HAZING PLAGUES GREEKS

Robert Manley, Manley Burke

In a recent six-year period there were ten cases reported in the various case reporting systems involving hazing.  There were more cases, but others never reached the law books because they were settled or otherwise completed without a formal written legal opinion.

Perhaps the most celebrated case was a suit by the mother of Scott Krueger, an MIT freshman who died at the hands of hazers.¹ When he arrived at MIT, Krueger accepted a bid to pledge Phi Gamma Delta.  Chapter members organized a pledge initiation event in September 1997, known as “Animal House Night.”  The fraternity’s officers told the pledges that it was mandatory to attend and the pledges would be expected to consume a prescribed amount of alcohol to be provided by the FIJI chapter.  None of the pledges was 21 years of age.

The night of the event they were ordered to consume a minimum of two cases of beer and a fifth of whiskey by the end of the “Animal House” movie.  Krueger complied.  He was then given another fifth of rum to share with his new “Big Brother” during a fraternity ritual where the pledges were introduced to their Big Brothers.  During the ritual, Krueger complained of nausea, began to vomit, and lapsed into unconsciousness.  Two fraternity members carried him to the basement and left him on a couch.  Krueger aspirated, vomited, and stopped breathing.  Later, FIJI house members found him and called campus police, who called 911.  He was not breathing and was blue in the face when emergency medical technicians arrived.  Before their arrival, no one attempted to perform CPR.  He remained in a coma for 40 hours before being pronounced dead.

Scott Krueger’s mother, as administratrix of his estate, filed suit alleging gross negligence and recklessness against the general fraternity, individual officers of the fraternity in both their representative and individual capacities, and the house corporation, which owns and held the dormitory licence for the FIJI house.  All the defendants filed motions to dismiss, denying they owed a duty of care to Krueger.  They relied upon the fact that he was legally an adult, and died of his own voluntary and excessive consumption of alcohol.

The court made note of the fact that since the early 1900s, numerous incidents of illegal, underage, excessive drinking and dangerous behavior at the MIT FIJI house had been reported.  In the five years prior to Krueger’s death, emergency personnel had responded to the FIJI house more than a dozen times to handle complaints of “rampant alcohol consumption, disturbances of the peace, and unlawful drinking activities, and to provide medical assistance to severely intoxicated residents and guests.”

All of the motions to dismiss were denied.  The court noted that Krueger’s estate might be able to prove that the fraternity had a special relationship with Krueger sufficient to give rise to a duty of reasonable care, as well as evidence of the breach of that duty.  The court stated that the general fraternity knew of illegal, underage and excessive drinking at the FIJI house, knew that many of its chapters engaged in alcohol-related hazing, and that hazing incidents had led to injury and death.

The court found that the estate had stated a cause of action against the house corporation, which was the landlord and dormitory license holder.  The court noted that the house corporation was not simply a landlord, but also a dormitory license holder subject to the rules of the Boston Licensing Board, which requires that alcoholic beverages not be served to minors on the premises.  The court found that the officers could be sued both individually and in their representative capacity because they organized, executed and approved the “Animal House Night.”  Subsequently, the case was settled with great notoriety.

Mike McKenzie, a member of Kappa Alpha Psi Fraternity at the University of Maryland, challenged the constitutionality of the Maryland statute criminalizing hazing.  The fraternity had informed McKenzie that the hazing of pledges was not permitted and McKenzie had agreed in writing that he would not haze.  Over the course of two months, McKenzie took part in several beatings of two pledges.  McKenzie asserted that the statute was unconstitutional because it was overbroad, vague, restricts free speech, and infringes on freedom of association and assembly.²

The Maryland Court of Appeals upheld the validity of the statute which defined hazing as “doing any act or creating any situation for the purpose of initiating into a student organization that could recklessly or intentionally subject a student to the risk of serious bodily injury.”  The court found that this anti-hazing statute did not infringe upon free speech, was not vague, and did not infringe upon freedom of assembly or freedom of association.

The court noted that “Maryland has the power to regulate conduct that threatens public health, safety, morals or general welfare, even if authorities have treated such conduct as grand old traditions and turned a blind eye in the past.  Not too many years ago, some law enforcement officials might have considered lynching, date rape, and wife beating to be grand old traditions as well.”

At the University of Iowa, Matt Garofalo died after consuming alcohol following a “Big Brother” ceremony.  In the administration of their son’s estate, his parents brought a wrongful death claim against the general fraternity, the local chapter and Garofalo’s Big Brother.

The Iowa Supreme Court unanimously upheld the dismissal of the national fraternity, noting that members of the fraternity were adults and were free to make their own choices.³  The court held that Garofalo’s drinking was not part of any initiation or pledging event, though it followed a Big Brother ceremony.  The court strongly relied on the fact that he chose to drink and was not coerced.  The court was split three to three in upholding the dismissal of the local chapter.  The court said “the ideas 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.”  The claim against the Big Brother was not dismissed because the Big Brother had purchased the alcohol for Garofalo.

Donald Edwards was a prospective member of Kappa Alpha Psi Fraternity at Northern Illinois University.  Edwards alleged that he had hot wax poured on him and was slapped in the head in an off-campus apartment by representatives of the local chapter.  The general fraternity asked the court for a summary judgment exonerating it from liability on claims of battery, negligence, and Edward’s request for punitive damages.  Battery is an unlawful touching of a person.  It is an intentional wrong.

The court recognized that Kappa had banned the pledge process and all hazing activities.  The court noted, however, that Kappa submitted little evidence that the Fraternity actually enforced its policies.  The court found that it was unclear whether Kappa exercised control over the local chapter, but recognized that it had the right to visit and monitor the chapter.  Because Kappa may have had some control over its local members and their house, the court denied summary judgment on the battery claim.⁴

Similarly, the court denied summary judgment on the negligence claim.  In discussing that claim, the court noted that Kappa knew, or should have known, about the hazing and failed to act.  Kappa had previously been notified of other hazing activities in this particular chapter.  The court also found that the fact Edwards may have voluntarily participated in the hazing activity did not nullify his cause of action.  The court granted summary judgment for Kappa on the issue of gross negligence because there was no evidence of wanton disregard for the rights of others.

Jeffrey J. Knoll sued the University of Nebraska.  The University was granted summary judgment on the finding that the University owed no duty to Mr. Knoll.  The Nebraska Supreme Court reversed.⁵

Knoll was injured in a hazing incident which involved alcohol.  The incident took place during a Phi Gamma Delta “pledge sneak” at the FIJI house at the University of Nebraska.  The FIJI house is student housing and activities there are subject to the University of Nebraska Student Code of Conduct.  The Code outlaws conduct, such as hazing, that presents a danger to the health or safety of other persons.  The Code also prohibits the use of alcohol in a student-housing unit.  Knoll alleged that the University had acted negligently in failing to exercise reasonable care to protect him from the FIJI’s actions involving alcohol and hazing.

The Supreme Court applied landowner liability rules and found that the University owed a duty to Knoll.  The court reasoned that under the totality of the circumstances test, the University owed Knoll the duty to take reasonable steps to protect him from this type of foreseeable harm.  According to the court, the hazing incident was foreseeable because the University knew of two prior acts of hazing by fraternity chapters at Nebraska that did not involve FIJIs and the University was aware of several unlawful incidents involving FIJI members.  The court found that even though the hazing activities involving Knoll did not actually occur on University property, the University exercised control over the FIJI house by considering it a student-housing unit.

Santana Kenner, an initiate in Kappa Alpha Psi Fraternity, sued the general fraternity, local chapter advisor, and other fraternity officials for negligence, claiming he sustained severe physical injuries as a result of a physical hazing by fraternity members.  Following an initial “interest meeting” in February 1996, attended by, among others, the Chapter Advisor, the initiate was beaten over 200 times on his buttocks with a paddle, causing him to suffer renal failure and seizures.  He was hospitalized and required dialysis. Kenner had also been psychologically and physically hazed on two prior occasions.  The trial court held that the fraternity owed no duty to the initiate and granted summary judgment for the defendants.  Kenner appealed.⁶

Kenner asked the Pennsylvania Superior Court to find that because Kappa knew that initiates were being hazed, there was a duty on the part of Kappa to protect Kenner.  Additionally, Kenner asked the court to find that the actions and inactions of individual defendants, who took an oath to attempt to prevent hazing and took no action to do so, render them liable to Kenner.  Finally, he asked the court to find that although he was aware some paddling would occur, Kenner was severely injured and his mental state was numbed so that he could not have anticipated his injuries.  Thus, Kenner argued that his failure to walk away from the physical beatings should not be grounds to grant summary judgment against him.

In 1949, Kappa published a declaration opposing hazing in any form.  In 1989, Kappa reiterated its opposition to hazing in an executive order.  Two years later, Kappa eliminated the pledging process as a condition for membership as well as underground pledging.  In February 1994, a Kappa pledge in Missouri died as a result of hazing.  Kappa then issued a third executive order imposing sanctions for participation in hazing or underground pledging.  Kappa also instituted a national moratorium on receiving new members.  After two years, the moratorium was lifted in 1996 and Kappa instituted new policies to try to eliminate hazing.

The appellate court found that Kappa owed a duty to protect Kenner under its contractual relationship with Kenner as an initiate.  However, the court found that Kappa’s duty to Kenner was not breached.  The fraternity could have been liable if Kenner showed that the fraternity had a duty, that the fraternity breached its duty, and that breach caused damages to Kenner.  The court found no evidence that Kappa breached its duty to Kenner because it aggressively sought to stamp out hazing.  The Court reversed the summary judgment granted to the Chapter Advisor who should have been “more engaged in the membership process.”

Kendrick Morrison sued Kappa Alpha Psi Fraternity and Louisiana Tech University because he claimed he was beaten as a result of fraternity hazing, causing injuries to his neck and head.  The person doing the beating was the president of a local Kappa Alpha Psi chapter.  Morrison sued Louisiana Tech, the national fraternity, and the local chapter president.⁷

The court allocated liability equally among the national fraternity, the University and the local chapter president.  The court found that “(w)ithout the fault of Magee (chapter president), an intentional actor, there would have been no incident; however, the same would have been true had the University and Kappa National intervened to enforce their anti-hazing policy.”

The court found liability against the national fraternity for the hazing injuries because it “failed to regulate, protect against and prevent further hazing activity” at the local chapter.  Kappa had banned hazing and promulgated executive orders to address hazing incidents at local chapters.  The fraternity initially denied any knowledge of previous hazing, but eventually admitted to taking disciplinary action against the local chapter for past hazing violations.  The court found that the national failed to follow its own procedures when it determined that some of its members were hazing, because no one at the University was notified and no disciplinary actions were taken.  The court did not find that Kappa was vicariously liable for the local president’s acts.

The University also had prior knowledge of hazing incidents, thereby creating a special relationship between the University and its students that created a duty to prevent harm from hazing.  The court said, “Universities which allow and regulate fraternal organizations have a duty toward their students to act within reasonable bounds to protect against illegal and prescribed hazing.”

Sylvester Lloyd Jr. sued Alpha Phi Alpha Fraternity and Cornell University.  Lloyd alleged that the University was liable for his injuries because hazing occurred at the Alpha chapter house which is owned by the University.  The University argued that it was not liable because the plaintiff assumed the risk by participating in fraternity activities.

The court granted the University’s motion to dismiss.⁸  The court found that Cornell had no duty to control the behavior of the fraternity and that Cornell had no knowledge of  the activities.  The court found that even though Cornell monitors the fraternity, intervenes in the membership process, permits the use of its premises for fraternity activities, enables its staff to serve as faculty advisors, no duty exists.

Lloyd failed to show constructive or actual knowledge of Cornell in regard to hazing.  Furthermore, the court found that Cornell made no specific promises that could be deemed part of an implied contract.  Finally the court found, in relation to the other defendants, that even if Lloyd had assumed the risk of his injuries, this would not bar recovery for damages.  Thus if he assumed the risk, his damages would be reduced by the percentage of his culpability.

Binaya Oja was a 17-year old freshman at Clarkson University when he was invited to pledge the Theta Chi Fraternity’s chapter.  Oja died after consuming excessive amounts of alcohol during a hazing ritual.  Oja’s parents sued the Theta Chi Fraternity and several individual fraternity members.

A New York appellate court held that “despite a provision in the law insulating providers of alcoholic beverages from suit by those injured as a result of voluntary intoxication,” the defendants could be sued because sufficient facts were plead to lead a trier of fact to conclude that Oja’s intoxication was not entirely voluntary.⁹

Jason Jones, a student at Auburn University and a pledge in the Kappa Alpha Order, sued the general fraternity, the local fraternity chapter, and some of its members, alleging negligent and wanton hazing as well as assault and battery.¹⁰ Jones was subject to hazing including being forced to jump into a ditch that contained, among other things, vomit and feces.  He was also beaten.

In response to the University’s defense that Jones voluntarily assumed the risk of his injuries by continuing to attend fraternity functions where hazing took place over the course of the academic year, Jones argued that a coercive environment prevented him from voluntarily leaving the fraternity.  However, evidence showed that Jones was aware that 20 to 40 percent of the pledge class had elected to withdraw from the pledge program.  Furthermore, he covered up the hazing when questioned and he continued to participate in the hazing until Auburn suspended him from school for poor academic performance.

The court found that Jones’s participation in the hazing activities was of his own volition and rejected the argument that peer pressure stopped him from leaving.  The court found that a reasonable person could conclude that Jones voluntarily exposed himself to hazing and thus assumed the risk of hazing.  However, the decision drew a sharp dissent from two justices, as one wrote, “no one should be required to wallow in feces, vomit, urine and God only knows what else, to gain admission to any ‘club’.  The sadness is that so many are willing to do so.”

This array of cases makes it abundantly clear that hazing is a messy situation.

• It is messy because even though every fraternity has policies against hazing, it repeatedly happens.
• It is messy because individual chapters on individual campuses continue to haze.
• It is messy because it is not clear from these cases that the courts have developed an organized body of policies and rules of law to deal with hazing.
• It is messy because young people get hurt and killed by other young people who are failing to think about the consequences of their behavior.
• It is messy because hazing dehumanizes people, both perpetrators and pledges.

College students who are interested in joining groups, be they fraternities, athletic teams or certain other clubs, are at risk as long as the hazing plague continues.  The whole Greek system is at risk as long as the hazing plague continues.  Greek leaders from top to bottom constantly must work to cure the hazing plague.

¹  Krueger v. Fraternity of Phi Gamma Delta, 2001 WL 1334996 (Mass. Super. 2001)

²  McKenzie v. State, 748 A.2d 67 (Md. App. 2000 )

³  Garofalo v. Lamda Chi Alpha Fraternity, 616 N.W.2d 647 (Iowa 2000)

⁴  Edwards v. Kappa Alpha Psi Fraternity, Inc., 1999 WL 1069100 (N.D. Ill. 1999)

⁵  Knoll v. Board of the University of Nebraska, 601 N.W.2d 757 (Neb. 1999)

⁶  Kenner v. Kappa Alpha Psi Fraternity, Inc., 808 A.2d 178 (Pa. Super. 2002)

⁷  Morrison v. Kappa Alpha Psi Fraternity, 738 So.2d 1105 (La. App. 1999)

⁸  Lloyd v. Alpha Phi Alpha Fraternity, (1999 U.S. Dist. Lexis 906) (N.D. N.Y. 1999)

⁹  Oja v. Grand Chapter of Theta Chi Fraternity, Inc., 684 N.Y.S.2d 344 (N.Y. App. 1999)

¹⁰  Ex parte Barran, 730 So.2d 203 (Ala. 1998)