The Massachusetts Institute of Technology recently agreed to a $6 million settlement in order to avoid litigation over a freshman’s death by alcohol poisoning during a fraternity hazing ritual. Scott Krueger was an 18-year old freshman pledge who drank himself unconscious at an “Animal House Contest” event that was part of the initiation ritual to join the Phi Gamma Delta fraternity at MIT; Scott was admitted to a local hospital with a 0.4 blood alcohol level, and died three days later. To avoid being named as a defendant in a wrongful death lawsuit brought by Scott’s parents, MIT agreed to pay the student’s surviving family $4.75 million, and spend another $1.25 million to establish a scholarship in his name. Although MIT settled, the family is proceeding with its wrongful death lawsuit against the Phi Gamma Delta fraternity. Moreover, the MIT chapter of the fraternity was indicted by a local grand jury for hazing and manslaughter; however, no one was ever arraigned because the fraternity chapter disbanded before criminal proceedings commenced.
The MIT settlement is only the latest headline concerning a subject of growing interest and heated debate: alcohol on campus. Interest in alcohol consumption on American college and university campuses skyrocketed in 1993 when researchers from the Harvard School of Public Health released the initial results of their “College Alcohol Study.” The study initially was based on data collected from a national sample of nearly 17,600 students at 140 four-year colleges and universities across America; these institutions were resurveyed in 1997 and 1999. The results made instant news across the country as America learned that 44 percent of U.S. college students reportedly engaged in binge drinking during the two weeks prior to the survey.
Not surprisingly, the study has generated a spirited debate. Many newspaper editorials heralded the study as a scientific basis for substantiating demand that colleges and universities prohibit the sale and consumption of alcohol on campus. At the other end of the media spectrum, The Sunday New York Times Magazine published an article in its October 24, 1999, issue entitled “The Battle of the Binge.” The article’s subtitle posed the question: “Why do college students drink so stupidly?” In the article’s text, author Jack Hitt answered his own question: “Because [for college students under 21] drinking intelligently is against the law.”
Even as the mainstream media expand their coverage of “binge drinking” on American college and university campuses, courts across the country are grappling with the difficult issues of responsibility and liability for the injuries and damage that can result from such excessive alcohol consumption. Historically, state statutes and common law theories of liability embraced the concept of personal responsibility, and generally rejected notions that a lawful provider of alcoholic beverages would be responsible for a consumer’s subsequent injurious actions. In most jurisdictions, “dram shop” or similar host liability statutes expressly protect lawful providers of alcoholic beverages.
In the past decade, however, many courts have begun to entertain new theories of liability from plaintiffs arguing that purveyors and providers of alcohol have a special relationship or responsibility with regard to consumers of their products. These new theories of liability have found fertile ground in the context of binge drinking on college and university campuses.
Two recent judicial decisions demonstrate the broad range of perspectives brought to this important issue by litigants and jurists.
The Oja Case for Liability
In Oja v. Grand Chapter of Theta Chi Fraternity Inc., 680 N.Y.S.2d 277 (3d Dep’t N.Y.App. Div. 1998), a New York appellate court affirmed a lower court’s refusal to dismiss the claims brought against a college fraternity by the parents of a 17-year old college freshman who died during a hazing incident. The parents of Binaya Oja did not sue Clarkson University; rather, they sued the fraternity for the wrongful death of their son, who died as the result of aspirating his own vomit after consuming excessive amounts of alcohol at a fraternity initiation ritual. The corporate defendant owned the fraternity house where the event occurred. Both the trial and appellate courts refused to dismiss the complaint on the pleadings because the plaintiffs alleged that the defendant knew similar hazing activities were recurring on the premises. Moreover, as both the owner of the premises where the incident occurred, and the fraternity’s alumni corporation, the defendant was deemed to have had sufficient control to prevent the situation that led to the death of the plaintiffs’ son. Oja, 680 N.Y.S.2d at 278-79.
The Oja case is especially disconcerting to universities, colleges and corporate members of the “Greek System” because courts historically have concluded that the owner of a fraternity house ordinarily does not have a legal duty to affirmatively supervise those present in the house, or to prevent students or other invitees from voluntarily engaging in conduct that creates a risk of harm to themselves. Moreover, in the laws of most jurisdictions, land owners cannot be held liable for injuries sustained by a party engaged in a voluntary activity unless the land owner had knowledge of the activities and exercised a degree of supervision or control over those activities.
In the Oja case, however, the plaintiffs alleged that the fraternity’s liability arose from its actual or constructive knowledge of the dangerous activities taking place on its property, combined with the fraternity’s failure to control those activities despite having ample opportunity to do so. The New York appellate court refused to dismiss the plaintiffs’ claims because they contained allegations that the fraternity knew that alcohol was being consumed by minors on the fraternity house premises, and that similar dangerous and criminal activities had been recurring there repeatedly. As the land owner and the fraternity’s alumni corporation, the defendant was viewed by the appellate court as being capable of having sufficient control over the premises to have prevented the situation that led to the death of the plaintiffs’ son.
Cases like Oja merit serious attention by university and college officials, as well as fraternity organizations. In situations where the academic or fraternity institution is the landlord or owner of a premises that suffers from an established history of alcohol abuse and similar tortuous behavior, that landlord or owner may be held liable if:
- the premises were not reasonably safe for reasons such as open and notorious excessive consumption of alcohol by minors
- the academic or fraternity landlord/owner was negligent in not keeping the premises in a reasonably safe condition, and
- the academic or fraternity landlord/owner’s negligence in allowing the unsafe condition was a substantial factor in causing the plaintiff’s injury
- For all practical purposes, cases such as Oja represent the grafting of classic “premises liability law” into the context of the college or university environment.
The Garofalo Case Against Liability
In contrast to the New York appellate court’s decision in Oja, the Supreme Court of Iowa recently ruled that a fraternity owes no special duty to prevent voluntary excessive consumption of alcohol by underage members. In Garofalo v. Lambda Chi Alpha Fraternity, 2000 WL 1273643 (Iowa), the Iowa Supreme Court held that a fraternity was not liable as a matter of Iowa’s tort law for the death of an underage pledge, notwithstanding the fraternity’s failure to enforce its own rules against the local chapter, despite the fraternity’s knowledge that the local chapter frequently permitted the use of alcohol on the premises.
In Garofalo, a 19-year old sophomore at the University of Iowa sought to join the Lambda Chi Alpha fraternity. At a fraternity event, the pledge consumed copious quantities of beer and spirits following a ceremony at which pledges were introduced to their “big brother” mentors. When it became obvious that the pledge was intoxicated to the point of incapacity, the pledge’s big brother and another fraternity brother led the pledge to a spare couch in a room at the fraternity house, where they left the pledge sleeping. The next morning, fraternity members witnessed the pledge still sleeping on the couch when they left for classes. The pledge was discovered dead later that day, with an autopsy establishing that he had died through aspiration of his own vomit sometime that morning.
The deceased student’s parents sued the national fraternity, its local chapter, and the two fraternity brothers who left the pledge sleeping on the fraternity premises. In their claims against the national fraternity, the plaintiffs argued that a “special relationship” existed between the fraternity (both at the local and national levels) that gave rise to a heightened duty of care and protection. The parents also cited cases holding fraternities liable for injuries stemming from fraternity parties involving underage drinking in violation of laws that prohibit supplying alcohol to those under 21 years of age.
The trial court dismissed the claims against all of the defendants except for one fraternity member. On appeal, the Supreme Court of Iowa affirmed the dismissal of claims against the national and local fraternity organizations. The court relied on Section 314A of the Restatement (Second) of Torts to define the scope and legal applicability of a “special relationship.” A majority of the justices found that “special relations” were those in which the law “recognizes a duty to aid or protect persons in a relationship of ‘dependents or mutual dependents,’” such as relationships involving a common carrier and passenger, an inn keeper and guest, or a landlord and invitee. According to the Iowa Supreme Court, no special relationship existed in this case to extend liability to the fraternity organizations themselves, because the pledge’s drinking was not a part of any official ceremony. Nor was the alcohol purchased with fraternity funds; rather, the drinks were purchased by the big brothers individually. The court also noted that the pledge’s drinking was not coerced, but voluntary.
Interestingly, the court also refused to extend liability to the national fraternity organization, even as it acknowledged that defendant’s failure to enforce its own policy against underage drinking, as well as its knowledge of the local fraternity’s drinking tradition. In rejecting the plaintiffs’ claims against the national fraternity, the Garofalo court noted:
[The national fraternity] neither furnished the alcohol [the pledge] consumed nor forced him to consume it as part of any recognized fraternal activity. In analogous cases in which parents have sought to hold universities responsible for injuries resulting from the drinking habits of their adult but underage children, the majority of courts have held that the adoption of institutional policies prohibiting underage drinking do not establish custodial relationships between the institution and its students so as to impose a duty of protection on the part of the institution… [Such] a policy or code of behavior may authorize discipline by the college or, in this case, the fraternity, but it does not change the nature of their relationship.
Garofalo 2000 WL 1273643 at *6 (citations omitted).
It should be noted that three of the justices on the Iowa Supreme Court dissented from the majority’s opinion as it related specifically to the issue of the local fraternity chapter’s liability. Writing for the dissent, Iowa Justice Lewis A. Lavorato said that a genuine factual issue existed as to whether a local chapter could be held vicariously liable under Section 213 of the Restatement (Second) of Agency for its members’ knowingly allowing underage drinking in violation of Iowa law. The dissent also suggested that the fraternity’s local chapter might be held vicariously liable under Section 322 of the Restatement (Second) of Torts because the pledge’s “big brothers” failed to monitor his condition, or call for adequate medical help.
Quo Vadis?
As more and more courts are called upon to resolve disputes where plaintiffs claim that universities and colleges (or entities affiliated with them) are liable for damages resulting from binge drinking and similar improper activities, new theories of responsibility are likely to arise. In the past, state and federal courts generally have rejected the doctrine of in loco parentis at the college level. See e.g. Lloyd v. Alpha Phi Alpha Fraternity, 1999 WL 47153 (N.Y.App. Div.) at *3. citing Rothbard v. Colgate University, 652 N.Y.S.2d 146, 148 (N.Y.App. Div. 1997). These courts have ruled that colleges generally have no legal duty to shield their students from the students’ own dangerous activities, unless the academic institution has acted affirmatively to create circumstances that place the student in an unreasonably unsafe situation.
Today, however, academic institutions are facing new legal liability claims. As the MIT case demonstrates, theories of accountability that graft in concepts of “premises liability” and “special relations” suggest that colleges and universities may have an increasing duty to exercise caution in overseeing areas and activities that are under the direct control or auspices of the academic institution.
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