FROLIC INTO COURT

Robert E. Manley, Manley & Burke

Everyone enjoys having fun. When people are having fun, they sometimes let down their guard and make a careless mistake. When alcohol, automobiles or rowdy behavior are involved, people sometimes get hurt. When people get hurt, they sue.

Because of the foregoing realities, every fraternity has developed a program in risk management to help officers of chapters lead chapters through frolics in a safe and sane manner. Recently, there has been a rash of lawsuits where small groups of fraternity members have gone off on frolics of  their own. Sometimes it involves a few members of a men’s fraternity and a few members from a women’s fraternity going to a watering hole close to campus.

If alcohol is consumed at the nearby watering hole and somebody is injured or dies because of an alcohol-related accident, a lawsuit is likely to follow. In the course of investigation of the lawsuit, the plaintiffs lawyer will try to identify who is responsible. If alcohol was illegally consumed, the proprietor of the watering hole may be responsible. If the injury was caused because alcohol was consumed based  upon the proprietor’s reliance on factitious identification cards, the supplier of the identification cards may be a target of the lawsuit. Individuals who collaborated in the frolic  may be targets of the lawsuit.

[There should be clearly written guidelines  as to when a group of chapter members are acting on their own and when they are acting on behalf of the chapter.]

Recently, when plaintiffs’ lawyers have learned the three or four participants of the frolic were members of the same fraternity, they have been naming the fraternity as a defendant, claiming that the frolic was a chapter  function. None of these recent cases has yet matured to the point where the determination of liability has been made. The probabilities that the fraternity is liable are very slim, because the activity is nothing more than a group of friends who happen to be members of the same fraternity chapter going off on a frolic of their own without any official connection with the fraternity. The only connection is that three or four of the participants were members of a particular fraternity.

Even if the fraternity is not held liable, the fraternity will encounter substantial expense. Many fraternities have a high deductible, such as $100,000.00. That means  the fraternity pays the first $100,000.00 worth of claims. Sometimes the deductible includes the defense costs up to the exhaustion  of  the $100,000.00. In addition, the staff of the fraternity, the officers of the fraternity and the fraternity’s general counsel need to be involved in managing the defense. It is a substantial expense, inconvenience and embarrassment to the fraternity.

Every lawsuit, even when successfully defended,  affects the rates charged  for  liability  insurance.  The  more  claims, the higher the insurance rates.

What can fraternities do to protect against lawsuits generated by small groups of members who run off on a frolic of their own and do something foolish? There are two lines of defense:

• Fraternities should include in their ongoing educational programs, information to the members that even when they are not acting in their capacities as fraternity members at official fraternity functions, if they are identified as being affiliated with the fraternity, people will blame the fraternity for their individual conduct. The blame may be manifested through gossip, embarrassing newspaper stories or lawsuits. It is important to raise the consciousness of individual fraternity members that their conduct reflects on the fraternity and on the college. The way in which they behave will either improve or downgrade the reputation of the fraternity and the college.
• Fraternities  should  review  their  educational  materials and make sure there is a clear definition of what constitutes a fraternity  function.  The  definition should make it clear that the mere fact that three or four members of a fraternity are off on  a frolic  on their own, does not make their frolic a fraternity function.

Because there is a different culture in different chapters and on different campuses, this is something that should be addressed, not only nationally, but also locally. There should be clearly written guidelines as to when a group of chapter members are acting on their own and when they are acting on behalf of the chapter.