Estate of Najee Ali Baker, by and through his Ancillary Administrator Jemel Ali Dixon v. WAKE FOREST UNIVERSITY, A North Carolina non-profit institution of higher education

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1920
ESTATE OF NAJEE ALI BAKER, by and through his Ancillary Administrator
Jemel Ali Dixon,
Plaintiff - Appellant,
v.
WAKE FOREST UNIVERSITY, A North Carolina non-profit institution of higher
education,
Defendant - Appellee,
and
THE PI OMICRON CHAPTER OF DELTA SIGMA THETA SORORITY, INC., A
North Carolina unincorporated association; RHINO SPORTS &
ENTERTAINMENT SERVICES, LLC, A North Carolina limited liability
corporation; JOHN DOE, Officer of The Wake Forest University Police Department,
individually and as an agent of Wake Forest University; JOHN DOE, Security Staff
of The Wake Forest University Police Department, individually and as an agent of
Wake Forest University; JOHN DOE RHINO SECURITY STAFF 1-2, Individually
and as agents and employees of Rhino Sports & Entertainment Services, LLC,
Defendants.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Catherine C. Eagles, District Judge. (1:19-cv-00477-CCE-LPA)
Argued: March 10, 2022 Decided: May 23, 2022

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Before GREGORY, Chief Judge, and THACKER and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Jonathon N. Fazzola, THE FIERBERG NATIONAL LAW GROUP, PLLC,
Traverse City, Michigan, for Appellant. Robert J. King, III, BROOKS PIERCE, LLP,
Greensboro, North Carolina, for Appellee. ON BRIEF: Chloe M. Neely, THE
FIERBERG NATIONAL LAW GROUP, PLLC, Traverse City, Michigan, for Appellant.
Shana L. Fulton, Tanisha Palvia, BROOKS, PIERCE, MCLENDON, HUMPHREY &
LEONARD, LLP, Greensboro, North Carolina; William K. Davis, Mark A. Jones, BELL,
DAVIS & PITT, Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
This is a tragic case. Najee Ali Baker (“Baker”), a Winston-Salem State University
student, was shot and killed by Jakier Austin (“Austin”) after a party at Wake Forest
University (“Appellee”). Baker’s estate (“Appellant”) sued Appellee, claiming Appellee
was negligent in hosting the party without sufficient security.
The district court granted Appellee’s motion for summary judgment, holding that
the shooting was not foreseeable. For the reasons that follow, we affirm.
I.
A.
Appellee is a private university located in Winston-Salem, North Carolina.
Appellee’s campus is easily accessible to the general public, and thousands of people,
including students, staff, and visitors, are on the campus every day. Despite the large
amount of traffic the campus receives on a daily basis, from the time of the founding of the
Winston-Salem campus in 1956 until January 20, 2018, when Baker was shot, there had
never been a shooting on campus.
In 2011, Appellee opened an event center on campus called the Barn.1 The Barn
was located near one of the gatehouses at the edge of campus and was accessible by a single
roadway. During the relevant time period, the Barn was available for student events.
Appellee’s chapters of National Pan-Hellenic Council (“NPHC”) fraternities and sororities
did not have dedicated event spaces on campus, so they would use the Barn for social
1 The Barn has since been renamed the University Activity Center.

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events. These events were referred to as Barn parties, and they were also open to students
of nearby universities. In fact, the majority of attendees at Barn parties attended other
universities. Barn parties were often large events with hundreds of students in attendance.
Over time, Barn parties were the site of several incidents which required security
intervention. Most of these incidents involved fistfights and/or pushing and shoving. From
the time of the Barn’s opening in 2011 until Baker’s murder in 2018, there were only two
incidents at the Barn which required medical attention, and both occurred several years
prior to the incident involving Baker. In the first such incident, in 2012, a Barn party
attendee was beaten unconscious just outside the Barn’s entrance after Wake Forest Police
Department (“WFPD”) officers halted the Barn party. In the second incident, in 2013, a
woman was trampled in a crowd rush caused by people fleeing the scene of an altercation
after a Barn party. The victim of the crowd rush was interviewed by a WFPD officer. In
that interview, the victim claimed that a man had suffered a “gashed head” and had a “gun
pulled on him” at the party. J.A. 5712
B.
Security for events at the Barn evolved over time. Initially, WFPD officers provided
security for Barn events. Generally, events would have up to 16 police officers posted both
inside and outside the Barn. However, the police presence created tension with Appellee’s
students, who did not want to be so heavily policed.
2 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

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In 2014, Appellee hired Dr. Adam Goldstein (“Dr. Goldstein”) as the Dean of
Students. One of Dr. Goldstein’s mandates was to formulate a more effective security plan
for Barn events. He worked collaboratively with student organizations, the WFPD, and
other campus stakeholders to develop the new security plan, which was referred to as the
Dean of Students plan (the “DOS plan”). The DOS plan, which was implemented in 2015,
transferred most of the event management duties from the WFPD to student employees
called Event Resource Managers (“ERMs”). The DOS plan also reduced the police
presence at Barn parties from 16 officers in and around the Barn to zero officers inside the
Barn and one officer stationed outside, with others nearby if assistance was necessary.
Appellee hired a private security company, Rhino Sports & Entertainment Services
(“Rhino”), to assume WFPD’s security duties. Unlike the WFPD, Rhino was “hands off”
-- meaning the Rhino security officers were not allowed to physically intervene to stop
fights. Because the entrance to the Barn had been a point of conflict in previous years, the
DOS plan also instituted digital ticketing for events in order to reduce the waiting time to
enter the Barn.
In the period between the Barn’s opening in 2011 and the implementation of the
DOS plan in 2015, five violent incidents occurred in the vicinity of the Barn. Between the
implementation of the DOS plan in 2015 and the shooting of Baker in 2018, three violent
incidents occurred. Further, as noted, the two incidents which were severe enough to
warrant medical attention occurred before the implementation of the DOS plan.

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C.
On the evening of January 19, 2018, NPHC sorority Delta Sigma Theta hosted a
party in the Barn. Baker, a student at nearby Winston-Salem State University, attended.
Non-students Austin and two of his friends, Malik Smith (“Smith”) and Jadakiss Hall, also
attended. Despite no longer being a student, Austin had a valid student identification card
from Winston-Salem State University.
At some point, Baker and Smith got into a verbal altercation inside the Barn that
escalated to pushing and shoving. After the altercation, Austin’s group left the Barn. Baker
left the Barn a couple of minutes later. Lucas Wille (“Wille”), an ERM stationed near the
entrance of the Barn, heard either Baker, Austin, or one of Austin’s friends yell, “Go get
your gun.” J.A. 870. Moments later, on the roadway next to the Barn, Austin shot and
killed Baker.
D.
Appellant sued Appellee in federal district court, alleging that Appellee was
negligent in staffing and event management for Barn parties. Appellant claimed that the
history of altercations at the Barn during parties should have put Appellee on notice that it
needed stronger security. Instead, according to Appellant, Appellee weakened security by
implementing the DOS plan, which fostered an environment that allowed the shooting of
Baker to occur.
Appellee moved for summary judgment on the bases that the shooting was not
foreseeable or, alternatively, that Appellant could not demonstrate that Appellee’s actions

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were the cause of the shooting. The district court granted Appellee’s summary judgment
motion, holding that the shooting was unforeseeable as a matter of law.
II.
We review a grant of a motion for summary judgment de novo. Stanton v. Elliott,
25 F.4th 227, 234 (4th Cir. 2022). Summary judgment is properly granted if there are no
genuine disputes of material fact, and the movant is entitled to judgment as a matter of law.
Id.
III.
A.
In analyzing the issue presented in this diversity action, we apply the substantive
law of North Carolina. S. Power Co. v. Cleveland Cnty., 24 F.4th 258, 262 (4th Cir. 2022).
Pursuant to North Carolina law, in order to prevail on a negligence action, a plaintiff must
prove “that the defendant owed the plaintiff a legal duty, that the defendant breached that
duty, and that the plaintiff’s injury was proximately caused by the breach.” Martishius v.
Carolco Studios, Inc., 562 S.E.2d 887, 892 (N.C. 2002).
1.
The first step, then, in considering liability in a negligence action is to determine
whether or not a duty exists between the parties. A duty can arise between the parties based
on Appellee’s status as a landowner. See Nelson v. Freeland, 507 S.E.2d 882, 892 (N.C.
1998). Pursuant to North Carolina law, landowners have a duty to non-trespassers coming
onto their property to act as a reasonable person would under the circumstances. Id. These
duties are not limitless, however, and a landowner is not the insurer of its premises. Id.

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One such limitation on this duty is that a landowner is generally not responsible for
intentional criminal acts committed by third parties on its land. See Foster v. Winston-
Salem Joint Venture, 281 S.E.2d 36, 38 (N.C. 1981). However, the landowner has a duty
to take reasonable steps to protect non-trespassers against the reasonably foreseeable
criminal acts of third parties. Id. at 39.
“The most probative evidence on the question of whether a criminal act was
foreseeable is evidence of prior criminal activity. . ..” Connelly v. Family Inns of Am., 540
S.E.2d 38, 41 (N.C. Ct. App. 2000). North Carolina courts consider three factors to
determine whether prior criminal activity gives rise to a duty: (1) location of criminal acts;
(2) type of criminal acts; and (3) quantity of criminal acts. See id. The more incidents of
prior similar criminal acts in a particular location, the more likely a duty attaches. Id. In
contrast, a lack of similar criminal incidents is fatal to a negligence claim for want of
foreseeability. See Brown v. N. C. Wesleyan Coll., Inc., 309 S.E.2d 701, 703 (N.C. Ct.
App. 1983) (holding that scattered, mostly unrelated incidents over several years were
insufficient to give notice to university that it was reasonably foreseeable that a
kidnapping/murder would occur).
2.
The parties dispute the proper scope of the location to be considered in the
foreseeability analysis here. Appellee argues that we should consider the general safety of
the campus as a whole. Appellant, on the other hand, argues that we should restrict our
analysis to the Barn and the area extending to the nearby roadway where Baker was shot.
Ultimately, the result is the same regardless of which location is considered. Even

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assuming that Appellant’s proposed location -- the Barn and its immediate surroundings -
- is the proper scope, no prior similar criminal attacks occurred there. In fact, prior to the
shooting of Baker, not only was there never a shooting connected to Barn events, there was
never a shooting on campus at all.
3.
Next, the second and third factors (the nature and the quantity of prior criminal
activity) overlap in this case because Appellant did not provide evidence of any similar
incidents that pre-dated the shooting of Baker at the Barn. The lack of any similar criminal
acts is dispositive of Appellant’s claim. North Carolina courts determine the similarity of
prior criminal incidents through the lens of the crime committed. See Shepard v. Drucker
& Falk, 306 S.E.2d 199, 202 (N.C. Ct. App. 1983) (distinguishing assaults after breaking
into an apartment from an incident involving an assault in a parking lot and holding the
assaults inside the apartment were not sufficiently similar to make parking lot assault
foreseeable). Though the prior crimes need not be exactly alike, they must have
similarities. See Liller v. Quick Stop Food Mart Inc., 507 S.E.2d 602, 606 (N.C. Ct. App.
1998) (reasoning that while property crimes are different in kind to a shooting during an
attempted robbery, violent assaults and armed robberies were similar to the incident at
hand).
Here, the relevant crime was a shooting. In the seven years between the opening of
the Barn and the shooting of Baker, there were eight violent incidents. None involved a
shooting. Five of these incidents involved pushing and shoving or a fistfight, though one
of the pushing and shoving incidents did involve a crowd rush of students fleeing the scene,

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which caused a student to fall and be trampled. Of the remaining three incidents, only one
-- a 2013 incident where a student was beaten unconscious -- required medical attention,
and it occurred prior to the implementation of the DOS plan. In 2016, after the
implementation of the DOS plan, Rhino security officers witnessed several fights inside
the Barn and returned to their office with bloody shirts, but apparently no injuries were
reported. And in February 2017, an ERM was punched while checking tickets at the
entrance to the Barn. Notably, the most serious of these incidents -- the 2013 incident
during which a student was beaten unconscious during a fight -- did not involve a weapon.
In fact, none of the incidents at the Barn involved a firearm.
Fistfights at college parties are simply different in kind to shootings, and therefore
do not aid Appellant in the foreseeability analysis. The case at hand is different than Liller,
in which armed robberies were held to give rise to the foreseeability of a shooting because
a shooting is a common result of an armed robbery. Liller 507 S.E.2d at 606. As a result,
the quality and quantity of prior crimes in the vicinity of the Barn leading up to the shooting
in this case were insufficient to make it foreseeable that a shooting would occur.
B.
1.
Nonetheless, Appellant argues that even if a shooting at the Barn was not generally
foreseeable, the particular events of the night of January 19 and the early morning of
January 20 themselves gave rise to a duty because the shooting became foreseeable through
actual notice of an imminent risk of harm. North Carolina law recognizes a very narrow
context in which a criminal act can become foreseeable in these circumstances. See

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Abernethy ex rel. Abernethy v. Spartan Food Sys., Inc., 404 S.E.2d 710, 712 (N.C. Ct. App.
1991).
Under this premise, in Abernethy, a restaurant was held liable for a stabbing that
occurred on its premises. In that case, two men entered the restaurant and acted
aggressively toward the patrons and employees and shouted racial slurs. Abernethy, 404
S.E.2d at 712. At one point, one of the men directly told a restaurant employee that he was
going to get a knife. See id. The men then briefly left the store and ran across the street to
a motel. When the men returned to the restaurant, one of them had a knife. The men fought
with restaurant patrons on the premises before one of them stabbed one of the patrons. Id.
at 712–13.
Despite the obvious risk the men posed during the course of the incident, the store
manager refused multiple requests to call police. Abernethy, 404 S.E.2d at 712. Under
these circumstances, the North Carolina Court of Appeals held that the restaurant had
actual notice that the men posed an imminent threat to the people at the restaurant, and
therefore, the restaurant had a reasonable duty to protect against the harm posed. Id. at
713.
2.
Here, Appellant argues the “Go get your gun” exclamation served as actual notice
that Austin would actually get his gun and shoot Baker. But the mere invocation of the
possibility of a gun, standing alone, does not provide actual notice of an imminent shooting.
Unlike in Abernethy, here, the source of the threat was not identified. ERM Wille, the only
witness who heard the “Go get your gun” statement, could not identify who made the

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statement or the intended recipient of the statement. Further, ERM Wille did not believe
the threat to be a literal threat, but instead thought the statement “seemed like trash talk,
like nobody had confirmed that they had a gun or said they were going to get a gun or
anything like that.” J.A. 260. A threat between two unknown people that does not appear
to be a literal threat is not reasonably foreseeable or imminent. Therefore, the facts of this
case do not support a holding that the shooting became foreseeable through actual notice.
In summary, Appellant did not establish Appellee’s duty to take reasonable steps to
prevent the shooting that occurred.
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.

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