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By Douglas E. Fierberg, Esq.
Hazing of students pervades high schools and colleges. While the problem
has gone relatively unnoticed by the public, a 1999 study by Alfred
University indicated that seventy-nine percent of NCAA athletes were
hazed as a condition of joining a team. In a subsequent report published
by Alfred University, forty-eight percent of high school students admitted
being hazed by school groups. In addition to being widespread, hazing
can also be very dangerous. In his first of three books on the subject,
journalist Hank Nuwer reported that "every year since 1970, a
young man or woman has died during an activity related to fraternity
or sorority pledging." One tool to combat this pervasive problem
is civil litigation. This article offers practical advice about some
of the unique issues involved in civil lawsuits that arise out of hazing
incidents.
Recent widely-publicized cases provide good examples of the problem
of hazing. In the fall of 1997, two young women who were pledging a
national sorority at a Midwestern university were branded with cigarettes
as a test of their commitment to the group. In 1999, a ninth grade
wrestler in the Midwest was prodded in the rectum with a broomstick
by older members of the team. That same year, a Kentucky court entered
a judgment against a national fraternity in excess of $1 million after
its members severely beat a young student during initiation. This followed
entry of a $375,000 judgment against the same fraternity for a hazing
incident at the University of Maryland. Recently, a college freshman
in Michigan died of alcohol poisoning following an initiation ritual
during which he consumed the equivalent of twenty-seven shots of alcohol.
His death is one of several recent fatal incidents involving hazing
and the misuse of alcohol.
While there is no federal statute defining or prohibiting hazing,
forty-two states have enacted statutes criminalizing hazing. Definitions
of hazing vary from state-to-state. A good working definition is conduct
which causes or threatens to cause serious physical or psychological
injury to another as a condition of joining a team, student organization,
or other school group. The Ohio Code is particularly instructive, defining
hazing in the following terms:
[D]oing any act or coercing another, including the victim, to do any
act of initiation into any student or other organization that causes
or creates a substantial risk of causing mental or physical harm to
any person. No person shall recklessly participate in the hazing of
another. No administrator, employee, or faculty member of any primary,
secondary, or post-secondary school or of any other educational institution,
public or private, shall recklessly permit the hazing of any person.
Many statutes expressly recognize that hazing involves improper coercion
or threats. Hence, many statutes expressly bar wrongdoers from defending
their conduct on the basis of the victim's alleged consent or willing
participation. This can be a strong basis for arguing in civil litigation
that the defenses of contributory negligence or assumption of the risk
are precluded. Some statutes waive claims of sovereign immunity for
suits against state schools.
Hazing can give rise to legal claims of assault, battery, intentional
or negligent infliction of emotional distress, several other different
theories of negligence, and traditional theories of premises liability.
Many hazing rituals also involve unlawful furnishing of alcohol to
a minor and to someone who is obviously intoxicated. State dram shop
acts should be consulted since they may affect the particular claim.
Hazing often involves placing people in positions of peril in which
they must rely upon others for their safety. When those doing the hazing
do not act reasonably, and particularly when the hazing is combined
with intoxicating amounts of alcohol, serious and often fatal consequences
can result. Viewing hazing in this light, age-old common-law principles
might provide victims with a viable theory of recovery. Specifically, § 324
of the Restatement (Second) of Torts provides that:
One who, being under no duty to do so, takes charge of another who
is helpless adequately to aid or protect himself is subject to liability
to the other for any harm caused to him by:
(a) the failure of the actor to exercise reasonable care to secure
the safety of the other while within the actor's charge, or
(b) the actor's discontinuing his aid or protection, if by so doing
he leaves the other in a worse position than when the actor took charge
of him.
The legal issues in hazing cases overlap many of the issues in cases
involving school group misconduct that results in sexual assault or
other injuries. Courts are beginning to recognize the serious risks
associated with certain types of conduct by Greek groups, as reflected
in the following statement by the Supreme Court of Arizona: "We
are hard pressed to find a setting where the risk of an alcohol-related
injury is more likely than from underaged drinking at a university
fraternity party the first week of the new college year."
There are several unique bases which may give rise to a duty of care
on the part of fraternities or other student organizations.
School Safety Codes of Conduct and Related Rules
Most universities require student groups to apply for the status of "Recognized
Student Organizations" ("RSO"), or some similar designation.
As a condition for obtaining this status, the potential RSO agrees
to comply with any and all applicable safety rules of the university,
as well as local and state laws and ordinances.
The university's student safety rules set forth standards of conduct
on campus which generally prohibit hazing, restrict the use or provision
of alcohol or controlled substances, and prohibit certain types of
dangerous social events, such as "open" parties. Some university
safety rules expressly require the group to bear responsibility for
the misconduct of its members. For example, Widener University's Student
Code of Conduct provides: "[F]raternities and sororities are responsible
and will be held accountable for the actions of their members when
their behavior is defined as resulting from fraternity or sorority
conduct."
These safety rules may be helpful in establishing a general standard
of care in the state and university community. It may be argued that
the RSO voluntarily assumed these specific duties of care for the protection
of students in exchange for the benefit and privilege of operating
as an RSO. In some states, a state school's rules have the same force
and effect of a statute because the rules are enacted under authority
directly conveyed by the legislature. This opens the door for satisfying
at least one element of the argument that the wrongdoer's violation
of the school safety rule constitutes negligence per se.
Internal Risk-Management Rules and Insurance
Approximately seventy percent of Greek organizations belong to the
insurance purchasing group of FIPG, Inc. FIPG is headquartered in Indianapolis,
Indiana, and its stated primary goals are to: (1) develop a comprehensive
risk management policy and monitor the enforcement of that policy by
members; (2) serve as an information clearinghouse for insurance and
risk management issues facing the Greek movement; and (3) assist its
members in the purchase of liability insurance. Typical liability coverage
for FIPG members ranges from $2 million to $20 million.
FIPG members have adopted an extensive risk-management policy containing
numerous rules, restrictions, and statements concerning hazing, alcohol,
social events, and other basic safety considerations. An opening passage
in the FIPG Manual provides: "In fact, in the late 1980s, fraternities
and sororities were ranked by the National Association of Insurance
Commissioners as the sixth worst risk for insurance companies - just
behind hazardous waste disposal companies and asbestos contractors." Many
universities have adopted provisions of the FIPG manual for school
groups or, at a minimum, incorporated similar provisions into their
particular rules.
Discovery
The RSO process involves the regular submission of numerous documents
to the university because RSOs must regularly apply for re-certification,
and their activities are generally monitored by the school. University
files likely include applications for recognition, articles of incorporation,
by-laws and other formation documents, up-to-date membership lists,
internal risk-management policies, agreements regarding safety rules,
alleged violations of university safety rules and correspondence related
thereto, police complaints, and the existence of, or basis for, any
disciplinary proceedings, suspensions, or terminations. Additional
potential sources for relevant documents are the university's office
of Greek or student affairs, PanHellenic council, student judicial
affairs board, and university police.
To the extent discovery requests seek personally identifiable information
from student records, anticipate challenges to that discovery under
the Federal Educational Rights and Privacy Act, 20 U.S.C. § 1232g,
and corresponding state statutes. A university's primary objections
to production may be overcome by counsel's agreement to initially accept
production with all personally identifiable information (e.g., students'
names) redacted. Obviously, having an opportunity to review substantial
portions of the records aids the determination of whether filing a
motion to compel would be productive.
Whom to Sue: A School Group's Typical Structure
Many fraternities have carefully engineered corporate structures.
This creates unique legal issues, as reflected by the following example
of the fictitious KTA Fraternity located on the campus of State University.
The KTA house and real property are likely owned by the KTA Housing
Corporation, a nonprofit company holding no other assets. KTA Housing
Corporation has its own officers and directors, and its sole purpose
is to own, manage, and lease the property to a group of fraternity
members operating the State University KTA Fraternity Chapter Corporation.
The KTA Chapter Corporation is also a nonprofit corporation, holding
few assets beyond a bank account used to collect dues, pay rent to
the KTA Housing Corporation, and pay dues to the KTA National Fraternity
Corporation. The KTA National Fraternity Corporation sits atop this
type of structure for numerous chapter operations across the country.
The KTA National does not technically hold title to any chapter or
housing corporation assets, and its articles of incorporation and by-laws
likely state that it has no right or ability to control or supervise
the activities of the chapter or housing corporations.
This corporate structure means that careful decisions must be made
when determining which entity or entities bear legal responsibility
for the victim's injury, and under what legal theories. For example,
claims which are based on principles of premises liability may be affected
by the fact that the separate housing corporation purportedly manages
and controls the premises, rather than the chapter corporation, its
members, or the national. This structure may also affect collection
or punitive damages issues because KTA National's balance sheet, financial
statement, and tax returns likely exclude the value of the chapters
or housing corporations and their respective assets. Some of the most
valuable parcels of land on college campuses are owned within this
type of structure, so understanding it at the outset will allow one
to accurately identify the defendants' true financial worth for punitive
damage or collection purposes.
This structure has been used by national fraternities to argue that
they have no legal responsibility for the wrongdoing of their local
chapters. Recently, this legal fiction has been circumvented. The insurance
policies issued to FIPG members generally cover the different entities
comprising this structure.
Suing the School?
Counsel should research fully the numerous legal and practical issues
concerning whether, how, when, and at what cost a university may be
held liable for the misconduct of student groups. Focus too should
be given to whether the university is a state school protected by principles
of sovereign immunity and damage caps, and how this may affect settlement,
joint-tortfeasor, and contribution issues. There are also critical
legal and practical differences between suits involving state high
schools and claims against private universities.
One significant practical issue worth noting is that the university,
its administration, and personnel can become one of the victim's greatest
assets or roadblocks in litigation against a school group. Virtually
every university prohibits hazing and recognizes that this type of
misconduct by student groups is dangerous and creates problems for
the university. In a serious injury case, the university may have already
revoked the organization's RSO status, and may be openly poised to
cooperate with the victim's pursuit of a remedy against the organization
and its members. This includes making senior officials available for
deposition and trial who can testify about the purpose of student safety
rules, the standards expected of RSOs and students, the risk of personal
injury for violations thereof, and the wrongfulness of the misconduct
which caused injury to the victim. This testimony may be helpful for
numerous issues raised in pre-trial or dispositive motions, and these
witnesses may be very persuasive at trial. Because this potential alliance
will be permanently impacted by a decision to name the university as
a defendant, considered thought should go into how this posture will
affect every stage of the litigation.
Suing the Student Wrongdoers?
Because they still legally reside with, or are dependents
of, their parents, many members of student organizations are likely
covered or insured under their parents' homeowner's insurance policies
for claims arising out of their acts of negligence Counsel can expect
common coverage questions being raised where the misconduct appears
intentional, willful, or malicious. However, in hazing cases, the injury
or death often results from engaging in traditions that are purportedly
intended to be fun, build character, or create bonds between people.
Coverage should still apply because injury or death is an accidental
or unintended result of this conduct.
Careful consideration should be given to how the trial (or appeal)
will be affected by keeping young students in the case as defendants
at the time of trial. Clearly, counsel may need discovery from many
of these individuals, and they are transient or likely to leave the
jurisdiction. Neither plaintiff nor defendant can plan around their
voluntary cooperation, particularly with respect to appearing at trial,
so naming some student defendants may help case administration. Nonetheless,
counsel must integrate into the overall case strategy the effect their
age, appearance, and own perceived vulnerability may have on the jury's
deliberations concerning the amount and responsibility for damages.
Conclusion
Hazing is a serious problem causing injury and death to young people
in high school and college. Civil litigation can provide immeasurable
benefits. To the victim or victim's family, litigation helps by holding
the wrongdoer accountable and directing the final outcome of the crime.
The litigation also raises public awareness and causes schools and
school groups to change long-standing traditions which have hurt or
killed far too many young people.
Douglas Fierberg, Esq., is a partner in a Washington, D.C. law firm.
In addition to handling general commercial and personal injury litigation,
Mr. Fierberg specializes in representing high school and college students
who have been seriously injured or killed. Most often, the precipitating
misconduct involves the crimes of hazing, alcohol misuse, sexual assault,
or other violations of school codes of conduct. He has been a member
of the National Crime Victim Bar Association since April of 2000. Mr.
Fierberg can be contacted at Bode & Grenier,
L.L.P., 1150 Connecticut
Avenue, N.W., Washington, DC 20036, 202/828-4100, dfierberg@bode.com.
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