California Appellate Court Breaks New Ground in Fraternity Litigation

Clark Brown, North American Interfraternity Council, General Council

OVERVIEW

In California, no state appellate court had considered the issues of duty of care and vicarious liability in the fraternity context until the Court of Appeal of California issued its opinion in Barenborg v. Sigma Alpha Epsilon Fraternity in March 2019 .

Plaintiff Carson Barenborg, a 19-year-old college student, was seriously injured when she fell from a dance platform at an event at Sigma Alpha Epsilon’s (SAE) chapter at the University of Southern California (California Gamma). She sued, among others, the SAE national for negligence. The trial court granted summary judgment to SAE national. That court found SAE national “owed [Ms. Barenborg] no duty of care and was not vicariously liable for its local chapter’s actions.” Ms. Barenborg appealed to the Court of Appeal of California, which affirmed.

BACKGROUND & FACTUAL INFORMATION

For background, SAE is a large national organization that operates over 200 chapters with over 13,000 collegiate members. The court reviewed SAE national’s mission statement, national bylaws, and other governing documents such as its risk management policy guide. Like other national organizations, SAE is the chartering authority for local chapters and may grant, suspend, or revoke charters pursuant to its bylaws. The national organization can also discipline chapters and individual members, and while the national organization sets certain eligibility requirements, local chapters have autonomy to extend invitations to join within those bounds.

As with other national organizations, SAE’s risk-management policies are binding on its chapters and members. Of note in this case was SAE’s policy requiring “construction for events must be done by third-party professionals.” Before turning to the court’s analysis, it is important to highlight one provision of SAE national’s bylaws that the court highlighted: no chapter has any authority to act for or bind SAE national, and SAE national has no power to control chapters’ activities or operations.

As to California Gamma, it had a history of disciplinary violations with SAE national and with the University of Southern California (USC), involving alcohol violation, public disturbances, and sexual misconduct. When Ms. Barenborg was injured, California Gamma and other USC fraternities were having large parties. California Gamma was “serving alcohol without checking IDs,” in violation of SAE national’s policies. Ms. Barenborg arrived having already consumed “seven alcohol beverages and some cocaine.”

Ms. Barenborg’s injury occurred after she and her friends had climbed onto a six- or seven-foot tall makeshift dance platform erected by the chapter (also a violation of SAE national’s policies). From there, another person knocked Ms. Barenborg to the ground, and she suffered serious injuries.

Following the incident, SAE national took two primary disciplinary actions against the chapter: the charter was transferred to the authority of an alumni commission and the chapter’s house was mandated to become completely alcohol-free at all times. When California Gamma violated the alcohol-free mandate in 2014, the chapter was closed.

OPINION

On appeal, Ms. Barenborg asserted that the trial court’s ruling should be reversed because SAE national owed her a duty of care because (1) there was a “special relationship between SAE national and California Gamma; (2) there was a special relationship between her and SAE national. She also argued that SAE national voluntarily assumed a duty of care under the “negligent undertaking” doctrine. Finally, Ms. Barenborg asserted that SAE national should be vicariously liable for its chapter’s actions because of an agency relationship. The appellate court affirmed, holding SAE national “owed no duty to protect [Ms. Barenborg] for the actions of its local chapter and is not vicariously liable for them.”

DUTY OF CARE BASED ON A SPECIAL RELATIONSHIP

The court spent a bulk of its opinion analyzing plaintiff’s assertion that there was a special relationship between SAE national and its local chapter, California Gamma. Because of the absence of California case law on point, the court reviewed many out-of-state opinions familiar to this publication’s readers.

Under California law, there may be a duty to control “if a defendant has a special relationship with the foreseeably dangerous person that entails an ability to control that person’s conduct.” The defendant must be “in the best position to protect against the risk of harm.”  In reviewing many out-of–state fraternity decisions, the noted that two themes emerged:

Having policies governing chapter conduct and an ability to discipline a chapter “does not justify the imposition of a duty on a national fraternity;” and “National fraternities cannot monitor the day-to-day activities of a local chapter contemporaneously, and . . . absent an ability to do so, there can be no duty of control.”

Ms. Barenborg pointed to SAE national’s policies and disciplinary authorities as bases for her argument that SAE national had control over California Gamma. This argument has been rejected time and again by courts across the country, and the court held that these documents do not alter the fact that SAE national “was unable to monitor and control Cal. Gamma’s day-to-day operations, and thus it owed no duty to protect [Ms. Barenborg] from Cal. Gamma’s conduct.”

Ms. Barenborg also argued that a special relationship existed between herself and SAE national. Under California law, “a defendant may have an affirmative duty to protect the plaintiff from the conduct of a third party if the defendant has a special relationship with the plaintiff.” Ms. Barenborg argued that SAE national controlled California Gamma’s premises. SAE national did not own or posses the chapter’s house, however. The court soundly rejected Ms. Barenborg’s argument that SAE national’s risk management and event policies establish control over the premises.

The court also rejected Ms. Barenborg’s attempt to impose a duty of care upon SAE national pursuant to the negligent undertaking doctrine, under which a defendant who renders services to a person may owe a duty of care to that person or someone else. She asserted that “through its rules and policies, [SAE national] undertook a duty to provide service to Cal. Gamma, creating a duty to protect Cal. Gamma’s guests. The court found that any services SAE national might provide to its chapter “did not include direct day-to-day oversight and control” of the conduct of the chapter or its members. The court further concluded any duty undertaken by SAE national through its policies and rules, “such a duty was educational, rather than one of direct supervision and control.”

VICARIOUS LIABILITY

Finally, Ms. Barenborg argued that SAE national should be vicariously liable based on an agency relationship between national and the chapter. An agency relationship cannot exist with the principal’s ability to control the agent’s operated conducted on behalf of the principal. Again, the court found that there was not the level of control sufficient to create an agency relationship. The court also highlighted provisions from SAE national’s bylaws that state it “has no power to control the activities or operations of any Chapter Collegiate” and that chapters are “virtually independent,” in control of their own activities, and responsible for making their own arrangements as to living quarters.

In all, the court’s decision aligns California with the increasing number of states that have decided duty of care and vicarious liability issues in favor of national fraternal organizations.

DEVELOPMENTS

In recent days, Ms. Barenborg has petitioned the California Supreme Court for review of the appellate court’s decision. Ms. Barenborg asserts that the appellate court got it wrong and goes to great lengths in her petition to the California Supreme Court to say that the decision should be reviewed because “this issue goes far beyond just the facts of this one case. She points to alarming headlines and articles to assert that the opinion should be reviewed so California does not become like the “courts in most other jurisdictions [that] have allowed national fraternities to get away with avoiding liability for the conduct of their own local chapters.” SAE national will respond to the petition later this month.