UNITED STATES COURT OF APPEALS RULES IN FAVOR OF LAMBDA CHI ALPHA, HOUSE CORPORATION AND ADVISOR

Richard Charlton, The Winchester Law Firm, rcharlton@winchesterlawfirm.com

A federal appellate court has recognized that a national fraternity (Lambda Chi Alpha), a house corporation, an alumni advisor and a chapter do not have any tort liability for the actions of a chapter member who becomes intoxicated on his own alcohol.  This case involved the typical relationship between a national fraternity and a chapter located many miles away; and for a local house corporation which served as a landlord that owned the chapter house and rented bedrooms to the members, and for an alumni advisor who was available for consultation and advice to the chapter members, but who had no supervision authority; and finally between other chapter members and the tort feasor, who supplied his own alcohol and who received no beverages from the Chapter.

Summary judgment was granted in the U. S. District Court in Kentucky under Kentucky law to LXA National Fraternity, the house corporation, the chapter’s alumni advisor and the chapter members and it was upheld by the 6^th Circuit Court of Appeals in Shaheen v. Yonts, Case No. 09-6033, opinion of District Judge Wilhuit, sitting by designation, filed August 31, 2010.

The underlying facts reflect purely individual conduct by Mr. Yonts, an adult student, who was under 21 years old.  He was a chapter member who drank at an apartment and at a local bar with friends prior to attending a chapter party, and then drank his own alcohol while there, before leaving in his car and running over and killing a pedestrian at 2:00 am about ¾ of a mile from the chapter house.  The chapter did not furnish any alcohol to the member and the national fraternity, the house corporation and the alumni advisor were not involved in the social event and did not know it was being held by the chapter and did not attend it.  The allegations of vicarious liability and direct liability against each Defendant were dismissed because there were no factual issues that created any duty to supervise Mr. Yonts or the function for purpose of direct negligence or to control Mr. Yonts or the chapter so as to warrant imposition of vicarious liability.

This case can be cited for the propositions that:

1. a)National Fraternity that has the right to revoke a charter and to expel members and requires chapters to submit budgets for approval and provides rules and policies for chapters’ adherence had predominantly passive participation in the chapter’s activities and therefore NO factual issue of “control” arose, as a matter of law, so as to create a jury issue on vicarious liability of the national fraternity for local negligence.  It was noted that the local chapters were required to enact their own by-laws.  This case held that there was NO basis for the imposition of VICARIOUS LIABILITY on the NATIONAL FRATERNITY for the chapter or the member’s alleged torts under those facts.
2. b)A National Fraternity that does not charge one of its employees with the responsibility of monitoring underage drinking at the local chapters did NOT voluntarily assume a duty to do so by virtue of a general policy statement regarding social welfare and alcohol and where it had no specific rules or policies dedicated to alcohol consumption, but expected the chapters to abide by federal, state and local law, without exercising any oversight in regard to those laws.  This case held that there was NO basis for the imposition of a “VOLUNTARILY ASSUMED DUTY” on a NATIONAL FRATERNITY to supervise and monitor underage drinking at the local chapters under those facts.
3. c)Without the National’s physical presence at a local chapter, the Court stated that the “imposition of a duty to supervise and or control the actions of a local chapter and its members is illogical and untenable.”  In so holding, the Court placed emphasis on the National’s “lack of direct participation in the event” and that the National Fraternity’s office was located many miles and in another state from the Chapter and “did not have the ability to monitor the day-to-day activities of its local chapters and only had the power to discipline after the fact,” quoting from cases that used such reasoning.  This case held that there was NO basis to charge a NATIONAL FRATERNITY with a DUTY TO SUPERVISE or CONTROL the actions of a local chapter or a member under those facts.

If none of the individual members gave alcohol to the intoxicated participant, then there was no basis for holding any of the individual members of the chapter liable, stating that the Court’s analysis of

1. a)that issue was “the same as the analysis pertaining to the claims against LXA.”  This case held that these facts did NOT give rise to ANY DUTY on behalf of the CHAPTER MEMBERS to monitor or supervise another’s drinking and that there was NO basis to impose VICARIOUS LIABILITY.  (This holding does not leap out of the opinion but is implicit by the Court’s reference to its analysis of the National’s liability in reaching its conclusion that the chapter members were not liable.  The Court did not address the fact that the other chapter members were physically present, so the conclusion appears to be that the Court based its decision on no vicarious liability on the lack of an employment or master-servant relationship between the chapter members and the tort feasor and the lack of any special relationship between the chapter members and the adult tort feasor whereby such a duty could be imposed to protect third parties from the tort feasor.)
2. b)A house corporation that owns and leases rooms at the premises where the party occurred to chapter members, but “had no presence at the subject party” and had “no requirement for it to be present at social functions” and “did not provide or otherwise furnish alcohol for it” and was not “even aware of the party” did NOT present enough evidence of a DUTY on the house corporation to control the day-to-day operations of the chapter.  The Court went on to note that the power to evict the chapter did not put anything “in the record which suggests that the LXA House Corp. had the ability or the opportunity to control the actions of the fraternity members with regard to any aspect of fraternity life.”  This case held that a HOUSE CORPORATION did NOT have or assume any DUTY to SUPERVISE or CONTROL and did NOT have VICARIOUS LIABILITY for the chapter’s conduct under those facts.
3. c)The chapter advisor who did not have any disciplinary authority and who had not been given responsibility for the chapter by the National and who served as the “chief judicial officer for the chapter” who sat as “judge” at the trials of local members facing formal charges and who gave advice to the chapter was only in an “advisory position, he did not occupy a supervisory position”, which was “a distinction which is dispositive in this case.”  The court also noted that the advisor was not present at the party, did not furnish alcohol at it and there was “no evidence that he was even aware of this specific gathering.”  This case held that the CHAPTER ADVISOR who only advised and who did NOT ASSUME or was NOT GIVEN A DUTY to SUPERVISE was not liable for the chapter’s conduct under those facts.

This opinion agrees that a duty should not be imposed in the typical fraternity situation where there is no practical or realistic opportunity to alter the outcome merely because these Defendants had a fraternal relationship with the tort feasor.  The Court analyzes the relationship of each Defendant with the Chapter and/or the tort feasor.  This case directly supports the risk management principles of a National Fraternity which does not and cannot, as a practical matter, get involved in the day-to-day oversight or monitoring of any chapter or members, as long as the National expects its chapters to obey the law and not run afoul of sensible rules, regulations or standards and enforces known violations and does not actively participate in local activities, but still conducts educational seminars and disseminates educational materials and retains the right to revoke a charter for violations discovered “after the fact.”  The Court characterized such a relationship as “passive” and insufficient to create a right of control or a duty to oversee local conduct.

This case follows Kentucky’s favorable precedent in Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 SW3d 840 (Ky 2005), which declined to impose “an affirmative duty or supervision and control” on a national fraternal organization whose only evidence of control was the ability to revoke a local charter.  Carneyhan recognized, as does Shaheen, that, as a practical matter, a national fraternal organization that is located many miles away without an employee on site cannot begin to effectively supervise and control the day-to-day activities of a local chapter, much less even know about and exercise reasonable care over such local matters.  In reality, the imposition of a so-called “duty” under such circumstances would become “strict liability” in disguise.

There is an additional reason to deny liability based on a theory of respondeat superior of the National Fraternity, the house corporation, the alumni advisor and the chapter that was not made explicit in the opinion.  The tort feasor was not an employee, servant or agent of the chapter or of the house corporation or the alumni advisor or the National Fraternity.  Therefore, he was not subject to their control or right of control that lies at the foundation of respondeat superior.  A similar analysis applies to the denial of alleged negligence based on a lack of duty of the chapter, the alumni advisor, the house corporation and the National Fraternity.  Because the tort feasor was an adult and not a ward of any of said defendants and because he was not their employee, servant or agent, there was no special relationship creating a duty to control his behavior or a duty to protect the general public from his personal conduct.

This case analyzes these strictly fraternal relationships and presents solid reasons why liability, both vicarious and direct, should not be extended as a matter of law to national fraternities, house corporations, alumni advisors and fellow chapter members.  A CAVEAT for all such Defendants is to avoid any involvement or communication which could reasonably be interpreted as creating or assuming a duty to supervise, oversee, manage or attempt to control the daily activities of a local chapter or members.

NOTE: the opinion has noted at the top “NOT RECOMMENDED FOR FULL-TEXT PUBLICATION.”  This does not prevent the case from being cited, but you should provide a copy with your briefs since the Court’s clerks may not be able to pull it up on their computers.