IN KANSAS – NO SOCIAL HOST LIABILITY

Matthew Prime was a 19-year old pledge of Pi Kappa Alpha Fraternity at the University of Kansas. On Pledge Dad night, Prime consumed alcohol to the point that he lost consciousness. He was taken to the hospital where he was found to have a blood alcohol concentration of .294. He ultimately recovered, having suffered no permanent injuries. Prime sued the Chapter, the House Corporation, the National Fraternity, and five individual members of the Chapter, including his Pledge Dad. The trial court dismissed the local chapter and granted summary judgment in favor of the remaining defendants. On May  31, 2002,  the Supreme Court of the State of Kansas¹ put an end to Prime’s claims once and for all, unanimously upholding the Trial Court’s decisions in favor of all defendants.

On Pledge Dad night, Prime visited six rooms in the fraternity house, asking questions to determine who his Pledge Dad was. Alcohol was available in each room. Prime conceded he was not forced to drink and was told he didn’t have to drink. The closest anyone came to encouraging him to drink, according to the court, was that in one room he was told ”if you want to drink that would  be fine because it will be the time of your life.” Prime claimed that  he perceived that there was “peer pressure” to consume alcohol that night.

In the last room, where Prime only spent five minutes, Brian Harper, who was Prime’s Pledge Dad, gave Prime a bottle of Mad Dog 20/20, the traditional gift Pledge Dads in the Chapter gave to their Pledge Sons. Prime and his Pledge Dad went downstairs to join other fraternity members and pledges in singing fraternity songs. The Pledge Dad shortly went back to his room to study for a test the following morning, but at approximately 1:00 a.m. the Pledge Dad returned to the Chapter living room and found Prime passed out. The Pledge Dad and two other fraternity members took Prime to the hospital.

The court made short work of Prime’s claims against the Chapter finding that under Kansas law the Chapter was an unincorporated association which could neither sue nor be sued. The Supreme Court of Kansas spent most of its review on analyzing the claims against the five individual defendants. The court took pains to note that there was no undue pressure brought on Prime to consume alcohol. It noted that in cases from other jurisdictions where liability was imposed on those who supplied alcohol to minors, there were strong elements of coercion “not present in this case” and relied heavily on the fact that Prime was repeatedly told he was not required to consume alcoholic beverages.

While Kansas law prohibits providing alcohol to minors, Kansas does not impose dram shop liability. Unlike in some other states, the supplier of alcohol is not liable for the damages done to the consumer of the alcohol or by the consumer of the alcohol. The court relied, in part, on its prior decision in Ling v. Jan’s Liquors, 237 Kan. 629 (1985) in which the court refused to hold Jan’s Liquors liable for an accident caused by a minor to whom it sold alcoholic beverages. The court also relied on Mills v. City of Overland Park, 251 Kan. 434 (1992). Mills, a 19-year old, had been served nine or ten shots of whiskey and four or five beers in the space of  an hour or so. He was escorted from the bar due to his conduct. He was found the next morning frozen to death in a drainage ditch behind the bar. Given those relatively recent Kansas cases in which there were severe injuries in one  and a death in the other, and yet no liability imposed on the provider of the alcoholic beverages, it is not surprising that no liability would be imposed on the individual defendants in Prime’s case.

In considering the liability of the national fraternity, the court noted that the National Fraternity oversees 200 chapters at some 200 different colleges. National had no knowledge of the plans for Pledge Dad Night and was not involved in scheduling, coordinating or directing it in any way. The court noted that some states have imposed liability on national fraternities while others do not Since Kansas does not impose liability on the supplier of alcoholic beverages to a minor, there was no legal basis for imposing liability on the fraternity member and “for the same reasons, there is no le­ gal basis for imposing liability on the national organization.” Turning to the responsibility of the House Corporation,

the court refused to buy Prime’s argument that the consumption of alcohol on the house premises and the medical expenses caused by such consumption was “caused by a condition of the real property.” Kansas law generally recognizes broad immunity for landlords and found no reason to carve out an exception in Prime’s case.

The Kansas decision should be viewed solely for what it is. It applies only to the State of Kansas. There,  it can  broadly be read as providing significant immunity from liability to chapters, house corporations, national fraternities and members for consumption of alcohol by minor members and pledges. The results of this case could very well be different in other states where dram shop social host liability is imposed. As the Kansas Supreme Court noted,  courts  in other states have reached very different results on very similar facts. The individuals who gave alcohol to Prime were violating Kansas criminal law. They could have been criminally prosecuted. Civilly, these defendants  benefited  from the fact that there was apparently no evidence that Prime was coerced into drinking. There is no doubt, too, that there was little sympathy for Prime and that the court found he had a history of consuming alcohol and had no  lasting  injuries from this incident. The Kansas decision should not be read in any way to endorse the illegal distribution of alcohol to minors, nor should it be viewed as granting immunity to those who do distribute alcohol to minors. Such conduct is criminal in all states, even if in Kansas it does not create civil liability.

¹ Prime v. Beta Gamma Chapter, et al., 2002 Kan. Lexis 301