OR Case Update: No Prior Incident Required: Civil Liability for Criminal Acts of Third Parties (Part I)

From the desk of Jeffrey D. Eberhard: It is a bedrock principle of premises liability law that businesses and individuals alike owe a duty to protect customers and guests from foreseeable harm, which may also include harm from foreseeable criminal conduct. In the following case, the Oregon Court of Appeals examined whether a fraternity could have reasonably foreseen that one of its members would sexually assault a female guest at a party.

Claims Pointer: In this case, the Oregon Court of Appeals held, by a 2 to 1 vote by the panel of judges, that that a trial court improperly granted a local chapter of a college fraternity’s motion for summary judgment. The Court held that where a fraternity had knowledge that (1) sexual assaults are common on college campuses; (2) alcohol is a significant factor in college sexual assaults; and (3) that failure to prohibit guest access to fraternity rooms could contribute to sexual assault, a claim of foreseeability could go to the jury. This case significantly stretches the bounds of foreseeability in Oregon. As the dissenting judge in this case pointed out, up until now, at least some knowledge of the individual’s propensity for violence or of specific prior incidences at the location where the harm occurred has been necessary for a court to find that criminal conduct is foreseeable. In this case, the court holds that general knowledge of criminal conduct is enough to make harm from that criminal conduct foreseeable to a possessor of the property.

NOTE: This summary covers only a portion of the Court of Appeals’ decision. Next week, we will provide the conclusion of this two-part update.

Scheffel v. Oregon Beta Chapter of Phi Kappa Psi Fraternity, 273 Or App 390 (September 2, 2015).

On Halloween night, 2008, Cassandra, a student at Oregon State University (“OSU”), was sexually assaulted by Gregory Sako at a party hosted at Sako’s fraternity, a local chapter of the Phi Kappa Psi Fraternity (“Phi Psi”). Phi Psi...

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