GOOD NEWS FOR HOUSE CORPORATIONS

Timothy M. Burke, Manley & Burke

Two recent cases underscore the limits on how far courts will go in placing the blame for and financial consequences of a tragedy on fraternities or the colleges with which they are associated.

Jason Rothbard, a member of the Beta Theta Pi Chapter at Colgate University, lived in the chapter house in a room with a window above the portico over the front entrance. He was found early one morning lying near the entrance to the house unconscious and bleeding profusely after apparently falling two stories from the roof. Tests showed his blood-alcohol level was 0.18 percent.

While Rothbard has no memory of the fall, his lawsuit¹ against both Colgate and the fraternity house corporation sought to impose liability on the university because of the university’s failure to control the conduct of students in fraternity houses, including the plaintiff himself. Rothbard argued that the University’s  handbook  asserted  the ability of the University to control the behavior of students in fraternity houses. Though the University handbook clearly provided that roofs and porticos are off-limits to all students and that no one under the age of twenty-one shall be served or consume alcohol, Rothbard argued that the University knew or should have known that these provisions were routinely violated in fraternity houses.

In dealing with the claims against the University, the court, relying on prior New York cases, reaffirmed that colleges generally have no legal duty to shield their students from the dangerous conduct of other students. Therefore, according to the court, the college had “no legal duty to shield their students from their own dangerous activity which creates a risk of harm to themselves.”

The court, New York’s highest, took note that “at the time of his injury, plaintiff was not a young child in need of constant and dose supervision; he was an adult, responsible for his own conduct.” On that basis, the court found that neither the college nor the house corporation had a legal duty to affirmative!y supervise the plaintiff in order to prevent him from engaging in conduct that created a risk of harm to himself.²

Just weeks after the Rothbard decision, the Court of Appeals of the State of lndiana³ relieved another  entity quite similar to a fraternity house corporation from liability for a sexual assault committed by one house resident o another. The Evans Scholars Foundation, an arm of the Western Golf Association, maintained a house at Purdue University for students in the Evans Scholars Program (scholarships awarded to former golf caddies).

L.W., the plaintiff, had become “very intoxicated” after drinking at a local college bar. She was taken back to her room by several of her friends and left on her bed, fully clothed. Another resident of the house entered her unlocked room and raped her while she was unconscious.

[The college had “no legal duty to shield their students from their own dangerous activity which creates a risk of harm to themselves.”]

The court rejected the argument made by the victim that the house owner should be liable because what happened to her was reasonably foreseeable. The court ruled that the house owner had not undertaken to guarantee the safety of its residents and emphasized that in order for there to be liability, the house owner “must have been alerted to prior actions by the wrongdoer” which would warn of a likelihood of future harm. In this case, the perpetrator had no history suggesting that he would engage in rape. As the court said “a landlord is not required to police the activities of the tenants unless there is something that should alert the landlord to the necessity.” Plaintiff tried to argue that the house owner was obligated to provide a house mother. The court dismissed that claim by reaffirming language adopted ten years earlier.

“College students and fraternity members are not children. Save for a very few legal exceptions, they are adult citizens, ready, able, and willing to be responsible for their own actions. Colleges and fraternities are not expected to assume a role anything akin to in loco parentis or a general insurer.”

Both the Rothbard and L.W  cases grew out of tragedies. In Rothbard, the reckless act of the plaintiff was directly responsible for his own injuries. In L.W., the plaintiff was a victim of criminal conduct by her rapist. Without excusing unsafe conditions or criminal conduct by a third party, the good news in these two cases is that  the  courts recognized that responsibility, in the first instance, should be placed on the principal wrongdoers involved. In reaffirming that college students are adults, who make their own decisions and must bear the  consequences  of  those  decisions,  the  courts of New York and Indiana may have provided another argument for fraternities and sororities to use in defending themselves.

[In reaffirming that college students are adults, who make their own decisions and must bear the consequences of those decisions, the courts of New York and Indiana may have provided another argument for fraternities and sororities to use in defending themselves.]

These decisions provide no help where a chapter has ignored the law with regard to alcohol, ignored an unsafe situation in the house, or deliberately assisted or looked the other way while alcohol was being provided to those who are underage or drugs were being sold in the house. The theory of these cases though, may be of significant assistance in defending cases where the involvement of the chapter, fraternity, or house corporation was only tangentially related to the injury.

¹ Rothbard v. Colgate University, 652, N.Y.S.2d 146 (Jan. 9, 1997).

² The court did not entirely relieve the house corporation of potential liability. Rather, it found that the absence of window stops which might have prevented the plaintiff from going in and out of the window raised a question for a jury to resolve as to whether or not that absence was a breach of the  owner’s duty to maintain  the premises in a reasonably safe condition.

³ L.W. v. Western Golf Association, 675 N.E.2d 760 (January 29, 1997).

⁴ Campbell v. Wabash College, 495 N.E2d 227 (1986).