“GUARDIAN ANGEL” FALLS DOWN ON THE JOB

Timothy M. Burke, Manley & Burke

Under the laws of the State of  Idaho,  a sorority may  be liable to one of its members who was injured as a result of becoming intoxicated at two fraternity parties even though the fraternities which served alcohol to the  underage  student  are not liable. This unusual conclusion grows out  of  a  case  decided by the Supreme Court of Idaho on August 30, 1999.¹

In 1993, Rejena Coghlan, who had  just  completed  rush  and pledged the Alpha Phi sorority, attended  parties sponsored by three fraternities celebrating the end of rush.  Earlier  that day, at an Alpha Phi meeting, the sorority’s policy against underage drinking was discussed and Coghlan was assigned a “guardian angel.” Unfortunately for the sorority, Coghlan’s “guardian angel,” an active member of the sorority who was apparently to provide Coghlan with assistance at the upcoming parties, allegedly told Coghlan that she would not be “hanging out” with Coghlan that night.

Coghlan proceeded to attend two fraternity parties, a “Jack Daniels Birthday Party” sponsored by Sigma Alpha Epsilon and Pi Kappa Alpha, and a “50 Ways to Lose Your Liver Party” hosted by Beta Theta Pi. Two university officials at­ tended the Beta Theta Pi party. Coghlan, who says that she was served beer and hard alcohol at the two parties, became intoxicated. She was taken home by an Alpha Phi and put in bed in the third floor sleeping area of the sorority house. She was later discovered laying in some bushes below the third floor fire escape landing from which she apparently fell. As a result of the permanent injuries sustained in the fall, she filed suit against the three fraternities involved, the university, the sorority, and a series of unnamed individual defendants.

On pretrial motions for summary judgment, the trial court dismissed Coghlan’ s claims against all of the defendants. That suit was ultimately appealed to the Idaho Supreme Court. In its 18-page decision, the court upheld the dismissal of the fra­ ternities based on Idaho’s very clear dram shop law. Dram shop laws hail from ancient England and generally hold that a provider of alcohol may be liable for the injury caused by an individual who became intoxicated at the dram shop owner’s facility or for injuries to the intoxicated person if the dram shop owner continued to serve the individual past the point of intoxication. In Idaho, the statute specifically provides  that “no claim or cause of action [against a provider of alcohol] shall lie on behalf of the intoxicated person, nor on behalf of the intoxicated person’s estate or representative.”² This statutory provision was supported by a specific legislative finding “that it is not the furnishing of alcoholic beverages that is the proximate cause of injuries inflicted by intoxicated persons.”

The plaintiff’s challenge to the constitutionality of the limitations contained in the Idaho law were strongly rebuffed by the Idaho Supreme Court. The Court found that the law had a rational basis behind it in that “prohibiting persons who become intoxicated from their recovering from negligent providers of alcohol both limits dram shop and social host liability and discourages irresponsible consumption of alcohol.” Therefore, the Court found that even though disparate treatment existed between intoxicated persons and non-intoxicated persons under the Idaho Dram Shop Act, that distinction was rationally related to a legitimate governmental purpose and therefore constitutional.

Neither the university nor the sorority were as fortunate as the three fraternities. While finding that no special relationship existed between the university and its students that would create a duty requiring the university to “aid or protect adult students from the risks associated with the students’ own voluntary intoxication,” the Court found that the university may have taken upon itself a duty where one previously did not exist. The Court pointed out that “if one voluntarily undertakes to perform an act, having no prior duty to do so, the duty arises to perform the act in a non-negligent manner.”³

In a motion for summary judgment, the Court is considering facts that have not yet been proven at trial and must consider the facts to be as claimed by the party against whom the motion for summary judgment is made. In this case, Coghlan claimed that the two university employees who were present at the Beta Theta Pi party were there to supervise the party and that they knew or should have known that intoxicating beverages were being served to underage students. Coghlan further alleged that those university employees should have taken action at that time that would have prevented Coghlan from becoming intoxicated and therefore would have prevented her injuries.

Similarly, the Court said Alpha Phi did not have such a special relationship to its members that imposed a duty by law to protect its members. However, the facts claimed by Coghlan supported an argument that the sorority had also voluntarily assumed a duty. Coghlan claims that in selecting her as a pledge, inviting her to fraternity parties where the sorority knew alcohol would be served and by encouraging her to drink, the sorority had accepted a duty to supervise and protect Coghlan. Coghlan also claimed that the appointment of a “guardian angel” to supervise Coghlan created an assumed duty which was breached when the guardian angel failed to do her job. Coghlan also alleged that when an Alpha Phi member voluntarily took Coghlan back to the sorority house and put her to bed on the third floor, the sorority assumed a duty to supervise and protect her until she was no longer in danger of physical harm due to the intoxication.

As a result, while the three men’s groups were absolved from all liability, the Supreme Court of Idaho sent the claims against the university and Alpha Phi back to the trial court for trial.⁴

The message here is a mixed one. The Idaho Dram Shop Law imposed a responsibility on the individual who chose to drink. While the provider of alcohol is absolved from civil

liability, it should be pointed out that the law does not absolve from criminal liability one who provides alcohol to a minor.

The danger from this decision is the signal it sends to those fraternities and sororities which maintain programs designed to assist and protect partygoers. Whether called “guardian angels” [probably a bad name to begin with] or “big brothers” or “big sisters” or “sober driver” programs, it should be recognized that such programs bring with the, responsibilities. The programs themselves must be operated  reasonably. If a sorority announces it will have a sober driver program available on a particular night, the driver better be sober. The driver ought to also be someone who has insurance and operates a car carefully, not someone with an atrocious driving record. A big brother, who is announced as being responsible for looking after a new pledge, ought to do just that, not be the pledge’s source for illegally obtaining alcohol.

The message from this Idaho case should not be that duties should never be voluntarily assumed rather that when duties are assumed they must be exercised with reasonable diligence and care. A chapter or a national fraternity should never undertake or announce a new program unless the determination exists to back up the good intentions with the effort it takes to make a program actually work.

¹             Coghlan, et al v. Beta Theta Pi Fraternity (1999). Idaho LEXIS 108 (August 30, 1999).

²           Idaho·s Dram Shop Act can be found in the Idaho Code, Section 23.808.

³           Quoting  Featherstone  v. Allstate  Ins. Co., 125 Idaho 840, 843, 875 P.2d 937, 940 (1994) (citing Bowling v. Jack B. Parson  Cos ..  117  Idaho 1030, 1032, 793 P 2d 703, 705 (1990).)

⁴           This decision does not mean that either the university or the sorority is liable for Coghlan’s injuries,  only  that  they  may  be. Facts will  now have to be proven at trial and the sorority and university will have the opportunity to tell their sides of the story.