Lipp et al v. Ginger C, L.L.C. et al
ORDER entered by Judge Nanette Laughrey. Defendant Ginger Cs Motion for Judgment on the Pleadings [Doc. 79 ] is denied. Defendant ACCs Motion to Dismiss [Docs. 46 , 54 , 81 ] is denied. Defendant PKPs Motion to Dismiss [Doc. 43 ] is granted. How ever, with regards to the premise liability claim alleged against PKP Chapter, Plaintiffs Motion to Substitute [Doc. 39 ] is granted, and Plaintiffs may assert this claim against Scott Swafford, representative of the unincorporated association PKP C hapter. Plaintiffs Motion for Leave to File Fourth Amended Complaint [Doc. 129 ] is granted for the purposes of (1) adding factual allegations against Roland Management, including allegations that apply to other defendants and (2) substituting Scott Swafford in place of PKP Chapter. Plaintiffs shall file this complaint within seven (7) days of the date of this order. Plaintiffs other motions for leave to amend [Docs. 72 , 89 ] are denied as moot. No further amendments will be granted absent extraordinary circumstances. (Rosenbaum, Daniel)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
JOHN P. LIPP and STEPHANIE S.
GINGER C, L.L.C., et al.,
Case No. 2:15-cv-04257-NKL
Plaintiffs, the surviving parents of Jack Lipp, filed suit under Missouri’s wrongful
death statute, Mo. Rev. Stat. § 537.080, alleging negligence against Defendants Ginger C,
L.L.C., American Campus Communities (ACC), 1 Pi Kappa Phi Fraternity, Inc. (PKP
National), and Pi Kappa Phi Fraternity Missouri Beta Epsilon Chapter (PKP Chapter).
Before the Court are the following motions:
Ginger C’s Motion for Judgment on the Pleadings [Doc. 79]
ACC’s Motion to Dismiss [Docs. 46, 54, 81]
The PKP Defendants’ Motion to Dismiss [Doc. 43]
Plaintiffs’ Motion to Substitute [Doc. 39]
Plaintiffs originally filed suit against Defendant ACC OP (Turner Avenue), L.L.C. In their
Second Amended Complaint, Plaintiffs added claims against the following parties: ACC OP
Development, L.L.C. (a Delaware Limited Liability Company), American Campus Communities Inc. (a
Maryland Real Estate Investment Trust), American Campus Communities Operating Partnership, L.P. (a
Maryland Limited Partnership), and American Campus Communities Holdings, L.L.C. (a Maryland
Limited Liability Company). Collectively, for present purposes, the Court will refer to these entities as
Plaintiffs’ Motions for Leave to File Amended Complaint [Docs. 72,
For the reasons discussed below, Ginger C’s Motion for Judgment on the
Pleadings and ACC’s Motion to Dismiss are denied.
PKP’s Motion to Dismiss is
However, with regards to the premise liability claim alleged against PKP
Chapter, Plaintiffs’ Motion to Substitute is granted, and Plaintiffs may assert this claim
against Scott Swafford, representative of the unincorporated association PKP Chapter.
Plaintiffs’ Motion for Leave to File Fourth Amended Complaint is granted for the
purposes of (1) adding factual allegations against Roland Management, L.L.C., including
allegations that apply to other defendants and (2) substituting Scott Swafford in place of
PKP Chapter. Plaintiffs’ other motions to amend are denied as moot.
On December 12, 2014, Lukas Reichert, the rush chairman of PKP Chapter, asked
Michael Novak, Christopher Strzalka, and Charlie Smith to host a PKP “rush party” at
the residence they were renting, a structure at 507 South Fourth Street in Columbia,
Missouri. This party was designed to recruit freshmen students at the University of
Missouri into the chapter. Novak, Strzalka, and Smith—all members of PKP Chapter—
agreed to host the event.
These facts appear in Plaintiffs’ Second Amended Complaint. [Doc. 64]. For purposes of
deciding the Defendants’ motions to dismiss, the Court accepts Plaintiffs’ factual allegations as true and
construes them in the light most favorable to Plaintiffs. See Stodghill v. Wellston Sch. Dist., 512F.3d 472,
476 (8th Cir. 2008).
Two days later, on the night of December 14, over 100 people attended the rush
party at 507 South Fourth Street, which grew out of control due to an atmosphere of
alcohol abuse. Jack Lipp arrived at this party around 1:15 a.m the following morning. At
some point in the next hour, Lipp went onto a second-floor deck on the south side of the
property, where he stood on a wooden balcony in order to urinate onto the driveway
Columbia Police believe party attendees had been urinating off the deck
throughout the night due to long bathroom lines inside the house. While he was on the
deck, the wooden balcony broke, causing Lipp to fall 18 feet to the driveway. Lipp died
on December 25, 2014 as a result of his injuries.
The balcony had been temporarily repaired by a prior owner of the property with
unpainted wooden boards. At the time of Lipp’s injury, 507 South Fourth Street was
owned by Ginger C, which had an agreement with ACC to redevelop the property. ACC
planned to remove the existing structure on the premises to make room for a large student
apartment complex, and to this end ACC financed Ginger C’s purchase of the property.
However, in the spring and summer of 2014, the Columbia City Council repeatedly
tabled its consideration of ACC’s proposed project. The existing structure was leased in
August 2014 to Novak, Strzalka, and Smith for the upcoming school year.
In October 2014, Ginger C inspected the property and was aware of the defective
balcony. ACC also inspected the property around this time and was also aware of the
defective balcony. While Michael Novak’s mother complained to Ginger C about the
balcony’s temporary repair job, Ginger C did not make any repairs because the property
was still scheduled for demolition.
Plaintiffs filed this suit on November 9, 2015. Their Second Amended Complaint
contains four counts of negligence, one each against Ginger C, ACC, PKP Chapter, and
When considering a motion to dismiss, a court asks whether the complaint
“contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility when its
allegations rise above the “speculative” or “conceivable,” Twombly, 550 U.S. at 547, and
“the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged,” Iqbal, 556 U.S. at 678. Such a
complaint will be liberally construed in the light most favorable to the plaintiff. Eckert v.
Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008). Likewise, a court will apply this
same standard to a motion for judgment on the pleadings under Federal Rule of Civil
Procedure 12(c). Ashley County v. Pfizer, 552 F.3d 659, 665 (8th Cir. 2009).
The Defendants argue that Plaintiffs have not sufficiently pled the negligence
claims against them. Crucially, in their motions, all the Defendants contend that they did
not exercise control over the defective balcony such that the law imposes upon them a
duty to inspect, correct, or warn of this defect. Because these claims all involve an
alleged dangerous condition on a property, they are properly considered under the
framework of premise liability. Cossey v. Air Systems Intern., Inc., 273 S.W.3d 588, 590
(Mo. Ct. App. 2009).
To maintain a premise liability claim, Plaintiffs must establish that (1) the
Defendants were “possessors” of the property at 507 South Fourth Street, Adams v.
Badgett, 114 S.W.3d 432, 436 (Mo. Ct. App. 2003), and (2) that each owed Lipp a duty
of care, Woodall v. Christian Hosp. NE-NW, 473 S.W.3d 649, 653 (Mo. Ct. App. 2015).
“Generally, the status of an entrant on the land, i.e., whether the entrant is a trespasser,
licensee, or an invitee, determines the specific duty of care owed by the possessor of
land.” Medley v. Joyce Meyer Ministries, Inc., 460 S.W.3d 490, 495-96 (Mo. Ct. App.
Plaintiffs allege that Lipp attended the PKP rush party as a guest, and therefore
that he entered the property as an invitee. The PKP Defendants, however, urge the Court
to consider Lipp a licensee because Plaintiffs have not established that Lipp, by his mere
presence at the party, had been invited “with the expectation of a material benefit” and
thus moved from a licensee to an invitee. See Carter v. Kinney, 896 S.W.2d 926, 928
(Mo. banc 1995).
The Court need not presently resolve this issue because it has no bearing on the
Defendants’ motions to dismiss. If Lipp was an invitee, he was owed a duty if the
possessor “kn[ew] [about the dangerous condition] or by the exercise of reasonable care
would discover the condition.” Medley, 460 S.W.3d at 496. If Lipp was a licensee, he
was owed a duty “to make safe dangers of which the possessor [was] aware.” Carter,
896 S.W.2d at 928. Because Plaintiffs allege that all the Defendants were aware of the
defective balcony, see [Doc. 64, pp. 6, 19, 11, ¶¶ 32, 62, 90], each Defendant owed Lipp
a duty of care if it possessed the property at the time of the injury, regardless of his exact
status as an entrant.
Further, as examined below, Plaintiffs have sufficiently alleged in their Second
Amended Complaint that Ginger C, ACC, and PKP Chapter possessed the property at the
time of Lipp’s injury. Plaintiffs have since filed a Third Amended Complaint that adds
claims against Roland Management, L.L.C. [Doc. 125]. Plaintiffs have also sought leave
to file a Fourth Amended Complaint, [Doc. 129], arguing that they should be permitted to
add facts regarding Roland Management that also pertain to other defendants’ control of
the property. ACC and Ginger C have consented to this motion.
For several reasons, the Court finds “good cause” to grant Plaintiffs’ Motion for
Leave to File Fourth Amended Complaint. Fed.R.Civ.P. 16(b)(4). First, in light of the
complex relationship between the parties in this case and the extensive discovery
undertaken to identify several of these parties, the uncontested addition of Roland
Management necessarily requires Plaintiffs to allege added facts against several
defendants. Second, as explained below, the Defendants are not prejudiced because even
under their Second Amended Complaint, Plaintiffs have stated premise liability claims
against ACC, Ginger C, and PKP Chapter. See Brown v. Wallace, 957 F.2d 564, 566 (8th
Cir. 1992) (leave to amend should be freely granted where, among other factors, there is
no “undue prejudice to the non-moving party”). Third, the Court’s Amended Scheduling
Order [Doc. 33] still provides the parties sufficient time to complete discovery and file
dispositive motions. 3
Accordingly, within seven days of the date of this order, Plaintiffs are granted
leave to file a Fourth Amended Complaint containing factual allegations against Roland
Management that also apply to other defendants. Plaintiffs are also granted leave to
substitute Scott Swafford as representative of PKP Chapter, for the reasons discussed
below. No further amendments will be granted absent extraordinary circumstances.
However, as also discussed below, Plaintiffs have not alleged a claim against PKP
National in any complaint. They further have not alleged a negligence claim against PKP
Chapter stemming from PKP Chapter’s failure to train, failure to follow fraternity policy,
or provision of alcohol at the rush party. These claims are dismissed with prejudice.
A. Defendant Ginger C
The parties agree that Ginger C owned the property at 507 South Fourth Street at
the time of Lipp’s injury. Ginger C argues, however, that it is entitled landlord immunity
and cannot be held liable for a defective condition on the premises—the wooden
balcony—of which its tenants were aware. Under Missouri law, if a tenant is in control
of the property, the landlord generally “is not liable for personal injury caused by a
dangerous condition of the premises.” Caples v. Earthgrains Co., 43 S.W.3d 444, 449
Plaintiffs have asked the Court to amend the scheduling order, see [Doc. 129], and Ginger C and
ACC have consented to this request, [Doc. 136]. However, aside from Plaintiffs’ motion to file an
amended complaint and Ginger C and ACC’s request for an opportunity to respond to this amended
complaint within twenty days, the parties have not explained how they otherwise want the Scheduling
Order amended. Accordingly, the Court is granting Plaintiffs’ motion to amend and the Defendants a 20day opportunity to respond. The parties may file within 10 days a separate motion if they otherwise seek
to amend the Scheduling Order.
(Mo. Ct. App. 2001). Yet this doctrine of landlord immunity contains several recognized
exceptions, including an exception where “the injury occurs in an area over which the
landlord retains actual control.” Lammert v. Lesco Auto Sales, 936 S.W.2d 846, 849
(Mo. Ct. App. 1996).
To satisfy this exception, a plaintiff must establish that the “[d]efendant retained
sufficient control necessary to establish liability based upon a duty to repair.” Stephenson
v. Countryside Townhomes, LLC, 437 S.W.3d 380, 384-85 (Mo. Ct. App. 2014).
Whether the landlord’s control is “sufficient” is a matter of degree: while a landlord’s
right to enter the premises is alone insufficient to render her liable, the exception applies
when a plaintiff offers “some additional fact or facts from which a jury could infer that
under the agreement the tenant gave up and surrendered his right to exclusive possession
and control and yielded to the landlord some degree or measure of control and dominion
over the premises.” Lemm v. Gould, 425 S.W.2d 190, 195 (Mo. 1968). These facts can
be circumstantial. Peterson v. Brune, 273 S.W.2d 278, 281 (Mo. 1954).
Ginger C argues that Plaintiffs have alleged no facts demonstrating Ginger C’s
actual control over the balcony.
However, in their Second Amended Complaint,
Plaintiffs allege that Ginger C had a right to control the premises. See [Doc. 64, p. 5, ¶
18]. Plaintiffs further allege that Michael Novak’s mother complained to Ginger C “on
multiple occasions” about the defective balcony, but Ginger C “did not make any
additional repairs” because the property was scheduled to be demolished. [Doc. 64, p. 6,
¶¶ 31-32]. From these allegations, a jury could infer that Ginger C had actual control
over the balcony to make repairs, and the tenants’ recourse was to complain to Ginger C
about the defect. But Ginger C did not make the repairs, not because of lack of control
but because Ginger C intended to demolish the building. Because a landlord’s control is
a question of fact, Frazier v. Riggle, 844 S.W.2d 71, 73 (Mo. Ct. App. 1992), these
allegations are sufficient to survive a motion for judgment on the pleadings.
Ginger C alternatively argues that Plaintiffs must show a contractual obligation on
Ginger C’s part to repair the defective balcony.
Ginger C relies on Stephenson v.
Countryside Townhomes, which suggests that to fall within the exception, a plaintiff must
allege that the landlord retains control and that he is contractually-obligated to perform
the repairs. Stephenson, 437 S.W.3d at 384. However, a separate line of cases indicates
that a plaintiff need not satisfy both of these elements. See Caples, 43 S.W.3d at 451
(“Generally, the landlord is under no obligation to the tenant to repair unless there is a
contract creating a duty to repair. . . Where the landlord retains partial control over the
leased premises for the purpose of making repairs, however, the landlord is then
obligated to make such repairs and to keep the premises in a reasonably safe condition for
the intended use.”). The Court will adhere to this majority view, which considers the
dispositive question in the inquiry “whether the landlord did retain control of the
particular portion of the premises under consideration.” Dean v. Gruber, 978 S.W.2d
501, 504 (Mo. Ct. App. 1998) (quoting Tucker v. Taksel, 345 S.W.2d 385, 387 (Mo. Ct.
App. 1961)). As discussed above, this is a question of fact, not appropriately resolved at
this stage of the litigation.
Ginger C’s Motion for Judgment on the Pleadings is denied.
B. Defendant ACC
ACC argues it cannot be held liable in negligence for a defect on a property it did
not own or control. Although Plaintiffs, in their Second Amended Complaint, agree that
ACC did not own the property at 507 South Fourth Street, they maintain ACC “took on
the duties of a property owner,” and shared an “understanding [with Ginger C] that each
had a right of control.” [Doc. 64, p. 10, ¶¶ 60, 61].
ACC owed a duty to Lipp if it possessed the property at the time of his injury. See
Adams, 114 S.W.3d at 436. Missouri has adopted the Restatement (Second) of Torts,
which defines the term “possessor” as a party “who is in occupation of the land with
intent to control it.” Restatement (Second) of Torts § 328E(a). Per that definition, a
party may still possess property it does not own. Bowman v. McDonald's Corp., 916
S.W.2d 270, 285 (Mo. Ct. App. 1995), overruled on other grounds by Richardson v.
QuikTrip Corp., 81 S.W.3d 54 (Mo. Ct. App. 2002) (“Ownership is not a requirement for
possession of the land in order to establish liability under section[ ] 328E.”). Plaintiffs
can thus maintain their claim against ACC if they have alleged ACC controlled 507
South Fourth Street. See Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59, 63
(Mo. 1988) (finding a factual issue as to whether the defendant controlled a parking lot;
plaintiffs properly pleaded the defendant controlled the lot, despite not owning it).
While Plaintiffs have made such allegations, ACC dismisses them as conclusory,
arguing that Plaintiffs’ Second Amended Complaint lacks sufficient factual support to
show ACC actually exercised control over the property. Yet a plaintiff does not need to
offer comprehensive facts to survive a motion to dismiss. Rather, the plaintiff merely
must allege “enough facts” to plausibly state a claim for relief. Twombly, 550 U.S. at
Plaintiffs’ Second Amended Complaint exceeds this threshold by offering facts, if
taken as true, that tend to show ACC exercised actual control over the property.
Plaintiffs allege that ACC performed inspections of the property, financed its purchase,
joined Ginger C’s insurance contract, and notably, served as a “de facto” owner alongside
Ginger C by “continu[ing] to collect rent.” [Doc. 64, p. 10, ¶ 61]. In sum, these facts
plausibly support Plaintiffs’ theory that ACC, the company planning to redevelop the
property, exercised control by financing its purchase and then overseeing its interim
management. See Lemm, 425 S.W.2d at 198 (affirming a jury verdict because, in part,
the jury could reasonably find the defendant controlled a property he did not own when
he continued to collect rent).
ACC argues that the exhibits attached to Plaintiffs’ Second Amended Complaint,
[Docs. 64-1-64-15], fail to support—and in fact counter—any allegation that ACC
exerted control over the property. Having examined these exhibits, the Court finds they
neither prove nor disprove Plaintiffs’ allegations. Accordingly, Plaintiffs’ allegations are
accepted as true for purposes of this motion to dismiss. See Hagen v. McDonald's Corp.,
231 S.W.3d 858, 861 (Mo. Ct. App. 2007) (denying summary judgment where the
affidavit cited by the defendant did not conclusively establish whether it controlled the
premises in question). Under Federal Rule of Civil Procedure 11, Plaintiffs’ counsel
must “certify[y] to the best of [their] knowledge” that “the factual contentions [in the
complaint] have evidentiary support.” Fed.R.Civ.P. 11(b), 11(b)(3). The Court declines
to question Plaintiffs’ factual contentions by demanding added support at this stage of the
Plaintiffs have sufficiently alleged premise liability against ACC to survive a
motion to dismiss. 4
C. Defendant PKP Chapter
As an initial matter, the parties agree that PKP Chapter is not a legal entity, and so
PKP’s Motion to Dismiss is granted to the extent it addresses Plaintiffs’ negligence
claims against PKP Chapter as the named party. Plaintiffs have requested leave to
substitute Defendant PKP Chapter for Scott Swafford, its advisor, as representative of
PKP Chapter as an unincorporated association. Motions for leave to substitute may be
freely granted when they are sought in good faith, are not futile, and are not prejudicial to
the non-moving party. See Becker v. Univ. of Nebraska, 191 F.3d 904, 907-08 (8th Cir.
1999). PKP Chapter does not argue it would be prejudiced by a substitution at this point
in the litigation. In order to determine whether Plaintiffs’ proposed substitution would be
futile, the Court must consider two questions: (1) whether Plaintiffs can maintain a suit
against PKP Chapter as an unincorporated association, and (2) if they can, whether
Plaintiffs’ allegations have stated a claim for relief against PKP Chapter in whatever legal
1. Suing PKP Chapter as an Unincorporated Association
The parties disagree whether PKP Chapter can be sued as an unincorporated
Under Federal Rule of Civil Procedure 17(b), “a partnership or other
In light of this finding, the Court will not address the parties’ agency arguments at this time.
unincorporated association with no such capacity [to be sued] under that state's law may
sue or be sued in its common name to enforce a substantive right existing under the
United States Constitution or laws.”
Therefore, because neither party argues that
Plaintiffs’ negligence claim enforces a substantive federal right, the Court must first
determine whether Missouri law permits suits against unincorporated associations. In
Missouri, “[a]bsent a statute, an unincorporated association must be sued by means of a
class action.” State ex rel. Auto. Club Inter–Insurance Exch. v. Gaertner, 636 S.W.2d 68,
70 (Mo. banc 1982). Stated otherwise, unless a statute permits lawsuits against the
unincorporated association at issue—an option neither party claims here—“an
unincorporated association possesses no status apart from its members and is not a legal
entity.” Cent. Cty. Emergency 911 v. Int'l Ass'n of Fire Fighters Local 2665, 937 S.W.2d
371, 372 (Mo. Ct. App. 1996). PKP Chapter accordingly cannot be sued under Rule
However, in cases where Rule 17(b) cannot apply, Rule 23.2 permits suit “against
the members of an unincorporated association as a class by naming certain members as
representative parties.” Fed.R.Civ.P. 23.2. See also Advisory Notes Fed.R.Civ.P. 23.2
(clarifying that the rule applies “when for formal reasons [an association] cannot sue or
be sued as a jural person under Rule 17(b)”). Although it thus provides unincorporated
associations legal status “as a class,” Rule 23.2 is not intended to track the requirements
of a class action under Rule 23. See Gay Lib v. Univ. of Missouri, 416 F. Supp. 1350,
1360 (W.D. Mo. 1976), reversed on other grounds, 558 F.2d 848 (8th Cir. 1977)
(“Defendants' argument in terms of numerosity misconstrues the nature of plaintiffs'
proposed class action, however, for plaintiffs seek to proceed under the Rule 23.2
procedure for actions relating to unincorporated associations. . . [A] showing of
numerosity is not required under Rule 23.2.”). See also Advisory Notes Fed. R. Civ. P.
23.2 (“Although an action by or against representatives of the membership of an
unincorporated association has often been viewed as a class action, the real or main
purpose of this characterization has been to give “entity treatment” to the association.”).
Instead, Rule 23.2 merely requires that “it appears that [the representative] parties
will fairly and adequately protect the interests of the association and its members.”
Fed.R.Civ.P. 23.2. In their motion to substitute, Plaintiffs seek to name Scott Swafford
as the representative party. 5 Plaintiffs maintain that Swafford will adequately protect the
interests of PKP Chapter and its members.
PKP Chapter disagrees, arguing that a representative’s interests would be
“antagonistic to [those of PKP Chapter’s] absent members.” [Doc. 57, p. 2] (quoting
Firefighters Local No. 77 v. City of St. Joseph, Mo., 822 S.W.2d 866, 870 (Mo. Ct. App.
1991)). Specifically, PKP Chapter argues that the chapter members who were renting the
property at 507 South Fourth Street likely do not share the same interests as the
remaining members, and consequently Swafford cannot adequately represent PKP
Chapter as a whole. Yet the property’s tenants are not separately listed as parties to this
Moreover, Plaintiffs have alleged liability against PKP Chapter without
Plaintiffs originally sought to substitute Michael Ciffone, the president of PKP Chapter. In their
Motion for Leave to File Fourth Amended Complaint, however, Plaintiffs state that they seek instead to
substitute Scott Swafford because counsel for the PKP Defendants has informed them that Ciffone “had a
conflict.” See [Doc. 129, p. 6]. Regardless of whether Ciffone or Swafford is being substituted, the
Court’s analysis of the substitution remains unchanged.
differentiating among any of its members. It therefore appears Swafford can adequately
protect the interests of PKP Chapter and all its members in this litigation. 6
PKP Chapter alternatively argues it should not even be considered an
unincorporated association because it surrendered its charter to PKP National in
December 2015 and therefore no longer exists as an organization. PKP Chapter agrees
only that it was an unincorporated association prior to December 2015, which
presumably includes the time of Lipp’s injury in December 2014.
In a similar lawsuit against a fraternity chapter, the Delaware Supreme Court has
noted that “when the unincorporated entity no longer exists there must be an end to the
authority of its former officers to represent it.” Furek v. Univ. of Delaware, 594 A.2d
506, 514 (Del. 1991).
However, unlike a dissolved corporation, an unincorporated
association can disband and reactivate through simple, informal processes. Washington
Pension Union v. Subversive Activities Control Bd., 322 F.2d 398, 400 (D.C. Cir. 1963).
Plaintiffs have argued that PKP Chapter operates as an unincorporated association—an
allegation sufficient at this stage of the litigation. While PKP Chapter has submitted the
declaration of Justin Angotti, an employee of PKP National, which states that PKP
Chapter surrendered its charter on December 10, 2015, [Doc. 57, p. 6], the lack of a
charter does not necessarily render an unincorporated association disbanded. See Hecht
PKP Chapter similarly argues that Plaintiffs have “failed to plead requisite facts” to establish that
a representative can adequately protect the interests of the chapter’s members. [Doc. 57, p. 2]. However,
the Court does not understand Rule 23.2 to set the pleading bar PKP Chapter envisions. Per its language,
a suit can be maintained against an unincorporated association when “it appears” that the representative
party will adequately protect the interests of the association and its other members. Fed.R.Civ.P. 23.2.
Plaintiffs’ negligence claim against PKP Chapter does not differentiate between its members, as discussed
above. Accordingly, “it appears” that Swafford can adequately serve as a representative party. No
additional factual information is needed to buttress this conclusion.
v. Malley, 265 U.S. 144, 157 (1924) (defining an unincorporated organization as “a body
of persons united without a charter, but upon the methods and forms used by
incorporated bodies for the prosecution of some common enterprise”) (emphasis added).
As such, the Court finds persuasive Krueger v. Fraternity of Phi Gamma Delta,
Inc., 2001 WL 1334996, at *6 (Mass. Super. May 18, 2001), a case where the plaintiff
also alleged negligence against a national and local fraternity. The Krueger plaintiff
attempted to serve several chapter members as representatives of the chapter, an
unincorporated organization. The defendants filed a motion to dismiss, arguing that the
chapter had disbanded since the alleged negligent incident and thus could no longer be
sued under Massachusetts Rule of Civil Procedure 23.2, which largely mirrors the federal
rule. The court disagreed. It remarked:
While this may prove to be a winning argument at a later stage in the
proceedings, it is not ground for dismissal. Defendants' argument depends
on their assertion that [the chapter], the alleged unincorporated association
at issue, had disbanded and that the defendants no longer held any offices
or had any authority in the association at the time process was served.
While subsequent evidence may prove the truth of this assertion, it is not
apparent on the face of the complaint. Accordingly, the court will not
consider it at this time.
The Court agrees with this reasoning. At this stage of the litigation, Plaintiffs can
maintain a suit against PKP Chapter as an unincorporated association.
2. Plaintiffs’ Allegations Against PKP Chapter
Plaintiffs’ Second Amended Complaint alleges that PKP Chapter held a
sanctioned rush party at the property on the night of Lipp’s injury, and that, in doing so, it
“took on the duties of a tenant,” [Doc. 64, p. 19, ¶ 89], and had a duty to maintain the
balcony and warn partygoers of its defective condition. PKP Chapter argues it had no
such duty because it did not become a possessor of the property merely by holding a
party on the premises.
In support of its argument, PKP Chapter relies on Ostrander v. Duggan, 341 F.3d
745 (8th Cir. 2003). In Ostranger, the plaintiff was sexually assaulted on a property
adjacent to a fraternity house that was leased by fraternity members. The Eighth Circuit,
applying Missouri law, noted that the property was owned and managed by third parties,
that the fraternity was not referenced in the lease, and that, although the fraternity had
considered purchasing the property, it had never done so.
The Eighth Circuit thus
concluded “the evidence does not demonstrate [the fraternity] policed or in any way
controlled the [property], legally or factually.” Ostrander, 341 F.3d at 748-49 (8th Cir.
PKP Chapter maintains Ostrander is analogous to Lipp’s case.
disagree, emphasizing that Ostrander involved a sexual assault and should not be applied
to a premise liability suit.
While Ostrander’s relevant discussion still addresses the core issue of the parties’
premise liability dispute—whether a fraternity can control a property it does not own—
Ostrander was decided on summary judgment, where the Eighth Circuit found that “the
evidence” does not demonstrate control, “legally or factually.” Id. (emphasis added). In
doing so, the Ostrander court indicated there was no evidence of control, but it did not
foreclose the possibility that a fraternity, under different factual circumstances, may incur
liability for controlling a property even without owning it.
Unlike in Ostrander, the Court is presently deciding a motion to dismiss, and
therefore it is not in a position to conclude what the evidence in this case does or does not
show. Instead, the Court must merely ask whether Plaintiffs have alleged PKP Chapter
sufficiently controlled the property on the night of Lipp’s injury to the degree it became a
possessor. More instructive to this inquiry is Medley v. Joyce Meyer Ministries, a case
where the Missouri Court of Appeals found that the defendant, a religious organization,
controlled a temporary display area built in a convention hall it did not own. The court
reached this conclusion after establishing that “[a] party exercises its control over the
premises when, inter alia, (1) it exercises its right to direct the use of the premises; or (2)
it exercises its right to admit people to the premises and exclude people from it.” Medley,
460 S.W.3d at 499-500.
Applying this rule, the Medley court concluded that the
defendant directed the use of the premises by placing its display area upon it. The
defendant further exercised its right to admit and exclude people, the court found,
because it stationed employees at the entrance of the display for purposes of crowd
control. Id. at 500.
Likewise, in Lipp’s case, Plaintiffs have sufficiently alleged the two criteria for
possession found dispositive in Medley. First, Plaintiffs allege that PKP Chapter directed
the use of the property by requesting its tenants to hold a chapter party upon it. [Doc. 64,
p. 7, ¶ 33]. Second, Plaintiffs allege PKP Chapter exercised its right to admit and
exclude people by making this party a “rush party” intended for “rush attendees.” [Doc.
64, p. 19, ¶ 88]. At this stage in the litigation, these allegations are sufficient to state a
claim for premise liability by asserting PKP Chapter controlled the property on the night
of Lipp’s injury. See Madden, 758 S.W.2d at 63.
Plaintiffs also assert that PKP Chapter provided alcohol at the party, fueling an
atmosphere of excessive drinking in violation of PKP National’s alcohol policy. To the
extent Plaintiffs are alleging that PKP Chapter contributed to Lipp’s injury by negligently
providing alcohol to party attendees, this claim must fail because Missouri courts have
expressly rejected this theory of social host liability. Andres v. Alpha Kappa Lambda
Fraternity, 730 S.W.2d 547, 553 (Mo. 1987) (finding that fraternity chapter was not
liable for injuries that resulted after it furnished alcohol to individuals under twenty-one
years old). See also Roe v. Saint Louis Univ., 2012 WL 5377895, at *3 (E.D. Mo. Oct.
31, 2012). 7
PKP’s Motion to Dismiss is therefore granted as to Defendant PKP Chapter.
Nevertheless, because Plaintiffs can state a premise liability claim against PKP Chapter
as an unincorporated association, Plaintiffs’ Motion to Substitute is granted as well.
Plaintiffs may plead their premise liability claim against Scott Swafford as representative
of PKP Chapter.
D. PKP National
In their Second Amended Complaint, Plaintiffs assert the same claims against PKP
National as against PKP Chapter: negligence under a theory of premise liability and
Plaintiffs’ proposed Fourth Amended Complaint also alleges that PKP Chapter failed to properly
train the tenants at 507 South Fourth Street and failed to follow policies established by PKP National.
Even assuming these allegations are distinct from Plaintiffs’ theories of premise and alcohol liability, they
still cannot survive a motion to dismiss for the reasons indicated in the Court’s discussion of PKP
National below. As with PKP National, Plaintiffs have not alleged that PKP Chapter owed a duty of care
to Lipp outside of the premise liability context.
negligence for holding a party where alcohol was consumed in excess. In their briefing,
however, Plaintiffs clarify they are also asserting claims against PKP National for
negligent supervision and training. 8 These claims are more expressly stated in Plaintiffs’
proposed Fourth Amended Complaint, which Plaintiffs have requested leave to file. PKP
National argues that the Court should dismiss all claims alleged against it.
Having considered Plaintiffs’ proposed Fourth Amended Complaint, the Court
finds, for the reasons set forth below, that Plaintiffs have not stated a negligence claim
against PKP National under either their present or their proposed complaint.
1. Premise Liability
As with PKP Chapter, PKP National had a duty to warn Lipp about known
dangers if it “possessed” the property at the time of Lipp’s injury. Unlike in PKP
Chapter’s case, however, Plaintiffs have not offered any allegations that PKP National
controlled the property at 507 South Fourth Street.
Plaintiffs also have not asserted PKP National controlled PKP Chapter such that it
can be held vicariously liable for PKP Chapter’s alleged negligence. When deciding
whether to assess liability against a national fraternity for injuries stemming from chapter
events, the Missouri Supreme Court has asked whether the national fraternity
Plaintiffs also briefly mention that “PKP National is liable under the theor[y] of negligent . . .
retention.” [Doc. 60, p. 4]. A claim for negligent retention contains the same elements as a claim for
negligent hiring. Lonero v. Dillick, 208 S.W.3d 323, 329 (Mo. Ct. App. 2006). Therefore, “[t]o sustain a
claim based on the theory of negligent hiring and retention, the plaintiff must plead and prove that an
employer-employee relationship existed.” Storey v. RGIS Inventory Specialists, LLC, 466 S.W.3d 650,
657 (Mo. Ct. App. 2015). Plaintiffs have not alleged any such relationship in their Second Amended
Complaint or proposed Fourth Amended Complaint.
“participate[d] in the day-to-day management of its chapters.” Andres v. Alpha Kappa
Lambda Fraternity, 730 S.W.2d 547, 553 (Mo. 1987).
In an effort to satisfy this standard, Plaintiffs offer only the conclusory allegation
that “PKP National actually asserted supervision and control over the day-to-day
functions of [PKP Chapter].” [Doc. 129-1, p. 33, ¶ 149]. This threadbare recital is
insufficient to carry Plaintiffs’ negligence claim. Nowhere in Plaintiffs’ complaints is
there any factual content from which the Court can reasonably infer that PKP National
participated in the daily operation of PKP Chapter. Iqbal, 556 U.S. at 678. In fact, in
their proposed Fourth Amended Complaint, Plaintiffs repeatedly stress that PKP Chapter
violated policies adopted by PKP National, held a fraternity party despite being
suspended from campus, and promoted at this fraternity party a scene of “general
mayhem.” See [Doc. 129-1, p. 41, ¶ 175]. These allegations do not describe a chapter
over which PKP National exercised active control. See Wilson v. St. Louis Area Council,
Boy Scouts of Am., 845 S.W.2d 568, 570-71 (Mo. Ct. App. 1992) (finding no vicarious
liability because defendant did not authorize, know about, or direct the activity in
Plaintiffs cannot maintain a premise liability claim against PKP National.
2. Negligent Supervision
To state a prima facie case of negligent supervision, a plaintiff must plead “(1) a
legal duty on the part of the defendant to use ordinary care to protect the plaintiff against
unreasonable risks of harm; (2) a breach of that duty; (3) a proximate cause between the
breach and the resulting injury; and (4) actual damages to the plaintiff's person or
property.” Cook v. Smith, 33 S.W.3d 548, 553-54 (Mo. Ct. App. 2000). The first
element—a legal duty to protect the plaintiff—is narrowly defined under Missouri law.
This duty “runs not to an activity, but rather to an individual,” Bequette v. Buff, 862
S.W.2d 921, 924 (Mo. Ct. App. 1993), and so plaintiffs must allege “the existence of a
relationship between the plaintiff and defendant that the law recognizes as the basis of a
duty of care,” Hill ex rel. Hill v. Herbert Hoover Boys Club, 990 S.W.2d 19, 22 (Mo. Ct.
Missouri courts have found that such duty arises in the context of an employeremployee relationship where the employee acts outside the scope of her employment,
Reed v. Kelly, 37 S.W.3d 274, 278 (Mo. Ct. App. 2000); in a school setting where
teachers owe a duty to supervise their students, Smith v. Archbishop of St. Louis, 632
S.W.2d 516, 521-22 (Mo. Ct. App. 1982); and when a defendant “accept[s] the custody
and control of a minor child,” Hill ex rel. Hill, 990 S.W.2d at 22.
In alleging negligent supervision against PKP National, Plaintiffs do not align
their claim with any of these negligent supervision cases. Instead, Plaintiffs propose only
the conclusory allegation that “PKP National had a duty to exercise reasonable care for
the safety of its local chapter’s social invitees.”
[Doc 129-1, p. 33, ¶ 150].
statement fails to identify a duty recognized by Missouri law. It also conflicts with “the
wealth of case law [in other jurisdictions] standing for the proposition that a national
fraternity does not assume a general duty to protect local fraternity chapters or their
members.” Meyer v. Beta Tau House Corp., 31 N.E.3d 501, 510-11 (Ind. Ct. App. 2015)
(citing cases). See also Grenier v. Comm'r of Transp., 51 A.3d 367, 380 (Conn. 2012)
(rejecting the argument that there exists a “common-law duty of care in organizing and
conducting fraternity events”).
Consistent with these persuasive authorities, the Court declines to create a
generalized duty of the type Plaintiffs envision. Therefore, they cannot maintain a claim
for negligent supervision.
3. Negligent Training
Plaintiffs also claim that PKP National had a duty to educate its local chapters in
risk management, alcohol policy, and the responsibilities owed to guests at an off-campus
site. Plaintiffs allege this duty stems from the FIPG Risk Management Manual, a riskprevention policy guide that has been adopted by PKP National. “By adopting the FIPG
Risk Management Manual,” Plaintiffs argue, “PKP National has set their own standard
for duties owed to local chapters and the communities those chapters exist within to
ensure that fraternal functions operate in a safe manner and do not needlessly endanger
the individual members, their neighbors, or their guests.” [Doc. 129-1, pp. 33-34, ¶ 151].
Yet a policy manual does not necessarily give rise to a duty of care. See Robinson
v. St. John's Med. Ctr., Joplin, 508 S.W.2d 7, 13 (Mo. Ct. App. 1974); Norton v. Smith,
782 S.W.2d 775, 777-78 (Mo. Ct. App. 1989). “The question of whether a duty exists
depends upon a calculus of policy considerations.” Miles ex rel. Miles v. Rich, 347
S.W.3d 477, 483 (Mo. Ct. App. 2011) (quoting Lough v. Rolla Women's Clinic, 866
S.W.2d 851, 854 (Mo. banc 1993)) (internal quotation marks omitted). Plaintiffs have
not shown or alleged that as a matter of policy, a risk management manual creates a duty
of care owed to social guests. See Meyer, 31 N.E.3d at 510-11 (rejecting the argument
that the FIPG manual created a “duty to inform and guide” the local chapter).
Thus PKP National’s adoption of the FIPG manual did not, absent some other
obligation, create a duty owed to a guest like Lipp to train its chapters in the manual’s
policies. Likewise, PKP National’s adoption of an alcohol policy did not give rise to a
duty to train PKP Chapter on Lipp’s behalf. See Coghlan v. Beta Theta Pi Fraternity,
987 P.2d 300, 313 (Idaho 1999) (sorority alcohol policy did not create an affirmative duty
to monitor the drinking activities of its members).
Consequently, Plaintiffs have failed to allege a negligence claim against PKP
National under any complaint. PKP’s Motion to Dismiss is granted as to PKP National.
For the foregoing reasons, the Court orders as follows:
• Defendant Ginger C’s Motion for Judgment on the Pleadings [Doc. 79] is denied.
• Defendant ACC’s Motion to Dismiss [Docs. 46, 54, 81] is denied.
• Defendant PKP’s Motion to Dismiss [Doc. 43] is granted. However, with regards
to the premise liability claim alleged against PKP Chapter, Plaintiffs’ Motion to
Substitute [Doc. 39] is granted, and Plaintiffs may assert this claim against Scott
Swafford, representative of the unincorporated association PKP Chapter.
• Plaintiffs’ Motion for Leave to File Fourth Amended Complaint [Doc. 129] is
granted for the purposes of (1) adding factual allegations against Roland
Management, including allegations that apply to other defendants and (2)
substituting Scott Swafford in place of PKP Chapter. Plaintiffs shall file this
complaint within seven (7) days of the date of this order. Plaintiffs’ other motions
for leave to amend [Docs. 72, 89] are denied as moot. No further amendments
will be granted absent extraordinary circumstances.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: April 19, 2016
Jefferson City, Missouri
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