Scheffel v. Oregon Beta Chapter of Phi Kappa Psi Fraternity

ORTEGA, P. J.

Plaintiff brought a negligence action against defendants Phi Kappa Psi Fraternity (Phi Psi) and Phi Psi’s local chapter (Beta Chapter)¹ at Oregon State University (OSU) after she was raped by Gregory Sako, a chapter member, during a Halloween party at the chapter’s fraternity house in Corvallis.² Plaintiffs claim against the local chapter was based on theories of premises liability, “failure to control,” and negligence per se. She asserted a claim against Phi Psi on the theory that Phi Psi was vicariously liable as the chapter’s principal and, separately, that Phi Psi had negligently performed a duty that it had voluntarily undertaken to supervise, control, and guide the local chapter.

Defendants moved for summary judgment, arguing that the undisputed facts established that the risk of Sako’s sexual assault of plaintiff was not reasonably foreseeable to the chapter. Further, the chapter asserted that, as a matter of law, it had satisfied its duty to plaintiff, who was a social guest, to make the premises safe during the party. Beta Chapter also contended that it did not create an unreasonable risk of harm of the type that befell plaintiff, pointing to safety measures that it had implemented for the party, as well as its lack of knowledge of Sako’s (or any other chapter member’s) propensity for violence. Finally, the chapter asserted that, as to plaintiff’s negligence per se count³ of negligence, the Oregon Administrative Rules on which plaintiff relied had been repealed, and thus, could not sustain plaintiffs negligence per se count. Beta Chapter also asserted that, even if the administrative rules applied, there was no factual dispute that it had complied with the rules. As for plaintiffs agency theory against Phi Psi, the national organization claimed that it did not have the requisite right to control the conduct of the local chapter that was asserted as the basis for plaintiffs claims, and that it did not voluntarily undertake any duty to render services to plaintiff or the chapter that would have made it liable for plaintiffs injuries. The trial court granted summary judgment and dismissed plaintiffs claims.

Plaintiff appeals, contending that the evidence, viewed in the light most favorable to her, was sufficient to create a genuine issue of material fact as to each of her claims. In particular, plaintiff contends that the chapter, as the possessor of the chapter house, owed plaintiff a duty to exercise reasonable care as to activities that occurred at the house; that the chapter knew or had reason to know of a reasonably foreseeable risk of sexual assault of a female guest in the circumstances of the party; and that the chapter’s conduct created an unreasonable risk of harm to plaintiff and fell below the applicable standard of care. She points to evidence in the summary judgment record and an affidavit filed under ORCP 47 E. As for her claims against Phi Psi, she maintains that there was sufficient evidence to create a question of fact as to whether the national organization had sufficient control of the chapter to be held vicariously liable for the chapter’s negligence and, alternatively, that there was sufficient evidence that Phi Psi undertook a duty to supervise and guide local chapter members, and that Phi Psi’s negligent performance of that duty led to the harm that plaintiff suffered.

Ultimately, we conclude that the trial court erred by granting summary judgment to Beta Chapter on plaintiffs negligence claim because evidence in the summary judgment record established factual questions as to whether plaintiffs sexual assault, in the circumstances of the Halloween party, was reasonably foreseeable to the chapter, and whether the chapter’s conduct fell below the applicable standard of care. We also conclude that the trial court incorrectly granted summary judgment on plaintiffs negligence per se count. As for plaintiffs claims against Phi Psi, we conclude that summary judgment was appropriate. Accordingly, we reverse and remand the judgment as to Beta Chapter, and otherwise affirm the judgment.

I. FACTS

On review from the grant of summary judgment, we review the summary judgment record in the light most favorable to the nonmoving party — in this case, plaintiff— and draw all reasonable inferences in her favor. Jones v. General Motors Corp., 325 Or 404, 413, 939 P2d 608 (1997). We state the facts consistently with that standard.

Phi Psi is headquartered in Indiana and has about 100 local chapters nationwide. As relevant here, its governing documents, including its constitution and bylaws, grant the national organization the power to create, suspend, and revoke local charters, and the power to suspend, expel, or otherwise discipline any fraternity member after due notice and a hearing. Phi Psi also has the power to appoint a committee of alumni to supervise the affairs of any chapter whenever necessary to correct conditions “prevailing at the time,” although the local chapter has “original jurisdiction” over the conduct of its undergraduate members, including the right to initiate, suspend, or expel a member.

Phi Psi requires local chapter officers to review and confirm receipt of the fraternity’s risk-management policy, which includes sections on “Social Programming and Alcohol” and “Sexual Assault.” The policy is the “baseline,” (i.e., local chapters cannot adopt a policy that is contrary to it) and includes information and statistics related to “Greek-related accidents.” The policy explains various precautions that are necessary to establish an atmosphere that minimizes the likelihood of alcohol-related problems, including hosting only “BYOB” parties, requiring age identification and wristbands, monitors, and “never allow underage members or guests to possess or consume alcohol.” The section on sexual assault notes that alcohol “decreases inhibitions” and that, on college campuses, acquaintance rape may be “as high as 85 percent” of rapes, that “alcohol plays a prevalent role in sexual assaults,” and that 97 percent of sexual abuse cases brought against fraternities involved alcohol. In early 2008, Phi Psi’s Director of Expansion visited Beta Chapter and presented information about the fraternity’s risk management program to local chapter members, including Sako.

Phi Psi also requires local chapter members to complete a computer-based educational program and to pass a related test to receive the fraternity’s full membership benefits. The program contains lengthy modules that aim to educate students on responsible alcohol use and preventing sexual assaults.

In 2008, Beta Chapter’s membership consisted of undergraduate students enrolled at OSU who had been initiated into Phi Psi. The chapter occupied a house in Corvallis that was owned by the House Corporation. The house consisted of a basement, as well as two floors that contained bathrooms, common areas, and private rooms. Although the local chapter had a “general policy” that underage members could not drink alcohol, that policy was not enforced. In fact, it was common for underage members to keep alcohol in their rooms and to drink it in their rooms and in the common areas of the house — although during some social events, members’ consumption of alcohol in the common areas was prohibited. At times, older chapter members purchased alcohol for underage members. The chapter president, Gerritz, had confiscated alcohol from a member on occasion when that member was “out of control,” but, otherwise, no restrictions were enforced on members’ consumption of alcohol in their private rooms. Gerritz was aware of policies that prohibited all access to private rooms during social events, particularly at sororities, but Phi Psi did not have such a rule.⁴

OSU’s Office of Greek Life provides various services and support to fraternities at OSU. Kerr, the head of the office, has recommended to fraternities that access to private rooms should be closed during social events that include alcohol because “control disappears” when individuals move into private rooms. He stated that access to private rooms during social events causes safety issues, including a danger of sexual misconduct and underage alcohol consumption. Kerr noted that he “probably” had a conversation with each fraternity over the preceding 10 years, but he did not specifically remember a conversation with anyone at Beta Chapter.

Beta Chapter initiated Sako as a member of Phi Psi in April 2008 when he was 19 years old. He lived in the fraternity house with a roommate on the main floor. Sako and his roommate regularly possessed alcohol in their room and regularly consumed alcohol in their room and in the common areas of the house. In October 2008, Sako was generally drinking alcohol twice during the week and, on the weekends, would consume anywhere from 4 to “15 or 20 drinks.”

Beta Chapter, along with Delta Chi’s OSU chapter, hosted an invitation-only Halloween party on October 31, 2008, at the chapter’s house. The chapter hired two security guards for the party, who were tasked with patrolling the premises, enforcing “event policies,” reporting violations to Gerritz, ensuring that guests used a single entrance, handling potential problems, and calling the police if needed. Four members of the host fraternities served as “sober monitors” by checking in guests at the house entrance, tracking the number of guests, and directing guests to the basement where the party was held. Neither fraternity served alcohol at the party. Instead, guests age 21 and over could bring beer, check it at a bar that was monitored by the chapter’s members, and, after showing proof of age, retrieve one beer at a time. The fraternity designated the main floor bathroom for male guests and chapter members, and the second floor bathroom for female guests. Access to private rooms on the main and second floors was limited to chapter members and their guests.

By the time the party began sometime after 8:00 p.m., Sako had already been drinking alcohol in his room with various people, and he was intoxicated by 9:00 p.m. Gerritz saw Sako between 9:30 p.m. and 10:00 p.m. and told him to “go to his room.” Gerritz asked other members to keep Sako in his room because he was “yelling like a fool,” and Gerritz stopped by Sako’s room several times to make sure he was alright. Although the party was scheduled to end after midnight, by 10:45 p.m., Gerritz felt that he had lost control of “the outside” of the house because an unruly group of people who were not on the invitation list were trying to gain admittance to the party. He decided to shut down the party and clear the house of guests. Although the timing is unclear, somewhere around that time, Sako proceeded to the dance floor where he met plaintiff, who had been invited to the party by a member of Delta Chi. At some point, she accompanied Sako to his room on the main floor of the house, where he sexually assaulted her.

II. ANALYSIS

Summary judgment is appropriate if there is no genuine issue of material fact for trial and the moving party is entitled to prevail as a matter of law. ORCP 47 C. For a plaintiff in a negligence action to avoid summary judgment, the plaintiff must show the existence of a factual question on all dispositive issues framed by the defendant’s motion. Two Two v. Fujitec America, Inc., 355 Or 319, 326, 325 P3d 707 (2014) (party seeking summary judgment frames the issues on which party opposing summary judgment must show the existence of a factual question). There is no issue of material fact, if, based on the record, “no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment.” ORCP 47 C.

A. Beta Chapter

We first address plaintiffs claims against Beta Chapter and then address her claims against Phi Psi. To start, we review the negligence theories advanced by plaintiff against Beta Chapter and the issues raised by the chapter in its summary judgment motion, because they frame the issues on appeal.

1. Claims against Beta Chapter

Plaintiff first alleged that Beta Chapter was negligent based on a theory of premises liability. Plaintiff alleged that as a social guest she was an “invitee” of the chapter, and that the chapter failed to satisfy its duty to make the property reasonably safe for her visit because it, among other things, (1) failed to properly monitor the party, (2) permitted underage members of the fraternity to possess and consume alcohol in their private rooms, and (3) allowed chapter members and their guests unmonitored access to private rooms.

Plaintiff also alleged that Beta Chapter was negligent based on the more general theory of “failure to control.” Under that theory, plaintiff asserted that the chapter knew or should have known in the exercise of reasonable care that there was a foreseeable risk of sexual assault of female guests during a party where (1) underage members had access to private alcohol supplies, (2) the party was not properly monitored, and (3) the chapter allowed members and their guests access to private rooms during the party. Plaintiff further alleged that the chapter’s conduct failed to protect her from the risk of that harm.

Finally, plaintiff alleged that Beta Chapter was liable under the theory of negligence per se. According to plaintiff, the chapter’s failure to comply with administrative rules that govern student social organizations violated, as a matter of law, the standard of care established by those rules. In particular, plaintiff claimed that the chapter violated applicable rules by serving alcohol to minors and visibly intoxicated persons, failing to provide security, failing to monitor for disorderly conduct, and failing to control access to alcohol in private rooms.

2. Summary judgment motion: Beta Chapter

Beta Chapter sought summary judgment, insisting that there is no genuine issue of material fact as to the chapter’s liability for Sako’s criminal conduct. It asserted that plaintiff, as a social guest, was a licensee — not an invitee — for purposes of premises liability. Accordingly, the chapter maintained that its duty to plaintiff was limited to the duty to use reasonable care to make the premises safe or to warn plaintiff of the condition of the premises and the risk involved if it knew or had reason to know that there was an unreasonable risk of harm and plaintiff did not know or have reason to know of the risk involved. Beta Chapter insisted that, in light of the chapter’s limited duty, there was no evidence that it knew or had reason to know that there was an unreasonable risk to party attendees of sexual assault by Sako or any other chapter member because Sako’s assault was the first and only known sexual assault to have occurred at the chapter house or to have involved any chapter member.

Similarly, Beta Chapter claimed that plaintiffs “failure to control” theory failed because, as a matter of law, it was not reasonably foreseeable to the chapter that plaintiff would be sexually assaulted at the party given that nobody knew of Sako’s propensity for violence or of any sexual assaults by other chapter members, and the mere serving of alcohol (which the chapter argued did not occur) does not create an unreasonable risk that a person will become violent. Beta Chapter argued alternatively that it did not unreasonably create the risk of the harm that occurred because it lacked knowledge of Sako’s propensity for violence and took precautionary steps to host a “good” party. Accordingly, the chapter explained that its conduct provided nothing more than “mere facilitation” of Sako’s’ criminal conduct, and that “mere facilitation” is not enough, as a matter of law, to demonstrate foreseeability.

As for plaintiffs negligence per se count, Beta Chapter contended that, because the administrative rules on which plaintiff relied had been repealed after the assault but before trial, plaintiff could not rely on those rules to sustain negligence per se. Alternatively, Beta Chapter maintained that there was no factual dispute that it had complied with the rules.

Plaintiff, in part, responded to Beta Chapter’s motion with a declaration under ORCP 47 E that she had retained an expert “who is available and willing to testify to admissible facts or opinions creating a question of fact.”⁵ In response, the chapter argued to the trial court that an ORCP 47 E affidavit can defeat summary judgment only when the plaintiff is required to provide the opinion of an expert in order to establish a given fact and that, in this case, expert testimony was not required to establish any material facts.

The trial court granted summary judgment and dismissed plaintiffs claims. Plaintiff appeals, and on appeal, the parties generally reprise and refine the arguments that they made to the trial court.

3. General negligence principles

We begin with some general negligence principles to provide context to the specific issues framed by plaintiffs claims and Beta Chapter’s summary judgment motion— specifically, foreseeability and standard of care. Under Oregon law,

“unless the parties invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant’s duty, the issue of liability for harm actually resulting from defendant’s conduct properly depends on whether that conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.”

Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 17, 734 P2d 1326 (1987). That is, in the absence of a special status or relationship, the appropriate question is “whether the defendant’s conduct resulted in a foreseeable and unreasonable risk of harm of the kind that the plaintiff suffered.” Towe v. Sacagawea, Inc., 357 Or 74, 86, 347 P3d 766 (2015). That principle is based on the general proposition that a plaintiff does not need to prove that the defendant owed the plaintiff a. “duty” because everyone owes each other the duty to act reasonably in light of foreseeable risks of harm. Id. Where a party invokes a status, relationship, or a particular standard of conduct, then that relationship may create, define, or limit the defendant’s duty to the plaintiff. Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336 Or 329, 341, 83 P3d 322 (2004); see, e.g., Monnet v. Ullman et al., 129 Or 44, 55, 276 P 244 (1929) (explaining that the only duty owed to a trespasser is to avoid injury as a result of willful or wanton conduct).

In this case, plaintiff invoked a special relationship under premises liability law, and the parties dispute how Beta Chapter’s duty as the possessor of property should be defined. Because the chapter’s duty to plaintiff and the scope of that duty are threshold issues that affect the rest of our analysis, we resolve them before further discussing the applicable negligence principles.

Plaintiff claims that, because she was a licensee under premises liability law, the chapter — as the possessor of the property — had a duty to exercise reasonable care for her protection as to activities that occurred on the land.⁶ In contrast, the chapter claims that it owed a duty only to exercise reasonable care to make the premises safe if it knew or had reason to know of an unreasonable risk of harm and the licensee did not know or had no reason to know of the risk. We agree with plaintiff. The Supreme Court has held that, as to activities on the land, the possessor has a duty to exercise reasonable care for the protection of a licensee. Ragnone v. Portland School Dist. No. 1J, 291 Or 617, 623-24, 633 P2d 1287 (1981) (where the plaintiff alleged that a school district conducted an activity on school premises without adequate supervision and without maintaining proper control, the school district had a duty to exercise reasonable care in the conduct of its activities). And importantly, “activities on the land” include social functions like the Halloween party at issue in this case. Blystone v. Kiesel, 247 Or 528, 531-32, 431 P2d 262 (1967) (holding that there is an obligation to exercise reasonable care for the protection of a licensee during a social gathering). Accordingly, the chapter had a duty to plaintiff to exercise reasonable care in the conduct of its activities — specifically in this case, the Halloween party.

However, as to the scope of the chapter’s duty to plaintiff, even “when a special relationship is the basis for the duty of care owed by one person to another, * * * if the special relationship *** does not prescribe a particular scope of duty, then ‘[c]ommon law principles of reasonable care and foreseeability of harm are relevant.’” Oregon Steel Mills, 336 Or at 342 (quoting Cain v Rijken, 300 Or 706, 717, 717 P2d 140 (1986). The parties appear to agree that the scope of the chapter’s duty to plaintiff is limited to harm to plaintiff that was reasonably foreseeable to the chapter.

a. Foreseeability

However, they disagree as to whether, if the chapter was negligent in the manner alleged by plaintiff, the harm that plaintiff suffered was reasonably foreseeable. In cases where the “harm-producing force” is an intentional intervening criminal act of a third party, the defendant generally has a duty to protect against criminal conduct by third parties that the defendant reasonably could foresee. Stewart v. Kids Incorporated of Dallas, OR, 245 Or App 267, 278, 261 P3d 1272 (2011), rev dismissed as improvidently allowed, 353 Or 104 (2012); see also McPherson v. Oregon Dept. of Corrections, 210 Or App 602, 612, 152 P3d 918 (2007) (the scope of a landlord’s duty to its tenants includes a “duty to take reasonable steps to protect tenants in the property’s common areas from reasonably foreseeable criminal acts by third persons”). Accordingly, the second issue framed by the parties is whether Beta Chapter could have foreseen that plaintiff would fall victim to criminal conduct as a result of its actions. See Cunningham v. Happy Palace, Inc., 157 Or App 334, 340, 970 P2d 669 (1998) (reversing summary judgment because there was “evidence from which a jury could find that defendant could have reasonably foreseen that it was placing plaintiff at risk of criminal assault by forcing her to leave the safety of the restaurant before she could arrange for transportation home”).

Accordingly, we examine whether there was evidence in the summary judgment record that would allow a reasonable factfinder to find or reasonably infer that the chapter knew or should have known that, if it was negligent as alleged by plaintiff, that negligence placed plaintiff at an unreasonable risk of criminal conduct. See, e.g., Chapman v. Mayfield, 263 Or App 528, 531, 329 P3d 12, rev allowed, 356 Or 400 (2014) (explaining relevant inquiry on review of summary judgment).

Plaintiff concedes that there is no evidence that the chapter knew of Sako’s propensity for violence; nevertheless, she asserts that the chapter knew more generally about an epidemic of alcohol-related sexual assaults involving college fraternities, and that the chapter created an unreasonable risk of sexual assault by permitting underage members to consume alcohol and by allowing chapter members and their guests access to private rooms during parties where alcohol was available. Given that there was evidence of the chapter’s knowledge of the prevalence of alcohol-related sexual assaults, plaintiff asserts that that evidence, in conjunction with her ORCP 47 E affidavit, was sufficient to create a question of fact as to whether it was reasonably foreseeable that a female guest would be subject to sexual assault in the circumstances of the Halloween party.

Beta Chapter asserts that nothing it did could foreseeably have placed plaintiff in harm’s way and that the requisite foreseeability was not present as a matter of law. The chapter claims that plaintiffs reliance on the its knowledge of national statistics regarding the prevalence of alcohol-related sexual assaults involving fraternities is not enough to create a factual question on foreseeability. Defendants take the position that the court must look to case-specific facts and cannot rely on the broad proposition that, because alcohol-related sexual assaults are a problem nationally, such a risk of harm was foreseeable in this case.

Therefore, at the heart of the foreseeability issue in this case is whether, given that the chapter had no specific knowledge of Sako’s propensity for violence nor of any other sexual assaults involving chapter members or the chapter house, there was sufficient evidence to create a question of fact as to foreseeability. For the reasons that follow, we conclude that plaintiff established a question of fact on foreseeability.

To begin, we disagree with defendants that Oregon case law requires the conclusion that, in the absence of specific knowledge by the chapter of the propensity for violence of Sako or other chapter members, a risk of third-party criminal conduct is unforeseeable as a matter of law. We acknowledge that in many of our negligence cases, a defendant’s knowledge of a specific perpetrator’s propensity for violence provides the basis for establishing foreseeability of harm. See, e.g., Panpat v. Owens-Brockway Glass Container, 188 Or App 384, 394-95, 71 P3d 553 (2003) (the defendant’s knowledge that the third party had significant mental health problems related to the breakup of a romantic relationship with the decedent, that the third party was on psychiatric medical leave pending further mental health evaluation, and that the third party and the decedent had had previous verbal confrontations, made it reasonably foreseeable that the third party would commit criminal acts against the decedent at the defendant’s business); Washa v. DOC, 159 Or App 207, 225, 979 P2d 273 (1999), aff'd by an equally divided court, 335 Or 403, 69 P3d 1232 (2003) (“[O]ur general foreseeability analysis in a negligent supervision claim properly turns on whether — in light of the third party’s criminal history — the defendant could reasonably foresee that the third party, if inadequately supervised, would engage in the kind of criminal conduct that ultimately harmed the plaintiff”). In other cases, however, the foreseeability of third-party criminal acts has been established not by knowledge of a particular actor’s propensity for violence but by knowledge of the risk of harm posed by criminals in general in a particular situation.

For example, in Torres v. United States Nat. Bank, we concluded that the plaintiff stated facts that, if proven, could establish that the defendant bank should reasonably have anticipated criminal conduct against its invitees based on evidence that “due to ‘the place or character of his business, or [the defendant’s] past experience,”’ the invitee’s safety might be endangered. 65 Or App 207, 670 P2d 230, rev den, 296 Or 237 (1983) (quoting Restatement (Second) of Torts § 344 comment f (1965)). There, the plaintiff had been shot while making a night deposit at the defendant bank. Because the trial court had dismissed the plaintiffs claims at the pleading stage, we explained that, based on the plaintiffs allegations, the plaintiff might be able to introduce evidence of robberies at other night depositories in the area, or be able to compare evidence of robberies at night depositories located on the street with robberies at depositories hidden from public view, or even introduce evidence showing the likelihood of danger to invitees making deposits after banking hours. Id. at 214-15; see also Cunningham, 157 Or App at 339-40 (where the plaintiff had been injured by the criminal acts of a third party after being ejected from a bar without being allowed to arrange for safe transportation home, there was evidence from which a jury could find that defendant could have reasonably foreseen that it was placing the plaintiff at a general risk of criminal assault).

Our recent decision in Chapman illustrates the different types of evidence that may be available to a plaintiff to prove foreseeability in a case involving third-party criminal conduct. There, we addressed whether it was foreseeable to the defendant tavern owner that serving a visibly intoxicated person could create an unreasonable risk that the person would engage in violent conduct. A patron of the defendant tavern had shot the plaintiffs after being served alcohol while visibly intoxicated. We noted that the plaintiffs could prove foreseeability by either (1) proving facts that showed that a tavern owner’s “general observations and experiences ‘in the business of serving alcohol’ gave that tavern owner reason to know that violence would be a foreseeable risk of serving alcohol to a visibly intoxicated person,” or (2) proving facts that “the tavern owner knew or had reason to know that the visibly intoxicated person in question had a propensity for violence that could be incited by further drinking.” 263 Or App at 532 (citations omitted). Because the plaintiffs in Chapman had no evidence of specific facts known by the defendant regarding the particular patron’s propensity for violence, we examined the plaintiffs’ “reason-to-know” theory that those in the business of serving alcohol know that visibly intoxicated drinkers frequently become violent. The plaintiffs relied on two key pieces of evidence: (1) a medical doctor’s declaration that drinkers frequently become violent and that there is a link in medical, scientific, and lay literature between visible intoxication and increased violence, and (2) the testimony of a bartender from an “area bar” that when patrons become violent, it is “the alcohol talking.” Id. at 532-33. We ultimately concluded that the plaintiffs’ evidence failed to create a question of fact on foreseeability because it failed to establish that the defendant was on notice that serving a visibly intoxicated person created an unreasonable risk that the person would become violent. Id. at 535.

Central to our holding was the observation that the evidence would not allow a reasonable factfinder to infer the tavern owner’s knowledge of the risk. We noted that the factfinder would have had to infer that (1) the tavern owner would generally know what medical experts in alcohol physiology know about the connection between intoxication and violence, (2) that the medical, scientific, and lay literature would be read by persons in the business of serving alcohol, and (3) that there were enough similarities between the operations and clientele of the defendant tavern and the other “area bar” that the bartender’s observations at the “area bar” could be generalized to the defendant. Id. at 535-36. Because the evidence in the summary judgment record would have required a factfinder to make too many “intermediate inferences and assumptions” to reach a conclusion that the defendant should have known that serving a visibly intoxicated person would lead to the unreasonable risk that the person would act violently, we affirmed summary judgment. Id.

Here, however, the summary judgment record included evidence that would allow a reasonable factfinder to infer, without requiring “too many intermediate inferences and assumptions,” that the chapter could reasonably have foreseen a risk to female guests of sexual assault in the circumstances of the Halloween party. First and foremost, there is evidence in the summary judgment record that would support a finding that the chapter knew that alcohol-related sexual assaults were a foreseeable risk of hosting social events where alcohol is available, and that permissive alcohol use by underage members and access to private rooms during such social events increases the risk of sexual misconduct. Phi Psi requires local chapter members to complete computer-based educational programs that contain lengthy modules to educate students on issues of responsible alcohol use and the prevention of sexual assault. Phi Psi also requires local chapter officers to review and abide by risk-management policies on topics including “Social Programming and Alcohol” and “Sexual Assault.” Such policies include statistical information affirming the prevalence of alcohol abuse in “Greek-related” accidents and sexual assaults (including statements such as “alcohol plays a prevalent role in sexual assaults”), and dictates that local chapters “establish an atmosphere that minimizes the likelihood of alcohol-related problems.” It is also reasonable to infer from the record — viewed in the light most favorable to plaintiff — that the head of the Office of Greek Life had explained to Beta Chapter that access to private rooms during social events involving alcohol leads to a loss of control, which becomes a safety issue and leads to a danger of sexual misconduct.

Thus, the summary judgment record provides a basis for a reasonable factfinder to conclude that Beta Chapter knew that alcohol-related sexual assaults in college fraternities were a serious problem on college campuses nationwide and that precautions were necessary to minimize that risk. We do not understand prior Oregon cases to require a showing the chapter knew of specific members’ propensity for violence for plaintiff to demonstrate that the chapter reasonably could have foreseen a risk of sexual assault of female guests. As the Supreme Court stated in Fazzolari, “evidence of foreseeability will differ depending on whether the risk of injury is claimed to be specific to a school, or schools generally, or a neighborhood, or a class of potential victims such as women or particular ethnic groups.” 303 Or at 21-22 (emphasis added). The risk of injury in this case was to guests of Beta Chapter. Evidence that Beta Chapter knew that alcohol-related sexual assaults were a potential problem when hosting social events where alcohol is available, and that permissive alcohol use by underage members and access to private rooms during such social events increased the risk of sexual misconduct is sufficient to create a question of fact as to foreseeability of the risk that materialized in this case. Given our resolution of that issue, we need not address whether plaintiffs ORCP 47 E affidavit would have created a question of fact as to foreseeability had the record been devoid of the evidence that Beta Chapter actually knew of the alcohol-related sexual assault problem.

Beta Chapter also contends that its conduct did not result in an “unreasonable risk of harm of the kind that plaintiff suffered,” see Towe, 357 Or at 86 (“[T]he more traditional duty-breach analysis *** is supplanted by the question whether the defendant’s conduct resulted in a foreseeable and unreasonable risk of harm of the kind that the plaintiff suffered.”), because the summary judgment record demonstrates that, at most, defendants provided “mere facilitation” of Sako’s criminal acts. See Buchler v. Oregon Corrections Div., 316 Or 499, 511-12, 853 P2d 798 (1993) (holding that “mere 'facilitation’ of an unintended adverse result, where intervening intentional criminality of another person is the harm-producing force, does not cause the harm so as to support liability for it”). Defendants assert that nothing they did created an unreasonable risk of harm of sexual assault. They again rely on their lack of knowledge of Sako’s propensity for violence, or any other known sexual assault incidents involving any of its members or the chapter house.

As we recently explained in Piazza v. Kellim, 271 Or App 490, 504, 354 P3d 698 (2015), in cases where the harm-producing force is the criminal act of a third party, the plaintiff must allege (and prove) that harm by third-party criminal conduct was “foreseeable to the defendant in a concrete way.” The plaintiff may not rely on the abstract proposition that “crimes may occur and that the criminals perpetrating them may cause harm” because the Supreme Court rejected that theory in Buckler:

"While it is generally foreseeable that criminals may commit crimes and that prisoners may escape and engage in criminal activity while at large, that level of foreseeability does not make the criminal’s acts the legal responsibility of everyone who may have contributed in some way to the criminal opportunity. In other words, in our society it is foreseeable that crimes may occur and that the criminals perpetrating them may cause harm. Thus, in a general sense, it is foreseeable that anyone whose conduct may in any way facilitate the criminal in committing the crime has played some part in the resulting harm. But mere ‘facilitation’ of an unintended adverse result, where intervening intentional criminality of another person is the harm-producing force, does not cause the harm so as to support liability for it.”

316 Or at 511-12⁷

Synthesizing Buchler in Cunningham, we stated that the

"plaintiff must establish that defendant’s act did more than merely facilitate the criminal acts of third parties. The Oregon Supreme Court has stated that a defendant cannot be held liable for all intervening intentional criminal conduct that might conceivably occur because of defendant’s acts or failures to act. ‘[M]ere “facilitation” of an unintended adverse result, where intervening intentional criminality of another person is the harm-producing force, does not cause the harm so as to support liability for it.’ Buchler, 316 Or at 511-12 (rejecting ‘facilitation’ rationale of Kimbler v. Stillwell, 303 Or 23, 734 P2d 1344 (1987)). The court in Buchler held that, in order to survive a defendant’s motion for summary judgment in a case involving the criminal acts of third parties, there must be facts in the record to support a conclusion that the defendant could have reasonably foreseen, as a result of the defendant’s negligence, an unreasonable risk of such danger to the plaintiff. Id.”

157 Or App at 338-39.

As we understand the “mere facilitation” rationale in Buckler, the link between the defendant’s negligent conduct and the risk of harm must also be reasonably foreseeable because, at some point, charging a person “with responsibility for all intervening intentional criminal conduct that might conceivably occur” cannot be reconciled with “a foreseeability analysis that requires that a defendant, to be liable, must have unreasonably created the risk of the sort of harm to plaintiff that befell him.” Buchler, 316 Or at 511 (emphasis in original).

In Buckler, a prisoner escaped from state custody when his crew supervisor left the keys to the state’s van in the ignition. Id. at 502. Two days after his escape, and 50 miles from the point of escape, the prisoner shot two people with a gun that he had stolen. Id. The estate of one of the victims sued the state, asserting negligence on the theory that the state had permitted the prisoner to escape, had failed to recapture him, and had failed to warn the public of his escape. The Supreme Court concluded that, as a matter of law, the harm that befell the plaintiff was not reasonably foreseeable to the state. As we noted in McPherson, in reaching that conclusion, the court emphasized that the harm that befell the plaintiff was “several steps removed from the conduct of the defendant: the defendant negligently left keys in a vehicle; a convict stole the vehicle; the convict then stole a gun from his mother; the convict then shot the plaintiff with that gun.” 210 Or App at 618. As we explained,

“[a]lthough the foreseeability of a convict escaping in an unattended vehicle with keys in it is relatively high, and the foreseeabilty of an escaped convict stealing a gun is relatively high, and the foreseeability of an armed escaped convict shooting a person is relatively high, the foreseeability of all three of those occurrences happening in sequence is ‘at the outer margins.’”

Id. (quoting Fazzolari, 303 Or at 12).

This case does not present a similar problem. Here, we have no difficulty concluding that there is a relatively straightforward connection between the chapter’s allegedly negligent conduct and the risk of harm that befell plaintiff. Plaintiff introduced evidence that would support a finding that the chapter knew that alcohol-related sexual assaults were a risk in certain circumstances at fraternities on college campuses nationwide, and that, among other things, the chapter permitted underage members to possess and consume alcohol in private rooms and failed to prohibit access to private rooms during a social event where alcohol was available. Given that there was evidence that would support the conclusion that the chapter knew of the risk of alcohol-related sexual assault at an event like the Halloween party, plaintiff established a question of fact as to whether the chapter was on notice that its conduct would create a risk of the kind of harm that befell her. Cf. Oregon Steel Mills, 336 Or at 345 (holding that “the risk of a decline in plaintiffs stock price in June 1996 was not a reasonably foreseeable consequence of defendant’s negligent acts in 1994 and early 1995”), and McPherson, 210 Or App at 618 (criminal harm is not foreseeable where the risk of harm would have to “result from some strange ‘concatenation of highly unusual circumstances,’ * * * [or] an extended sequence of improbable chance occurrences.” (quoting Stewart v. Jefferson Plywood Co., 255 Or 603, 609, 469 P2d 783 (1970))).

The dissent concludes that Beta Chapter cannot be liable for plaintiffs injuries because, as a matter of law, it could not reasonably foresee a risk of sexual assault by a third party at the Halloween party. The dissent reaches that conclusion based on the lack of evidence that Beta Chapter had any knowledge of Sako’s propensity for violence, and on the failure of plaintiff to produce evidence of prior sexual assaults at the chapter house or at other fraternities or sororities at OSU. As for the lack of evidence of Sako’s propensity for violence, the parties did not dispute that point, and our analysis does not touch on it. Rather, at the heart of our disagreement is the dissent’s conclusion that Beta Chapter cannot be liable under Oregon negligence law because plaintiff presented no evidence of prior sexual assaults at the house or at other fraternities or sororities at OSU. The dissent concludes that in the absence of “specific facts” to show that Beta Chapter knew or had reason to know from its experience that its location threatened plaintiff with an unreasonable risk of criminal assault, the assault of plaintiff was unforeseeable as a matter of law. 273 Or App at 440 (DeVore, J., concurring in part and dissenting in part).

In short, as our discussion indicates, foreseeability in cases involving third-party criminal conduct is not so strictly limited. The relevant inquiry is ultimately whether there was evidence in the summary judgment record that would allow a reasonable factfinder to find or reasonably infer that the chapter knew or should have known that, if it was negligent in the manner alleged by plaintiff, that negligence placed plaintiff at an unreasonable risk of criminal conduct. Certainly evidence that Beta Chapter knew that prior criminal activity had occurred at a specific location is evidence that could satisfy that standard. But, evidence like that presented in this case — evidence that the chapter, as an organization that hosted social events attended by underage college students and their guests, had specific knowledge of the risk of criminal assault in circumstances like that of the Halloween party — is enough to create a jury question on foreseeability. Again, there was evidence in the summary judgment record that would allow a reasonable factfinder to conclude that Beta Chapter knew that alcohol-related sexual assaults were a foreseeable risk of hosting social events where alcohol is available, and that permissive alcohol use by underage members and access to private rooms during such social events increased the risk of sexual misconduct. 273 Or App at 443.

Accordingly, we do not share the dissent’s view that existing Oregon negligence law cuts off liability for third-party criminal conduct unless there is specific evidence of the criminal propensity of a third party under control of the defendant or evidence of past criminal activity at a specific location. To the extent that the dissent argues that Buckler drew that line, we disagree. First, as relevant here, we understand Buckler to stand for the proposition that, at some point, harm that befalls a plaintiff that is “several steps” removed from the negligent conduct of the defendant, is not foreseeable as a matter of law to the defendant. However, this is not a case in which the harm resulted from a “concatentation of highly unusual circumstances” or “an extended sequence of improbable chance occurrences.” See McPherson, 210 Or App at 618. Second, Buchler established “that the generic fact that criminals may commit crimes does not suffice to make the risk of a particular crime reasonably foreseeable for negligence purposes.” Stewart, 245 Or App at 282. Again, plaintiffs theory is more than the generic fact that criminals may commit crimes. Plaintiff introduced evidence that would allow a reasonable factfinder to conclude that Beta Chapter knew that there was a specific risk of sexual assault during a party where alcohol was available, underage drinking was permitted, and access to private rooms was open.

Finally, we briefly address the dissent’s discussion of the national statistic on alcohol-related sexual assault mentioned in Phi Psi’s risk-management policy. The dissent contends that the “incomplete and generalized” national statistic of sexual assaults at fraternities nationwide is “misunderstood” and “insufficient” evidence, and rebukes our reliance on that statistic as evidence to support the conclusion that a reasonable factfinder could find that Beta Chapter knew that there was a reasonably foreseeable risk of sexual assault of plaintiff at the Halloween party. 273 Or App at 444-47 (DeVore, J., concurring in part and dissenting in part). The dissent incorrectly implies that that statistic was the only evidence on which we relied to conclude that foreseeability was a jury question. Regardless of the underlying validity of the statistic, it is but one piece of evidence that plaintiff introduced that created a factual question on foreseeability. Our conclusion is based on all of the evidence that Beta Chapter knew of the risk of sexual misconduct in the circumstances of the Halloween party, including Phi Psi’s risk management policy (that included reference to the statistic at issue), computer-based training modules, and information from the Office of Greek Life. That evidence, viewed in the light most favorable to plaintiff, is enough to get plaintiff past summary judgment. The persuasiveness of that evidence, including the statistic, is for the jury to decide.

b. Standard of Care

Defendants also appear to argue that, even if the risk of sexual assault was reasonably foreseeable, no objectively reasonable juror could have concluded that the chapter failed to take reasonable steps to protect its guests from third-party criminal conduct.⁸ In other words, defendants are arguing that, as a matter of law, their conduct satisfied the applicable standard of care. In support, the chapter points to the measures that it took to police the Halloween party, including the hiring of outside security, the use of sober monitors, and the strict regulation of alcohol use in the common areas of the house by party attendees. The chapter also points out that, although the party was shut down early, the party inside the house was not “out of control,” and alcohol was not served to minors or visibly intoxicated persons.

To the extent that Beta Chapter is arguing that no reasonable factfinder could find that the chapter’s conduct violated the applicable standard of care, we reject that argument. Although the chapter certainly took numerous precautionary measures, it failed to take others — such as prohibiting access to private rooms during a party where alcohol use by underage members in private rooms was permitted and unmonitored — and a reasonable factfinder could view such measures as required under the applicable standard of care. As the Supreme Court stated in Fazzolari,

“‘[t]he jury is given a wide leeway in deciding whether the conduct in question falls above or below the standard of reasonable conduct deemed to have been set by the community. The court intervenes only when it can say that the actor’s conduct clearly meets the standard or clearly falls below it.’”

303 Or at 18 (quoting Stewart, 255 Or at 607). We cannot say that defendants’ conduct clearly meets the standard in this case; accordingly, that is a factual question for the factfinder to decide.

Given our conclusion that the summary judgment record, when viewed in the light most favorable to plaintiff, contained factual questions on the issues framed by Beta Chapter’s summary judgment motion — foreseeability of harm and the standard of care — the trial court erred by granting summary judgment and dismissing plaintiffs claims against Beta Chapter.

4. Negligence Per Se

Next, we address plaintiffs negligence per se count. To establish negligence per se, plaintiff must demonstrate that (1) defendants violated an administrative rule; (2) plaintiff was injured as a result of that violation; (3) plaintiff was a member of the class of persons meant to be protected by the rule; and (4) the injury plaintiff suffered is of a type that the rule was enacted to prevent. McAlpine v. Multnomah County, 131 Or App 136, 144, 883 P2d 869 (1994), rev den, 320 Or 507 (1995); see also Ettinger v. Denny Chancler Equipment Co., Inc., 139 Or App 103, 107, 910 P2d 420 (1996) (noting that application of negligence per se based on a violation of administrative rules also requires that the rule not be ultra vires). Here, plaintiff asserted that negligence per se occurred because Beta Chapter violated former OAR 576-018-0240(2)(c) (June 30, 2010), former OAR 576-018-0250(2) and (3) (June 30, 2010), and former OAR 576-018-0260 (June 30,2010) — rules that, at the time of the Halloween party, regulated alcohol distribution and consumption at “closed events” hosted by social organizations at OSU.

Beta Chapter moved for summary judgment against plaintiffs negligence per se count, arguing that, as a matter of law, because the rules on which plaintiff relied had been repealed after the date of the Halloween party, those repealed rules could not sustain plaintiffs negligence per se count. Alternatively, Beta Chapter asserted that, as a factual matter, there was no evidence that it had failed to comply with the rules that plaintiff cited for negligence per se. The trial court granted summary judgment on plaintiffs negligence per se count, although it did not explain why it did so.

Beta Chapter relied on our decision in Greist v. Phillips, 128 Or App 390, 875 P2d 1199 (1994), rev’d in part on other grounds, 322 Or 281, 906 P2d 789 (1995), to argue to the trial court that, because the rules on which plaintiff relied had been repealed by the time of trial, those rules could not sustain plaintiffs negligence per se count. Beta Chapter asserted that the rules at issue were “merely procedural,” and under Greist, changes to “merely procedural” rules can be applied “retroactively.” In other words, because merely procedural changes can be applied retroactively, the repeal of those procedural rules after the assault in this case can be applied retroactively. Plaintiff disputes that position on appeal, arguing that the rules were not “merely procedural.”

Greist involved a wrongful death action against the driver and owner of a truck that struck a vehicle in which the decedent infant was a passenger. 128 Or App at 393. One of the issues on appeal was whether the trial court erred by refusing to instruct the jury that, under the law as it stood at the time of trial, the plaintiffs failure to use the “required and available child restraint seat constituted negligence per se” Id. at 394-95. A statute in effect at the time of the accident required the use of child restraint seats, but also included a provision that violation of the statute “shall not be considered under any circumstances to be negligence nor shall evidence of such a violation be admissible in any civil action.” ORS 811.210(3) (1989), amended by Or Laws 1991, ch 2, § 1. On appeal, we addressed whether a change in the statute (i.e., an amendment eliminating subsection (3)) should be applied retroactively. The parties argued that, under existing Supreme Court precedent, whether the change should be applied retroactively depends on whether the change was procedural or substantive because “[c]hanges in law that affect substantive rights are not applied retroactively, but procedural changes can be.” 128 Or App at 395 (citing Joseph v. Lowery, 261 Or 545, 547, 495 P2d 273 (1972)). We concluded that the statutory change was substantive and could not be applied retroactively. In particular, we noted that the amendment of ORS 811.210(3) “changed the rights and responsibilities of drivers in terms of their potential civil liability.” Id. Accordingly, the law at the time of the accident controlled.

Here, the parties dispute whether the rules at issue were procedural or substantive in nature. Beta Chapter argued to the trial court that the changes were procedural because they set out procedures “with which student groups were supposed to comply in order to host events involving alcohol.” We disagree that the rules are merely procedural, and thus, we conclude that the trial court erred in granting summary judgment on that basis. In short, the rules relied on by plaintiff, at least in part, implicated the “rights and responsibilities” of student organizations in a substantive manner. For example, the rules provided that student organizations holding closed events with alcoholic beverages could be suspended if an underage person obtains or receives alcoholic beverages, including where the underage person obtains or receives alcohol in a private room during the event or as a result of the event. Former OAR 576-018-0250(2) (June 30, 2010).⁹ In our view, rules that place limitations and requirements on a student organization — violation of which can result in suspension of the organization — cannot be properly characterized as “merely procedural.” Accordingly, the repeal of the rules does not, as a matter of law, preclude plaintiffs negligence per se count.

We also briefly address Beta Chapter’s alternative basis for summary judgment on the negligence per se count. In short, Beta Chapter argues that as a factual matter it “indisputably complied with the OARs,” and alternatively, that even if Beta Chapter violated any of the rules “plaintiff cannot prove that [Beta Chapter] failed to act reasonably under the circumstances.”

As for Beta Chapter’s “indisputable” compliance with the rules, there is evidence in the summary judgment record that creates a question of fact on that issue. For example, there is evidence from which a reasonable factfinder could find that Beta Chapter failed to control access to alcohol in private rooms, which would constitute a violation of former OAR 576-018-0250(2) (June 30, 2010). Accordingly, summary judgment was inappropriate.

Finally, we reject Beta Chapter’s contention that, as a matter of law, plaintiff could not show that it “failed to act reasonably” given the precautions and security measure undertaken by the chapter. See Bjorndal v. Weitman, 344 Or 470, 477, 184 P3d 1115 (2008) (noting that Uniform Civil Jury Instruction 20.03 states that if “the defendant proves by a preponderance of the evidence that the defendant was acting as a reasonably careful person in the circumstances” negligence per se does not apply). For the same reasons that we rejected Beta Chapter’s argument that, as a matter of law, it satisfied the standard of care, 273 Or App at 414, we reject Beta Chapter’s argument that there is no question of fact that it acted reasonably in the circumstances.

B. Phi Psi

Next we address whether the trial court correctly granted summary judgment as to plaintiffs claim against Phi Psi. Plaintiff alleged that Phi Psi was vicariously liable under an agency theory — that Phi Psi had authority to control Beta Chapter and that, because of the agency relationship between the local chapter and the national organization, Phi Psi should be liable for Beta Chapter’s negligence. Plaintiff also alleged a “negligent assumption of duty” theory against Phi Psi, contending that Phi Psi voluntarily undertook to provide supervision, control, and guidance to its local chapter members, including over member conduct in general and specifically with regard to responsible alcohol use and the prevention of sexual assault. Plaintiff claimed that Phi Psi negligently provided that supervision, control, and guidance because it failed to (1) monitor and enforce Beta Chapter’s compliance with required rules of conduct relating to responsible alcohol use, underage drinking, and the prevention of sexual assault; (2) establish, monitor, and enforce rules to prohibit and prevent guest access to private rooms at Beta Chapter during social events where alcohol is “permitted, available, and possessed and allowed to be consumed by members in private rooms”; and (3) establish, monitor, and enforce rules to prohibit possession and consumption of alcohol in private rooms of the chapter house during social events. We address each theory in turn.

1. Vicarious Liability

We begin with the applicable legal principles that govern nonemployee agency relationships. At common law, “agency” was defined as a relationship that “‘results from the manifestation of consent by one person to another that the other shall act on behalf and subject to his control, and consent by the other so to act.’” Vaughn v. First Transit, Inc., 346 Or 128, 135, 206 P3d 181 (2009) (quoting Hampton Tree Farms, Inc. v. Jewett, 320 Or 599, 617, 892 P2d 683 (1995) (emphasis in Vaughn)). “The agency relationship can arise either from actual consent (express or implied) or from the appearance of such consent.” Eads v. Borman, 351 Or 729, 736, 277 P3d 503 (2012). “ [T]he principal is bound by or otherwise responsible for the actual or apparent agent’s acts only if the acts are within the scope of what the agent is actually or apparently authorized to do.” Id. at 736. “[F]or a principal to be vicariously liable for the negligence of its nonemployee agents, there ordinarily must be a connection between the principal’s ‘right to control’ the agent’s actions and the specific conduct giving rise to the tort claim.” Vaughn, 346 Or at 138. To impose vicarious liability for a nonemployee agent’s physical conduct, the principal must have — or appear to have — a right to control how the act is performed — that is, the physical details of the manner of performance — that is characteristic of an employee-employer relationship. Id. at 139.

Phi Psi contended in its summary judgment motion that, under Oregon agency law, even if Beta Chapter is an agent of Phi Psi, it was not actually or apparently authorized by Phi Psi to do the “acts” that led to plaintiffs injuries. In addition, relying on Oregon cases, Phi Psi asserted that there was no evidence that any right of Phi Psi to control Beta Chapter’s actions connected to the specific conduct that gave rise to plaintiffs negligence claims. Specifically, Phi Psi claims that the only evidence in the record was that it did not have day-to-day control over the local chapter or the chapter’s members’ actions, and that it was those day-to-day actions that gave rise to plaintiffs claims.

On appeal, plaintiff argues that an agency relationship existed between Phi Psi and Beta Chapter based on Phi Psi’s right to control intake, to suspend or expel members, and to revoke charters. Further, plaintiff asserts that the connection between Phi Psi’s right to control Beta Chapter and Beta Chapter’s negligent conduct is provided by evidence that Phi Psi imposed the risk-management policy on each chapter and required each chapter’s officers to attend training on implementing the policy. Plaintiff maintains that, because the policy specifically addressed alcohol abuse and sexual assault, and the local chapter was not permitted to vary from those policies, Phi Psi’s control over the chapter had a connection to the chapter’s negligent failure to protect plaintiff from a foreseeable risk of alcohol-related sexual assault. Finally, plaintiff asserts that the documents that govern the relationship between Phi Psi and Beta Chapter gave Phi Psi control to grant, to suspend, or to revoke Beta Chapter’s charter; the right to discipline individual members; and the right to appoint a committee to supervise the affairs of the chapter.

Thus, the issue framed below and on appeal is whether, on this record, a reasonable factfinder could find Phi Psi vicariously liable for the negligent conduct of Beta Chapter. Because defendants do not assert an absence of an agency relationship between Phi Psi and Beta Chapter, and because plaintiff acknowledges that the agency relationship between defendants is one of principal and nonemployee, the dispositive issue is whether there is sufficient evidence of a connection between Phi Psi’s “right to control” Beta Chapter’s actions and the specific conduct that gave rise to plaintiffs tort claim. See Vaughn, 346 Or at 138.

Before we address the summary judgment record here, we examine Viado v. Domino’s Pizza, LLC, 230 Or App 531, 217 P3d 199 (2009), rev den, 347 Or 608 (2010), which is instructive to the issues in this case. In that case, the plaintiff sued Domino’s Pizza and a Domino’s franchisee to recover for injuries he sustained in an accident with the franchisee’s pizza delivery driver. Id. at 533. The issue on appeal was whether the plaintiffs evidence at the summary judgment stage would allow a reasonable juror to find Domino’s vicariously liable for the driver’s negligence. After concluding that there was a nonemployee agency relationship between the franchisee and Domino’s, we examined whether there was a connection between Domino’s right to control the franchisee’s actions and the specific conduct giving rise to the tort claim. Id. at 550-51.

That inquiry involved deciding whether there was evidence that would allow a jury to find that Domino’s had the right to control the physical details of the conduct that injured the plaintiff — i.e., the manner in which the driver carried out his driving duties. The record contained evidence that Domino’s asserted various “controls” over the franchisee’s drivers, including standards for hiring and training them, standards for delivery vehicles, and general driving safety standards. Id. at 551. We concluded that, although those “controls” touched on the delivery process, “none of them gave Domino’s the right to control the physical details of the manner of driving” Id. (emphasis in original). We explained that “[s]etting *** standards for a franchisee’s employees and having the right to actually control how the franchisee’s employees perform the physical details of driving are two different things.” Id. at 552. Instead of establishing standards as to the physical details of driving, such as prescribing the route that the franchisee’s employees must take, Domino’s required only that its franchisee’s drivers generally obey the rules of the road and drive safely. Id. at 552-53; cf. Miller v. McDonald’s Corp., 150 Or App 274, 281, 945 P2d 1107 (1997) (holding that the franchisor could be vicariously liable for negligent food handling and preparation by the franchisee’s employees because the franchisor established the ways in which its franchisee handled and prepared food and enforced the use of those particular methods through regular inspections and the right to cancel the agreement). Accordingly, we concluded that a reasonable factfinder could not find that Domino’s had the requisite control over the franchisee to make it vicariously liable for the actions of the franchisee’s driver. Viado, 230 Or App at 553.

Although Viado involved an agency relationship between entities that was based on a franchise agreement, our analysis in that case is instructive on the issue before us. Here, plaintiff asserted that Beta Chapter was negligent by, among other things, hosting a party where underage members could possess and consume alcohol in their private rooms and failing to prohibit access to private rooms. Accordingly, the ultimate question is whether a factfinder could conclude on this record, viewing the evidence in the light most favorable to plaintiff, that Phi Psi had the right to control the physical details of hosting and monitoring the Halloween party. We conclude that plaintiffs evidence falls short of creating a genuine issue of material fact on that question.

The evidence on which plaintiff relies — that Phi Psi had the right to control intake, to suspend or expel members, to revoke charters, and to impose fraternity-wide policies aimed at curbing alcohol abuse and preventing sexual assaults — is insufficient to support a finding that Phi Psi had the right to control Beta Chapter’s day-to-day operations such as the physical details of hosting a Halloween party. Rather, the evidence establishes only that Phi Psi’s powers, at least with respect to the type of day-to-day operations at issue here, were essentially remedial in nature. That is, Phi Psi could react to violations of its policies or to a chapter’s misconduct with punishment but, similar to Viado, the policies were generalized standards that allowed day-today control over the functions of Beta Chapter to remain with the local chapter. Although Phi Psi had the authority to appoint a committee to supervise the affairs of the chapter, which might have included supervising day-to-day activities, there is no evidence that Phi Psi had done that in this case at the time of the Halloween party. Accordingly, we conclude that no reasonable factfinder could find that Phi Psi had the right to control the physical details of hosting and monitoring the Halloween party to the extent necessary to find Phi Psi vicariously liable.

2. Direct Negligence

Finally, we address plaintiff’s negligence claim against Phi Psi. Our analysis is limited to the theory of negligence alleged by plaintiff against Phi Psi, as framed by defendants’ summary judgment motion and the parties’ arguments on appeal.

In her complaint, plaintiff alleged that Phi Psi “undertook to provide supervision, control, and guidance to its local chapter members” by providing advice, education, and rules of conduct aimed at responsible alcohol use and the prevention of sexual assault, and that Phi Psi negligently performed that role because it (1) failed to monitor Beta Chapter’s compliance with the established rules regarding alcohol use and the prevention of sexual assault; (2) failed to establish, monitor, and enforce rules regarding guest access to private rooms during social events; and (3) failed to establish, monitor, and enforce rules that would prohibit the possession and consumption of alcohol in private rooms at the chapter house during social events.

At the summary judgment stage, plaintiff clarified that her negligence claim against Phi Psi was based on the rule set out in the Restatement (Second) of Torts section 323 (1965) that

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking if

“(a) his failure to exercise such care increases the risk of such harm, or

“(b) the harm is suffered because of the other’s reliance upon the undertaking.”

Plaintiff pointed to evidence that Phi Psi knew of the alcohol-related sexual assault problem at college fraternities, and undertook a training program to reduce the risk of liability for injuries resulting from alcohol use and sexual assault. In particular, plaintiff pointed to evidence that Phi Psi’s Director of Expansion had visited Beta Chapter in 2008 and presented information about the fraternity’s risk-management program, that Phi Psi had developed a handbook that was designed to, among other things, provide chapter members with information about alcohol abuse and sexual assault, that Phi Psi required the local chapter to adopt the national risk-management policies, and finally, that Phi Psi’s bylaws require a chapter advisor who was supposed to give guidance to local chapters. As such, plaintiff contended that there was evidence that Phi Psi “assumed a role to control alcohol abuse and sexual assaults,” and that it assumed an obligation to do so in a non-negligent manner.

Phi Psi argued that it was entitled to summary-judgment on plaintiffs direct negligence claim because (1) there was no evidence that Phi Psi had assumed a duty to plaintiff, (2) as to any duty Phi Psi assumed to Beta Chapter, there was no evidence that Phi Psi had negligently performed any of the services that it undertook; and (3) plaintiff did not allege, nor could she prove, that Phi Psi’s conduct had unreasonably created a foreseeable risk of sexual assault to her.

We begin with the first issue raised by Phi Psi on summary judgment — that the authority on which plaintiff relied does not establish that Phi Psi had a duty to plaintiff.¹⁰ In its motion, and again on appeal, Phi Psi asserted that plaintiff’s claim under the rule stated in Restatement section 323 fails as a matter of law because, even if there is evidence that Phi Psi assumed a duty to the local chapter to “control alcohol abuse and sexual assault,” Restatement section 323 does not recognize a duty to a third party such as plaintiff. That is, under Restatement section 323, if Phi Psi undertook to render services to the local chapter as plaintiff alleges, it can only be “subject to liability to [the local chapter members] for physical harm resulting from [Phi Psi’s] failure to exercise reasonable care” in the undertaking, and that there is no evidence that Phi Psi undertook any duty directly to plaintiff.

We agree with defendants that Restatement section 323 does not cover liability to third parties that are harmed by a negligent voluntary undertaking. The section is clear that it addresses liability for harm to “the other” for which the voluntary undertaking was taken. And, at least in this case, plaintiff alleged only that Phi Psi had voluntarily undertaken a duty to the local chapter and its members.

Plaintiff disagrees, citing our decision in Peterson v. Mult. Co. Sch. Dist. No. 1, 64 Or App 81, 668 P2d 385, rev den, 295 Or 773 (1983). In that case, the plaintiff sued a number of parties, including the Oregon School Activities Association (OSAA), after he was rendered quadriplegic as a result of an injury that he suffered at a school preseason football practice. As to OSAA, he alleged that the organization was negligent “for failing to require or recommend that member schools undertake various training and safety measures and that they not permit live tackling during the first week of practice or ‘tackling with the head.’” Id. at 83. OSAA, a private nonprofit corporation that “performs certain functions in connection with competitive sports among member schools,” had neglected to adopt or disseminate a national organization’s safety recommendations regarding preseason football practices. Id. at 83-84. A jury found that OSAA was negligent and liable to the plaintiff.

On appeal, one of the issues was whether the court had incorrectly instructed the jury that, if OSAA “voluntarily undertook to regulate the matters alleged in the Plaintiffs complaint, that is, regarding practice and what you did at practice, * * * then they would have the responsibility to act reasonably in that regard, and would be liable for negligence in failing to act reasonably.” Id. at 92. OSAA argued that the instruction was legally incorrect because “the claimed negligence * * * was not an act of commission but an act of omission.” Id. at 93. Citing Restatement section 323 we explained:

“Assuming without deciding that the undertaking to act must always be affirmative in order for a volunteer to have a duty, once the duty is undertaken it can be breached by a negligent failure to perform, as well as by negligent performance. There was ample evidence from which the jury could find that OSAA voluntarily undertook to make safety recommendations or to disseminate the safety recommendations of others to the schools and that its failure to follow that practice with respect to the [national organization’s] recommendations was negligent.”

Id. at 94 (emphasis in original). Accordingly, we rejected OSAA’s assignment of error challenging the jury instruction, and affirmed the jury’s verdict.

Plaintiff argues that Peterson stands for the proposition that a duty “to another” assumed under Restatement section 323 also covers liability for injuries sustained by a third party, such as the student athlete in Peterson. We disagree. There is no indication in Peterson that the discrete issue argued by the parties in this case — whether a duty voluntarily assumed under Restatement section 323 includes liability to third parties — was put at issue by OSAA or decided by us. Rather, we resolved a narrow assignment of error aimed at the trial court’s jury instruction. Accordingly, we reject plaintiffs argument that Peterson controls in this case.

Plaintiff, in her reply brief, cites to Restatement section 324A as additional support for her argument. That provision addresses liability to third persons for the negligent performance of an undertaking:

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

“(a) his failure to exercise reasonable care increases the risk of such harm, or

“(b) he has undertaken to perform a duty owed by the other to the third person, or

“(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”

The problem with plaintiffs reliance on Restatement section 324A, at least at this stage in the proceedings, is that plaintiff is raising it for the first time on appeal. Plaintiffs argument to the trial court was focused on Phi Psi’s voluntary undertaking to supervise and control the local chapter, and never linked that voluntary undertaking to the rule stated in Restatement section 324A, i.e., that Phi Psi, by voluntarily undertaking to render services to the local chapter members should have recognized that that undertaking was necessary for the protection of plaintiff and that Phi Psi’s failure to exercise reasonable care in its undertaking increased the risk of harm to plaintiff.

We conclude that plaintiffs argument that Restatement section 324A imposes liability on Phi Psi is unpreserved. Plaintiff and defendants squared off on summary judgment exclusively over the assumption of a duty based on Restatement section 323. Plaintiffs failure to argue to the trial court the related theory that a voluntary undertaking for another can support liability as to a third party when the circumstances in Restatement section 324A are met, failed to satisfy the preservation rule’s prudential purpose of giving “a trial court the chance to consider and rule on a contention, thereby possibly avoiding an error altogether or correcting one already made, which in turn may obviate the need for an appeal.” Peeples v. Lampert, 345 Or 209, 219, 191 P3d 637 (2008). It also failed to satisfy a pragmatic purpose of the preservation rule to ensure fairness to opposing parties by requiring that “the positions of the parties are presented clearly to the initial tribunal” so that “parties are not taken by surprise, misled, or denied opportunities to meet an argument.” Davis v. O’Brien, 320 Or 729, 737, 891 P2d 1307 (1995). To analyze plaintiffs claim against Phi Psi under Restatement section 324A would be inappropriate under these circumstances.

Because it was not presented below, we do not address whether plaintiffs direct negligence claim against Phi Psi could have avoided summary judgment under general foreseeability principles, and because it was not preserved, we do not decide whether a claim under the principles in Restatement section 324A could have avoided summary judgment on this record. We simply conclude that the trial court did not err in granting summary judgment against plaintiffs claim under Restatement section 323.

III. CONCLUSION

In summary, we conclude that the trial court erred by dismissing plaintiffs negligence claim against Beta Chapter on summary judgment, but correctly granted summary judgment to Phi Psi.

Judgment in favor of Oregon Beta Chapter of Phi Kappa Psi Fraternity reversed and remanded; otherwise affirmed.

1 Plaintiff’s original complaint named Oregon Beta of Phi Kappa Psi Association (the House Corporation) as a defendant, as well as Phi Psi. The House Corporation owns the chapter house and is a separate entity from Beta Chapter. After defendants moved for summary judgment, plaintiff sought to amend her complaint to substitute Beta Chapter in place of the House Corporation. The court, over defendants’ objection, allowed plaintiff to amend her complaint. The court’s ruling on that matter is the subject of defendants’ cross-assignment of error, and we reject that cross-assignment without further discussion. Given our resolution of that issue against defendants, and to avoid confusion, we generally refer to Beta Chapter throughout the opinion as if plaintiff had named it as a defendant in the original complaint.

2 Plaintiff also asserted claims against Sako and the fraternity that cohosted the party but eventually dismissed those claims. Accordingly, neither are parties to this appeal.

3 “[Njegligence per se is not a separate claim for relief, but is simply shorthand for a negligence claim in which the standard of care is expressed by a statute or rule.” Abraham v. T. Henry Construction, Inc., 350 Or 29, 35 n 5, 249 P3d 534 (2011). Instead, plaintiffs “claim” for negligence per se is “simply a second ‘count’ of negligence — not a separate claim for relief.” Alcutt v. Adams Family Food Services, Inc., 258 Or App 767, 784, 311 P3d 959 (2013), rev den, 355 Or 142 (2014). Accordingly, throughout this opinion, we use “plaintiff’s negligence per se count” to refer to plaintiff’s claim based on Beta Chapter’s alleged violation of the Oregon Administrative Rules governing social organizations at OSU.

4 For example, Delta Chi, the cohost of the Halloween Party, had a policy that no guests could enter a private room during a party.

5 ORCP 47 E provides:

“[Summary judgment motions] are not designed to be used as discovery devices to obtain the names of potential expert witnesses or to obtain their facts or opinions. If a party, in opposing a motion for summary judgment, is. required to provide the opinion of an expert to establish a genuine issue of material fact, an affidavit or a declaration of the party’s attorney stating that an unnamed qualified expert has been retained who is available and willing to testify to admissible facts or opinions creating a question of fact, will be deemed sufficient to controvert the allegations of the moving party and an adequate basis for the court to deny the motion. The affidavit or declaration shall be made in good faith based on admissible facts or opinions obtained from a qualified expert who has actually been retained by the attorney who is available and willing to testify and who has actually rendered an opinion or provided facts which, if revealed by affidavit or declaration, would be a sufficient basis for denying the motion for summary judgment.”

6 Plaintiff alleged in her complaint that she was an invitee and, in the trial court, the parties disputed whether plaintiffs status as a social guest would qualify her as a licensee or an invitee under premises liability law. On appeal, defendants again assert that plaintiff is a licensee. Plaintiff appears to have abandoned the argument that she made below, instead contending that the distinction between licensee and invitee is immaterial when an injury is sustained as a result of activities on the land as opposed to the condition of the land.

7 In so doing, the Supreme Court retreated from its reasoning in Kimbler v. Stillwell, 303 Or 23, 734 P2d 1344 (1987), in which the question was whether a storeowner could be held liable for “facilitating” a thief’s act of breaking into the store, stealing a gun and ammunition, and taking the gun to a location where he shot the plaintiff’s decedent. See Buchler, 316 Or at 511 (discussing Kimbler). The court in Kimbler, citing Fazzolari and other cases, explained that, “ [t]he fact that a plaintiff’s injury was inflicted by the intentional, even criminal, act of a third person does not foreclose liability if such an act was a foreseeable risk facilitated by the defendant’s alleged negligence.” 303 Or at 27-28. The court then held that the plaintiffs allegations — -that firearms known to be lightly secured in a retail store might be stolen and used against third persons — were sufficient to survive a motion to dismiss for failure to state a claim. Id.

8 In the briefing, Beta Chapter’s standard-of-care argument is conflated with its argument as to whether its conduct unreasonably created a risk of the harm of the kind that plaintiff suffered. Those are distinct principles, and thus, by mixing them, the exact contours of the chapter’s arguments are blurred.

9 Beta Chapter did not seek summary judgment on the basis that, as a matter of law, plaintiff was not injured as a result of any violation of the rules; that plaintiff was not a member of the class of person meant to be protected by the rules; or that the injury plaintiff suffered is not the type of injury the rules were enacted to prevent. See McAlpine, 131 Or App at 144 (setting forth the requirements a plaintiff must demonstrate to establish negligence per se). To the extent that Beta Chapter asserts on appeal that plaintiff could not show that her injury resulted from any violation of the rules, that contention was not made to the trial court and is not asserted as an alternative basis for affirmance; accordingly, we do not address it. Further, we express no opinion on whether summary judgment would have been appropriate on the other McAlpine requirements.

10 As the Supreme Court recently reiterated in Towe, the traditional duty-breach analysis is often, but not always, subsumed in the concept of reasonable foreseeability. 357 Or at 86. We note that plaintiff has not pursued a negligence claim against Phi Psi on a “general foreseeability” theory. Cf. Fraker v. Benton County Sheriff’s Office, 214 Or App 473, 487, 166 P3d 1137 (2007) (where the plaintiffs argue that the evidence would have allowed a jury to find the defendant liable to them under either a special relationship or a general foreseeability theory, we first consider whether a special status, relationship or standard of care exists, and if not, we then determine whether the defendant could be found liable under a general foreseeability theory). Here, plaintiff has argued only that Phi Psi’s duty is founded in the rule stated in Restatement section 323, and accordingly, we do not address the viability of a general foreseeability theory against Phi Psi on this record.