* 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this opinion should not be published and is not precedent except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

FILED

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
No. 06-60375

-2-

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
No. 06-60375

-3-

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
No. 06-60375

-4-

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.