Lewis v. Univ of Southern MS, et al

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
April 12, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-60375
Summary Calendar
REBECCA LEWIS,
Plaintiff-Appellant,
versus
UNIVERSITY OF SOUTHERN MISSISSIPPI, ET AL.,
Defendants,
UNIVERSITY OF SOUTHERN MISSISSIPPI LOCAL CHAPTER OF PHI KAPPA TAU
FRATERNITY; PHI KAPPA TAU FRATERNITY, INC.,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:03-CV-1
--------------------
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
In the summer of 2001, John Parker, an active member of the
Phi Kappa Tau (PKT) chapter at the University of Southern
Mississippi, was drinking at the fraternity’s house. The house is
owned and maintained by the university, which provides a resident
assistant during the school year, but it is occupied exclusively by
PKT brothers who pay rent to the university. The beer was provided
to Parker, who was underage, by another brother. Because it was

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summer, PKT wasn’t in session, no fraternity members or officers
were required to be present, and PKT didn’t hold or sponsor any
activities.
At about 2:00 a.m., plaintiff Lewis was riding on the back of
a four-wheeler on PKT house grounds. Parker went outside to
confront the driver and eventually threw a bottle, which struck
Lewis in the face, significantly injuring her. Lewis eventually
sued both the local and national chapters of PKT under Mississippi
negligence law, citing diversity jurisdiction, claiming that the
organizations were liable for not supervising their members. The
district court granted summary judgments to the defendants after
concluding that, under the undisputed facts of the case, neither
defendant owed a relevant duty to Lewis under Mississippi law.
Lewis appeals, and we review de novo. See Richardson v. Penzoil
Producing Co., 896 F.2d 919, 921 (5th Cir. 1990).
Generally, unincorporated associations, like defendants here,
are not liable for the wrongful acts of their members unless they
encouraged, promoted, or subsequently ratified them. See generally
6 AM. JUR. 2D ASSOC. & CLUBS § 47 (West 2005). There is no evidence
of sufficient encouragement, promotion, or ratification here.
Moreover, as the district court noted, to hold the PKT national
organization liable would require something more, a special
relationship between the national organization and the local

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1 Furthermore, Lewis inadequately explains in her brief why this
conclusion by the district court is wrong, so the issue of the national
organization’s liability is waived. See FED. R. APP. P. 28(a)(9)(A).
chapter creating in the former a duty to supervise day-to-day the
actions of the latter. There is no evidence of that, either.1
Lewis’s argument essentially revolves around Beta Beta Chapter
of Beta Theta Pi Fraternity v. May, 611 So.2d 889 (Miss. 1992),
where the Supreme Court of Mississippi upheld a jury verdict
against a fraternity and for a young woman who, as the invited
guest to the regularly-sponsored “Ole Man River” fraternity party
during the regular school year, was thrown by several fraternity
brothers into a shallow pool constructed for the party, where the
brothers had thrown in other women before the plaintiff. The
district court properly distinguished that case because here PKT
wasn’t in session, fraternity members weren’t required to be at the
house, there was no fraternity event taking place at the house,
much less a regular event, Lewis wasn’t an invited guest to a
fraternity function, and Lewis’s injuries were caused only by
Parker. In short, the fraternity in May acted as a fraternity in
causing the plaintiff’s injuries. The same is not true here. To
hold otherwise would render PKT liable for almost all the acts of
its members resulting from any illegal drinking at the house where
one member provided alcohol to another.
Lewis also attempts to make a somewhat different argument:
that Parker’s avowed purpose in confronting the four-wheeler was to
protect PKT property, hence Parker was acting for the fraternity

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collectively, supporting PKT liability. This argument is
inadequately addressed on appeal, Lewis providing nothing but a
bare assertion and conclusory argument. See FED. R. APP. P.
28(a)(9)(A); Gaines v. Cuna Mutual Ins. Soc., 681 F.2d 982, 985
(5th Cir. 1982). In any event, under the only relevant clause in
the only relevant authority cited by Lewis, 6 AM. JUR. 2D ASSOC. &
CLUBS § 47, the member must be acting “collectively in the business
for which the association is organized” for liability to attach,
and Parker clearly wasn’t so acting here.
AFFIRMED.

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