- Court: Oregon Court of Appeals
- Area(s) of Law: Tort Law
- Date Filed: 09-02-2015
- Case #: A152194
- Judge(s)/Court Below: Ortega, P.J. for the Court; DeVore, J.; & Schuman, S.J.
- Full Text Opinion
Plaintiff brought a negligence action against Defendants Phi Kappa Psi Fraternity (Fraternity) and its Beta Chapter, (Local Chapter), following an incident during which a member of the Local Chapter sexually assaulted Plaintiff. Plaintiff’s claims against the Local Chapter were based on premises liability, failure to control and negligence per se, and her claims against the Fraternity were based on vicarious liability and negligent performance of a duty it had voluntarily undertaken to supervise, control and guide the Local Chapter. Defendants filed a motion for summary judgment. The Local Chapter argued the incident was not reasonably foreseeable, it had satisfied its duty to Plaintiff as a social guest, and it had not created an unreasonable risk of the type of harm Plaintiff experienced. Additionally, the Local Chapter argued the administrative rules on which Plaintiff had relied had been repealed, and even if they did apply there was no question of fact that the Local Chapter had complied with them. The Fraternity argued they had no right to control the Local Chapter’s premises and had not voluntarily undertaken any duty to render services to Plaintiff or the Local Chapter. The trial court granted summary judgment to Defendants. On appeal, Plaintiff argued there were issues of fact regarding all of her claims, especially considering her ORCP 47 E affidavit stating she had retained an expert. The Court held the trial court erred in granting summary judgment to the Local Chapter because the Local Chapter owed a duty of reasonable care to Plaintiff in the conduct of its activities, including social activities, and questions of fact remained regarding the foreseeability of the duty owed by the Local Chapter; the Court held that as to the Fraternity, the trial court did not err in granting summary judgment. Reversed and remanded, otherwise affirmed. Devore, J., concurring in part, dissenting in part.