SPLIT IN CIRCUITS CAUSES UNCERTAINLY IN LOUISIANA

Christopher A. Wagner

In May, the Louisiana Second Circuit  Court of Appeal held the State of Louisiana and a national fraternity liable for injuries caused to a pledge during a hazing incident¹. This decision runs counter to a similar case decided by the Louisiana First Circuit Court of Appeal in 1997.² There, the court decided that a national fraternity did not have a duty to prevent injuries caused by hazing and denied liability against the national.

In December 1997, the First Circuit upheld the granting of a motion for summary judgment dismissing a claim of liability against the Phi Beta Sigma national fraternity in an incident of hazing at Southern University. In that case, Duronne Walker alleged that during the fraternity’s membership intake process, he was physically beaten and abused by several members of the fraternity while they were conducting “intake activities.” Walker alleged that the national fraternity was directly responsible for his injuries and also vicariously liable for the actions of the chapter members who physically beat and abused him. In the Walker case, Phi Beta  Sigma  national  fraternity was able to show that its membership intake process prohibited all types of hazing activities and that materials were distributed to the college chapters outlining the fraternity’s  procedures for a hazing-free initiation of members. Those procedures required each chapter to assign a trainer to be responsible for instructing the chapter at large on the membership intake process and to discuss the illegality of hazing at informational meetings held during the recruiting process. Informational materials were provided to all active and prospective members of the fraternity that required all persons who witnessed or had knowledge of a member of the fraternity conducting illegal activities to report them to the national fraternity’s executive director. In addition, Phi Beta Sigma demonstrated that it had no prior knowledge of hazing allegations at the Southern University chapter and there were no allegations that any representatives of the national fraternity were involved in any of the hazing incidents. To the contrary, the evidence showed that the hazing activities that occurred were “purposely hidden from the national fraternity.”

In granting the national fraternity’s motion for summary judgment, the Court found that Walker’s contention that the national fraternity’s actions in forbidding hazing imposed  a duty on the fraternity to prevent his injuries was without merit. The Court found that the internal structure of the national organization reflects that the “national fraternity was not in a position to control the action of its chapters on a day-to-day basis.” The court pointed out that the national fraternity is located in the District of Columbia, while the local chapter is located on Southern’s campus in Baton Rouge, Louisiana.

In the 1999 case, however, the Second Circuit Court of Appeal found that the State of Louisiana and a national fraternity were liable, in part, for the plaintiffs hazing injuries. On April 10, 1994, Kendrick Morrison, a freshman  interested in membership in the Kappa Alpha Psi fraternity at Louisiana Tech, was physically beaten by Jesse Magee, the chapter president. A jury awarded Morrison a total of $312,000.00 in general and medical damages. One-third of the responsibility for Morrison’s injuries was allocated to the State of Louisiana and the national fraternity respectively. In addition, the jury determined that the national fraternity was vicariously liable for the actions of the undergraduate chapter’s president.

On appeal, the Second Circuit upheld the jury verdict, although it reduced the general damages from $300,000.00 to $40,000.00 finding that the jury award was excessive under the facts and circumstances of the case. In addition, the Morrison Court found that the national fraternity was not liable for the chapter president’s actions. The court found that “there is no evidence that the national fraternity exercised any control over the physical details of Magee’s acts of hazing, assaulting and battering (Morrison) during a secret, unscheduled, unsanctioned meeting in Magee’s dorm room. Instead, the evidence shows that such criminal conduct is expressly forbidden by Kappa national.”

The Second Circuit distinguished its holding in Morrison from that of the First Circuit in the Walker case on factual grounds. The evidence at trial showed that Kappa Alpha  Psi had prohibited hazing since 1949. In 1988, Kappa Alpha Psi had taken disciplinary action against the Louisiana Tech chapter and several local members for hazing incidents, although the incidents were not reported to the college. In 1990, all of the historically Black Greek letter organizations adopted membership intake programs that expressly prohibited the traditional pledging process and specifically prohibited hazing. In 1993, Kappa Alpha Psi national fraternity issued Executive Order No. 2 addressing incidents of hazing at local chapters and reaffirming the fraternity’s policies outlawing hazing. In addition, the national took the initiative to establish educational programs and seminars addressing the problems associated with hazing. Based on this evidence, the  Circuit Court found that the actions of Kappa Alpha Psi national fraternity supported the jury’s conclusion that the national fraternity assumed a duty to regulate and prevent hazing at its chapters, especially given the fact that the national was on notice of the Louisiana Tech chapter’s hazing violation  in  1988.

The Court found further support for the fraternity’s liability in that Kappa Alpha Psi national did not follow  its own procedures when it failed to inform the university of the 1988 hazing incidents. Additionally, no alumni advisor was assigned to the Louisiana Tech chapter as required by the national fraternity’s policy. Although the chapter had a Louisiana Tech faculty advisor, he was not a member of the fraternity and was not invited by the local chapter to any meetings or functions. The faculty advisor testified at trial that he did not know who to contact at the  national  or  regional levels to report allegations of hazing of which the university was alerted in 1993.

Under these circumstances, the Second Circuit upheld the jury’s determination that the breach of duty by the national fraternity was a cause in fact of the harm to Morrison. According to the Court, had Kappa Alpha Psi national fraternity acted reasonably and followed its own regulations, the injury to Morrison may well have never occurred.

The State of Louisiana argued that the theory of in loco parentis had been rejected and, as such, the state and its college held no duty to Morrison. However, the Circuit Court noted that a university official in charge of student affairs was notified three times by separate individuals that the Kappa Alpha Psi chapter had been engaged in hazing activities the year prior to Morrison’s injuries and that the university failed to advise the national fraternity of these allegations. The Court further held that the college  administrator  responsible for overseeing the Greek system had been put on notice of the possibility of prior hazing activity occurring in the Kappa Alpha Psi chapter and, given the serious nature of hazing, “social policy justifies a special relationship between the university and its students” in Morrison’s situation. The Court found precedent that knowledge by a university of a known “documented history of hazing by a fraternal organization does, in fact, obligate the university to monitor such behavior.”³ The Morrison Court concluded that prior knowledge of hazing created a duty to monitor the fraternity for future hazing activity.

In distinguishing between the Morrison and Walker cases, the Morrison Court noted that Phi Beta Sigma had no prior knowledge of hazing at its Southern University chapter. Further, the Court found that Kappa Alpha Psi national fraternity undertook a duty to regulate and monitor its chapters to prevent hazing, but had “failed to act reasonably to fulfill this duty.”

The key factor in finding liability in the actions of both Kappa Alpha Psi national and the State of Louisiana  was notice. According to the Court, both entities were aware, or should have been aware, that the Louisiana Tech chapter of Kappa Alpha Psi had participated in hazing activities in the past. The incidents that occurred in 1988 of which only the national knew, and in 1993 of which only the college knew, should have placed both entities on notice. Clearly, the Morrison Court is saying that if there is knowledge of hazing, both the college and the fraternity must act and act properly.

Policies and prohibitions of a national fraternity and a university are not enough. Those policies  must  be enforced. By taking such a stance, negligence in failing to follow those policies, as in Morrison, may lead to liability.

The bottom line, at least in Louisiana, is this – adopted policies must be taken seriously and must be enforced. Knowledge of hazing must be acted upon. Failure to do so dramatically increases the potential for liability.