LIABILITY FROM ADVISOR’S FAILURE

Robert E. Manley, Manley Burke. 

A chapter advisor who fails to properly implement a national fraternity policy against hazing can be liable to a victim of hazing because he breaches his duty to the victim. This was the holding of the Superior Court of Pennsylvania (Court of Appeals) when it overturned a ruling of a trial court granting a motion for summary judgment in favor of the advisor. The court also held that a general fraternity has a duty under contract to take reasonable action to protect new members from hazing. In this case, Kappa Alpha Psi Fraternity, Inc. did not breach that duty.

Kappa Alpha Psi had chapters which had practiced a tradition of hazing. In 1949, Kappa Alpha Psi published guidelines against hazing. These were reiterated in 1988.

In 1994, a pledge died in Missouri in connection with a hazing problem. Immediately, the fraternity issued a directive imposing sanctions against those who participate in hazing or who participate in “underground pledging.”

[A proactive policy to avoid dangerous situa­tions for initiates and members of the fraternity is the safer course in the eyes of the Superior Court of Pennsylvania.]

Santana Kenner attended an information session about membership at the Beta Epsilon Chapter of Kappa Alpha Psi at the University of Pittsburgh campus in 1994. Present was Kevin Clark, the Chapter Advisor. There were two later meetings where Kenner and members of the Chapter were present. Kenner was subjected to psychological and physical hazing, along with other initiates. On March 29, 1994, Kenner was directed to go to the apartment of a chapter member. There he was struck over 200 times on the buttocks with a paddle. He was hospitalized and suffered kidney failure.

Clark did not attend the meeting at the apartment where the injuries happened.

Kenner sued Kappa Alpha Psi, Advisor Clark, and individual members of the Chapter who he alleged had participated in the hazing. The trial judge granted a motion for summary judgment finding that there was not sufficient evidence to impose liability on any of the defendants.

On appeal, the court determined that Kappa Alpha Psi had a contractional duty to protect new members from hazing, but that on the record before the court, there was no evidence that Kappa Alpha Psi breached its duty. It took proactive efforts to stop hazing. Because it did not breach the duty owed to Kenner, the trial court did not commit an error in finding for Kappa Alpha Psi. With regard to the other individual members of the Chapter, the court found that the Plaintiff had not provided sufficient evidence to show that they breached any duty to the Plaintiff.

On the other hand, the Court of Appeals found that the record before it showed that Kevin Clark, the Advisor, breached his duties. The court stated: “Although Clark knew that the moratorium prohibited a ‘membership meeting and intake process’ meeting, he nonetheless indicated to Beta Epsilon members that an ‘interest meeting’ was permissible.”

At the interest meeting, Clark did not discuss hazing or the Fraternity policies about hazing.

There was an expert witness who testified that Clark failed to inform himself, or to inform the new initiates of the proper intake process. The expert “opined that had Clark  been more engaged in the membership process, Kenner would not have sustained his injuries.”

The case was sent back to the trial court for further proceedings against Clark, the Chapter Advisor. If there is a trial, a jury will decide whether or not Clark violated his duty to the new member.

There has long been a dispute among managers of fraternities as to how proactive a fraternity’s national leadership and local advisors should be. One school of thought is “boys will be boys” and the best thing the fraternity leadership can do is leave them alone. The theory is that to the extent the leadership attempts to guide the undergraduates away from dangerous conduct, they are creating  standards that will impose liability upon themselves. There was a time when this attitude was widespread in Greek organizations and it still exists in some corners of the Greek world.

This case illustrates that a proactive policy to avoid dangerous situations for initiates and members of the fraternity is the safer course in the eyes of the Superior Court of Pennsylvania.

It is surprising that the court held that the general fraternity had a contractional obligation to protect the initiate, because the general fraternity usually does not have day-to-day management capabilities over a local chapter or its members. On the other hand, the court found that the general fraternity did not breach its duty because it took proactive measures to try to prevent hazing from happening. The proactive measures were various national guidelines to discourage people at the local level from engaging in hazardous activities. The court did not impose a duty on the general fraternity to put an overseer at every chapter event in order to prevent harm to the new member.

On the other hand, the court came down hard on the advisor who took a hands-off, look the other way approach. Had the advisor been more proactive in trying to prevent hazing, the Superior Court of Pennsylvania probably would have upheld the dismissal of Clark along with the other defendants.

Whether the argument is to a judge or to a jury, it is always better to be able to show that the responsible leaders and advisors have taken reasonable proactive steps to protect initiates and members of a chapter from reckless conduct of other members of the chapter. The “boys will be boys” approach that causes leaders to look the other way invites liability. This case illustrates that fundamental principle.