NEBRASKA UNIVERSITIES HAVE DUTY TO PROTECT STUDENTS AGAINST HAZING

Timothy M. Burke, Manley & Burke

In October, the Supreme Court of Nebraska ruled that universities may be liable for injuries caused by hazing.1 Jeffrey Knoll was a pledge of the Phi Gamma Delta (Fin) Fraternity at the University of Nebraska at Lincoln (UNL). In November of 1993, Knoll was a participant in a FIJI pledge sneak.

Knoll was forcibly tackled by active FIJls, handcuffed and taken to the Fill house. There, while handcuffed to a radiator over a period of 21 ½ hours, he was forced to consume some 15 shots of brandy and whiskey and three to six cans of beer. After he became ill and was taken to the bathroom, Knoll attempted to escape by going out the third floor bathroom window and climbing down a drain pipe. He fell from the third floor and suffered severe injuries. At the time of the injuries, the 19 year old’s blood alcohol content was .209.

[If the university had taken reasonable steps to protect students against hazing – the university may yet escape liability for Knoll’s injuries.]

Knoll filed suit against the university, which subsequently filed a motion for summary judgment. The trial court granted the university’s motion finding that the university did not have a duty to protect Knoll from injuries due to hazing. The Supreme Court of Nebraska disagreed.

The Supreme Court stated that:

“The threshold inquiry in any negligence action is   whether   the   defendant   owed   the plaintiff  a duty…. Actionable negligence cannot exist if there is no legal duty to protect the plaintiff from injury.   In  determining  whether  a duty exists, this court  employs  a  risk-utility   test, considering  (1) the magnitude of the risk; (2) the relationship of the parties; (3) the nature of the attendant risk; (4) the opportunity and ability to exercise care; (5) the foreseeability of the harm; and (6) the policy interest in the proposed solution.”

While noting that the injuries to Knoll took place on property owned by the Phi Gamma Delta House Corporation, not on university property, the Court nonetheless concluded that landowner liability applied to the university and relied on the fact that the university treats fraternity houses as student housing units which are subject to the UNL Student Code of Conduct.

The Court also found that the university had ample reason to know of potential hazing and of its dangers, despite the fact that the university had argued that the Fin active members’ conduct toward Knoll was “not criminal in nature, but, rather, … simply ‘horseplay’.” The Court found  that  in the four years preceding the injuries to Knoll, there had been two separate hazing incidents on campus, though neither involved Fin. The Court recognized however  that there were at least six separate incidents involving misconduct by FIJI members, including alcohol in the Fill house in violation of university regulations, a sexual assault on a female student in the FIJI house, and the discovery of an intoxicated and unconscious FIJI member by UNL police in the third floor restroom of the FIJI house.2 The Court concluded that “the record reflects that the university had notice that pledge sneaks could lead to illegal hazing and that, therefore, the university had an obligation as a landlord/invitee to students to take reasonable steps to protect against foreseeable acts of hazing, including student abduction on the university property and the harm that naturally flows therefrom.”

[The Court found that the university had ample reason to know of potential hazing and of its dangers, despite the fact that the university had argued that the FIJI active members’ conduct toward Knoll was “not criminal in nature, but, rather, … simply ‘horseplay’.”]

It is important to recognize that the Supreme Court’s decision only means that the case against the university must now return to the trial court for trial. In their concluding paragraph, the Supreme Court of Nebraska stated:

“We recognize that reasonable  minds could differ on the issue of whether the university breached its duty to act reasonably under the circumstances; but this issue, along with the issue of proximate causation, should be tried to the finder of facts with the benefit of the totality of the evidence presented at trial.”

In essence, what the Court was saying was that while they found as a matter of law that the University of Nebraska at Lincoln owed a duty to Knoll, there was still a question to be determined by a jury as to whether  or not that duty  was, in fact, breached. If the Court finds that the university’s duty was not breached — if the university had taken reasonable steps to protect students against hazing — the university may yet escape liability for Knoll’s injuries. A  variety  of defenses may be available to the university, including  the fact that the university had no prior knowledge of FIJl’s “pledge   sneak”   and   that   the   FIJls,  in violation of the university’s regulation, kept that activity secret  from  the university.

The decision by the Nebraska Supreme Court is in line with the decisions of the Indiana Supreme Court which were discussed in the September 1999 issue of Fraternal Law (Issue No. 69) in “Duty to Fraternity Guests Explained by Indiana Court.” This obviously is a particularly troublesome trend for universities and ought to increase the vigilance yet again with regard to hazing. It also suggests though that house corporations ought to pay attention to this issue as well. In Nebraska, if the university can be found to have landowner liability, even where they are not the landowner, but simply the regulator of land, in all likelihood, a house corporation which is the landowner and leases only to a fraternity might be found to have a duty to protect against hazing on its property.

¹  Knoll v. Board  of  Regents of University  of  Nebraska, 258 Neb. I, 601 N.W.2d 757 (1999).

²   A Stipulated Statement of Facts had been agreed to  by  the parties and filed with the Court. The Court took these facts from that stipulation.