In Tennessee, Hazing Victims Might Be Liable for Their Own Injuries

 Tim Burke, Fraternal Law Partners, tburke@fraternallaw.com

DeAudric Halmon filed suit against Lane College alleging he had been severely hazed by the Phi Beta Sigma Fraternity, a recognized student organization of the College. He claimed to have been blindfolded regularly, “beaten, paddled, burned by candles, deprived of sleep . . . and compelled to drink numerous concoctions, including one containing a live goldfish.” He further alleged he had been severely injured, experiencing “nausea, vomiting, dehydration, and complete renal/kidney failure, all of which required . . . extensive hospitalization.”^[1]

         Tennessee, where Lane College is located, is a comparative negligence state. Under its system, a plaintiff found to be more than fifty percent responsible for his injuries is not entitled to any recovery. In a very unusual decision, the trial court granted summary judgment in favor of Lane College, finding that the “facts permit a reasonable person to reach only one conclusion, and that is the Plaintiff, Deaudric Halmon, was at least fifty percent or more at fault in this matter.”^[2]Halmon appealed.

         On May 29, 2020, the Court of Appeals of Tennessee reversed that decision.^[3] The Appellate Court acknowledged that the facts presented in depositions taken, which the trial court considered prior to granting summary judgement, established Halmon had knowledge there would be some hazing:

He knew he was going to be hit with a paddle during the pledge process with Phi Beta Sigma, that his signature was on a ‘Non-hazing sign-in sheet,’ that he continued in the pledge process despite hazing, and that he did not report any hazing.^[4]

         But the Court of Appeals went on to note that it was far from clear that Mr. Halmon had a complete understanding of the hazing he was going to experience. In fact, Halmon had testified that the faculty advisor had informed him that there would not be any hazing. He claimed that while he knew there would be some paddling, “it was going to be an easy process.”^[5]

In his depositions, Halmon also testified that with regard to reporting the hazing, he knew reporting was “just against the rituals” and that he was “scared” that he would get “beat up for snitching.”^[6]On this issue, the Court of Appeals noted with favor Morrison v. Kappa Alpha Psi Fraternity, in which that court observed that “youthful college students may be willing to submit to physical and psychological pain, ridicule and humiliation in exchange for social acceptance which comes with membership in a fraternity.”^[7]The Court of Appeals also noted a slide from a Lane College anti-hazing training session that said, “in 95% of the cases where students identified their experience as hazing, they did not report the events to campus officials.”^[8]

         In its decision, the Court of Appeals made it clear that the trial court was premature in granting judgment in favor of Lane College. The factual disputes in the record should have been left to a jury to resolve and to determine whether Halmon was fifty percent or more responsible for his own injuries.

         Frankly, it is hard to imagine that a jury would reach such a conclusion. But it is equally difficult to understand how the trial court reached that conclusion to begin with. After all, the laws of many states make it clear that assumption of risk by the victim of hazing is no defense at all.^[9]

         Lane College did win a small point on appeal. Part of Halmon’s argument was that the University owed him a duty of care in part because the faculty advisor for the fraternity chapter was an employee of the University, and Halmon alleged that the advisor knew of—and apparently participated in—some aspects of the hazing. The College argued that the advisor’s conduct was beyond the scope of his employment and therefore the College could not be held responsible for his conduct under the theory of respondeat superior. The Court agreed with the College, but only to the extent the College could not be held liable for any alleged intentional torts in which the faculty advisor engaged. On the other hand, the Court of Appeals made it clear that the College could be liable for the faculty advisor’s negligence in failing to intervene, stop, or report the hazing to the College.

[1]Halmon v. Lane Coll., No. W2019-01224-COA-R3-CV, 2020 WL 2790455, * 2 (Tenn. Ct. App. May 29, 2020).

[2]Id. at * 3.

[3]Id.

[4]Id. at *3.

[5]Id. at *5.

[6]Id. at *6.

[7]738 So. 2d 1105, 1115 (La. Ct. App. 1999).

[8]Halmon,2020 WL 2790455, at *8.

[9]See, e.g., Ohio Rev. Code§ 2307.44.