he told the court. “This guy was a danger to others. They knew that, and they didn’t do anything about it, and as a result, my client became the victim of an assault.”
According to court filings in the case, the assault took place at a party at the Gamma Nu Chapter fraternity house at 111 E. College Ave. on Sept. 17, 2010, when Clukey allegedly shoved a female guest onto his bed, made sexual advances and tried to prevent her from leaving.
After about 10 minutes, the guest escaped the room with minor injuries, the Delta Tau Delta brief states, and later reached an out-of-court settlement with Clukey.
Clukey, the victim’s attorney wrote, entered a guilty plea on charges of simple assault and furnishing alcohol to a minor.
“The institution of fraternities is not on trial here,” Eisenberg told the court, adding, “I think the action that took place that day could have taken place at any dormitory or apartment. … We cannot create a system in which unrelated third parties are held liable for what two adults do behind closed doors.”
A number of the justices on the court questioned why Douglas did not name leaders of the local fraternity chapter, who would have been the ones responsible for communicating Clukey’s bad behavior to the larger organization for action, in his lawsuit.
“You’re asking us to leap over the first logical level of responsibility and go directly up to the national organization,” Justice Ellen Gorman told Douglas. “It’s the local members who knew that this individual was behaving inappropriately.”
One justice also questioned whether Douglas’ client made a good decision in attending a party at the fraternity house.
Justice Donald Alexander, who was presiding over the court on Wednesday in the absence of Chief Justice Leigh Saufley, said fraternity houses carry reputations for raucous parties, excessive drinking and debauchery.
Given that backdrop, Alexander asked Douglas, “Doesn’t your client assume some assumption of risk?”
Douglas responded: “I think my client should be able to see a co-worker at a party, put her purse up in his room and not expect to be sexually assaulted.”
Justice Joseph Jabar turned the question of fraternity reputations on Delta Tau Delta attorney Eisenberg, challenging her stance that the parent fraternity wasn’t closely enough involved at the local level to be held responsible.
“How can a national organization turn over a building to 20-year-olds, set a rule of conduct, then walk away, wash their hands of it and have no responsibility for what takes place there?” Jabar said. “We’re talking about foreseeability.”
Douglas is asking the state’s highest court to overturn a Penobscot County Superior Court summary judgment in favor of Delta Tau Delta and to allow his client to proceed with a lawsuit against the fraternity’s national organization.
The Maine Supreme Judicial Court, which has no firm timetable and often takes weeks or months to rule on a case after hearing oral arguments, did not render a decision in the matter Wednesday.
