Lees v. Carthage College
Filing
96
ORDER signed by Judge Rudolph T Randa on 8/29/2011 Granting 61 Motion to Exclude the expert testimony of Dr. Kennedy; Granting 63 Carthage College's Motion for Summary Judgment; Denying as moot 82 Carthage's Motion to Strike; Denying as moot 87 Plaintiff's Motion to Strike. This matter is Dismissed. (cc: all counsel) (nts)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KATHERINE LEES,
Plaintiff,
Case No. 10-C-86
-vsCARTHAGE COLLEGE,
LEXINGTON INSURANCE COMPANY,
Defendants.
DECISION AND ORDER
In the fall semester of her freshman year at Carthage College, Katherine Lees was
sexually assaulted in her dorm room. Ms. Lees alleges that Carthage’s failure to provide
adequate security caused her assault. Carthage moves for summary judgment and to exclude
the testimony of Ms. Lees’ expert witness. For the reasons that follow, these motions are
granted.
BACKGROUND
Carthage College is a four year private college of the arts and sciences. The total
enrollment of full time students is generally between 2,000 and 3,000. Approximately 1,500
students reside on campus, which is located along the shores of Lake Michigan, just north
of the city of Kenosha.
Katherine Lees is a resident of California. Ms. Lees is hearing impaired, but she can
vocalize, and those familiar with her can understand her speech. Ms. Lees began her
academic career at Carthage in the fall semester of 2008. She received a scholarship to
attend Carthage and sought out the school because of its water polo team. She lived on
campus in Tarble Hall, an all-female residence hall, one of nine residence halls on campus.
During an orientation at Tarble Hall, the residents stood up, introduced themselves to
each other, talked about their hobbies and interests, and then went down to the lake to pick
out a rock to use as a “door stop” for their dorm doors. The resident assistants (RAs)
encouraged the Tarble residents to use a rock to prop their doors open when they were in
their rooms so they could mingle and get to know other residents. Tarble Hall is the only
dormitory at Carthage that boasts about its “open door” policy.
In the early morning hours of September 21, 2008 (Saturday night/Sunday morning),
Ms. Lees was sitting in a chair in her room with the door open while she watched television.
Shortly after midnight, Ms. Lees saw two young men that appeared to be fellow Carthage
students enter the doorway of her room and say something to her. Ms. Lees could not hear
what they were saying so she tried to tell them that she was deaf. The two men laughed and
walked away. A short time later, around 12:30 a.m., the two men returned. One of the men
entered the room, went to the window and closed the curtain. The other turned off the light
and closed the door. One of the men then raped Ms. Lees as the other man held her down
by her shoulders.1 Lees fought back when the second man attempted to assault her, punching
him in the face hard enough to draw blood. This caused both men to flee the room.
Ms. Lees has consistently maintained that the men who raped her were Carthage
students. She bases this belief on the fact that one of the men was wearing a “Carthage
1
Carthage does not concede that the assault took place, but whether the assault actually occurred is irrelevant
for purposes of this decision and order.
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Football” sweatshirt, while the other had a “Carthage” t-shirt. Carthage initiated an internal
college judicial proceeding, but the assailants were never identified. As a result of the
assault, Ms. Lees continues to suffer from post-traumatic stress disorder. She is no longer
enrolled at Carthage College.
Pursuant to federal law, Carthage reported the following number of forcible sexual
offenses for each year: 2008 - 4; 2007 - 5; 2006 - 1; 2005 - 1; 2004 - 0; 2003 - 1. All of these
incidents were acquaintance assaults (also known as date rape), meaning that the victim was
in some way an acquaintance of the perpetrator. None of these incidents involved the victim
being assaulted by a stranger. Carthage College has never had a reported instance of a
student raped by a stranger or intruder in its residence halls. There is only one instance of
stranger rape ever occurring on campus, and that was approximately 10 years ago. That
incident involved a stranger rape in the music hall by a non-student, a serial rapist who would
travel from campus to campus under the guise of a comedy show and sexually assault
women. This individual was apprehended and criminally prosecuted due to the incident at
Carthage.
Entrance doors to all of the residence halls at Carthage are locked 24 hours a day. In
order to gain access to the residence halls, a Carthage student ID must be swiped through a
card reader. The established policy at Carthage is that all students are allowed access to the
residence halls from 8:00 a.m. to 2:00 a.m. on Fridays and Saturdays. Any student with a
valid student ID is allowed to enter any dormitory during these hours by swiping his or her
ID through the door access reader, which in turn unlocks the door and allows the student
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access to the building. This means that students who did not live at Tarble Hall could gain
access to Tarble Hall and roam the dormitory without a resident escort during the hours of
8:00 a.m. to 2:00 a.m. on Fridays (into Saturday morning) and Saturdays (into Sunday
morning). After visitation hours the computerized system will read the card swipe and
record the student’s name and attempted entry, but it will not unlock the door for an
unauthorized student that is not a resident of that particular residence hall. Unlike all of the
other doors in the building, the basement door at Tarble Hall did not have a prop alarm. The
basement door also did not have a card reader because it could not be opened from the
outside.
ANALYSIS
Summary judgment should be granted if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The plain language of the rule “mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). The Court must accept as true the evidence of the nonmovant and
draw all justifiable inferences in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). Summary judgment is appropriate only if, on the record as a whole, a rational
trier of fact could not find for the non-moving party. Rogers v. City of Chi., 320 F.3d 748,
752 (7th Cir. 2003).
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A negligence claim in Wisconsin 2 has four general elements: (1) the existence of a
duty of care on the part of the defendant; (2) a breach of that duty of care; (3) a causal
connection between the defendant’s breach of the duty of care and the plaintiff’s injury; and
(4) actual loss or damage resulting from the injury. Hornback v. Archdiocese of Milwaukee,
752 N.W.2d 862, 867 (Wis. 2008). Duty of care is established “whenever it was foreseeable
to the defendant that his or her act or omission to act might cause harm to some other
person.” Gritzner v. Michael R., 611 N.W.2d 906, 912 (Wis. 2000). This inquiry involves
an “assessment of what ordinary care requires under the circumstances.” Hocking v. City of
Dodgeville, 768 N.W.2d 552, 556 (Wis. 2009). Duty “arises from probabilities, rather than
from bare possibilities of injury. Failure to guard against the bare possibility of injury is not
actionable negligence.” Grube v. Moths, 202 N.W.2d 261, 266 (Wis. 1972).
Duty and breach are best understood in the context of the applicable standard of care.
Potential tortfeasors must “conform to a certain standard of conduct to protect others against
unreasonable risks.” Tesar v. Anderson, 789 N.W.2d 351, 355 (Wis. Ct. App. 2010). Expert
opinions are generally necessary to establish the standard of care in “those matters involving
special knowledge or skill or experience on subjects which are not within the realm of the
ordinary experience of mankind, and which require special learning, study or experience.”
Payne v. Milwaukee Sanitarium Found., Inc., 260 N.W.2d 386, 393 (Wis. 1977). Both
2
The parties agree that W isconsin law governs this diversity action. The Court may exercise diversity
jurisdiction because the amount in controversy exceeds $75,000 and the parties are completely diverse. 28 U.S.C. §
1332(a). Ms. Lees is from California, Carthage College is incorporated in Illinois and conducts business in W isconsin,
and Lexington Insurance Company (which issued a Commercial General Liability insurance policy to Carthage) is
incorporated in Massachusetts. RSUI Indemnity Company, recently dismissed from this lawsuit, is a New Hampshire
corporation doing business in Georgia.
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parties agree that this case requires the use of expert testimony to establish the standard of
care. As Judge Posner observed in a case alleging inadequate security at a hotel: “It is one
thing for a jury unaided by expert testimony, empirical data, or other fruits of exact inquiry
to assess the care with which the defendant in an automobile accident case drove, for that is
something with which almost all jurors are familiar; it is another thing for a jury to determine
the right standard of care to which to hold a hotel.” Shadday v. Omni Hotels Mgt. Corp., 477
F.3d 511, 515 (7th Cir. 2007); Varner v. Dist. of Columbia, 891 A.2d 260, 267 (D.C. 2006)
(“expert testimony is required to establish the standard of care in negligence cases . . . which
involve issues of safety, security and crime prevention”). Without such testimony, “the jury
has no standard which enables it to determine whether the defendant failed to exercise the
degree of care and skill required of him.” Olfe v. Gordon, 286 N.W.2d 573, 576 (Wis. 1980).
It is the plaintiff’s burden to establish the standard of care. Carney-Hayes v. NW Wis. Home
Care, Inc., 699 N.W.2d 524, 537 (Wis. 2005).
Ms. Lees’ expert, Dr. Daniel Kennedy, is Professor Emeritus at the University of
Detroit, where he taught criminology and security administration for over thirty years. Dr.
Kennedy was retained to analyze this lawsuit “from the perspective of a criminologist
specializing in security issues and to comment on any negligence issues which might arise.”
D. 71-2. Dr. Kennedy writes that “an assault on a female dorm resident was generally
foreseeable given prior history, perimeter failures, and visitation and staffing policies at
Tarble Hall. Had this foreseeability been recognized and the security deficiencies described
above been rectified, it is more likely than not the sexual assault against Katherine Lees
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would not have taken place.” Id. Dr. Kennedy later explained that “unreasonable access was
granted through the visitor policy, the ‘open door policy,’ and the lack of an electronic
lock/door prop alarm on the basement door. Thus, it was clearly foreseeable that with such
access, stranger-on-stranger rape could and eventually would occur.” D. 71, Affidavit of
Daniel Kennedy, ¶ 18.
Dr. Kennedy cites to the “recommended practices” of the International Association
of Campus Law Enforcement Administrators (IACLEA).
For example, the IACLEA
recommends that dormitory doors have prop alarms and that dorm guests be escorted by
residents. However, the IACLEA recommendations are just that – recommendations.
“Recognizing that academic environments vary widely – as do the safety and security risks
they experience – these recommended practices are not intended to serve as a formal
security code or set of standards. Rather, they are designed to represent optimum crime
prevention practices for colleges and universities. Although crime prevention practices are
recommended, institutions may elect to develop appropriate alternatives to these
recommendations.”
The Complete Campus Crime Prevention Manual, International
Association of Campus Law Enforcement Administrators, 1996 (emphasis added). The
measures recommended by the IACLEA are merely “[a]spirational practices” that “do not
establish the standard of care which the plaintiff must prove in support of an allegation of
negligence.” Varner, 891 A.2d at 272.
The IACLEA recommendations do not establish a standard of care for universities
across the country because, as the authors recognize, “academic environments vary widely.”
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For example, the appropriate security measures at the University of Wisconsin-Madison,
with an enrollment of over 40,000 students, are different from the required amount of
security at Marquette University, an urban campus with 11,000 students. And of course, the
standard of care for security is different at Carthage College, a much smaller school just
north of a relatively large city (Kenosha’s population is approximately 90,000), but isolated
from that city along the shores of Lake Michigan. At his deposition, Dr. Kennedy admitted
that he did not analyze the security measures at colleges similar to Carthage in forming his
opinion that Carthage’s security procedures were deficient. He explained that “when it
comes to security, what other folks do or don’t do may be of interest, but they do not – if
everybody was engaged in poor security practices, we would not then say, oh, well, since
everybody else does it poorly, then this particular campus is okay to do it poorly.” D. 65-1
at 67-69. Carthage cannot be held liable in tort simply because its security measures aren’t
the best they can possibly be, or don’t live up to the aspirational standard posited by Dr.
Kennedy. Shadday, 477 F.3d at 515, 518; see also Grdinich v. Bradlees, 187 F.R.D. 77, 82
(S.D.N.Y. 1999); Messina v. Dist. of Columbia, 663 A.2d 535, 540 (D.C. 1995); Sears,
Roebuck and Co. v. Midcap, 893 A.2d 542, 544-45 (Del. 2006).
Carthage was only required to take “precautions commensurate with the danger” to
its students from criminals. Shadday at 514. Indeed, the applicable standard of care is
directly informed by foreseeability because the “amount of care to take is a function of the
danger that care would avert.” Id. at 515. Dr. Kennedy’s opinion that the security at Tarble
Hall should have been improved is based on his corresponding conclusion that the attack on
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Ms. Lees was foreseeable. This is an unreliable conclusion, which means that Dr. Kennedy’s
testimony on the standard of care is inadmissible. Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579, 589 (1993) (expert testimony can be excluded based on judicial determination of
reliability); Fed. R. Evid. 702; Stutzman v. CRST, Inc., 997 F.2d 291, 294 (7th Cir. 1993)
(Federal Rules of Evidence govern the admissibility of expert testimony in diversity cases).
Dr. Kennedy maintains that Ms. Lees’ assault was foreseeable in light of the increase
in sexual assaults at Carthage College in 2007 and 2008. However, it is undisputed that these
were instances of acquaintance rape, not stranger rape. Acquaintance rape involves two
people who know each other and/or are voluntarily in each other’s presence. Therefore,
acquaintance rape cannot be prevented through increased physical security measures.
Instead, acquaintance rape is addressed by educating male and female students about how
to avoid dangerous situations. “College students are still open to new ideas; thus sexual
assault prevention messages need to be provided to male and female college students early
and frequently. New students can be provided with information at orientation about the
many consequences of heavy drinking, including sexual assault.” Antonia Abbey, AlcoholRelated Sexual Assault: A Common Problem among College Students, Journal of Studies on
Alcohol, Supp. No. 14, 2002, at 127. A reasonable person exercising ordinary care would
not implement increased security measures in response to a problem that cannot be prevented
through increased security. “Ordinary care involves the concept of foreseeability, in that a
reasonable person exercising ordinary care would have foreseen injury as a consequence of
his act.” Hoida, Inc. v. M & I Midstate Bank, 717 N.W.2d 17, 29 (Wis. 2006).
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Dr. Kennedy states generally that rape by a stranger was foreseeable because there are
a sufficient supply of sexual offenders on a college campus. Dr. Kennedy concedes that the
prevailing problem on college campuses is acquaintance rape, not stranger rape. Bonnie
Fisher, The Sexual Victimization of College Women, The National Institute of Justice, Bureau
of Justice Statistics, Dec. 2000, at 17 (9 in 10 offenders were known to the victim); Abbey
at 119 (same). Dr. Kennedy attempts to link the prevalence of acquaintance rape with the
foreseeability of stranger rape by citing studies which conclude that 30-35% of male subjects
would commit a rape if they “thought they could get away with it.” Neil M. Malamuth, Rape
Proclivity Among Males, Journal of Social Issues, Vol. 37, No. 4, 1981, at 4; Rachel LevWiesel, Male University Students’ Attitudes Toward Rape and Rapists, Child and Adolescent
Social Work Journal, Vol. 21, No. 3, June 2004. Yet none of the studies cited by Dr.
Kennedy focus on the distinction between assaulting a stranger and assaulting an
acquaintance. For instance, according to one article, “[c]ultural expectations that partygoers
drink heavily and trust party-mates become problematic when combined with expectations
that women be nice and defer to men. Fulfilling the role of the partier produces vulnerability
on the part of women, which some men exploit to extract non-consensual sex.” Elizabeth
A. Armstrong, Sexual Assault on Campus: A Multilevel Integrative Approach to Party Rape,
Social Problems, Vol. 53, Issue 4, 2006, at 484. Dr. Kennedy does not explain how it is
foreseeable that a male college student who exploits the use of alcohol to assault someone
he met at a party would also exploit lax security measures to assault a complete stranger in
her dorm room. It simply does not follow that stranger rape is foreseeable based upon the
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general prevalence of acquaintance rape. “[N]othing in either Daubert or the Federal Rules
of Evidence requires a district court to admit opinion evidence which is connected to existing
data only by the ipse dixit of the expert. A court may conclude that there is simply too great
an analytical gap between the data and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522
U.S. 136, 146 (1997).
Dr. Kennedy also focuses on the vulnerability of Ms. Lees in light of her disability.
The article cited by Dr. Kennedy concludes that women with disabilities are four times more
likely to be sexually assaulted than women without disabilities. Sandra L. Martin, Physical
and Sexual Assault of Women with Disabilities, Violence Against Women, Vol. 12, No. 9,
Sept. 2006. This comparative study says nothing about how likely it is that a female college
student with a hearing disability would be raped by a stranger in her dorm room. Moreover,
the study explicitly acknowledges that women with hearing impairments were underrepresented in the study. Id. at 835 (“Another concern is that women with particular types
of disabilities may not be likely, or able, to participate in telephone surveys (e.g., women with
communication impairments who use text telephones (TTYs) . . .”) (emphasis added). Once
again, there is no reliable link between Dr. Kennedy’s conclusion and the data underlying his
opinion. “It is critical under Rule 702 that there be a link between the facts or data the expert
has worked with and the conclusion the expert’s testimony is intended to support. . . . The
court is not obligated to admit testimony just because it is given by an expert.” United States
v. Mamah, 332 F.3d 475, 478 (7th Cir. 2003).
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Finally, Ms. Lees relies upon cases from a variety of jurisdictions to support her
argument that sexual assault in a college dorm room is foreseeable. See, e.g., Stanton v.
Univ. of Me., 773 A.2d 1045 (Me. 2001); Williams v. Utica Coll. of Syracuse Univ., 453 F.3d
112 (2d Cir. 2006); Mullins v. Pine Manor Coll., 449 N.E.2d 331 (Mass. 1983). At best,
these cases merely stand for the proposition, unremarkable under Wisconsin case law, that
colleges owe their students a duty of care to provide a safe living environment. Tesar, 789
N.W.2d at 355 (explaining that in Wisconsin, “everyone owes to the world at large the duty
of refraining from those acts that may unreasonably threaten the safety of others”) (citing
Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 102 (1928) (Andrews, J., dissenting)). For
example, in Stanton, the Maine Supreme Court found that sexual assault in a college dorm
room is foreseeable, but the court also remanded for further proceedings on whether the
university breached its duty of due care. In Williams, the Second Circuit, applying New
York law, found that the plaintiff created an issue of fact on breach and the duty of care.
And in Mullins, the Massachusetts Supreme Court found that the evidence was sufficient to
support a jury verdict that the college’s duty of care extended to the plaintiff, and that the
college breached its duty of care. Here, the dispositive issue is whether Ms. Lees, through
the expert testimony of Dr. Kennedy, created a genuine issue of fact as to the scope of
Carthage College’s duty and whether that duty was breached – i.e., the applicable standard
of care. Because Dr. Kennedy’s testimony does not meet the standard governing the
admissibility of expert testimony in federal court, Ms. Lees’ case cannot survive summary
judgment.
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NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
1.
Carthage College’s motion for summary judgment [D. 63] is GRANTED;
2.
Carthage’s motion to exclude the expert testimony of Dr. Kennedy [D. 61] is
GRANTED;
3.
Carthage’s motion to strike [D. 82] is DENIED as moot;
4.
Plaintiff’s motion to strike [D. 87] is DENIED as moot; and
5.
This matter is DISMISSED. The Clerk of Court is directed to enter judgment
accordingly.
Dated at Milwaukee, Wisconsin, this 29th day of August, 2011.
BY THE COURT:
s/ Rudolph T. Randa
HON. RUDOLPH T. RANDA
U.S. District Judge
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