NATIONAL NOT LIABLE FOR HAZING IN ALABAMA

Timothy M. Burke, Manley & Burke

The Alabama Court of Civil Appeals recently acted to shield the Kappa Alpha Order, Inc. (a national fraternal organization) from a civil suit involving particularly disgusting hazing while allowing claims against the local KA Chapter and its individual members to proceed to trial.¹

Jason Jones pledged KA in the fall of 1993. Jones, who was eighteen at the time, claimed that he was subject to more than a dozen incidents of hazing including being made to dig a ditch which was filled with water, feces, urine, dinner leftovers, and vomit. He was required to get in the ditch on numerous occasions, to eat disgusting foods, be subjected to repeated paddling, go without sleep, and be kicked and pushed down stairs during his running of the “gauntlet.” The latter incident caused him to suffer  a broken right hand. Jones also had to defend himself in a fight initiated by a KA member which caused Jones to suffer a broken left hand. Ultimately, Jones was suspended from school because of failing grades.

In his lawsuit, Jones claimed that in addition to his physical injuries, he suffered from severe emotional dis-­ tress as a result of the actions of the individuals, the chapter and the national organization. He based his claims on negligence, negligent supervision, assault and battery, the tort of outrage and conspiracy.

Before the case could go to trial, the defendants filed a Motion for Summary Judgment.²

The trial court judge granted the Motion for Summary Judgment filed on behalf of all of the defendants basing that decision on the fact that Jones’ “association with the fraternity was purely voluntary” and that he “could have stopped such activity at any time by merely resigning from the organization.” Jones appealed that decision but only on the negligence claims.

While the courts of Alabama had not previously recognized hazing as a civil cause of action for damages, Alabama, like some 37 other states in the country, has a criminal provision making hazing a crime. Under Alabama law hazing is defined as “any willful action taken or situation created… which recklessly or intentionally endangers the mental or physical health of any student” and further states that “no person shall knowingly permit, encourage, aid, or assist any person committing the offensive hazing, or willfully acquiesce in the commission of such offense.”³ In reviewing the import of the Alabama hazing criminal law, the appellate court noted that it was not unusual for a violation of a criminal statute to constitute negligence. According to the court, Jones, as a college student, was in the class of persons the hazing statute was designed to protect. As a result, the court had little difficulty in concluding that Jones had stated a cause of action  based  on the doctrine of negligence per se.

The court observed that Kappa Alpha National had a strict policy against hazing and that the individual members had violated that policy. The court found that Jones had failed to present substantial evidence that the national encouraged, authorized, or ratified the hazing, and held that the national could not be liable for the intentional torts of its members. As a result, the Court of Appeals affirmed the trial court’s grant of Summary Judgment on behalf of the National.

However, the individual members and the chapter itself were not so fortunate. The court disagreed with the trial court’s finding that Jones’ membership in the fraternity was “purely voluntary” noting:

“We conclude that in today’s society numerous college students are confronted with the great pressures associated with fraternity life and compliance with the initiation requirements places the students in a position of functioning in what may be construed as a coercive environment. Thus, we believe that fair-minded persons in the exercise of impartial judgment could reasonably infer that Jones’ decision to remain a pledge, under the circumstances, was, in fact, not voluntary.”

The court concluded that the individual members of KA had a duty to refrain from violating both their own fraternity’s national policy against hazing and the Alabama criminal law prohibiting hazing. It was clearly foreseeable, according to the court, that Jones would suffer the injuries he did considering the humiliating mental and physical abuse he was subjected to. The court stated:

“We also cannot turn our head to the fact that the actions of the individual KA members could have caused more drastic life-threatening injuries.”

With regard to the chapter, the court noted that at least three of the individual KA defendants were officers of the chapter, including the president, and two who served as vice presidents/pledge trainers. Jones had submitted evidence that the latter two had arranged and witnessed many of the hazing events and that the president had knowledge of them. Thus the court concluded that Jones was at least entitled to a trial against the chapter since there was a genuine issue of material fact regarding whether “the local KA Chapter encouraged, authorized, or ratified the hazing activities alleged by Jones.” The decision, by a five-justice panel, drew a dissent from one justice who would have upheld the dismissal of all claims basing his argument on Jones’ voluntary participation in the fraternity and relying, in part, on a Supreme Court of Alabama case which quoted with approval an Indiana Appellate Court decision stating:

“College students and fraternity members are not children. Save for a very few legal exceptions, they are adult citizens ready, able, and willing to be responsible for their own actions. Colleges and fraternities are not expected to assume a role of anything akin to in loco parentis or a general insurer.”

For national fraternities this decision is both comforting and deeply disturbing. The decision suggests that a national fraternity which has a clear anti-hazing policy can protect itself against hazing lawsuits. Such protection is undoubtedly more secure when the fraternity also has a track record of enforcing its policy and not ignoring hazing incidents about which it knows or should have known. On the other hand, the facts alleged in the Jones case reemphasize that the Greek world must continue its rigorous efforts to stamp out hazing. The Court of Appeals was right. The individual defendants and local chapter were lucky, given the nature and repetition of the hazing involved in  this  case, the  injuries  were  not: more severe.   It  is not difficult to imagine this matter becoming a wrongful death case. The message must continue to go out from nationals and from chapter leaders that hazing is illegal under the law and antithetical to the very concept of fraternity that is at the heart of Greek life. We need no more tragedies to make the point.

¹ Jones v. Kappa Alpha Order, Inc., et al., 1997 WL 752540 (Ala. Civ. App.) decided December 5, 1997, case number 2960663 of the Court of Civil Appeals of Alabama.

² A Motion for Summary Judgment argues to the court that the party making the motion is entitled to judgment as a matter of law. The court can act only on a Motion for Summary Judgment if the court finds that the facts necessary to resolve the case are not in dispute and based on those facts a court cannot decide the case any way but in favor of the moving party. The Motion in this case did not include the assault and battery claims against the members.

³ Section 16-1-23, Ala. Code 1975.

⁴ Rothman v. Gamma Alpha Chapter of Pi Kappa Alpha Fraternity, 599 So.2d 9, 11 (Ala. 1992) (Quoting Campbell v. Board of Trustees, 495 N.E.2d 227, 232 (Ind. App. 1986)).