Barenborg v. Sigma Alpha Epsilon Fraternity ( 2019 )

Filed 3/19/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
CARSON BARENBORG, B289766
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC597033)
v.
SIGMA ALPHA EPSILON
FRATERNITY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Ruth Ann Kwan, Judge. Affirmed.
Law Office of Martin N. Buchanan and Martin N.
Buchanan; Girardi Keese and Amanda L. McClintock for
Plaintiff and Appellant.
Cokinos Young and Michael C. Osborne for Defendant
and Respondent.
INTRODUCTION
Appellant Carson Barenborg was injured at a party
hosted by a local chapter of respondent Sigma Alpha Epsilon
Fraternity, a national fraternity. Appellant sued respondent
for negligence. The trial court granted respondent’s motion
for summary judgment, concluding respondent owed
appellant no duty of care and was not vicariously liable for
its local chapter’s actions.
Appellant challenges these conclusions on appeal. She
contends respondent owed her a duty of care based on: (1) a
special relationship between respondent and the local
chapter; (2) a special relationship between respondent and
appellant; and (3) a voluntary assumption of duty under the
negligent undertaking doctrine. She also contends
respondent is vicariously liable for the local chapter’s actions
based on an agency relationship. We hold that respondent
owed no duty to protect appellant from the actions of the
local chapter and is not vicariously liable for them. We
therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The National Fraternity
Respondent is a non-profit corporation operating as a
national fraternal organization. Based in Illinois,
respondent has over 200 local chapters and 13,500
undergraduate members across the United States.
According to respondent’s mission statement, its mission is
to “promote the highest standards of friendship, scholarship
2
and service for [its] members . . . .” Among other goals,
respondent seeks “[t]o develop, maintain, and enforce
standards and expectations for the conduct of [respondent’s]
members within and outside of the Fraternity.”
Respondent’s bylaws, the “Fraternity Laws,” govern
respondent’s operation and are binding on its local chapters.
They provide for an all-volunteer “Supreme Council,” which
acts as respondent’s board of directors. Under the
Fraternity Laws, the Supreme Council is responsible for
granting charters to undergraduate chapters. Respondent
permits its local chapters to use its name and insignia and
provides them with educational and other resources. It also
arranges for its local chapters’ purchase of property and
liability insurance.
The Fraternity Laws require local chapters to pay
dues, submit certain reports, and allow inspection. But they
specify: “In other respects, the Chapter Collegiate shall be
virtually independent of [respondent]. Each Chapter
Collegiate shall make its own arrangements as to Chapter-
Collegiate house or other living quarters; fix its own dues,
assessments, and charges; elect its own officers; and have
complete control of its own activities. No Chapter
Collegiate . . . shall have any authority to act for or
bind [respondent]. . . . . Each Chapter Collegiate has its
own By-Laws . . . . [Respondent] has no power to control the
activities or operations of any Chapter Collegiate . . . .”
The Fraternity Laws establish eligibility requirements
for membership in the fraternity, but local chapters are
3
otherwise free to extend invitations for membership to
students as they see fit. Under the Fraternity Laws,
respondent has the authority to discipline both individual
members and local chapters for good cause. For example, it
may fine, suspend, or expel an individual member, remove
any officer of a local chapter from office, suspend or revoke a
chapter’s charter, or place the chapter under the control of
an alumni commission. Finally, the Fraternity Laws provide
that each local chapter must have at least one chapter
advisor. Each chapter advisor must visit his chapter at least
twice a month and report to respondent on any conditions
requiring special attention.
A guide entitled, “Minerva’s Shield” contains
respondent’s risk-management policies, which are binding on
every local chapter and individual member of the fraternity.
They cover issues such as the use of alcohol, sexual conduct,
violence, hazing, property management, and event planning.
For example, Minerva’s Shield prohibits holding open parties
or serving alcohol to anyone who is underage or is visibly
intoxicated. It also provides that any construction for events
must be done by third-party professionals.
B. The Local Chapter
California Gamma Chapter (Cal. Gamma) was an
unincorporated association that operated as respondent’s
local chapter at the University of Southern California (USC).
An alumni housing corporation, separate and distinct from
respondent, owned and operated Cal. Gamma’s fraternity
4
house. In the years and months before appellant’s injury,
Cal. Gamma and its members were involved in multiple
disciplinary violations, such as excessive and underage
drinking, various public disturbances, and sexual
misconduct. Cal. Gamma also held multiple parties on
Thursday nights, in violation of USC policies, which
prohibited social events between Monday and Thursday.
C. The Incident and Disciplinary Action
On October 10, 2013, a Thursday, Cal. Gamma and
other local fraternities held large parties. Appellant, a 19-
year-old student at another university at the time, attended
those parties with friends. The group eventually made its
way to Cal. Gamma’s party, in the backyard of the local
chapter’s house. A Cal. Gamma member was serving alcohol
without checking IDs. By the time appellant arrived, she
had consumed five to seven alcoholic beverages and some
cocaine. Cal. Gamma members had set up a makeshift
dance platform, about six or seven feet high, using wooden
tables. Appellant and her friends decided to climb on top of
the platform to dance. When appellant reached the top of
the platform, another person, either inadvertently or
intentionally, knocked her off of the platform. Appellant fell
to the ground and sustained serious injuries.
After the incident, respondent placed Cal. Gamma
under the authority of an alumni commission and prohibited
possession of alcohol in the chapter’s house. In 2014, after
5
Cal. Gamma members violated the alcohol ban, respondent
suspended Cal. Gamma’s charter.
D. The Suit and the Motion for Summary Judgment
Appellant sued respondent, USC, and others, asserting
a single cause of action for negligence. Following discovery,
respondent moved for summary judgment. The trial court
granted the motion, concluding respondent owed appellant
no duty of care and was not vicariously liable for Cal.
Gamma’s actions.1 This appeal followed.
DISCUSSION
Appellant challenges the trial court’s grant of summary
judgment for respondent. She argues the court erred in
concluding that respondent owed her no duty of care and
was not vicariously liable for Cal. Gamma’s negligence.
“We review the ruling on a motion for summary
judgment de novo, applying the same standard as the trial
court.” (Manibog v. MediaOne of Los Angeles, Inc. (2000) 81
Cal.App.4th 1366, 1369.) “Summary judgment is
1 USC also moved for summary judgment, but the trial court
denied the motion after finding triable issues of fact whether
USC owed appellant a duty of care. USC petitioned for a writ of
mandate, and this court granted the petition, holding that USC
owed “no duty to protect members of the public from the conduct
of a third party at an off-campus fraternity party.” (University of
Southern California v. Superior Court of County of Los Angeles
(2018) 30 Cal.App.5th 429, 436 (USC).)
6
appropriate only ‘where no triable issue of material fact
exists and the moving party is entitled to judgment as a
matter of law.’” (Regents of University of California v.
Superior Court (2018) 4 Cal.5th 607, 618 (Regents), quoting
Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) We
view the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in its
favor. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 843.)
A. Respondent Owed Appellant No Duty of Care
A plaintiff suing for negligence must prove “duty,
breach, causation, and damages.” (Regents, supra, 4 Cal.5th
at p. 618.) Whether a duty of care existed is a question of
law, and thus “particularly amenable to resolution by
summary judgment.” (Parsons v. Crown Disposal Co. (1997)
15 Cal.4th 456, 465.)
Although every person generally “has a duty to
exercise reasonable care to avoid causing injury to others”
(USC, supra, 30 Cal.App.5th at p. 440), “as a general matter,
there is no duty to act to protect others from the conduct of
third parties.” (Delgado v. Trax Bar & Grill (2005) 36
Cal.4th 224, 234, 235 (Delgado).) There are, however, a few
recognized exceptions to this general “no-duty-to-protect rule
. . . .” (Id. at p. 235.) One such exception is the “‘special
relationship’” doctrine. (Ibid.) Under this doctrine, “[a]
defendant may owe a duty to protect the plaintiff from third
party conduct if the defendant has a special relationship
7
with either the plaintiff or the third party.” (USC, supra, at
p. 440.) Another exception, relevant here, is the “negligent
undertaking doctrine.” (See Delgado, supra, at pp. 248-249.)
Under this doctrine, “a person who has no affirmative duty
to act but voluntarily acts to protect another has a duty to
exercise due care if certain conditions are satisfied.” (USC,
supra, at p. 448.)
Appellant argues that the rule precluding a duty to
protect from third-party conduct has no application here,
and thus no exception to the rule is necessary. She
maintains that “Cal. Gamma was not just some unrelated
third party” but a “recognized chapter of [respondent],”
subject to respondent’s control. She further contends we
should determine whether respondent owed her a duty of
care solely by analyzing the factors discussed in Rowland v.
Christian (1968) 69 Cal.2d 108 (Rowland). As explained
below, we disagree,
First, Cal. Gamma, an unincorporated association, is a
separate legal entity, distinct from respondent. (See Code
Civ. Proc., § 369.5, subd. (a) [unincorporated association may
sue and be sued in its own name]; Cal-Metal Corp. v. State
Bd. of Equalization (1984) 161 Cal.App.3d 759, 765
[unincorporated associations are “entitled to general
recognition as separate legal entities”].) Appellant does not
argue that the alter-ego doctrine applies to the relationship
8
between Cal. Gamma and respondent.2 Thus, Cal. Gamma
was a third party for purposes of the duty analysis.
Next, in Rowland, our Supreme Court identified
several factors courts should consider in determining
whether to depart from the general principle that “‘[a]ll
persons are required to use ordinary care to prevent others
being injured as the result of their conduct.’”3 (Rowland,
supra, 69 Cal.2d at pp. 112-113.) As the Court explained
more recently, these factors “may, on balance, justify
excusing or limiting a defendant’s duty of care,” where such
a duty would otherwise exist. (Regents, supra, 4 Cal.5th at
p. 628.) Thus, plaintiffs alleging a defendant had a duty to
protect them must establish: (1) that an exception to the
2 “The alter ego doctrine arises when a plaintiff comes into
court claiming that an opposing party is using the corporate form
unjustly and in derogation of the plaintiff’s interests. [Citation.]
In certain circumstances the court will disregard the corporate
entity and will hold the individual shareholders liable for the
actions of the corporation . . . .” (Mesler v. Bragg Management
Co. (1985) 39 Cal.3d 290, 300.)
3 These factors include “the foreseeability of harm to the
plaintiff, the degree of certainty that the plaintiff suffered injury,
the closeness of the connection between the defendant’s conduct
and the injury suffered, the moral blame attached to the
defendant’s conduct, the policy of preventing future harm, the
extent of the burden to the defendant and consequences to the
community of imposing a duty to exercise care with resulting
liability for breach, and the availability, cost, and prevalence of
insurance for the risk involved.” (Rowland, supra, 69 Cal.2d at
p. 113.)
9
general no-duty-to-protect rule applies; and (2) that the
Rowland factors support imposition of the duty. (See ibid.;
Delgado, supra, 36 Cal.4th at p. 235.) Because, as discussed
below, we conclude no exception applies here, we need not
consider the application of the Rowland factors to the facts
of this case.
1. No Special Relationship Existed between
Respondent and Cal. Gamma
a. Applicable Law
Appellant argues there was a special relationship
between respondent and Cal. Gamma, creating a duty to
control Cal. Gamma’s conduct. “[A] duty to control may arise
if the defendant has a special relationship with the
foreseeably dangerous person that entails an ability to
control that person’s conduct.” (Regents, supra, 4 Cal.5th at
p. 619.) Examples of special relationships with the persons
posing the risks include “a parent with dependent children,”
“a custodian with those in its custody,” and “an employer
with employees when the employment facilitates [an]
employee’s causing harm to third parties.” (Rest.3d Torts,
Liability for Physical and Emotional Harm, § 41.)
“‘The key in each [special relationship] is that the
defendant’s relationship with . . . the tortfeasor . . . places
the defendant in the best position to protect against the risk
of harm.’” (Grand Aerie Fraternal Order of Eagles v.
Carneyhan (Ky. 2005) 169 S.W.3d 840, 850 (Carneyhan),
quoting Hamilton v. Beretta U.S.A. Corp. (N.Y. 2001) 750
10
N.E.2d 1055, 1061; accord, Bogenberger v. Pi Kappa Alpha
Corporation, Inc. (Ill. 2018) 104 N.E.3d 1110, 1123
(Bogenberger) [quoting Carneyhan]; see also Donaldson v.
Young Women’s Christian Assn. of Duluth (Minn. 1995) 539
N.W.2d 789, 792 [“To reach the conclusion that a special
relationship exists, it must be assumed that the harm to be
prevented by the defendant is one that the defendant is in a
position to protect against and should be expected to protect
against”].) Thus, the defendant’s ability to control the
person who caused the harm must be such that “if exercised,
[it] would meaningfully reduce the risk of the harm that
actually occurred.” (Carneyhan, supra, at p. 851; accord,
Bogenberger, supra, at p. 1123 [quoting Carneyhan]; Sparks
v. Alpha Tau Omega Fraternity, Inc. (Nev. 2011) 255 P.3d
238, 245 (Sparks) [same].)
No reported California decision has considered the
existence of a special relationship between a national
fraternity and its local chapters. However, most out-of-state
courts to consider the issue have held that national
fraternities owe no duty to control their local chapters. For
example, in Alumni Association v. Sullivan (Pa. 1990) 572
A.2d 1209 (Sullivan), the Supreme Court of Pennsylvania
held that a national fraternity owed no duty to control a local
chapter’s conduct in supplying alcohol to an underage
member, reasoning that national fraternities are unable to
monitor the activities of their respective chapters. (Id. at
pp. 1209-1210, 1213.) In Sparks, the Supreme Court of
Nevada held that a national fraternity had no duty to control
11
and supervise a local chapter’s tailgate party, at which the
plaintiff was assaulted. (Sparks, supra, 255 P.3d at p. 246.)
Citing Sullivan, the court reasoned that national fraternities
can discipline errant chapters after the fact, but cannot
monitor their local chapters’ day-to-day activities. (Ibid.)
And, in Carneyhan, in which an underage guest died in a
single-car collision after drinking at a local chapter’s party,
the Supreme Court of Kentucky held that the national
fraternity had no duty to control its local chapter, explaining
that the fraternity’s ability to revoke the chapter’s charter
did not enable it to control the conduct of the chapter’s social
functions. (Carneyhan, supra, 169 S.W.3d at pp. 843, 853-
854.)
Other courts have similarly held that national
fraternities owed no duty to control the actions of local
chapters or their members. (See, e.g., Walker v. Phi Beta
Sigma Fraternity (La.Ct.App. 1997) 706 So.2d 525, 529
[national fraternity had no duty to prevent plaintiff’s hazing-
related injury because it “was not in a position to control the
action of its chapters on a day-to-day basis”]; Colangelo v.
Tau Kappa Epsilon Fraternity (Mich.Ct.App. 1994) 517
N.W.2d 289, 290, 291-292 (Colangelo) [refusing to impose
duty to control local chapter where two underage drivers
struck and killed a pedestrian after drinking at chapter’s
party; imposing duty would require “continuous contact” and
convert national fraternity to “a central planning and
policing authority”]; Bogenberger, supra, 104 N.E.3d at
p. 1123 [where new fraternity member died after night of
12
compelled excessive drinking at local chapter’s event,
national fraternity had no duty to control local chapter]; but
see Grenier v. Commissioner of Transportation (Conn. 2012)
51 A.3d 367, 389 (Grenier) [fact issue existed whether
national fraternity owed duty to control local chapter].)
Two themes emerge from the decisions finding no
special relationship between national fraternities and local
chapters. First, courts have concluded that the existence of
general policies governing the operation of local chapters and
the authority to discipline them for violations does not
justify imposition of a duty on national fraternities. (See,
e.g., Sullivan, supra, 572 A.2d at p. 1213 [“the power to
discipline an errant chapter after the fact” is insufficient to
create a duty to control local chapters]; Sparks, supra, 255
P.3d at p. 245 [citing Sullivan for the same proposition];
Carneyhan, supra, 169 S.W.3d at p. 854 [same]; see also
Garofalo v. Lambda Chi Alpha Fraternity (Iowa 2000) 616
N.W.2d 647, 654 [“a policy or code of behavior may authorize
discipline by . . . the fraternity, but it does not change the
nature of the[] relationship. [¶] . . .We are unaware of any
legal authority which would elevate the fraternity’s failure to
enforce its ‘Policy on Alcoholic Beverages’ to an actionable
civil tort”].) This court has recently endorsed a similar
proposition in USC, approvingly citing A.M. v. Miami
University (OhioCt.App. 2017) 88 N.E.3d 1013 for the
proposition that a “university’s ability to discipline a student
for off-campus conduct does not impose a duty to control the
13
conduct of the student.” (USC, supra, 30 Cal.App.5th at
p. 448.)
Second, courts have recognized that national
fraternities cannot monitor the day-to-day activities of local
chapters contemporaneously, and have concluded that
absent an ability to do so, there can be no duty to control.
(See, e.g., Sullivan, supra, 572 A.2d at p. 1213 [imposing
duty to control on a national fraternity is unjustified because
it “does not possess the resources to monitor the activities of
its chapters contemporaneously with the event”]; Carneyhan,
supra, 169 S.W.3d at p. 854 [“the burden upon the [national
fraternity] of affirmatively monitoring its local chapters . . .
would be excessive”]; see also Colangelo, supra, 517 N.W.2d
at p. 292 [“impos[ing] a duty upon the national fraternity to
supervise the daily activities of its local chapters” would be
impractical and would result in a significant increase in
operating costs].)
These conclusions accord with the principles
underlying the special-relationship exception: absent an
ability to monitor the day-to-day operations of local chapters,
the authority to discipline generally will not afford a
national fraternity sufficient ability to prevent the harm and
thus will not place it in a unique position to protect against
the risk of harm. (See, e.g., Carneyhan, supra, 169 S.W.3d
at pp. 850-851; Sullivan, supra, 572 A.2d at p. 1213.) We
therefore turn to applying these principles to the facts of this
case.
14
b. Analysis
Appellant argues that respondent had control over Cal.
Gamma’s day-to-day affairs. She points to the Fraternity
Laws and Minerva’s Shield, notes that respondent had many
disciplinary tools at its disposal, and observes that
respondent had the authority to supervise Cal. Gamma’s
compliance through the visits of a chapter advisor. She
contends that had respondent suspended or revoked Cal.
Gamma’s charter, or placed it under the governance of an
alumni commission, Cal. Gamma “would not have built a
dangerous wooden dance platform in violation of Minerva’s
Shield.”4
Appellant’s argument relies on the same policies and
disciplinary powers this court and others have rejected as
4 Appellant also suggests that earlier disciplinary action
would have prevented Cal. Gamma from holding the
unauthorized Thursday night party. But it was not the
unauthorized timing of the party that led to appellant’s injury, as
appellant could as easily have fallen from the makeshift platform
during a Friday or Saturday party. Because the timing of the
party was not a proximate cause of appellant’s injury, we need
not consider this argument. (See State Dept. of State Hospitals v.
Superior Court (2015) 61 Cal.4th 339, 359 [“coincidental
causation—an allegation that some breach created an
opportunity for an injury to occur, without increasing the risk of
that injury occurring—is insufficient” to establish liability];
Rest.3d Torts, Liability for Physical and Emotional Harm, § 30
[“An actor is not liable for harm when the tortious aspect of the
actor’s conduct was of a type that does not generally increase the
risk of that harm.”].)
15
insufficient to establish a special relationship. (See USC,
supra, 30 Cal.App.5th at p. 448; Sullivan, supra, 572 A.2d at
p. 1213; Sparks, supra, 255 P.3d at p. 245.) Moreover, her
contention that prior disciplinary action would have
prevented her injury is speculation. It is questionable
whether prior discipline for unrelated violations would have
deterred Cal. Gamma from erecting a makeshift dance
platform. (See Carneyhan, supra, 169 S.W.3d at pp. 843,
853-854 [revocation of local chapter’s charter before guest
died in a single-vehicle collision after drinking at chapter’s
party, “would have produced an outcome completely
unrelated to the harm that occurred”].) Respondent did not
own or possess the chapter’s house, and Cal. Gamma
members could have constructed the makeshift platform
regardless of the actions appellant suggests respondent
should have taken, viz., suspending or revoking the chapter’s
charter or placing it under an alumni commission. Indeed,
while under the ostensible control of an alumni commission,
Cal. Gamma members violated the alcohol ban respondent
imposed after appellant’s injury. Ultimately, regardless of
its policies and disciplinary powers, respondent was unable
to monitor and control Cal. Gamma’s day-to-day operations,
and it thus owed no duty to protect appellant from Cal.
Gamma’s conduct. (See, e.g., USC, at p. 448; Sullivan, at
p. 1213; Sparks, at p. 245.)
In support of her position, appellant cites Grenier, in
which the Supreme Court of Connecticut concluded a
genuine dispute existed whether the fraternity owed a duty
16
to control its local chapter. (Grenier, supra, 51 A.3d at
p. 389.) As respondent notes, the national fraternity in
Grenier, unlike respondent, owned the local chapter’s house
and paid for improvements to the house. (Ibid.) Beyond this
obvious distinction, however, we believe the court’s analysis
was inconsistent with the legal principles that drive the
special-relationship doctrine.
Grenier involved a suit by the estate of a fraternity
member who suffered fatal injuries in a car accident while
returning from a chapter event. (Grenier, supra, 51 A.3d at
pp. 372-374.) The event did not take place on the chapter’s
premises, and the accident was unrelated to either alcohol
use or hazing. (Id. at pp. 373-374, 381.) Yet in concluding
that the national fraternity “was sufficiently involved with
the activities of [the local chapter] to owe [the member] a
duty of care,” the court considered that the national
fraternity owned the local chapter’s house and had
guidelines regulating hazing and alcohol use, and that
alcohol at the chapter’s house was purchased using
members’ dues. (Id. at p. 389.)
This discussion of “‘sufficient[] involve[ment]’” looks at
control as an abstract concept and does not measure the
defendant’s actual ability to protect against the harm that
occurred. The court’s analysis did not engage in the key
inquiry of the special-relationship doctrine: whether the
defendant was in a unique position to protect against the
risk of harm. (See, e.g., Carneyhan, supra, 169 S.W.3d at
p. 851; Bogenberger, supra, 104 N.E.3d at p. 1123; Sullivan,
17
supra, 572 A.2d at p. 1213.) Grenier’s analysis and holding
are against the weight of authority, and we find its
reasoning unpersuasive.5 Adopting the reasoning of the
5 In her reply brief, appellant also cites Marshall v.
University of Delaware (Super.Ct. New Castle, 1986, C.A. No.
82C-OC-10) 1986 Del. Super. LEXIS 1374, a Delaware trial court
order denying summary judgment for two national fraternities.
(Id. at pp. *24-25, *32.) There, the plaintiff, a non-student, sued
the fraternities and a university for injuries he sustained while
attempting to intervene in a fight between members of the
fraternities. (Id. at pp. *2-*3.) The court concluded the national
fraternities had a duty to control their local chapters’ actions
because they had the power to revoke chapters’ charters, and in
the court’s opinion, could enforce their policies “by a program of
random checks . . . .” (Id. at pp. *24, *25.) The court’s reliance
exclusively on the national fraternities’ disciplinary powers is
contrary to the authorities discussed above. (See, e.g., USC,
supra, 30 Cal.App.5th at p. 448; Sullivan, supra, 572 A.2d at
p. 1213; Sparks, supra, 255 P.3d at p. 245.) It is also unclear
whether this analysis represents Delaware law. In a subsequent
appeal from the grant of summary judgment for the university,
the Supreme Court of Delaware indicated that authority to
discipline is insufficient to constitute control, stating, “While the
University clearly has influence over fraternities and can impose
sanctions effectively rising to the level of dissolution . . . the
University has no legal duty to protect non-students who are
injured by University students off-campus.” (See Marshall v.
University of Delaware (Del. 1993) 633 A.2d 370 [Table of unpub.
decisions] [1993 Del. Lexis 363 at p. *4].)
Appellant additionally cites Brown v. Delta Tau Delta (Me.
2015) 118 A.3d 789 (Brown) and Morrison v. Kappa Alpha Psi
Fraternity (La.Ct.App. 1999) 738 So.2d 1105 (Morrison). Neither
case supports her position. In Brown, the court held a duty of
(Fn. is continued on the next page.)
18
majority of courts, we conclude no special relationship
existed between respondent and Cal. Gamma.
2. No Special Relationship Existed between
Respondent and Appellant
Appellant contends that regardless of any special
relationship between respondent and Cal. Gamma,
respondent had a special relationship with appellant based
on her status as an invitee on premises subject to
respondent’s control. As noted, “[a] defendant may have an
affirmative duty to protect the plaintiff from the conduct of a
third party if the defendant has a special relationship with
the plaintiff.” (USC, supra, 30 Cal.App.5th at p. 444.)
California courts have recognized a special relationship
between a person who possesses or controls land and
invitees on the land. (Id. at p. 444.)
Respondent did not own or possess Cal. Gamma’s
house. Appellant argues respondent nevertheless controlled
care existed based on the national fraternity’s control of the
fraternity’s house, a separate theory we discuss below. (Brown,
supra, at p. 796.) In Morrison, the court held the fraternity owed
a duty to prevent hazing by its local chapters based on a theory of
negligent undertaking, another separate issue we discuss below.
(Morrison, supra, at p. 1118, 1119 [stating the national fraternity
“assumed a duty to regulate, protect against and prevent hazing
by its collegiate chapters”].) Neither court discussed the special-
relationship doctrine or the principles that underlie it as they
apply to national fraternities’ relationships with their local
chapters.
19
Cal. Gamma’s premises because the Fraternity Laws
“govern[ed] the ownership of chapter houses,” because
respondent promulgated rules on social events, risk
management, and alcohol use, and because respondent
arranged for property and liability insurance coverage for its
local chapters. She cites no authority, however, for the
proposition that a defendant’s policies and rules applying to
the conduct of another party, or the defendant’s involve-
ment in that party’s procurement of insurance, establish the
defendant’s control over the party’s premises.
This court rejected a similar argument in USC. (See,
USC, supra, 30 Cal.App.5th at p. 446 [“USC’s policies
governing use of alcohol and social events . . . along with [its
safety officers’] patrols to enforce those policies, did not
constitute an exercise of control over [the local fraternity’s]
property.”].) And the ties between respondent and Cal.
Gamma’s house do not approach what courts have found
sufficient to constitute an exercise of control over premises.
(See Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1161-1162
[triable issue of fact as to defendants’ control of land on
which plaintiff was injured; defendants maintained the lawn
surrounding the land and constructed a fence enclosing the
entire lawn]; Southland Corp. v. Superior Court (1988) 203
Cal.App.3d 656, 666-667 [triable issue of fact as to
defendants’ control of vacant lot adjacent to defendants’
store; store customers often parked there, defendant’s lease
authorized their nonexclusive use of the land, and store
employees had taken action to remove loiterers from there].)
20
Accordingly, because respondent did not control the premises
on which appellant was injured, there was no special
relationship between them. (See USC, supra, at p. 444.)
3. The Negligent Undertaking Doctrine Is
Inapplicable
Appellant contends there are triable issues of fact
whether respondent assumed a duty of care based on the
negligent undertaking doctrine. Under that doctrine, a
defendant who undertakes to render services to another may
owe a duty of care either to the other person or to a third
person. (Delgado, supra, 36 Cal.4th at p. 249, fn. 8.) To
establish a duty of care to a third person based on the
negligent undertaking doctrine, a plaintiff must show: (1)
the defendant undertook to render services to another; (2)
the services were of the kind the defendant should have
recognized as necessary for the protection of third persons;
and (3) either (a) the defendant’s failure to exercise
reasonable care increased the risk of harm beyond what
existed without the undertaking, (b) the undertaking was to
perform a duty owed by the other to the third persons, or (c)
a harm was suffered because the other or third persons
relied on the undertaking. (See Artiglio v. Corning, Inc.
(1998) 18 Cal.4th 604, 614; Rest.3d Torts, Liability for
Physical and Emotional Harm, § 43.)
“[T]he scope of any assumed duty depends upon the
nature of the undertaking.” (Delgado, supra, 36 Cal.4th at
p. 249.) The defendant “must specifically have undertaken
21
to perform the task that he is charged with having
performed negligently, for without the actual assumption of
the undertaking there can be no correlative duty to perform
that undertaking carefully.” (Artiglio v. Corning, Inc., supra,
18 Cal.4th at pp. 614-615.) For example, “[m]erely because a
supermarket . . . ‘chooses to have a security program’ that
includes . . . a roving security guard does not signify that the
proprietor has assumed a duty to protect invitees from third
party violence.” (Delgado, supra, at p. 249.)
Appellant argues that through its rules and policies,
respondent undertook to provide a service to Cal. Gamma,
creating a duty to protect Cal. Gamma’s guests. According
to her, the relevant service was, as stated in respondent’s
mission statement, “‘[t]o develop, maintain, and enforce
standards and expectations for the conduct of [respondent’s]
members within and outside of the Fraternity.’”
The record is clear, however, that any undertaking of
services to Cal. Gamma did not include direct day-to-day
oversight and control of Cal. Gamma’s activities or the
conduct of its members. As reflected in our discussion of
respondent’s relationship with Cal. Gamma, there is no
evidence suggesting that respondent had the right or ability
to conduct such preventive monitoring of its over 200 local
chapters. Assuming respondent undertook any specific duty
through its rules, policies, and guidelines, such a duty was
educational, rather than one of direct supervision and
control, as appellant maintains. (See USC, supra, 30
Cal.App.5th at p. 449 [rejecting argument that university
22
assumed duty to protect local chapter’s invitees by adopting
policies on alcohol use and social events and providing a
security patrol, because “a college has little control over . . .
noncurricular, off-campus activities, and it would be
unrealistic for students and their guests to rely on the
college for protection in those settings”]; Smith v. Delta Tau
Delta, Inc. (Ind. 2014) 9 N.E.3d 154, 163 [national fraternity
assumed no duty to protect local chapter’s members despite
its disciplinary powers and relevant policies: “While it
certainly was the commendable objective of the national
fraternity to actively engage in programs to discourage
hazing and alcohol abuse, . . . the specific services [it]
assumed . . . did not rise to the level of assuring protection of
the [plaintiffs] from hazing and the dangers of excessive
alcohol consumption”].) Accordingly, the negligent
undertaking doctrine is inapplicable.
B. Respondent Is Not Vicariously Liable for Cal.
Gamma’s Conduct
Appellant argues there are triable issues of fact as to
respondent’s vicarious liability based on an agency
relationship between respondent and Cal. Gamma. “[A]
principal who personally engages in no misconduct may be
vicariously liable for the tortious act committed by an agent
within the course and scope of the agency.” (Peredia v. HR
Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 691.)
“‘“Agency is the relationship which results from the
manifestation of consent by one person to another that the
23
other shall act on his behalf and subject to his control, and
consent by the other so to act . . . .”” (van’t Rood v. County of
Santa Clara (2003) 113 Cal.App.4th 549, 571, quoting
Edwards v. Freeman (1949) 34 Cal.2d 589, 592.) While the
existence of an agency relationship is “typically a question of
fact, when ‘“the evidence is susceptible of but a single
inference,”’” summary judgment may be appropriate.
(Castillo v. Glenair, Inc. (2018) 23 Cal.App.5th 262, 281.)
For an agency relationship to exist, the asserted
principal must have a sufficient right to control the relevant
aspect of the purported agent’s day-to-day operations. (See
Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 478
[in sexual harassment suit by franchisee’s employee, no
agency relationship between franchisor and franchisee
where, although the franchisor “vigorously enforced”
standards and procedures involving the product, general
store operations, and brand image, it did not have “a general
right of control” over the “relevant day-to-day aspects” of
franchisee’s operations]; Emery v. Visa Internat. Service
Assn. (2002) 95 Cal.App.4th 952, 960 [no agency relationship
between financial services company and merchants because
company had no right to control how merchants operated
their day-to-day businesses].)
Here, the summary judgment record permits no
reasonable inference that respondent had a sufficient right
to control Cal. Gamma’s day-to-day activities. Respon-dent’s
Fraternity Laws provide that respondent “has no power to
control the activities or operations of any Chapter
24
Collegiate” and that subject to certain duties, local chapters
“shall be virtually independent of [respondent]” and “have
complete control of [their] own activities.” Each chapter
must “make its own arrangements as to . . . living quarters,”
may “fix its own dues, assessments, and charges,” and
“elect[s] its own officers . . . .”
In support of her argument that respondent
nevertheless had sufficient control over Cal. Gamma’s
operations, appellant cites respondent’s rules, policies, and
disciplinary powers discussed above. But the existence of
standards regulating some aspects of local chapters’
activities is insufficient. (Cf. Patterson v. Domino’s Pizza,
LLC, supra, 60 Cal.4th at p. 497 [a “comprehensive
operating system” and the existence of a franchise contract
containing “standards, procedures, and requirements that
regulate each store for the benefit of both parties” is not
enough to create an agency relationship].) And the
disciplinary powers respondent possessed under the
Fraternity Laws did not amount to a right to control Cal.
Gamma’s day-to-day operations or the physical details of a
party. (See Smith v. Delta Tau Delta, Inc., supra, 9 N.E.3d
at p. 164 [national fraternity’s power to impose “post-conduct
sanctions” does not allow it to control local fraternity
members’ conduct and thus “does not establish the right to
control for purposes of creating an agency relationship”]; cf.
Scheffel v. Oregon Beta Chapter of Phi Kappa Psi Fraternity
(Or.Ct.App. 2015) 359 P.3d 436, 455 (Scheffel) [national
fraternity’s “remedial” powers allowed day-to-day control
25
over activities to remain with local chapter].) Accordingly,
no triable issue of fact exists as to respondent’s lack of
vicarious liability for Cal. Gamma’s conduct. 6
6 Here, too, appellant cites Marshall v. University of
Delaware (Super.Ct. Oct. 8, 1986, C.A. No. 82C-OC-10) 1986 Del.
Super. LEXIS 1374, discussed above, in which the trial court
concluded that triable issues of fact existed whether an agency
relationship existed between the national fraternities and their
local chapters. (Id. at *22, *32.) Without citing legal authority,
the court concluded the fraternities had a right to control the day-
to-day activities of their local chapters based solely on the
fraternities’ disciplinary powers. (See id. at *21-*22, *31-*32.)
Such powers are insufficient to establish vicarious liability based
on an agency relationship. (See Smith v. Delta Tau Delta, Inc.,
supra, 9 N.E.3d at p. 164; Scheffel, supra, 359 P.3d at p. 455.)
26
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION
MANELLA, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
27