United States District Court, W.D. Pennsylvania
[Copyrighted Material Omitted]
For SHAWN JAMES, Plaintiff: Teresa C. Toriseva, LEAD ATTORNEY, TORISEVA LAW, Wheeling, WV; Kathy Brown, Wexler Toriseva Wallace, Wheeling, WV.
For DUQUESNE UNIVERSITY, Defendant: Frederick W. Bode, III, Steven W. Zoffer, LEAD ATTORNEYS, Dickie, McCamey & Chilcote, Pittsburgh, PA.
David Stewart Cercone, United States District Judge.
Shawn James (" plaintiff" ) commenced this personal injury action seeking redress for injuries sustained when he was shot after leaving a dance on Duquesne University's (" Duquesne" or " defendant" ) campus. Presently before the court is defendant's motion for summary judgment. For the reasons set forth below, the motion will be granted.
Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the non-moving party, " the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's claim, and upon which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the initial burden of identifying evidence which demonstrates
the absence of a genuine issue of material fact. When the movant does not bear the burden of proof on the claim, the movant's initial burden may be met by demonstrating the lack of record evidence to support the opponent's claim. National State Bank v. National Reserve Bank, 979 F.2d 1579, 1582 (3d Cir. 1992). Once that burden has been met, the non-moving party must set forth " specific facts showing that there is a genuine issue for trial," or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56 (a), (e)) (emphasis in Matsushita). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In meeting its burden of proof, the " opponent must do more than simply show that there is some metaphysical doubt as to the material facts."
Matsushita, 475 U.S. at 586. The non-moving party " must present affirmative evidence in order to defeat a properly supported motion" and cannot " simply reassert factually unsupported allegations." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). Nor can the opponent " merely rely upon conclusory allegations in [its] pleadings or in memoranda and briefs." Harter v. GAF Corp., 967 F.2d 846 (3d Cir. 1992). Likewise, mere conjecture or speculation by the party resisting summary judgment will not provide a basis upon which to deny the motion. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382-83 n.12 (3d Cir. 1990). If the non-moving party's evidence merely is colorable or lacks sufficient probative force summary judgment must be granted.
Anderson, 477 U.S. at 249-50; see also Big Apple BMW, Inc. v. BMW of North America, 974 F.2d 1358, 1362 (3d Cir. 1992), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993) (although the court is not permitted to weigh facts or competing inferences, it is no longer required to " turn a blind eye" to the weight of the evidence).
The record as read in the light most favorable to plaintiff establishes the background set forth below. The incident giving rise to the injuries for which plaintiff seeks redress occurred on Duquesne's campus in the City of Pittsburgh. This campus is located on forty-nine acres in the Uptown neighborhood of Pittsburgh known as " the bluff." It is bordered by, among other areas, the Hill District and downtown Pittsburgh.
The Black Student Union (" the BSU" ), a student organization registered with Duquesne, decided to host a back-to-school dance on September 16, 2006. The BSU's mission is to provide charitable efforts throughout the area and to build a sense of community. The BSU had sponsored the dance on an annual basis in past years and the event was known as the back-to-school " bash."  It sponsored the dance in order to build a sense of community and educate the broader campus about African-American culture. In accordance with its past practices, the BSU invited Duquesne students, their guests, students from neighboring universities and colleges and their guests.
The BSU received money from Duquesne's program council to help pay for the dance. The BSU arranged for the dance to be held in the ballroom of the Student Union building. As an official
student organization, the BSU was required to follow Duquesne's established rules and procedures regarding campus events. This included complying with the policies and procedures set forth in Duquesne's Spirit Leadership Manual.
Because an invitation was extended to students of neighboring colleges and universities, the bash was advertised off campus. Members of the BSU posted and passed out flyers off campus, including in downtown Pittsburgh and the Hill District. Members of the BSU understood the bash to be open to the general public, not just to students and guests. The BSU charged an admission fee to the dance.
Because the dance was advertised off campus, the Spirit Leadership Manual required that at least two university police officers be assigned to the dance in order to ensure proper order and safety. Leroy Johnson and Dennis Dixon, police officers from Duquesne's Department of Public Safety, were assigned by Duquesne to provide security at the dance.
Richan Gaskins (" Gaskins" ), a BSU board member, was stationed at the entrance to the dance. He was accompanied by two other BSU board members who assisted him with security. Gaskins perceived himself as " head of security" for the dance because he was there to " maintain order at the entrance and to ensure that people paid their admission." Statement of Richan Gaskins (Doc. No. 80-2) at 30. Other BSU board members were collecting the admission fee. Neither officer Johnson or Dixon were stationed at the entrance, but both officers moved throughout the ballroom area during the dance, and one of the officers spent at least a few minutes at the entrance.
Plaintiff was a student at Duquesne and varsity basketball player for the Duquesne Dukes. He and four other team members attended the dance as did Brittany Jones (" Jones" ), who was student at Duquesne and a member of the BSU.
Shortly before midnight, Jones received a telephone call from her former boyfriend, Kenny Eason (" Eason" ). After the call Jones left the dance to meet Eason and help him find a parking space. Eason was accompanied by Derek Lee (" Lee" ), William Holmes (" Holmes" ) and two other males. Jones got into the car with Eason and they found a spot on Locust Street in front of the undergraduate library. On their way in to the dance Eason asked Jones whether " they were patting down." Jones understood Eason to be asking if anyone at the entrance of the dance was patting down for weapons. Jones replied that she did not know.
When Jones and the Eason group arrive at the entrance to the ballroom, Jones approached Gaskins and asked whether they were " patting down." Jones knew Gaskins: they had socialized in the past and done things together such as eat lunch and walk around downtown Pittsburgh. Gaskins told her that he was not " patting down" and then asked in a joking manner if she was carrying " mace or something." Jones was not standing next to Eason or his group when she made this inquiry. Gaskins was the only one at the entrance, and there was no officer or other security personnel standing next to him. Jones did not see any security personnel in the area. Jones turned around, looked at Eason and shook her head " no." There is no evidence that Gaskins saw Jones shake her head. Shortly thereafter, the Eason group entered the ballroom. When the Eason group entered there were no uniformed officers or security personnel at the entrance.
At approximately 2:00 a.m. the dance ended and the attendees began to leave the ballroom. No fights, altercations or
confrontations occurred during the dance or when the students and their guests were exiting the Student Union.
Plaintiff and his teammates exited the Student Union and proceeded onto Academic Walk heading towards the dormitory area. They discussed going to one of their dorms. As they were walking, one of plaintiff's teammates started talking with a young female named Erica Sager (" Sager" ). Plaintiff observed his teammate's interaction with Sager because he was walking behind them. Sager was being " real flirtatious" and plaintiff could tell from her body language and laugh that she " just . . . wanted to hang around the athletes."
As plaintiff and those with him progressed down Academic Walk toward the end of the football field, plaintiff heard the Eason group call Sager over. The Eason group was standing ahead of plaintiff and his teammates. Holmes and Lee were in the Eason group. Sager ran ahead of the basketball players and to the Eason group. Plaintiff heard one of the guys in the Eason group yell at Sager and ask her " what the hell you doing with those guys" and " what the fuck you talking to them for." Plaintiff believed the guys were " ... really jealous, angry at [Sager] for talking to - or just walking with us . . . ." Plaintiff and his teammates continued walking on Academic Walk towards the dorms. Sager and the Eason group were still ahead of them.
As plaintiff and his teammates proceeded the Eason group started to argue and curse at them. At least one of the teammates started to argue back. Plaintiff cautioned his teammates that they needed to maintain their composure because there could be repercussions if they were in a fight on campus. Plaintiff nudged one of his teammates and they then began to walk away by continuing down Academic Walk. Holmes and Lee pulled out handguns and opened fire on the basketball players. The shooting took place near or in front of the Duquesne Towers, one of the dormitories on campus, which is over 200 yards from the Student Union.
Plaintiff and four of his teammates were shot. Plaintiff was hit in the left foot with two bullets, causing him significant injuries and scaring. Plaintiff had to undergo surgery to have one of the bullets removed, which appeared to be from a 9mm handgun. He did not play in any games during the following basketball season, which was slated to be his " red shirt" year for drafting into the National Basketball Association. The injuries have had a detrimental effect on plaintiff's professional basketball career and resulted in a significant decrease in his earning capacity.
The Duquesne Public Safety officer in charge of the night shift was Sergeant Daniel Churma (" Churma" ). Churma identified four other officers who were on campus that night: Corporal Williams, Officer Latuszewski, Officer Good, and Officer Stivenson. Officer Stivenson was assigned to dispatch because he was on light duty. In addition, Security Guard Wade was on duty and off-duty officers Johnson and Dixon were assigned to cover the dance. Johnson did not report until 11:00 p.m. because he was working an earlier shift. Johnson and Dixon were in uniform.
Churma met with Corporeal Williams and Officer Good shortly before the dance ended and instructed them to move their vehicle onto Academic Walk. They were in a marked patrol unit and Churma wanted them to be present as the crowd was moving across campus and dispersing. Churma
and Johnson were further down on Academic Walk in a separate unit. Churma and Johnson got out of their unit and were on foot on Academic Walk. Churma and Johnson walked up where Willaims and Good were and after they moved with the crowd for a bit Churma directed them to take their unit toward " upper Magee Street at the end of Academic Walk." He wanted them near that location on Academic Walk as the crowd was moving there. He expected Willaims and Good to get out of their unit when they got there. Churma and Johnson continued to walk on Academic Walk back toward their unit. They walked just behind the crowd as it moved toward flag plaza and the dorms. When Churma heard the shots he and Johnson were more than 150 feet from where the shooting occurred and they could not see that end of Academic Walk from where they were positioned. There were no police in the dormitory area at the time the shooting occurred, which was an area right at the dorms where students gathered to either take transportation to the Oakland area of Pittsburgh or enter into the dorms.
The 11:00 p.m. to 4:00 a.m. time period was considered to be a key time for crime during the late shift. Duquesne's guidelines for safety and security generally called for seven officers and one security guard during the 11:00 pm to 7:00 am shift. There were only four on-duty officers during that shift. With the addition of Johnson and Dixon, there were six officers and one security guard present during the late shift.
Holmes and Lee pleaded guilty to multiple offenses, including aggravated assault and criminal attempt with the intent to commit the crime of criminal homicide. Both Holmes and Lee were sentenced to multiple years in the state penitentiary. Jones pleaded guilty to recklessly endangering another person, a second degree misdemeanor under Pennsylvania law. Sager pleaded guilty to a charge of riot/intent to commit a felony, a third degree felony under Pennsylvania law.
Duquesne has sought to maintain a comprehensive system to provide security for the students, faculty and visitors on its campus. The Mission Statement for the Duquesne University Department of Public Safety acknowledges the University's goal to anticipate and prevent unsafe conditions on campus and protect individuals from " the imprudent or illegal acts others." In order to meet these goals, Duquesne had annually increased its budget for campus security/safety from $1,524,493.53 in 2003 to $1,762,164.06 in 2006.
The measures employed as part of the system included among other things a state-certified police force, direct radio contact with the Pittsburgh Police and emergency medical service responders, surveillance cameras, six " blue code" emergency stations that directly connect to campus police, 24-hour escort services, extended security in on-campus residency halls and safety training for the members of Duquesne's police force.
Duquesne's police force is manned by twenty-seven full time police officers, five security guards, six communications operators and several office workers. The full time officers consist of one director, one assistant director, three lieutenants, two detectives, and twenty officers. The officers are required to have completed police academy training and obtained Pennsylvania's Act 120 certification. They are required to keep up on both mandated and other yearly training. The security guards are required to have Act 235 certification and 40 hours of approved security officer training as well as forty hours of
onsite training with the campus police department.
Duquesne's system included an array of electronic devices. Duquesne's security cameras included pan-tilt-zoom and stationary models and covered numerous areas, including Vickroy Hall where the shooting occurred. The campus also had " ring down" telephones in elevators, parking kiosks, academic buildings, most residence halls and the main-campus buildings. The dorms were equipped with electronic reader card systems and students are permitted to swipe into only the residence hall in which they live. Also, the main residence halls were monitored by representatives of Duquesne's Office of Residency Life.
Duquesne is required to report on-campus crime statistics pursuant to the Clery Act, 20 U.S.C. § 1092(f). The statistics indicate that from 2003 through 2005 Duquesne experienced zero crimes within the " murder/non-negligent manslaughter" category. It did experience four crimes within the " aggravated assault" category.
Two of the four incidents within 2003-2005 aggravated assault statistics involved handguns. First, on August 23, 2004, an individual was involved in an argument with a cab driver outside Brottier Hall (a campus dorm) because the cab driver was blocking the entrance to the dorm. The argument culminated in the individual brandishing a handgun and firing a shot at the victim, and then striking the victim in the face with the gun before leaving the scene. The perpetrator was charged with aggravated assault. He pled guilty to recklessly endangering another person and simple assault and received four years probation.
Second, on September 15, 2005, five juveniles who were not affiliated with Duquesne were apprehended by Duquesne police after stealing items from a campus store. During their arrest the police discovered one was carrying a handgun. The perpetrator was charged with possession of a firearm by a minor.
Neither party has provided further detail about the other two incidents. Defendant asserted in its concise statement that prior to September 17, 2006, it had never experienced an on-campus incident akin to the shooting and none of the four prior incidents of aggravated assault were even remotely similar to it. Plaintiff referenced only the summaries of the August 23, 2004, and September 12, 2005, incidents to dispute these assertions. Under this court's local rules, assertions of fact not controverted by the opposing party are deemed to be admitted. See Local Rule 56E. It follows that the other two incidents did not involve handguns or criminal conduct similar to the shooting.
Duquesne's campus is located in Zone 2 of the City of Pittsburgh. Plaintiff's Brief in Opposition (Doc. 80) at 17 (citing Okopal Deposition at 37: 9-10). Zone 2 is much larger than Duquesne's campus and includes a number of other different sections and neighborhoods of the City.
Based on Zone 2 statistics, plaintiff's expert " examined the CAP Index analysis of crime with Duquesne University as the focal point."  He compared a 1999 study that ranked colleges and universities and placed Duquesne in the lower quadrant, which signified " a higher than average risk of crime when compared to the dataset of colleges and universities." He then examined the same CAP Index Risk Analysis
for 2000 and 2006 " and found little change in the overall crime risk at Duquesne University." He opines that the CAP Index in 2006 reported (1) the overall risk of crime in the Duquesne University area is 9.81 higher than the same risk for all of Allegheny County, (2) the overall risk in the Duquesne University area is 6.39 times higher than the same risk throughout Pennsylvania, (3) the overall risk of aggravated assault is 5.92 times higher in the Duquesne University area than the same risk for all of Allegheny County; and (4) the overall risk of aggravated assault in the Duquesne University area is 3.26 times higher than the same risk throughout Pennsylvania.
Defendant filed its renewed motion for summary judgment after Judge Folino of the Court of Common Pleas of Allegheny County granted summary judgment to defendant in the related case of Biodun Adewumi Sam Ashaolu v. Duquesne University of the Holy Spirit, et al. (June 10, 2010), and the Superior Court affirmed that decision. 47 A.3d 1258 (Pa. Super. Ct., Mar. 27, 2012) (non-precedential opinion re-produced at 2:08cv853, Doc. No. 68-3). The parties present their respective positions based on their perception of the impact and persuasiveness the state court decisions should have on this court.
Sam Ashaolu was one of the five Duquesne basketball players who were shot on September 17, 2006, at 2:15 a.m. on defendant's campus. The Ashaolu case was one of four cases (one state and three before this court) in which discovery was jointly consolidated and coordinated. Over twenty depositions of Duquesne personnel were jointly taken for both/all actions. Defendant's motions for summary judgment in this and the Ashaolu case were/are nearly identical. As one might anticipate, defendant argues that the outcome of the Ashaolu litigation is the death knell to plaintiff's claims; plaintiff argues that the Superior Court misread the record and committed multiple errors in reaching its decision, rendering its assessments unreliable and unpersuasive.
In moving for summary judgment defendant maintains that plaintiff cannot establish that it owed a duty to protect plaintiff from such spontaneous criminal shootings or to prevent third parties from engaging in the type of felonry that befell plaintiff. It notes the general rule laid down by the Pennsylvania Supreme Court that a person cannot be held liable for the criminal acts of third parties. It asserts it did not assume any obligation to prevent the shooting simply by undertaking to provide campus security for its students; it did not establish or stand in a special relationship with plaintiff; and even if such a relationship existed, it did not know or have reason to know that criminal shootings were occurring or about to occur on campus in any event. Thus, defendant contends that plaintiff cannot establish that it owed a duty under sections 323 or 314A of the Restatement (Second) of Torts, which provide exceptions to the general rule; therefore, the general rule bars plaintiff's attempts to establish that defendant owed him a duty.
Defendant also argues it is entitled to summary judgment because plaintiff cannot establish a causal link between defendant's conduct and the injuries he sustained. It notes that no fights, altercations, arguments or other tumultuous behavior occurred at the dance and there had not been any incidents on campus akin
to a criminal shooting involving an attempted criminal homicide. Plaintiff was shot by third-parties who were not affiliated with Duquesne University after he left the dance and traveled approximately 200 yards down Academic Walk. The perpetrators' conduct constituted the commission of violent felonious acts. Defendant thus argues that as a matter of law these undisputed facts preclude plaintiff from establishing that it caused plaintiff's injuries.
Plaintiff asserts that defendant owed him a duty to provide security on two separate levels and it breached that duty by failing to follow its own standards and guidelines governing events such as the college bash. A duty assertedly arose under section 323 of the Restatement because defendant undertook to provide security on campus and at the dance; a duty likewise arose under section 314A(3) of the Restatement because defendant opened its campus to the public and in doing so was required to take reasonable action to protect against the unreasonable risk of physical harm. Defendant was well aware of a risk of criminal conduct on campus as a result of prior incidents and understood that opening events up to the public increased the likelihood that a criminal element would be present. Defendant assertedly breached its duty by having fewer officers on campus that night than its own guidelines required, not having a sufficient number of officers present on Academic Walk when the crowd was leaving the dance or at the location where the largest number of students typically traversed to their dorms or gathered for transportation. It also failed to employ reasonable measures to abate the risk of a criminal element, including failing to (1) utilize handheld metal wands, (2) provide any security training or instruction to the students assisting with the dance, (3) have more officers and/or security guards on duty, and (4) have officers visible from all points along Academic Walk as the crowd was dispersing; it also failed to abate this risk by permitting a BSU member to act as " head of security" at the entrance to the dance.
Plaintiff further maintains that the breach of these duties purportedly caused his injuries because the shooters were permitted on campus and inside the dance; and had they been denied access as a result of proper security, they would have left and no argument or shooting would have occurred as the crowd was dispersing. Because the failure to provide proper security led to Holmes and Lee entering the dance with loaded guns, plaintiff maintains it was reasonably foreseeable that the shooting would occur, and because the area in front of the dorm was known to be one of the busiest on campus after events such as the dance, plaintiff argues that it was foreseeable that a fight or altercation might occur at that location. It also was foreseeable that the lack of uniformed officers present at that location would result in the escalation of any such argument or altercation. Because it was reasonably foreseeable that defendants' breaches could easily lead to the shooting, the criminal element of Holmes and Lee's conduct does not break the causal chain between defendant's failure to provide adequate security and plaintiff being shot. In other words, plaintiff asserts that defendant's negligence was a proximate cause of his injuries.
It is well established that a federal court exercising diversity jurisdiction must apply the substantive law of the appropriate state. In the absence of a definitive ruling by a state's highest court, the federal court must predict how that court would rule if faced ...