FRATERNITY NOT RESPONSIBLE FOR VOLUNTARY UNDERAGE DRINKING

Timothy M. Burke, Manley & Burke

The Supreme Court of Iowa recently issued a well-crafted decision¹ carefully distinguishing between the liability of a fraternity and a wrongdoing member. The decision also placed at least some responsibility on a decedent for his own death when that death resulted from the voluntary excessive intake of alcohol. However, a sharply divided court suggested that chapters that ignore the illegal provision of alcohol to minor members on chapter premises may be liable in the future even though the chapter had no direct involvement in providing the alcohol and the activity took place in members’ private rooms.

Shortly after the University of Iowa opened for class in the fall of 1995, Lambda Chi Alpha conducted a Big Brother/ Little Brother ceremony at its fraternity house to welcome new associate members. Each new pledge was introduced to his “big brother.” No alcohol was served or consumed during the ceremony; however, as the court described, “it was traditional following the ceremony for each big brother to invite his new little brother to his room to toast their new relationship with drinks before adjourning to downtown taverns for more serious partying.” The beer and liquor consumed was purchased by each individual big brother, not by the fraternity and, in fact, there was a written fraternity policy prohibiting the use of chapter funds to purchase alcohol.

Matt Garofalo was invited to the room of Chad Diehl, his new big brother. Diehl had purchased beer and a bottle of Southern Comfort to share with Garofalo, even though Garofalo had not yet reached the legal  drinking  age. Garofalo drank heavily and soon showed signs that he was in no shape to go to the downtown bars. He ultimately passed out on the couch. While there was evidence that for several hours, and periodically thereafter, individuals checked on Diehl’s condition, around 11:30 a.m. the next morning it was discovered that Garofalo was dead. He had apparently vomited and died from, what the court described as “pulmonary edema caused by aspiration of his gastric contents after consuming excessive quantities of beer and hard liquor.” The medical examiner who conducted the autopsy concluded that prior to Garofalo’s death, his alcohol level may have peaked at .250 to .300 percent.

As could be expected, Garofalo’s death was investigated by his fraternity, the university and local police. The police and the university both concluded that there was no hazing involved in the event and that no one forced Garofalo to drink. In fact, the police report stated “indications regarding Garofalo’s intake of alcohol reflect a decision on his part to consume rather than a mandate from his housemates to that effect.” Other evidence indicated that at least one of the little brothers consumed no alcohol at all that evening.

Garofalo’s parents, on behalf of themselves and their son’s estate, sued the Lambda Chi Alpha Fraternity, its chapter, Diehl and another member of the fraternity. They urged that the fraternity and its chapter were liable because there exists between a fraternity and its members a “special relationship” that imposes on the fraternity a heightened duty to care for and protect their members. When members of the fraternity, in violation of state law, provided alcoholic beverages to minors like Garofalo, they were engaging in conduct that the fraternity should have reasonably foreseen as being dangerous and should have controlled. According to Garofalo’ s parents, ignoring that conduct violated the chapter’s and the fraternity’s special duty to its members.

The Iowa Supreme Court made it crystal clear that a violation of the Iowa criminal law against providing alcohol to minors could be the basis to impose civil liability on the person furnishing the alcohol to the minor if that action resulted in death or injury. In this case, it was Diehl who purchased and furnished the alcohol and neither the national fraternity nor the chapter had any involvement in that enterprise. For this reason, the claim against Diehl was not dismissed and this case will apparently go back for trial against Diehl to determine his liability and financial responsibility, if any.

With regard to the liability of the national fraternity, the court noted that “the majority of courts have held that the adoption of institutional policies prohibiting underage drinking do not establish custodial relationships between the institution and its members so as to impose a duty of protection on the part of the institution.” The court, therefore, upheld the trial court’s recognition that the fraternity “is not a custodial institution and its members, as adults, are free to make choices about their use and abuse of alcohol. No care-taking function is involved.”²

In reviewing the issue of whether or not the chapter was liable for Garofalo’s death, the court noted that in some other jurisdiction, fraternities have been held liable for the alcohol-related deaths of their members. The court reviewed a number of those cases and recognized that in all of the cases reviewed, organized hazing and the forced consumption of alcohol played critical roles. That was. not the case in Garofalo’ s death. The Court found that there was no evidence to suggest or imply that “Garofalo or any other members’ consumption was coerced or required as a condition of chapter membership. To the contrary,  the record yields proof that Garofalo was an experienced, if not sensible, drinker and that at least one of his peers chose not to drink at all.” In upholding the dismissal of the chapter, three Justices specifically stated “the ideals of fellowship espoused by the chapter are insufficient, standing alone, to create a duty on the part of the chapter to protect Garofalo from his voluntary, adult choice to drink to excess.”

While the Supreme Court unanimously upheld the Motion for Summary Judgment granted in favor of the national fraternity, the court was actually deadlocked three-to-three on the issue of whether the Motion for Summary Judgment in favor of the chapter should stand. Under Iowa law, that deadlock meant that the decision of the lower court was affirmed.³

It is important to recognize that three of the six Supreme Court judges ruling on this case would have overturned the Motion for Summary Judgment granted to the chapter and sent the case back for trial against the chapter. Those judges were clearly bothered by the fact that drinking, including drinking by underage members, was known to be traditional following the Big Brother/Little Brother Ceremony. Iowa law, the three dissenters argued, would have allowed a jury to find that the chapter, which ignored the known illegal consumption of alcohol, was responsible for the actions of its member Diehl when he supplied alcohol to a minor. The Court, the dissenters observed, had previously held that host liquor liability could be imposed on those who made alcohol available but that a host “need not personally fill his guest’s beer glasses” in order to be liable. The clear implication of the dissenters’ logic was that the chapter could be placed in the role of a host and be held liable for the consequences of illegal consumption on its premises.

The dissenting justices were particularly critical of the atmosphere in the chapter house noting “the evidence in this case is that underage drinking in the Iowa chapter house was the norm rather than the exception long  before the incident in question …. Virtually every witness testified that beer and other alcoholic beverages were made available to underage members. A reasonable inference from the record is that virtually every member was aware this was happening and virtually every member, passively, if not actively, approved the practice.” Informal bars were set up in six  separate rooms of the fraternity house and some of the chapter officers, including Diehl, who was a vice president of the chapter, purchased alcohol to supply to the underage Little Brothers.

The three dissenting justices were also impressed that the university itself had concluded that the “post ceremony activities took place in the course of the Iowa chapter’s affairs.” As a result, the university had suspended the chapter, finding that it did not exercise reasonable preventative measures to ensure compliance” with the law and underage drinking. According to the dissenters, a jury could conclude that the chapter had vicarious liability for the supplying of alcohol to minors, permitting underage drinking on its premises in clear violation of Iowa law, and negligently supervising activities in its chapter house on the night of the tragedy.

At least in Iowa, this case goes a long way in reducing the National’s exposure to liability while imposing liability directly on those individuals most responsible for a death. However, the deadlock on the issue of the chapter’s liability should send a strong warning to those chapters who engage in or permit the voluntary consumption of alcohol by its underage members on chapter property. In this case, the liability of the chapter could just as easily have gone the other way if either of the two justices on the court who did not take part in the case had instead participated and voted.

It is an unwise chapter and very short-sighted officers who would knowingly engage in or permit the conduct that occurred in this case.

¹ Garofalo v. Lambda Chi Alpha Fraternity, et al., 616 N.W.2d 647, 2000 Iowa Sup. LEXIS 149 (Sept. 7, 2000).

²  The second member of the fraternity was also granted summary judgment on the grounds that there was no evidence that he had harmed Garofalo by furnishing him alcohol, nor did he have any responsibility for Garofalo once Garofalo became drunk.

³ The denial of the chapter’s Motion for Summary  Judgment would not have necessarily meant that it was liable for Garofalo’s death. Rather, the case would have gone back to a trial at which a jury would have heard the complete evidence and would have made the decision as to whether or not the conduct of the chapter was the cause or a part of the cause of Garofalo’s death. If the jury found that it was, the jury would then have determined how much damage the chapter was liable to pay.