ALABAMA SHIFTS RISK OF HAZING TO PLEDGE

Timothy M. Burke, Manley & Burke

In a surprising decision issued on December 4, 1998, the Supreme Court of Alabama held that a pledge assumes the risk of being hazed when seeking to join a fraternity and therefore has no claim against a chapter when he is injured as a result of the hazing.

As reported in the March, 1998 issue of Fraternal Law, Jason Jones had pledged the Kappa Alpha Order at the University of Alabama in the fall of 1993. He was already 18 at that time and, as the Supreme Court noted, he had reached the age of maturity. “College students and fraternity members are not children. Save for very few legal exceptions, they are adult citizens, read able and willing to be responsible for their own actions.”

[In his deposition testimony, Jones acknowledged that he did not have to allow the hazing to happen, that he could have quit at any time, but that he underwent the hazing in order “for the chance to become a member of the brother hood.”]

Jones had claimed in his suit that within two days of pledging KA, he began to be hazed. Hazing continued over the next academic year.  He testified  in  a deposition  that the hazing included having to dig a ditch and having to jump into it after it had been filled with water, urine, feces, dinner leftovers and vomit; being required to run the gauntlet; repeated paddling; being forced to eat disgusting or unpleasant foods; doing chores; and appearing regularly at 2:00 a.m. “meetings.”

According to the Supreme Court, the evidence established that despite these incidents and his knowledge that 20% to 40% of the members of his pledge class withdrew from the pledge program, Jones continued to subject himself to the hazing. In his deposition testimony, Jones acknowledged that he did not have to allow the hazing to happen, that he could have quit at any time, but that he underwent the hazing in order “for the chance to become a member of the brotherhood.”

The Supreme Court noted that Jones accidentally broke his right hand while “running the gauntlet,” suffered a bruised buttocks from one of the paddlings, was emotionally injured and “had to give up his dream of becoming a professional golfer because of his hand injuries.” It was for these injuries that Jones sought damages.

Jones’ case reached the Supreme Court of Alabama following a decision by the trial court which granted a motion for summary judgment to both the local chapter and the national,  holding  that Jones had assumed  the risk of being injured when he allowed himself to be hazed.³ The result of the trial court’s decision would have been to leave Jones with only his claims for assault and battery against certain individual  members of the chapter remaining.  As a result, Jones appealed to the Alabama Court of Appeals. That court upheld the summary judgment granted to the national fraternity, but reinstated the claims against the chapter. The Appeals Court found that the chapter could not successfully assert the defense of assumption of the risk since Jones’ decision to undergo hazing was not “purely voluntary” and was the product of “the great pressures associated with fraternity life and compliance with initiation requirements [that] places the students in a … coercive environment.”

The Supreme Court of  Alabama  disagreed.  It  noted that a plaintiff, such as Jones, who has knowledge and appreciation of a particular risk and still voluntarily exposes·himself to that risk, may be found to have assumed the risk. As an example, the Supreme Court recalled a case in which they had ruled that a worker who was injured when he slipped on ice that he knew was present on the floor, but continued working, had assumed the  risk.  So,  too,  the Court noted a passenger who got into a  car  with  a  driver that he knew had been drinking assumed the risk of accident and injury.

[The Supreme Court of Alabama noted that a plaintiff, such as Jones, who has knowledge and appreciation of a particular risk and still voluntarily exposes himself to that  risk,  may  be found to have assumed the risk.]

The Alabama Court found that Jones had knowledge and appreciation of the risk based upon his deposition testimony and the other facts presented in pretrial proceedings. The court next inquired as to whether  or  not the plaintiff had, in fact, voluntarily exposed himself to the risk. In considering that question, the court appeared to rely heavily on the fact that Jones had actively cooperated in the efforts of the KA Chapter to keep their hazing practices secret. Jones refused to cooperate with the University Administration and his own family in investigating the hazing and even apparently misled his doctor  about  the  causes of his injuries. Knowing what Jones knew, and given that the safe alternative of withdrawing from his pledgeship was open to him, the Supreme Court of Alabama found that “as a responsible adult in the eyes of the law, Jones cannot be heard to argue that peer pressure prevented him from leaving the very hazing activities, that he admits, several of his peers left.” The Court suggested that Jones had an  obligation to remove himself from harm’s way noting “even for college students, the privileges of liberty are wrapped in the obligations of responsibility.” Therefore, a majority of the Supreme Court agreed that the “Trial Court correctly determined that reasonable people  could  reach  no  conclusion other than that Jones voluntarily exposed himself to the hazing.”

Five members of the court joined in this decision. Two others, however, issued a sharp dissent with Justice Shores writing:

“I cannot condone a practice that exploits the desire ‘to be admitted to the Fraternity’ to the extent  it is exploited here.  As I understand  it, a pledge must be willing to undergo the degrading, disgusting and, no doubt, health-threatening practices to meet, again, the Fraternity’s ‘high standards of admission.’ No one should be required to wallow in feces, vomit, urine, and God knows what else, to gain admission to any ‘club.’ The sadness is that so many are willing to do so.”

While this case may be helpful to national fraternities and local chapters in avoiding liability for hazing, it should not be viewed as the reopening of a door to legitimatizing hazing. Many states have, by statute or case law, provided that the consent of the injured party to the hazing activities is not a defense in a civil hazing case.

The specific facts of this case appear to be very important to the Court in reaching its decision. The Alabama Supreme Court noted that the  injured  pledge  had numerous occasions when he could have ended the hazing by walking away from the organization or by cooperating with the University’s investigation into hazing charges. He made a conscious decision to go along with the hazing activities. The Court may have reached a very different decision if the pledge had less knowledge of  the  activities or ability to withdraw. In most hazing situations, courts will likely be reluctant to relieve from liability the individuals who disregarded their national fraternity’s policies against hazing. Here, the Alabama courts preserved  the  assault and battery claims against the chapter members who are alleged to have inflicted the hazing injuries.

Hazing is wrong. Individuals who commit hazing should take no comfort from this case. Fraternities must continue to educate their members about the evils of hazing and about the national fraternities’ policies forbidding hazing.

¹ Jason Jones v. Kappa Alpha Order, Inc., et al., Case No. 1970679, Decided December 4, 1998, 1998 Ala. LEXIS 327.

² The Court quoted Rothman v. Gamma Alpha Chapter of Pi Kappa Alpha Fraternity, 599 So.2d 9, 11 (Ala. 1991).

³ In considering motions for summary judgment, a court is required to consider the facts as presented in the manner most favorable to the party against whom the motion for summary judgment is made. If considering the facts in that light, the court finds that as a matter of law, the party seeking the motion for summary judgment is correct, then judgment is granted to them without trial.

ANOTHER ALCOHOL AND FRATERNITY-RELATED DEATH

A local coroner has ruled that Joseph Bisanz, a 19-year old Indiana University student, died as a result of asphyxia due to vomiting with an elevated level of alcohol in his blood being a contributing factor. Bisanz died on Sunday, December 13th after being found 12 hours earlier on the floor of his fraternity bedroom.

The Indianapolis Star reported that Bisanz had attended a party involving 20 to 30 members of the Pi Kappa Alpha Fraternity at the chapter house, but that the event was not sponsored by the chapter. The chapter itself was already on University probation for an alcohol violation that occurred earlier this fall. Indiana University promptly suspended Pi Kappa Alpha and has announced its intention to pursue disciplinary charges against the Fraternity and the individuals involved.