PORTLAND, Maine — A lawsuit filed against international Greek organization Delta Tau Delta by a former University of Maine student who claims she was sexually assaulted at a fraternity party in 2010 may go forward, the Maine Supreme Judicial Court ruled Thursday.
In a 3-2 decision, a majority of justices found the fraternity but not the corporation that owns the building that housed the local chapter in Orono “owed a duty to its collegiate chapters’ social invitees sufficient to support [the plaintiff’s] claim based on premises liability.”
“We conclude that [Delta Tau Delta] had a duty to exercise reasonable care and take reasonable steps to provide premises that are reasonably safe and reasonably free from the potential of sexual misconduct by its members, for all social invitees to chapter-sponsored events,” Justice Joseph Jabar wrote for the majority.
To win damages, the plaintiff must convince a jury or a judge “that there was a breach of that duty, and that the breach was the cause of her injuries,” the 16-page majority opinion said.
The plaintiff, through her attorney, Thomas Douglas of Westbrook, declined to be interviewed. Douglas refused to say where his client is living.
“We think this is the right result,” Douglas said Thursday. “What these fraternities do is to facilitate the ability of college kids to party and so on. If they are going to do that, they need to be held accountable and exercise control over the facilities so they are safe for the people who want to hang there.”
Efforts to reach attorney Carol Eisenberg of Portland, who represented the fraternity, were unsuccessful Thursday.
According to documents filed in the appeal, the plaintiff attended a party Sept. 17, 2010, at the Gamma Nu fraternity house at the invitation of Joshua Clukey who was a member. Gamma Nu is the name of the local Delta Tau Delta chapter in Orono, according to the ruling. She arrived between 11 and 11:30 p.m. and went to Clukey’s room, where she was allegedly sexually assaulted. Both drank alcohol, the ruling said.
The next day, the woman reported the incident to the fraternity president. Clukey was expelled the following week. In December 2010, Clukey pleaded guilty to one count each of assault and furnishing alcohol to a minor. He was ordered to pay a $1,000 fine, according to the Bangor Daily News archives.
The ruling from the state’s high court reversed a summary judgment ruling by retired Superior Court Justice Kevin Cuddy in favor of the fraternity and sent the case back to Penobscot County Superior Court, where it will be assigned to a new judge.
Justices Ellen Gorman, Jeffrey Hjelm and Jabar issued the majority opinion written by Jabar. Justices Donald Alexander and Robert Clifford dissented but for different reasons.
Alexander said in his dissent that Delta Tau Delta National Housing Corporation, owner of the building, also owed a duty of care to party attendees. In his dissent, Clifford said he believed neither the fraternity nor the corporation could be sued.
Oral arguments were held Dec. 10, 2014, at the Cumberland County Courthouse in Portland.
Chief Justice Leigh I. Saufley and Associate Justices Andrew Mead and Warren Silver, who retired at the end of December, recused themselves from the case for reasons that have not been made public. Clifford stepped down from the court in 2009 but remained on active status. He was asked to sit in on the case because “the court likes to have as many justices as possible deciding a case,” Mary Ann Lynch, spokeswoman for the court system said Thursday.