HAZING IN NEW YORK STATE LEADS TO CRIMINAL & CIVIL PENALTIES

Timothy M. Burke, Manley & Burke

A New York Appellate Court recently held that New York’s criminal statute against hazing can form the basis for a civil suit by the hazing victim against the perpetrator. Binaya Oja was a 17-year old Clarkson University freshman pledge in the Theta Chi Fraternity. The summary of facts reported by the Appellate Court to have been alleged by the plaintiffs included that defendants supplied alcohol to Oja and after defendant had “become visibly intoxicated, unable to stand and incapable of aiding or protecting himself, fraternity members took him to the third floor of the house, laid him down on a couch with a bucket underneath his head and left him unattended in an unconscious state.” Oja died as a result of having consumed excessive amounts of alcohol. The lawsuit was commenced by the administrator of his estate.¹

Two of the defendants sought to dismiss the hazing claims arguing that the criminal statute gave no right to the victim or the victim’s estate to sue merely for violation of the state’s criminal prohibition against hazing. A New York trial court had held that the plaintiff could proceed on the basis of the hazing claim and ultimately the New York Appellate Court: agreed. The Appellate Court noted that decedent was within the class of individuals intended to be protected by the statute, and that permitting a private right of action would “clearly further the legislative purpose of deterring potentially dangerous hazing activities.” The Court also pointed out that allowing a private right of action for hazing did not damage the state’s ability to enforce it alcohol laws, particularly where in a case like this one, the alleged wrongdoing went beyond simply supplying alcoholic beverages.

The Court noted that the defendants ”have not pointed to any legislative action (or inaction) that could be viewed as evincing an intent to bar recovery by adolescents who, like decedent [Oja], had been injured or killed because, as [the trial] court trenchantly observed, of their ‘willingness… to be bullied and humiliated in exchange for the social acceptance which comes from membership in a circle which, to the puerile, may seem alluring and even exalted’,” Apparently, this was a case of first impression in the State of New York and it only serves to underscore the criminal and civil penalties which may attach to hazing and the abuse and misuse of alcohol.

Previously, the Appellate Court had denied a motion to dismiss filed by the House Corporation. 3 According to the Court, plaintiffs claimed  that the House Corporation had “actual or constructive knowledge of the dangerous activities taking place on its property and [failed] to control those activities despite having ample opportunity to do so.” Plaintiff also claimed that the House Corporation knew of the “dangerous  and  criminal”  activities  that  had been”recurring on the premises” and had sufficient control to have prevented the situation which led to  Oja’s  death. These allegations were enough, in the eyes of the Appellate Court, to overcome the Motion to Dismiss. The  court denied the motion in spite of the fact that a New York Appellate Court had previously held that a house corporation did not ordinarily have a legal duty to prevent house tenants from voluntarily engaging in conduct that creates a risk of harm to themselves.

¹ Oja v. Grand Chapter of Theta Chi Fraternity, et al., New York State Appellate Division, 3rd Department, decided January 28, 1999

² In addition to the hazing claim, other claims, including traditional negligence, were made in the case which were unaffected by this ruling. Motions to dismiss are difficult to win because the court must assume the facts alleged by the plaintiff are true. The only way for the court to grant the motion is if the court finds that, as a matter of law, even assuming the facts to be true, plaintiff has not stated a legally recognizable claim. The denial of a motion to dismiss does not mean plaintiff wins, only that the case proceeds. To win, plaintiff must still prove the facts are true to a jury.

³ Oja, et al. v. Grand Chapter of Theta Chi, et al., 680 N.Y. S.2d 277; 1998 N.Y. App. Div. LEXIS 12511, decided Nov. 19, 1998.

⁴ Rothbard v. Colgate Univ., 235 A.D.2d 675, 652 N.Y.S.2d 146.