April 18, 2013 – A former student of Carthage College in Kenosha sued the school for negligence after she was sexually assaulted in her dorm room. Recently, a federal appeals court ruled that an expert on premises-security could testify in the case.
The school had successfully moved to exclude the testimony of Dr. Daniel Kennedy, who was preparing to say that Carthage had security deficiencies at the student’s dorm, and did not meet recommended practices in the field of campus security.
Two men, who were never identified, entered Katherine Lees’s open dorm room and sexually assaulted her in 2008. The college encouraged socializing through an “open door policy,” but Lees said the dorm itself lacked sufficient security measures.
Kennedy, a criminal justice expert at the University of Detroit, supported the argument that Carthage did not meet the applicable standard of care for securing students.
A basement door had no “prop alarm” to alert security that a door was propped open. The dorm did not have security cameras, and guests were not required to be escorted to rooms. According to Kennedy, Carthage fell short of practices recommended by the International Association of Campus Law Enforcement Administrators (IACLEA).
In addition, Kennedy was prepared to say that the sexual assault was foreseeable given the security deficiencies, and previous sexual assaults that occurred at Carthage.
However, the U.S. District Court for the Eastern District of Wisconsin excluded Dr. Kennedy’s testimony, ruling that it was unreliable to establish the relevant standard of care under Wisconsin law.
The case was in federal court on diversity jurisdiction. Without Kennedy’s testimony, the court found no genuine issues of material fact to dispute, and entered summary judgment for Carthage.
But in Lees v. Carthage College, No. 11-3061 (April 16, 2013), the U.S. Court of Appeals for the Seventh Circuit vacated the judgment and remanded the case. A three-judge panel, applying Wisconsin law, ruled the Kennedy could testify in part.
“Dr. Kennedy’s general testimony about the IACLEA security standards is admissible, as is his more specific testimony faulting the lack of a prop alarm on the basement door of Tarble Hall,” wrote Judge Diane Sykes.
Testimony Allowed to Establish Duty of Care
Allegations of negligence in Wisconsin require a party to establish a duty of care, the panel noted, which is “the duty to exercise reasonable care under the circumstances.”
Meanwhile, the federal rules of evidence require an expert witness to be qualified by “knowledge, skill, experience, training, or education.” Under the so-called Daubert standard, courts must ensure that proffered expert testimony is reliable.
Indeed, the federal district court ruled that Kennedy’s testimony was not reliable because he did not follow a reliable methodology in reaching his conclusions, noting that IACLEA’s recommendations are only aspirational. The appeals panel disagreed.
“The IACLEA guidelines are an authoritative set of recommended practices specific to the field of campus security and are regularly consulted by campus security professionals,” Sykes wrote. “The extent of Carthage’s deviation from these practices may surely inform an expert opinion as to whether Carthage met its standard of care.”
However, the panel ruled that it was not error for the district court to exclude testimony relating to foreseeability, that is, whether Carthage could foresee the sexual assault and took the necessary steps to prevent a breach of its duty of care.
Kennedy relied on prior sexual assault statistics that occurred at Carthage, but he did not distinguish between “stranger” rape and “acquaintance” rape to determine what reasonable measures should have been taken to prevent future sexual assaults.
“Relying on these crime statistics without accounting for this distinction does not reflect the application of reliable principles and data to the facts of this case,” Sykes wrote.
Rules of Evidence: Daubert Not a Game-Changer – WisBar InsideTrack, April 17, 2013 (login required).