California Court Of Appeal Holds That Sorority Members Do Not Owe A Duty In A Negligence Case Based On Their Agreement To Abide By University Risk Management Policies And Protocols

Michael Osborne, San Francisco Office of Cokinos | Young, mosborne@cokinoslaw.com

In a case of first impression in California, the California Court of Appeal has certified for publication a very recent opinion that rejects a plaintiff’s efforts to base a claim of negligence on students’ alleged failures to follow certain risk management policies and protocols adopted by the University and the University’s Greek-Life umbrella groups. 

In Hanouchian v. Steele, the Court of Appeal issued an opinion in a Los Angeles case arising from an altercation at an off-campus party hosted by several individual members of Phi Mu at California State University, Northridge (“CSUN”).^[1]As the result of the efforts of interested third parties (National Panhellenic Conference, North American Interfraternity Conference, and USA Taekwondo), the Court reversed its original order denying publication and, on June 24, 2020, issued an Order granting those parties’ requests to certify the case for publication in the Official Reports.

       In the trial court, the plaintiff in Hanouchian alleged that the University “and its fraternal organizations jointly developed rules and guidelines governing fraternity and sorority events.”^[2]Those rules require fraternities and sororities hosting an off-campus event to comply with a number of obligations relating to event registration, guest lists, the service of alcohol, security arrangements, and general compliance with “established risk management policies.”^[3]The male plaintiff, who was injured in an altercation with non-students who attended the allegedly “open party,” sued individual Phi Mu members for negligence.  To support the claim of negligence, the plaintiff alleged that the sorority members owed duties to protect the plaintiff “from foreseeable risk of harm resulting from sorority-related events and activities that violated CSUN’s fraternal organization safety protocols and risk management procedures.”^[4] 

       The individual sorority members filed demurrers^[5]to the complaint on the grounds that they did not owe the plaintiff a legal duty.  The trial court sustained the demurrers without leave to amend and granted the dismissals, finding that the members, as a matter of law, did not assume a duty to prevent the assailants’ alleged criminal acts.^[6]

       No previous appellate court in California had addressed the issue of whether a University’s risk management policies can be used to create a duty on the part of sorority or fraternity members to protect a third party. In analyzing this issue under California’s long-established rules governing when a duty will be imposed on a person (rules that are similar to many other states’ analyses of these duty issues under general common law principles), the Court of Appeal held that the members’ “agreement to be bound by the [University’s] guidelines is not a basis to impose a greater legal duty upon [the members] than our statutory or common law permits.”^[7] 

       The Court also addressed the plaintiff’s arguments, seen in many fraternity-related lawsuits across the country, that concerns about risk management issues on college campuses and the general knowledge of instances of criminal acts where risk management violations have been committed (including claims of hazing, alcohol use, and sexual assault) are insufficient to find that such criminal acts are foreseeable without evidence of actual notice or knowledge involving the event or situation in question.  In rejecting the plaintiff’s foreseeability arguments, the Court of Appeal held that the risk management policies promulgated by the University and its fraternal groups “are insufficient to establish the high degree of foreseeability required to impose the burdensome legal duty that Plaintiff proposes.”^[8]The Court held that Greek members are no different than other members of the public where a duty will be imposed based on foreseeability only if there is actual knowledge of prior similar incidents at prior similar events, or if there is actual knowledge of the wrongdoers’ violent or criminal propensities.^[9]In language that is significant when faced with allegations that a fraternity or sorority, or its members, owe a duty based on prior incidents at other events, the Court held that the defendants’ “alleged knowledge of prior incidents at other fraternity parties establishes only ‘general knowledge of the possibility of violent criminal conduct’” and “it does not suffice to make it highly foreseeable that a criminal assault would occur.”^[10] 

       Also as seen in many negligence lawsuits against fraternities and sororities, the Plaintiff also asserted that the members’ alleged “failure to abide by their own safety rules constitutes a negligent undertaking.”^[11]In analyzing the elements of a claim for negligent undertaking—here, in the context of a fraternal organization—the Court rejected the Plaintiff’s arguments and held that the facts did not establish a negligent-undertaking claim’s essential elements:  (1) the members “did not increase the risk of harm to Plaintiff by throwing an open party in violation of the safety protocols their sorority had agreed to with CSUN”; and (2)  the Plaintiff could not prove “that he actually and reasonably relied upon CSUN’s safety protocols.”^[12]

       In affirming the trial court’s granting of the dismissals, the Court ordered that the opinion was not certified for publication. Under California’s strict appellate rules, an “unpublished opinion” may not be quoted or cited or relied upon by any California judge nor by any party in other litigation.  Based on the importance of the issues decided by this Court, I was retained, on a pro bonobasis, by the National Panhellenic Conference and the North American Interfraternity Conference, to submit a request for publication. 

       Our request for publication asserted that the opinion had met two of the criteria for publication.  First, the opinion applied an existing rule of law to a different set of facts.  We pointed out that the Hanouchian opinion was following a continuum from two previous appellate opinions (University of Southern California v. Superior Court, 410 P.3d 22 (2018), and Barenborg v. Sigma Alpha Epsilon, 244 Cal. Rptr. 3d 680 (2019)), which had rejected similar duty allegations against a University (USC opinion) and against a national fraternal organization (Barenborgopinion).  As we asserted, “publication of the Hanouchian opinion is warranted so that this additional category of defendant—the members themselves—does not face liability merely because their conduct violated a third party’s risk management protocols or policies.”

       Second, we argued that the opinion involves a legal issue of continuing public interest, helping to develop California law as to the duties and liabilities of fraternal organizations and their members.  This argument relied on the recognition that such organizations should be encouraged to adopt risk management policies and procedures without fearing the imposition of civil liability, quoting from the Indiana Supreme Court in Yost v. Wabash College, 3 N.E.3d 509, 521 (Ind. 2014), “[T]he national organization . . . should be encouraged, not disincentivized, to undertake programs to promote safe and positive behavior.”

       Another interested party, USA Taekwondo, the national governing body for the Olympic sport of taekwondo, also filed a request for publication.  USA Taekwondo is a defendant and a party to an appeal currently pending before the California Supreme Court (Brown v. USA Taekwondo, review granted January 2, 2020) and involving the question of the appropriate test that a plaintiff must satisfy to establish a duty to protect participants from sexual abuse by third parties.  USA Taekwondo argued in its request for publication that the Supreme Court and the parties should be able to rely on and cite to the Hanouchianopinion.

       On June 24, 2020, the Court of Appeal granted the requests for publication and ordered the Hanouchian opinion to be published in the Official Reports.  The plaintiff in Hanouchian has until early July to file a petition for discretionary review with the Supreme Court.

       Phi Mu was not a party to the Hanouchian appeal.  By stipulation, the trial court proceedings against Phi Mu and the two assailants were stayed pending the outcome of this appeal.  Once the case is re-activated in the trial court, Phi Mu will be able to assert its defenses that the party at a private residence was not a sorority event and that, under the Barenborg opinion that we obtained last year, the national organization itself owes no duty with respect to the activities of the members or the local chapter.

       Plaintiff’s attorneys often assert that the universities’ and the IFCs’ policies and rules establish duties that support a claim for negligence against the chapters or their officers and members.  The Hanouchian Court’s analyses and holdings, now certified for publication, while involving members only, can also be used in defense of chapters and national organizations that are also alleged to have a duty based on university rules and standards.  This will help avoid the situation I faced several years ago defending a national fraternal organization in Los Angeles where the trial judge was allowing the Plaintiff to use the University of Southern California’s heightened expectations and policies with respect to fraternal organizations to impose duties that would not otherwise apply to the general public in California, such as a bystander obligation to police and to control a student’s behavior.

Michael C. Osborne is a Principal with the San Francisco Office of Cokinos | Young. 

[1]No. B291609, 2020 WL 3446862 (Cal. Ct. App. June 4, 2020).

[2]Id. at * 3.

[3]Id. at *3–4.

[4]Id. at *5–6.

[5]Demurrers are California’s version of a motion to dismiss based on a failure to state a viable cause of action.

[6]Id.at *6­­–7.

[7]Id. at *14 (emphasis in original).

[8]Id.at *15.

[9]Id. at *18.

[10]Id. at *19.

[11]Id. at *20.

[12]Id. at *22.