Teresa Spagna v. Phi Kappa Psi, Inc., a non-profit corporation

United States Court of Appeals
For the Eighth Circuit
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No. 20-3697
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Teresa Spagna
Plaintiff - Appellant
v.
Phi Kappa Psi, Inc., a non-profit corporation; Creighton University Beta Chapter of
the Phi Kappa Psi Fraternity, an unincorporated association; Park Avenue Phi Psi
House, Inc., a non-profit corporation
Defendants
Collin Gill, individually and as an agent of Phi Kappa Psi Fraternity, Inc. and the
Nebraska Beta Chapter of Phi Kappa Psi Fraternity; Daniel W. Tift, individually
and as an agent of Phi Kappa Psi Fraternity, Inc. and the Nebraska Beta Chapter of
Phi Kappa Psi Fraternity; Jonah M. Buss, individually and as an agent of Phi
Kappa Psi Fraternity, Inc. and the Nebraska Beta Chapter of Phi Kappa Psi
Fraternity; Cody M. Casper, individually and as an agent of Phi Kappa Psi
Fraternity, Inc. and the Nebraska Beta Chapter of Phi Kappa Psi Fraternity; Troy
M. Taylor, individually and as an agent of Phi Kappa Psi Fraternity, Inc. and the
Nebraska Beta Chapter of Phi Kappa Psi Fraternity; Alan J. Anderson, individually
and as an agent of Phi Kappa Psi Fraternity, Inc. and the Nebraska Beta Chapter of
Phi Kappa Psi Fraternity; David Meler, individually and as an agent of Phi Kappa
Psi Fraternity, Inc. and the Nebraska Beta Chapter of Phi Kappa Psi Fraternity;
Brendan Tobin Rezich, individually and as an agent of Phi Kappa Psi Fraternity,
Inc. and the Nebraska Beta Chapter of Phi Kappa Psi Fraternity; Phi Kappa Psi
Fraternity, Inc., a non-profit Corporation; Nebraska Beta Chapter of Phi Kappa Psi
Fraternity, an unincorporated association
Defendants - Appellees
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: November 17, 2021
Filed: April 5, 2022
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Before BENTON, KELLY, and ERICKSON, Circuit Judges.
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ERICKSON, Circuit Judge.
Teresa Spagna and Christopher Wheeler were students at Creighton
University (“Creighton”) in Omaha, Nebraska, during January and February of
2017. In the early morning hours of February 11, 2017, Wheeler, who was black-
out drunk after the preceding weeks of participating in Phi Kappa Psi Fraternity’s
rush and initiation activities, entered Spagna’s dorm room and slashed her throat
with a pocketknife. Spagna survived the attack.
Spagna commenced this tort action against Phi Kappa Psi Fraternity, Inc.,
Nebraska Beta Chapter of Phi Kappa Psi Fraternity, and several other entities and
individuals associated with the fraternity and university.1 Each defendant either
moved to dismiss the complaint or moved for a judgment on the pleadings. Spagna,
in turn, moved for entry of final judgment. The district court2 granted each of the
defendants’ motions and denied Spagna’s motion as moot. We review de novo the
1 Spagna did not name Wheeler as a defendant in this tort action. In criminal
proceedings, Wheeler pled no contest to second-degree assault and was sentenced to
30 days’ imprisonment and five years of probation. See State v. Wheeler, No. CR-
17-758 (Neb. Dist. Ct., 4th Dist., 2018).
2 The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska, now deceased; the Honorable Brian C. Buescher, United States
District Judge for the District of Nebraska.

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grants of the motions to dismiss and for judgment on the pleadings, East Coast Test
Prep LLC v. Allnurses.com, Inc., 971 F.3d 747, 751 (8th Cir. 2020), and we affirm.
I. BACKGROUND
We review the grants of motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6) and motions for judgment on the pleadings under Federal Rule
of Civil Procedure 12(c) applying the same standard. Packard v. Darveau, 759 F.3d
897, 900 (8th Cir. 2014). At this stage of litigation, we accept as true the facts
alleged in Spagna’s amended complaint and grant all reasonable inferences in her
favor, determining whether she pled “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s
liability, it ‘stops short of the line between possibility and plausibility of “entitlement
to relief.”’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550
U.S. at 557).
In 2016 the Nebraska Beta Chapter of Phi Kappa Psi Fraternity (the
“Chapter”) at Creighton was accused of engaging in hazing and allowing underage
drinking. An investigation ensued, resulting in a conclusion that the “Chapter
violated multiple provisions of Creighton Student Conduct policy, Creighton Greek
Event Guidelines, and State Law.” Creighton placed the Chapter on “social
probation.” The terms of the Chapter’s probation required “the Chapter, its officers,
and members follow state law, local law[,] and Creighton guidelines regarding
underage drinking and alcohol [at] fraternity events.” One probation term
specifically required the “Chapter’s ‘Rush,’ and initiation activities in 2017” be
alcohol-free. The national organization of Phi Kappa Psi Fraternity—Phi Kappa Psi
Fraternity, Inc. (the “National Fraternity”)—was aware of the Chapter’s discipline
and “affirmatively represented to Creighton that it would ensure the Chapter’s 2017
Rush and initiation activities” would be safe and free of alcohol and drugs. The 2016
investigation and subsequent probation terms were allegedly not the Chapter’s first

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run-in with Creighton’s disciplinary measures regarding hazing, underage drinking,
and other dangerous behavior.
During the Chapter’s 2017 Rush, the Chapter brazenly violated the terms of
its probation by requiring all recruits who had accepted the Chapter’s “bid,” or
conditional invitation to join the fraternity, to engage in activities that can only be
described as hazing. These activities included “multiple occasions of forced
drinking, drinking games, providing alcohol to minors, going to local bars, and
encouraging alcohol consumption by pledges [i.e., recruits who accepted the bid,] to
the point of vomiting and/or blacking out.” Wheeler, an underage student, was
among the pledges required to participate in these activities.
Initiation activities began on January 30, 2017, and lasted about a week. This
week was widely known as “Hell Week” within the Chapter. Spagna alleged that
the initiation activities were “expressly directed by the National Fraternity” and
included, but were not limited to, a slave auction, surrendering one’s cell phone,
keeping all activities secret, minors consuming alcohol at the Chapter House, forced
consumption of alcohol by minors to the point of vomiting and/or loss of
consciousness, and withholding food and/or water. Spagna alleged most, if not all,
of these hazing events occurred at the Chapter’s house, which is under the control of
the National Fraternity, and others named in the complaint, and that the National
Fraternity is aware that the Chapter is involved in Hell Week and hazing activities.
On February 3, 2017, Wheeler’s initiation into the National Fraternity hinged
on passing a trivia test about the Chapter and National Fraternity. He failed.
Wheeler, however, was allowed to re-test the following week. Following the re-test
on February 10, 2017, Wheeler, who was allegedly still “physically and
psychologically drained from the hazing[] and excessive drinking,” went to dinner
with active Chapter members and was told he had to “go to the Chapter House to
play drinking games and get drunk.” Collin Gill, the Chapter’s president, invited
Wheeler to his room to drink with other fraternity officers, including Daniel Tift,
Jonah Buss, Cody Casper, Troy Taylor, Alan Anderson, David Meler, and/or

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Brendan Rezich. While in Gill’s room, Gill gave Wheeler more alcohol and another
Chapter officer passed around a water bong from which Wheeler was required to
smoke marijuana.
Around 1:00 a.m. on February 11, 2017, “[w]ith the knowledge, consent, and
direction of” Gill, Tift, Buss, Casper, Taylor, Anderson, Meler, and Rezich,
unnamed Chapter members took Wheeler “back to Creighton’s campus, where he
[was] abandoned.” Wheeler was left on the campus unsupervised and in a “black-
out” state due to his consumption of alcohol and marijuana. Witnesses who knew
Wheeler and allegedly saw him on campus that early morning described Wheeler as
confused, out of character, and, at times, belligerent.
Meanwhile, Spagna was in her dorm room during the early morning of
February 11, 2017. Her dorm room was unlocked because she was ill and had asked
her friends to check on her. Around 1:05 a.m., Wheeler entered Spagna’s room
without permission and without knowing where he was. The two did not know each
other. Spagna asked Wheeler to leave, and he eventually turned to exit the room.
Spagna realized Wheeler accidentally left his keys, so she grabbed them. As Spagna
approached Wheeler to hand him the keys, Wheeler, suddenly and without warning,
turned around and slashed Spagna with a pocketknife, leaving a five-inch-long
wound across her neck.
In her amended complaint, Spagna alleged that the negligence of the National
Fraternity; the Chapter; and Gill, Tift, Buss, Casper, Taylor, Anderson, Meler, and
Rezich, individually and as agents of both the National Fraternity and the Chapter
(collectively, the “Defendants”),3 proximately caused her injuries. She further
alleged the Defendants owed her a duty of reasonable care under various tort theories
and statutes, and they breached that duty by failing to ensure compliance with the
hazing-related probationary terms imposed by Creighton and by “abandoning” an
intoxicated and belligerent Wheeler on Creighton’s campus. Spagna further alleged
3 Spagna does not appeal the dismissal of Park Avenue Phi Psi House, Inc.

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she would not have been assaulted but-for Wheeler’s state caused by the hazing, that
it was foreseeable for an intoxicated and aggressive pledge to harm someone, and,
as a result, Spagna was injured.
II. DISCUSSION
We apply Nebraska state law in this diversity action. Pals v. Weekly, 12 F.4th
878, 881 (8th Cir. 2021). This Court “must predict how the Supreme Court of
[Nebraska] would rule, and we follow decisions of the intermediate state court when
they are the best evidence of [Nebraska] law.” Netherlands Ins. v. Main St.
Ingredients, LLC, 745 F.3d 909, 913 (8th Cir. 2014) (quoting Friedberg v. Chubb &
Son, Inc., 691 F.3d 948, 951 (8th Cir. 2012)) (internal quotation marks omitted).
To prevail in a negligence action in Nebraska, “a plaintiff must establish the
defendant’s duty to protect the plaintiff from injury, a failure to discharge that duty,
and damages proximately caused by the failure to discharge that duty.” Bell v. Grow
with Me Childcare & Preschool LLC, 907 N.W.2d 705, 713 (Neb. 2018). The
threshold issue is the legal question of whether the defendants owed a duty to the
plaintiff. Id.; see Martensen v. Rejda Bros., 808 N.W.2d 855, 862 (Neb. 2012) (“The
question [of] whether a legal duty exists for actionable negligence is a question of
law dependent on the facts in a particular situation.”).
A. Duty
The district court did not address whether the Defendants owed Spagna a duty
because it found that the risk of Wheeler’s assault on Spagna with a pocketknife was
not a reasonably foreseeable result of the Defendants’ hazing actions and that
Wheeler’s assault was an efficient intervening cause that broke the potential chain
of tort liability. See Sundermann v. Hy-Vee, Inc., 947 N.W.2d 492, 502 (Neb. 2020)
(stating that the “lack of a foreseeable risk can be a basis for a no-breach
determination”). The existence of a duty is essential for tort liability; however, a tort
action cannot survive if the risk of harm from an allegedly breached duty was not a

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“foreseeable risk at the time of the defendant’s alleged negligence.” Thomas v. Bd.
of Trs., 895 N.W.2d 692, 699 (Neb. 2017) (citing Pittman v. Rivera, 879 N.W.2d
12, 17 (Neb. 2016)). Spagna’s opening brief did not raise the issue of whether the
Defendants owed her a non-statutory duty, and instead focused on the foreseeability
aspect of causation. We similarly focus our analysis. See Estate of Blume v. Marian
Health Ctr., 516 F.3d 705, 707 (8th Cir. 2008) (“We do not give relief based on
forfeited claims of error unless the error is obvious and resulted in a manifest
injustice.”).
B. Proximate Cause
Proximate cause under Nebraska law consists of three elements: (1) the injury
would not have occurred but-for the negligent action; “(2) the injury was a natural
and probable result of the negligence; and (3) there was no efficient intervening
cause.” Pals, 12 F.4th at 881 (quoting Wilke v. Woodhouse Ford, Inc., 774 N.W.2d
370, 382 (Neb. 2009)) (internal quotation marks omitted). Foreseeability is
generally a determination reserved for the factfinder “unless no reasonable person
could differ on the matter. And if the court takes the question of negligence away
from the trier of fact because reasonable minds could not differ . . . , then the court’s
decision merely reflects the one-sidedness of the facts bearing on negligence . . . .”
Latzel v. Bartek, 846 N.W.2d 153, 165 (Neb. 2014) (quoting A.W. v. Lancaster
Cnty. Sch. Dist. 0001, 784 N.W.2d 907, 917 (Neb. 2010)) (internal quotation marks
omitted).
The crux of Spagna’s negligence claim is that her injuries were foreseeable
consequences of the Defendants’ actions and that Wheeler’s assault was not an
efficient intervening cause relieving the Defendants of liability. The Defendants
disagree. Even if we assume the Defendants collectively owed a duty to Spagna and
breached that duty, the amended complaint failed to adequately allege under
Nebraska law that her injuries were foreseeable results of the Defendants’ alleged
breach and that Wheeler’s assault was not an efficient intervening cause. Our
conclusion remains the same even though Spagna pleaded that it was “foreseeable

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that any one of the student pledges could hurt or accidentally kill himself or others”
and that the conduct complained of “may bring a pledge to a location that enables
that pledge to inflict harm on an innocent third party.”
At some level of generality, it is foreseeable that a black-out drunk, underage
college student who was hazed and harassed for a week, abandoned on campus
during the early morning, and considered disoriented and belligerent could harm
himself or others. But Nebraska’s foreseeability pleading requirements require more
than generality—specificity is required.
The risk of attack here was not foreseeable because the Defendants’ actions
did not have a direct relationship to the harm that occurred, which is a requirement
under Nebraska law. See Pittman, 879 N.W.2d at 17 (concluding the risk of attack
was not foreseeable when the defendant, who had been kicked out of the bar for
assaulting his girlfriend, struck a stranger outside the bar with his car); see also
Thomas, 895 N.W.2d at 697, 700–01 (finding a former college student’s prior
criminal history of inappropriate sexual behavior and robbery did not make his
alleged actions of abducting, raping, and murdering another student a foreseeable
risk). Proximate cause under Nebraska law requires an overt connection—
something more than inebriation, sleep deprivation, or psychological effects—
between the events of Hell Week and Wheeler suddenly pulling out a pocketknife
on another college student in her dorm room. See Pals, 12 F.4th at 882 (noting
“Nebraska takes a particularly narrow view of foreseeability”). The specific facts
pled in this case are inadequate to show the direct relationship required under
Nebraska law.4
4 Spagna emphasizes that Pittman and Thomas were decided on motions for
summary judgment, not motions to dismiss. A complaint should be dismissed if it
fails to plead “enough facts to state a claim to relief.” Corrado v. Life Invs. Ins. Co.
of Am., 804 F.3d 915, 917 (8th Cir. 2015) (quoting Twombly, 550 U.S. at 570).
Spagna’s complaint failed to plead an essential fact—that the Defendants knew
Wheeler had a propensity to assault strangers when drunk.

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Spagna’s claim also fails on the third prong for establishing proximate cause.
Wheeler’s criminal acts were an efficient intervening cause that broke any alleged
chain of causation between the Defendants and Spagna. “An efficient intervening
cause is new and independent conduct of a third person, which itself is a proximate
cause of the injury in question and breaks the causal connection between the original
conduct and the injury.” Id. at 881 (quoting Latzel, 846 N.W.2d at 164) (internal
quotation marks omitted). Nebraska considers the causal connection broken by an
efficient intervening cause when: “(1) the negligent actions of a third party
intervene, (2) the third party had full control of the situation, (3) the third party’s
negligence could not have been anticipated by the defendant, and (4) the third party’s
negligence directly resulted in injury to the plaintiff.” Id. (quoting Latzel, 846
N.W.2d at 164) (internal quotation marks omitted).
While Spagna argues that the Defendants’ hazing and initiation activities
created the conditions that led to Wheeler’s assault on her, this situation is not one
where the Defendants should have reasonably anticipated (or were able to foresee)
the specific type of intervening criminal event that occurred. Rather, Wheeler’s
assault on Spagna falls within the type of cases where an efficient intervening cause
existed. See Shelton v. Bd. of Regents, 320 N.W.2d 748, 750–51, 753–54 (Neb.
1982) (concluding the lab could not have reasonably contemplated that its former
employee, who was hired to care for rats and had a criminal history of attempting to
kill a former lover with a shotgun, would steal a lethal substance from the lab and
poison several victims).5
Without any allegations that the Defendants knew Wheeler had a propensity
to assault strangers or they had a special legal relationship that could extend a duty
to protect Spagna from harm, Spagna’s amended complaint fails to state a plausible
5 We are unpersuaded by Spagna’s contention that a different result is
warranted because of Haselhorst v. State, 485 N.W.2d 180 (Neb. 1992). There, the
court said the State could be held liable for a foster child’s abuse of other children
because the State placed him in the home without investigating known records and
allegations of such behavior. Id. at 188–89. We find the case inapposite.

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claim under Nebraska law. See Bell, 907 N.W.2d at 716 (discussing special
relationships that may give rise to affirmative duties to act); see also Haselhorst, 485
N.W.2d at 188 (finding the State liable where it had “knowledge or ability to obtain
knowledge of the foster child’s dangerous propensities prior to his placement with
the plaintiffs”). Without a showing of proximate cause, Spagna’s negligence claim
fails as a matter of law.
C. Vicarious & Alter Ego Liability
Spagna also argues the district court erred when it dismissed her complaint
without discussing her claims that the National Fraternity is liable as the alter ego of
the Chapter and that both the National Fraternity and Chapter are vicariously liable
for the negligence of their officers and members because neither of those theories
requires foreseeability. The National Fraternity argues there can be no vicarious or
alter ego liability because Spagna has not plausibly alleged that the other Defendants
were negligent or that the other Defendants acted as the National Fraternity’s agents.
Under general vicarious liability principles, “[u]nless the agent is liable, there
can be no liability on the part of the principal.” Hatcher v. Bellevue Volunteer Fire
Dep’t, 628 N.W.2d 685, 695 (Neb. 2001). We need not decide whether Spagna
plausibly alleged certain Defendants were the National Fraternity’s agents because
Spagna has not plausibly alleged the supposed agents in this case were negligent
under Nebraska law. The district court did not err in dismissing this claim.
Alter ego liability allows courts to disregard “[t]he separate entity concept of
the corporation” and reach the assets of the corporate shareholder(s) “where the
corporation is a mere shell, serving no legitimate business purpose, and is used as an
intermediary to perpetuate fraud on the creditors.” Christian v. Smith, 759 N.W.2d
447, 463 (Neb. 2008). To state a claim under this theory of liability, Spagna had to
allege the Chapter was “under the actual control of” the National Fraternity and that
the National Fraternity “exercised such control to commit a fraud or other wrong in
contravention of” her rights. Id. at 462. Spagna alleged “the National Fraternity is

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the controlling member and alter-ego of the Chapter” and now argues discovery may
show the National Fraternity intentionally undercapitalized the Chapter so that the
Chapter could not pay for its own wrongdoing. But, for the reasons previously
stated, Spagna’s claims of wrongdoing do not survive the pleading stage under
Nebraska law. The district court did not err in dismissing the complaint without
discussing the alter ego theory because Spagna failed to plausibly state a claim
entitling her to relief.
D. Social Host Liability
Nebraska’s Minor Alcoholic Liquor Liability Act grants a cause of action to
“[a]ny person who sustains injury or property damage . . . as a proximate result of
the negligence of an intoxicated minor” against (among others) a “social host who
allowed the minor to consume alcoholic liquor . . . on property under his or her
control.” Neb. Rev. Stat. § 53-404 (the “Act”). Minor is defined as a person under
the age of 21.6
Spagna contends all Defendants are liable as social hosts under the Act, but
the plain language of the Act applies to the “negligence of an intoxicated minor.”
Even though Spagna did not plead that Wheeler acted negligently when he slashed
her with a pocketknife, Wheeler’s criminal conviction for second-degree assault
under Neb. Rev. Stat. § 28-309(1)(a) precludes a negligent commission of the act,
as that subsection only allows a conviction for an assault committed intentionally or
knowingly. The district court did not err in dismissing Spagna’s claim under the
Act.
6 Neb. Rev. Stat. § 53-403, subd. 4 (stating the definition of “minor” is found
in § 53-103.23); Neb. Rev. Stat. § 53-103.23 (defining a “minor” as a person “under
twenty-one years of age”).

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III. CONCLUSION
Because Spagna’s amended complaint failed to plead a plausible claim
entitling her to relief under Nebraska law, the district court did not err in granting
the Defendants’ motions to dismiss and motions for judgment on the pleadings. See
Twombly, 550 U.S. at 557 (finding a complaint will survive the pleading stage if it
merely sets forth “allegations plausibly suggesting” a legal violation).
We affirm the district court’s judgment.
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