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Tennessee Court Holds That National Fraternity Does Not Owe a Duty to Third Parties
Coble Caperton, Rice, Amundsen and Caperton PLLC in Memphis, Tennessee and national general counsel for Alpha Tau Omega Fraternity, Inc., Mary L. Wagner Rice, Amundsen and Caperton, PLLC.
In July 2006, Jeffrey Callicutt attended a party hosted by E.J. Cox, a member of the Tennessee Zeta Rho Chapter of Alpha Tau Omega Fraternity at the University of Memphis. The party occurred at the home of Cox’s parents, over twenty miles from the University of Memphis. Cox’s party had been announced at a summer meeting at the local chapter house and was attended by approximately five fraternity members. At the time, Callicutt had been offered a bid to pledge with the Chapter, but was not a pledge or a member.
During the party, Callicutt and others consumed alcoholic beverages from a common container, which were provided by Cox. Towards the end of the party, Callicutt’s then girlfriend arrived. Members of the fraternity, who were at the party, had requested that Callicutt find a ride home and not drive himself. After staying for a few minutes, Callicutt and his girlfriend left the party. Unknown to the members, each left in separate vehicles. Callicutt proceeded to follow his girlfriend down a two-lane winding country road in Shelby County, Tennessee. While driving, Callicutt crossed the center line, veering into oncoming traffic and struck Davey and Teresa Mann, causing severe injuries. The Manns’ medical bills exceed one million dollars.
The Manns sued Callicut and his parents, Cox and his parents, who were the homeowners, Alpha Tau Omega Fraternity Inc., Tennessee Zeta Rho Chapter of Alpha Tau Omega, and several individual members of the local chapter. The Manns asserted claims of negligence and vicarious liability against the National Fraternity. Alpha Tau Omega Fraternity Inc. filed a Motion for Summary Judgment.
The trial court granted this motion and Tennessee joined the growing number of states that have held that without the ability to control the day to day operations and activities of the local chapters or its members, a national organization does not owe a legal duty of care to third parties. In its ruling, the trial court relied upon the fact that the national fraternity cannot enforce discipline until after a violation of its policies occurs. The trial court went on to find that the failure to enforce discipline following a previous, unrelated policy violation, does not create a duty in a separate and subsequent case. The trial court also held that any amendment to the complaint to allege an agency relationship between ATO national and the local chapter would be futile due to the lack of control.
The trial court relied heavily upon Pingeton v. Erhartic, No.991407, 2001 WL 292992, at *3 (Mass. Super. Ct. Feb 5, 2001), which held that, based upon its lack of control over the local chapter, Alpha Tau Omega Fraternity Inc. did not owe a legal duty to the Plaintiffs. In Pingeton, the undisputed facts showed that ATO national headquarters was located in Indiana, while the chapter at issue was in Worchester, Massachusetts; that ATO national representatives only visit the chapter once or twice per year; ATO national was unaware of the drinking on the date in question; and ATO national did not have any interest in the house where the incident occurred. The Pingeton Court also recognized that ATO had alcohol polices that its local chapters were expected to abide by, but that ATO representatives could not be present at every social event to ensure compliance. Moreover, the Pingeton Court found that ATO could only enforce discipline after a violation of its policies due to its absence from the day to day activities of the chapter. Based upon these factors, the Pingeton Court declined to impose a duty on the national fraternity. Notably, despite the existence of questions of fact as to whether the fraternity or its members provided the alcohol, the Pingeton Court explicitly held that such a fact was immaterial to whether a duty would be imposed on the national fraternity.
For the same reasons as the Pingeton Court, the court in the Mann case and others are finding that national organizations do not owe a duty of care to third parties. Due to their lack of day to day control and supervision, national fraternal organizations do not have a special relationship with local chapters or members that would create such a duty. See e.g. Shaheen v. Yonts, 394 Fed. App’x 224 (6th Cir. Aug. 31, 2010)(no duty based upon no ability to control and public policy analysis); Grand Aerie Fraternal Order of Eagles v. Carneyhan et al, 169 S.W.3d 840 (Ky. 2005)(no duty based upon no ability to control and excessive burden such duty would create); Walker v. Phi Beta Sigma, 706 So.2d 525 (La. Ct. App. 1997)(no duty owed based upon no ability to control); and Alumni Assoc. v. Sullivan, 572 A.2d 1209 (Pa. 1990)(no duty based upon no ability to monitor or control).
The key factor in all of the cases ruling in favor of a national fraternal organization is the lack of day to day control and supervision by the national organization over the operation and activities of its local chapters and members. Courts have recognized that the national fraternal organizations adopt bylaws and policies which they expect their chapters and members to abide. However, as long as the national fraternity is at such a distance and without staff so as to prohibit daily supervision and allow for discipline only after a violation, courts have declined to hold the national fraternal organization liable. The role of a national fraternal organization should be predominately passive in its supervision and involvement in the daily activities of local chapters. This will allow the national organization to continue its principles as a fraternal organization founded to encourage friendship, brotherhood, education and service to the community, and to not become a paternal organization required to exercise daily supervision and control over its local chapters and members.