Important Decision in Delaware Case

Tim Burke, Manley Burke, tburke@manleyburke.com

“The sad and inescapable truth is that Ethan, and only Ethan, was responsible for his own death.”¹

Those words by Judge Ferris W. Warden summarized his decision granting summary judgment in favor of all of the remaining defendants in the case, including the Alpha Epsilon Phi sorority and its chapter at the University of Delaware.  Other defendants granted summary judgment in the same decision included the University of Delaware, the venue at which the party took place, the caterer, and the owner of that property.

Ethan Connolly, 19 years old, attended an Alpha Epsilon Phi “Crush” party, arriving at the venue, as everyone else did, on one of the buses provided by the sorority.  The facts described in the court’s 39-page decision, with 154 footnotes, indicate that he had “pre-gamed,” apparently consuming a large quantity of alcohol before ever getting on the bus.  The sorority policed the bus to ensure no alcohol was present there.  At the venue, only those of age were provided with wristbands, enabling them to obtain alcohol, and both the sorority and staff at the venue took steps to ensure that only those of age were able to drink at the event.

Sometime before the event ended, Connolly left the party.  The court described what happened next this way:

“Ethan was killed when he walked in front of a pick-up truck.  It was 12:31 a.m.  It was dark.  Ethan was crossing northbound Delaware Rt. 896 south of Newark.  He was not crossing at the crosswalk with lighted pedestrian crossing signals approximately 90 feet from where he was struck.  He was not wearing any reflective clothing.  Nor was he carrying a flashlight.  Most significantly, Ethan was grossly impaired due to acute alcohol intoxication.  At autopsy, he had blood alcohol concentrations of 0.232 g/dl (femoral blood), 0.227 g/dl (vitreous humor) and 0.304 g/dl (urine).  He tested positive for marijuana.”

The court began its decision, demonstrating significant sympathy for the plaintiffs, who were Ethan’s parents, stating “It falls to the court to perform the unhappy task of bringing more bad news to people who have had far too much of that in recent years.”  But the court’s sympathy did not change the outcome.

Carefully examining the claims against each of the remaining defendants, the court pointed out that there was little evidence, if any, that Ethan consumed alcohol at the event.  The facts were unclear as to how long Ethan was at the party, if he drank there, and if he was visibly intoxicated at the party.  As the court put it:

“In short, the most the Connolly’s arguably can be said to have established as far as a factual record is that Ethan went to the crush party on a bus provided by the sorority, went inside the banquet center, consumed an unknown amount of alcohol procured by unknown means and left some time before the party ended.  In contrast, a strong argument can be made that the Connollys have not established even that much since those facts are merely lawyers’ representations about what potential witnesses would say.”

In short, there was no evidence provided either by sworn deposition testimony or affidavits supporting what Connollys’ attorney said in their argument.  The court, however, accepted as true the facts claimed by those attorneys for the purpose of deciding the motions for summary judgment.

As to all the defendants, the court dismissed the alcohol-related claims, finding them to be barred by Delaware law regarding dram shops and social host immunity.

Specifically, with regard to the sorority, the court said it had assumed the duty of providing safe transportation to and from the event.  As the court put it, “the reason the sorority provided transportation is obvious.  It did not want impaired attendees (including Ethan) driving to and from the event, which was beyond reasonable walking distance from campus, thereby endangering themselves and others.”  Having recognized that the sorority had accepted a duty, however, the court was clear in saying the sorority did not breach that duty.

“It was Ethan’s premature and volitional departure from the party that prevented him from taking advantage of the transportation services that the sorority provided.  No sorority member did anything that increased the risk of harm to Ethan or prevented him from taking advantage of the transportation service that defined the responsibility for Ethan’s safety assumed by the sorority.  The court simply does not accept, nor find any warrant for, the Connollys’ contention that the duty the sorority assumed extended to preventing Ethan from leaving the banquet center, ultimately perhaps to the extent of restraining him if necessary.”

The court goes on at some length to describe all of the actions for which Ethan Connolly was personally responsible, making it crystal clear that it was Ethan’s own conduct that was the proximate cause of his death.

Dave Westol, a nationally known expert in fraternity conduct matters, served as an expert witness in this case for Alpha Epsilon Phi.  He reviewed the facts, issued a report that was part of the record and was prepared to testify at trial had the case gone forward.  He states:

As sad as Ethan’s death was, the chapter had taken all reasonable steps to ensure the event was conducted safely.

The undergraduate women were very intentional in terms of the steps that they took, such as requiring all members and guests who attended the event to ride on one of the buses to the venue, having members sign their names as they boarded, using a guest list and checking off names of guests on each bus as they boarded, assigning officers to help on the buses and as “floaters” at the event to maintain order, confiscating any alcohol on buses that members or guests may have brought with them onto a bus and assisting the staff of the third party venue.  The entire executive council of the chapter also remained behind and thoroughly checked the venue before they departed back to campus on the last bus.

The lesson here is that when a chapter does things the right way, the law will generally protect it against claims on behalf of an individual who does not.

1  Connolly v. Theta Chi Fraternity, Inc., et al., C.A. No. N14C-08-006FWW, Superior Court, State of Delaware.  Memorandum Opinion and Order issued February 28, 2018.  Note, Theta Chi was among the defendants dismissed earlier.