Journal of Contemporary Health Law & Policy
Journal of Contemporary Health Law & Policy
17 J. Contemp. Health L. & Pol’y 737
LENGTH: 17019 words
ARTICLE: WHO IS RESPONSIBLE FOR FRATERNITY RELATED INJURIES ON AMERICAN COLLEGE CAMPUSES?
NAME: Kerri Mumford *
… These theories could be utilized to hold colleges liable for a fraternity member’s tortious actions resulting in an injury. … The Fraternity In the 1980s and the 1990s, fraternity membership increased dramatically. … Although judgments against fraternities are becoming commonplace, courts continue to allow universities to escape liability for injuries caused by fraternity members based on the theories of Bradshaw . … The university maintained that the “demise of the doctrine of in loco parentis had dispelled the notion that any special relationship exist between the university and its student body upon which to posit any duty to protect students from activities of their fellow students.” … The trial judge concluded that since the “evidence did not demonstrate that Furek or any fraternity pledge ‘relied on the University for his own safety, nor believed that the University had undertaken a duty of protection in lieu of the the fraternity ‘,” the University should not be held liable for Furek’s injuries. … Even though universities have taken active steps to enforce their drinking or hazing policies, courts have continually held that a social policy prohibiting underage drinking does not create a special relationship and a duty for the university to protect students. … In other words, the fraternity does not escape liability under the social host liability statute because it knowingly serves alcohol to minors.
The stereotypical image of a fraternity depicts a scene from Animal House: n1 a group of men running around drinking and causing chaos. Although Animal House was filmed in the 1970s, this image of fraternities still exists today. Over the past two decades, as the concern over hazing, n2 binge drinking, n3 violence and sexual assault n4 on college campuses has risen, fraternities have been the subject of increased litigation. Litigation against fraternities has resulted in enormous civil damages paid to injured plaintiffs, n5often involving multiple parties including the local chapter, the national chapter, the college n6 and the individual defendant fraternity members who cause the injury.
[*738] It is time for both national and local fraternity chapters, as well as the colleges, to take a role in preventing these injuries. When these measures fail, all three of these institutions should bear the responsibility. The courts should recognize the current relationship between universities and students. Until now, universities have successfully avoided liability for fraternity-related injuries based on the “no duty” rule, following the demise of in loco parentis doctrine for universities. n7 The “no duty” rule states that the relationship between the college and the student is simply one that provides education only. The university is under no obligation or duty to control or govern the students’ behavior. n8
Today’s college/student relationship is certainly unique. Although the purpose of college is primarily education, colleges take an active role in student life and activities. Today, colleges typically govern almost any aspect of a student’s life. n9 Once the college has taken this role, there is no reason why it should escape liability based on the fear that holding a university liable will place a college in a custodial relationship with its students for purposes of imposing a duty. n10 In the words of the court in Furek, “university supervision of potentially dangerous student activities is not fundamentally at odds with the nature of the parties’ relationship, particularly if such supervision advances the health and safety of at least some students.” n11
There is no reason for courts to persist in allowing colleges to escape liability on the outdated notion that the relationship between the university is simply student/educator. Courts continually rely on this analysis of the relationship and the concern that holding the college liable will return it to the strict liability standard of in loco parentis as a basis for finding no liability. Rather, the common law liability theories that courts apply to the national fraternities should also be applied to colleges, which exercise equal, if not greater control over the fraternity members.
[*739] This Comment examines fraternity-related litigation and the entities that should be held responsible. n12 Parts I and II respectively address the background and significance of fraternity-related litigation. Specifically, Part II traces the history of university liability for student injuries. Part III examines differing applications of common law duties that courts and plaintiffs may apply to decide the issue of liability. These theories could be utilized to hold colleges liable for a fraternity member’s tortious actions resulting in an injury. n13 Courts increasingly find national and local fraternity chapters liable for such injuries, yet continue to hold universities immune even when they exercise control of the fraternity. Part IV examines the theories used to hold the national fraternity liable for fraternity-related injuries. This section compares the national fraternity and the university. Specifically, it provides the theories that are used to hold the national fraternity liable for fraternity-related injuries that are equally, if not more, applicable to the university.
A. The University
Until the mid 1960s, the university did not have a legal duty to protect the student’s safety or rights. n14 Courts found analogous immunities given to other institutions and applied them to the university creating a de facto immunity. n15 The courts applied a variety of theories including “[w]here appropriate, … immunit[y] as a parent (in loco parentis), a charity, or a government; or protected like a “social host” would be regarding alcohol use, or shielded by rules of proximate causation or by all-or-nothing affirmative defenses.” n16
Until the late 1970s, the university remained in loco parentis to its students, n17exercising “delegated parental authority with a concomitant [*740] duty of broad protection.” n18 The university controlled the physical and moral welfare of its students. n19 The university could control any aspect of the student life as long as the regulations were “not inconsistent with the law.” n20
In 1979, the seminal case of Bradshaw v. Rawlings n21 put an end to in loco parentis in this context. n22 This decision came at a time when students were demanding rights and autonomy during the Civil Rights Movement. n23 The often-quoted case of Bradshaw illustrates the changing relationship between universities and students:
Our beginning point is a recognition that the modern American college is not an insurer of the safety of its students. [T]he authoritarian role of today’s college administrators, and faculties have been required to yield to the expanding rights and privileges of their students… College students today are no longer minors; they are now regarded as adults in almost every phase of community life. As a result of [societal changes], eighteen year old students are now identified with an expansive bundle of individual and societal interests and possess discrete rights not held by college students from decades past. There was a time when college administrators and faculties assumed a role in loco parentis. Students were committed to their charge because students were considered minors … Adult students now demand and receive expanded rights of privacy in their college life.n24
The court in Bradshaw relied on social policy holding that the imposition [*741] of a duty to supervise student activities would be unrealistic and impossible to perform because it would return the university to a custodial relationship over adult students. n25
This shifted the tone of university liability from strict liability to no liability. Although it gave students autonomy and rights that were not previously recognized, this new “no duty” doctrine incidentally and unfortunately resulted in a trend of complete university absolution.
With a few exceptions, most courts presently follow the somewhat outdated notions stated in Bradshaw. For example, in Beach v. University of Utah, n26 the Supreme Court of Utah relied on Bradshaw stating that the University of Utah had no duty to protect an injured plaintiff. The plaintiff who became intoxicated on a school-sponsored trip fell down a cliff. n27 The plaintiff sued the University alleging that it had an affirmative duty of protection based on the special relationship between the university and plaintiff. n28Beach testified that Cuellar, a faculty member who was chaperoning the trip, was aware of her propensity to become disoriented when drinking. He had previously witnessed when plaintiff fell asleep in the bushes after drinking. n29 The Utah Supreme Court disagreed, holding as a matter of law that even though the trip was a school sponsored event and that Cuellar had knowledge of Beach’s behavior, Beach was an adult responsible for her own behavior. n30 Relying on Bradshaw, the court in Beach stated “[a] realistic assessment of the relationship between the parties precludes our finding that a special relationship existed between the University and Beach or other adult students.” n31
Courts continually rely on Bradshaw for the basis that the universities have no duty to protect students. The social policy relied on by the court in Bradshaw is no longer applicable in today’s university/student relationship. Once the university takes an affirmative step to control student activity and knows that its efforts are failing, the university should be held liable for any resulting injuries.
In the 1980s and the 1990s, fraternity membership increased dramatically. n32 With this increase in membership came an increase in fraternity-related injuries resulting in the skyrocketing of litigation. n33 The first fraternity-related injury civil case reported was in 1979. n34 As a result of increased publicity of fraternity-related injuries and lawsuits, the Animal House type fraternity behavior came under close scrutiny. n35 This led to large verdicts for plaintiffs injured in hazing and alcohol related injuries. n36 Although courts have held national fraternities liable for injuries in local chapters under theories of agency n37 and general duty, n38 courts have been reluctant to extend these theories to the colleges where the injuries took place.
Although fraternities are founded on the idea of brotherhood, they are stereotyped as a group of individuals whose main goal is to party. n39 There are sixty-seven nationally recognized fraternities n40 in the United States with over 400,000 active members n41and over 4.5 million alumni. n42 The stereotypical image of fraternities includes students participating in binge drinking, partying, hazing, drug use and sexual freedom. Unfortunately, whether or not this behavior is typical when it does occur, it results in a number of alcohol-related deaths, sexual assaults and hazing-related injuries. n43
Fraternity behavior that results in injuries has succumbed to close public scrutiny. n44There has been a public outcry to decrease the excessive drinking, hazing and debauchery that occur on college campuses. n45 Parents and college administrations are concerned about the injuries that result from this behavior. n46 This outcry has led courts increasingly to hold fraternities liable for fraternity-related injuries. As one commentator has noted, “[S]ubpoenas and depositions may be replacing beer cans and [*744] pledge paddles as icons on fraternity row.” n47Although judgments against fraternities are becoming commonplace, courts continue to allow universities to escape liability for injuries caused by fraternity members based on the theories of Bradshaw. Universities avoid liability, despite the fact that they take an active role in regulating fraternity members including curbing alcohol abuse. n48 This is part of an overall movement by colleges to stop alcohol abuse by students attending the university. However, universities are moving a step further by taking active involvement through the regulation of fraternities by forcing them to become co-ed, requiring them to be alcohol free n49 or preventing the fraternities from associating on campus. n50 Even though the universities take an active role in regulating fraternities and their members, the majority of the courts maintain that the universities’ actions do not constitute an assumed duty to protect students from fraternity-related injuries. n51
III. THEORIES OF LIABILITY TO HOLD THE UNIVERSITY LIABLE
Colleges and universities are recognized as educational institutions n52 with the purpose of fostering the maturation of students. n53 As stated in Part II, in the past, colleges stood in loco parentis to the students. This doctrine was put to rest with the decision of Bradshaw. Bradshaw’s decision was based largely in part on the new student/college relationship. The Court believed that if the adult students were to receive autonomy and rights, the imposition of a duty to supervise student activities would [*745] be unrealistic and impossible to perform because it would subject the university to a custodial relationship over adult students. n54
The Bradshaw reasoning no longer reflects the current university/student relationship. The university controls many aspects of the student’s life. It is typical for the university to have policies and guidelines to prevent hazing and underage drinking. n55 The university can normally discipline students who violate its policies including expulsion. This control includes controlling fraternities. n56 Once the university has taken active steps to exercise control, usually in the attempt to prevent injury, it should no longer be shielded from responsibility.
There are a number of theories that a plaintiff injured in a fraternity-related incident may utilize to hold the university liable. As this section will reflect, most jurisdictions reject these theories on the outdated belief that Bradshaw is still controlling.
Plaintiffs may try to hold universities liable under a number of negligence theories. The first theory holds or posits simply that a university has a general duty to its students based on their relationship. The second theory is the uncommon theory of social policy. The university may also be held liable on the basis of social host liability if the plaintiff’s injury was caused by a fraternity member who became intoxicated on university property. Third, the plaintiff may recover based on the duty of the university as landowner to those on its premise, known as premises liability.
When analyzing university liability, courts are faced with the difficulty of defining the legal relationship between the student and the university. Courts must balance the tension between two distinct doctrines that surround the liability of universities. Courts grapple with balancing the demise of in loco parentis and a general notion of social policy and fairness, which requires more than de facto immunity. Courts are reluctant to reject the theory expounded in Bradshaw that colleges are for educational purposes and are not insurers of the students safety.
This theory does not reflect the current state of university/student [*746] relationships. Courts cannot be blind to the fact that there is more to the university/student relationship than education. n57 Students both living on and off campus are subject to all the rules and regulations that the college imposes on its students. n58 The university/student relationship is such that it should include a duty of reasonable care to protect the student from foreseeable, dangerous or negligent acts of third persons.
Although the doctrine of in loco parentis has been rejected, there are a few instances where a court has found a special relationship between the university and its students. n59 The landmark case in this area is Furek v. University of Delaware, n60 which is examined in detail below. Unfortunately, courts are reluctant to follow the reasoning in Furek. Other courts continually find that there is no duty for the college to protect students injured by fraternity members. Some courts rely on the theory that a university does not have a duty to supervise student activities n61 even though it sanctions such activities. n62 Fortunately, other courts have concluded that because of the special relationship between the student and the university, the university must use reasonable care to prevent foreseeable injury from third persons. n63
Furek is the first major case to hold a university liable for an injury to a student caused by a third party. The court in Furek focused on the liability theories found in the Restatement (Second) of Torts § 323 and on common law clearly rejecting Bradshaw and its progeny. The Restatement addresses the duty owed by “one who assumes direct responsibility for the safety of another through the rendering of services in the area of protection.” n64 The university maintained that the “demise of the doctrine of in loco parentis had dispelled the notion that any special relationship exist between the university and its student body upon which to posit any duty to protect students from activities of their fellow students.” n65 The Delaware Supreme Court rejected this argument and recognized a legal duty for the university n66 to use reasonable care to protect students against the dangerous acts of third parties. n67
During the fraternity initiation, Jeffrey Furek, a pledge of Sigma Phi Epsilon, n68 was accidentally burned by oven cleaner. n69 The University took active measures to prevent hazing, which included statements in the Student Guide advising students that they could be expelled for hazing. The Dean of Students also warned fraternities about the repercussions of hazing. n70Despite these public pronouncements and warnings concerning hazing, hazing still occurred and the University was aware of it. n71 Furek sued the University alleging that it was negligent in failing to control the dangerous acts of its members. n72 The jury returned a verdict against the [*748] University and Donchez, the fraternity member who hazed Furek. The trial court granted University of Delaware’s motion for judgment n.o.v. n73
In granting the motion for judgment n.o.v., the trial judge concluded that there was no support for the argument that Restatement (Second) of Torts § 324(A), titled “Liability to Third Person for Negligent Performance of Undertaking,” should be applied in this case. n74 The trial judge concluded that since the “evidence did not demonstrate that Furek or any fraternity pledge ‘relied on the University for his own safety, nor believed that the University had undertaken a duty of protection in lieu of the [the fraternity]’,” n75 the University should not be held liable for Furek’s injuries.
The Delaware Supreme Court began its analysis by examining the student/university relationship. “The university-student relationship is certainly unique. While its primary function is to foster intellectual development through an academic curriculum, the institution is involved in all aspects of student life. . . . [T]he modern university provides a setting in which every aspect of student life is, to some degree, university guided.” n76The court then clearly rejected Bradshaw and its line of cases stating, that “no legal or other authority is cited for the assertion that supervision of potentially dangerous student activities would create an inhospitable environment or would be largely inconsistent with the objectives of college education.” n77More importantly, the Furek court recognized the benefits of holding the University responsible in these situations. “It seems equally reasonable to conclude that university supervision of potentially dangerous student activities is not fundamentally at odds with the nature of the parties’ relationship, particularly if such supervision advances the health and safety of at least some students.” n78
[*749] The court concluded that there was sufficient evidence to hold the university liable under the common law negligence principle that the University had a duty of reasonable care to protect Furek from the foreseeable acts of dangerous third parties. n79 The court went on to state “[w]hen there is direct university involvement in, and knowledge of certain dangerous practices of its students, the university cannot abandon its residual duty of control.” n80
Even if a court accepts the analysis in Furek, a general allegation that a university owes a duty to its students due to the regulation of certain conduct will not suffice to establish liability. The university must have sought to control the activity that caused the alleged injury. General allegations will not give a student a reasonable expectation of protection. n81 In addition, the university must be aware that the activity causing the injury occurred on campus.