Court Refuses to Find “Duty of Care” Based on “Beer Run”

Haellie Gordon,1 Fraternal Law Partners, hgordon@manleyburke.com

On September 15, 2018, a motor vehicle driven by Jacob Heil struck pedestrian Benjamin Shemwell and Shemwell’s two sons, M.G. and Marco, as they were leaving a University of Kentucky football game.^[1] While Benjamin and M.G. sustained minor injuries, 4-year-old Marco was fatally injured, passing away on September 18, 2018.^[2] Heil, a member of the Alpha Tau Omega Fraternity (ATO) at the University of Kentucky, was found guilty of operating a motor vehicle while under twenty-one years of age with a blood alcohol concentration of .02 or above.^[3]

Marco’s father filed a civil lawsuit against ATO, along with numerous other defendants, including eleven individual fraternity members.^[4] One named ATO member was Andrew Thompson. The claims against Thompson were based on the theory that he “facilitated the acquisition of large amounts of beer for a tailgating party attended by Heil on the morning of the accident.”^[5] Thompson, however, asserted that his only participation was 24-hours prior to the accident when he drove another ATO member to a liquor store and that member purchased beer for the party.^[6]Thompson admittedly contributed funds for the purchase of the alcohol and attended the party, but claimed he never met Heil, nor did he see or interact with him at the gathering.^[7] Further, the fatal collision occurred two and a half hours after he left the party.^[8] During that time, Heil attended other events where he consumed additional alcohol.^[9]

Thompson filed a motion for summary judgment in October 2022 seeking dismissal of all claims against him.^[10]Thompson argued he did not owe a duty to Marco and did not furnish alcohol to Heil, and therefore could not be held liable for negligence per se, and his conduct was not the proximate cause of Marco’s death.^[11] The trial court ultimately granted Thompson’s motion and dismissed Shemwell’s case against him, finding Thompson owed no duty of reasonable care because there was “no evidentiary basis… to conclude Thompson had the ability to control Heil.”^[12] Further, the court held that no reasonable juror could find that Thompson’s actions were the proximate cause of Marco’s death due to the two and a half hours between the tailgating party and the fatal collision.^[13] Shemwell filed a timely appeal.

On January 5, 2024, the appellate court affirmed the trial court’s dismissal, concluding there was no evidentiary basis to conclude Thompson “could control Heil or had a ‘special relationship’ with Heil.”^[14] Because Thompson did not know Heil or supervise him on the day of the accident, Thompson could not control his fellow fraternity brother’s behavior.^[15]

The appellate court emphasized that because Thompson did not hold an office within the Fraternity, nor was he involved in “any Fraternity committees that would have conferred upon him the ability to control Heil’s conduct during or after the tailgating party” or otherwise “control the conduct at the Fraternity’s social functions,” no special relationship existed that would give rise to a legal duty.^[16] Likewise, no duty was created simply by Thompson transporting the alcohol provided at the tailgating party.^[17] Further, Thompson’s alleged negligent act of picking up and transporting the alcohol was the day prior to the accident and “too remote to constitute the proximate cause” of Marco’s death.^[18] And there was “no evidence that Thompson either directly handed an alcoholic beverage to Heil or was authorized to exercise complete control over the direct dispensing of alcohol to the guests.”^[19]

In sum, and as many readers already know, while parties may not be directly involved in an incident, their ability to control an involved party, whether directly or pursuant to a special relationship, plays a significant role in evaluating whether a duty of care is owed. Although this particular case concerned potential liability of an individual member, it serves as an important reminder to fraternal organizations, as well, to remain cognizant of the ways in which seemingly innocuous conduct, oversight, or involvement could be used to impose legal obligations in unforeseen ways.

1 Haellie Gordon is a law clerk at Manley Burke and is a third-year law student at the University of Cincinnati.

[1] Shemwell v. Thompson, No. 2023-CA-0021-MR, 2024 WL 56922 (Ky. Ct. App. Jan. 5, 2024), at *2.

[2] Id.

[3] Id.

[4] Id.

[5] Id. at 3.

[6] Id.

[7] Id.

[8] Id.

[9] Id. at 3-4.

[10] Id. at 4.

[11] Id.

[12] Id. at 5.

[13] Id.

[14] Id. at 8.

[15] Id. at 8-9.

[16] Id. at 9.

[17] Id. at 10.

[18] Id.

[19] Id.