American Association for Justice; August, 2014

Fighting Hazing in Court

William S. Friedlander

Hazing has become a dangerous ritual on high school and college campuses nationwide. Knowing the liability theories that can support your client’s case and what to look for in discovery are key to a successful outcome.

If you practice in or near a college town, as I do, you are probably aware of the pervasive, tragic, and seemingly intractable problem of hazing. It’s an all-too-familiar story: A student is paddled or battered to death during fraternity pledge week, succumbs to alcohol poisoning at a football team’s freshman ritual, dies from heart failure during endurance calisthenics, or is seriously injured from a sorority initiation prank. Hazing can also include isolation, sleep deprivation, and sexual acts.

Typically, college authorities respond with tighter regulations for student organizations, while denying any legal responsibility.1 Injured students or grieving families are left to seek remediation from unincorporated student organizations, individual malefactors with minimal insurance and tenuous community connections, or, in the case of fraternity/sorority hazing, the distant, hands-off regional or national organization. What are the rewards, and the pitfalls, of taking on such a case?

Hazing isn’t limited to college towns. Here are some statistics:

1.5 million high school students are hazed each year, with 79 percent of NCAA athletes reporting they experienced hazing initially in high school.2

55 percent of college students involved in teams or other organizations experience hazing, including 73 percent of social fraternity/sorority members and 79 percent of athletes, which is about 250,000 to 300,000 student-athletes nationwide.3

Since 2004, more than 30 college students have died after hazing, pledging, or initiation activities, often caused by physical exertion, drowning, falls, automobile accidents, alcohol poisoning, or suicide.4

82 percent of hazing deaths involve excessive amounts of alcohol, although many initiates are underage, and fraternity/sorority membership is a significant predictor of binge drinking.5

Fewer than 10 percent of high school students and 5 percent of college students report hazing. Most students who have been hazed did not considered themselves hazed. A majority agrees that humiliation and mental stress are necessary to build character. More than one-third believe tolerance of physical pain is valuable, and 46 percent believe adherence to a code of silence is important.6

The bottom line is that hazing is widespread, endemic, and seemingly invisible, at least until tragedy strikes. 

What Is Hazing?

Taking on a hazing case requires becoming familiar with all applicable definitions—statutory, campus, organizational, academic, functional, and insurance-exclusionary—both to establish relevant standards of liability and to inform the process of investigation, discovery, and case preparation.

Definitions vary from state to state and setting to setting. As of 2013, 44 states had enacted anti-hazing statutes, generally criminalizing or otherwise sanctioning initiation or pledge activities posing substantial risks to life or health.7 For example, New York Penal Law §120.16 defines first-degree hazing as:

A person is guilty of hazing in the first degree when, in the course of another person’s initiation into or affiliation with any organization, he intentionally or recklessly engages in conduct which creates a substantial risk of physical injury to such other person or a third person and thereby causes such injury.

Some state statutes also address conduct that inflicts or risks emotional injury; penalize failure to report hazing conduct; and specify, or have been interpreted to provide, that a victim’s consent or assent is no defense.8 Alternatively, some statutes pose only civil burdens, such as fines, forfeiture, and permissive expulsion. Therefore, your first task in representing a hazing victim is to know your state’s statutory standards and limitations.

Institutions and organizations often define hazing in codes of conduct or governing policies. Cornell University, for instance, makes it a sanctionable campus code violation to haze another person, regardless of the person’s consent to participate, and defines hazing:

Hazing means an act that, as an explicit or implicit condition for initiation to, admission into, affiliation with, or continued membership in a group or organization, (1) could be seen by a reasonable person as endangering the physical health of an individual or as causing mental distress to an individual through, for example, humiliating, intimidating, or demeaning treatment; (2) destroys or removes public or private property; (3) involves the consumption of alcohol or drugs, or the consumption of other substances to excess; or (4) violates any university policy.9

Many fraternal organizations subscribe, at least at the national level, to a definition adopted in a risk management manual by the Fraternal Information and Programming Group (FIPG, Inc.), a risk-management resource and advisory organization, which says hazing is any action taken or situation created intentionally, whether on or off fraternity premises, to produce mental or physical discomfort, embarrassment, harassment, or ridicule. The manual offers several examples, including use of alcohol, paddling, fatigue or shock, road trips, degrading stunts, and activities inconsistent with campus regulations or state laws.10

An even broader definition of hazing has been used in academic research, such as the seminal Alfred University National Survey of Sports Teams, which defined hazing as any activity expected of someone joining a group that humiliates, degrades, abuses, or endangers, regardless of the person’s willingness to participate.11 Notably, a substantial majority of students do not consider many activities that might be covered by these definitions as hazing.

The FIPG manual also recognizes that hazing activities that fall within criminal statutes or the intentional-act proscriptions of the FIPG hazing definition may take an organization and its membership outside the scope of liability insurance coverage.12 

Theories of Liability

One way to screen a potential case is to focus on the victim’s injuries: Who or what contributed to the injuries? What was the injurious conduct? What causes of action can reach the participants and their conduct?

Clearly, criminal conduct—under state hazing statutes or criminal assault or harassment laws—can establish a perpetrator’s immediate responsibility. However, if liability insurance is a primary source of recovery, pursuing civil claims based on criminal or even intentional conduct will not be fruitful. Rather, criminal hazing statutes may be more useful as standards of care on which to base claims of negligence or negligence per se.

For example, in the case of a fraternity hazing death involving alcohol abuse, the plaintiff used the New York hazing statute to support a claim for civil liability distinct from social host liability.13 In a similar New Jersey case, attorneys used both the state hazing statute and the state social host statute to ground claims of negligence per se.14 And in recent West Coast incidents, the civil litigation may be based on bullying or hate-crime legislation.15

Alternatively, common law negligence claims—including negligent infliction of emotional distress, where state law permits—that rest on traditional legal principles of duty, breach, and causation can circumvent issues of criminal intent or other intent to reach liability insurance.16 Negligence in the hazing context readily arises where the hazing perpetrators—say, upperclassmen forcing a pledge to drink fifths—ignore the foreseeably deadly consequences of their conduct or leave an incapacitated victim in dire need of medical care without assistance or supervision. Plaintiff attorneys have also used tort concepts such as duties of affirmative care17 and special relationship18 under The Restatement (Second) of Torts to draw such conduct into the ambit of negligence liability.19

Others acting in concert with direct perpetrators may be negligent as well. Examples include the entity that develops or oversees the pledge process; the coach or academic advisor who takes no action in the face of known hazing activities; and the occupant or owner of the premises on a theory of premises liability for the foreseeable acts of third parties.

If state law has an expansive definition of the issue of duty, and discovery reveals evidence of knowledge, complicity, or control—for example, by obtaining a benefit from pledge fees or maintaining authority to prevent hazing—the organization that assumes or stands in a special relationship to pledges or in an agency relationship to the pledge master may be negligent. In this regard, campus and organizational codes of conduct may help establish the college, fraternity, or club’s breach of duty, and they may also support a claim based in contract, although such claims have met with limited success.20

However, a negligence claim may be impossible to bring. State law may limit liability for assumed risk or comparative negligence, and victims or their parents may have signed a release that includes an arbitration clause.21 At the college level, the demise of the in loco parentis doctrine generally allows the school to disavow any responsibility for private individuals’ or organizations’ conduct, despite increasing efforts to regulate and sanction such organizations’ pledge activities or alcohol use.22

Claims of academic or athletic team hazing may more directly implicate a university or its administrators and certainly permit action against a secondary school or its staff.23 But when public institutions or teachers are involved, lawyers may need to negotiate statutory or constitutional immunities: While many states waive immunities for proprietary functions, others limit waivers to particular kinds of conduct, such as ownership of premises or use of vehicles, and continue to immunize functions involving police powers or student safety. They also cap recoveries or hedge litigation with notice-of-claim requirements.24

Beyond tort liability, hazing litigation strategies include actions under Titles VI and IX and §1983, where hazing has sexual overtones and public funds or public institutions are involved. The standards for “hostile environment,” “responsible employee,” “deliberate indifference,” “special relationship,” “state-created danger,” and “qualified immunity” frame and define the limits of federal student-on-student harassment claims, particularly under Title IX and §1983.25 Same-sex hazing by members of school sports teams can be actionable under Title IX26, and gender studies of masculinity provide additional theoretical support for Title IX claims in male-on-male hazing cases. 

Making the Case

Start by assessing the victim, the nature of his or her injuries, and the conduct and circumstances from which the injuries arose. Was the hazing fatal? Were injuries life-threatening, permanent, physical, or mental? Can your client recall the events and recount them consistently, or did he or she give initial accounts that attempted to mask the hazing?

The circumstances may be particularly difficult to tease out if someone has died or a code of silence prevails. Obtain police and hospital records, blood alcohol content, cellphone records, campus investigations, and disciplinary records. These may provide information on the injuries and also your client’s prior conduct, which bears on potential defenses such as assumption of risk, comparative negligence, immunity, and the question of causation.27

Had your client been drinking? Had he or she participated as a perpetrator in prior hazing activities? Did your client have a history of health complaints or disciplinary violations? Or was he or she a model student, an award winner, or one who overcame hardship to succeed? Are there grounds, in fact or law, for a consent defense? Even though state anti-hazing statutes may eliminate a consent defense in criminal prosecutions, you may need to prepare for this defense in civil litigation, perhaps with adolescent peer pressure experts.28

Examine potential defendants’ conduct and history. For example, does the perpetrator or organization have a history of hazing, violence, or alcohol abuse? Was there a standing keg-delivery order? Are there disciplinary records for the individuals or organization, or a history of police calls? What are the institutional or organizational policies regarding hazing, violence, or alcohol? Are there protocols for the local or national pledge or risk management? Is there a dry-party policy or permit plan for alcohol use, or is there a lease- or space-use agreement banning alcohol or partying or placing inspection or repair burdens on the university or landlord? Is there a signed release or arbitration agreement? Did the organization have a history of insurance claims?

Public institutions’ hazing or bullying policies—and related materials, such as student codes of conduct; statistical reports mandated by state law; and information included in anti-hazing, antibullying, antidiscrimination, and alcohol abuse training for staff and students—are generally matters of public record, available through a Freedom of Information Act request or routine discovery demand.

Likewise, many private universities and Greek organizations have put all or some of their formal pledge protocols, codes of conduct, and risk management policies—and in some cases, summaries of investigations or violation sanctions—online, offering a starting point for discovery.29

Student educational records, however, are generally deemed confidential under the Family Educational Rights and Privacy Act of 197430 (FERPA) and state privilege or confidentiality laws, at least absent a court order to disclose records relevant to particular claims. Campus public safety records are not subject to FERPA’s student privacy protections, nor are the final results of disciplinary proceedings sanctioning crimes of violence, including name, violation found, and sanction imposed.

State statutes and common law also permit release of such records—which may be relevant to foreseeability of hazing, violence, or alcohol abuse—on a proper showing in judicial proceedings.31 The Jeanne Clery Act,32 which requires colleges and universities to report annual crime statistics and maintain a public crime log, may help your investigation of hazing-related incidents involving assault, liquor violations, or sex offenses.

Relevant student and investigative records include student disciplinary records, daily logs of administrators and security guards, incident-specific investigative or police reports, and records of prior assaults in the same location. Plaintiff attorneys should also obtain court orders that allow discovery of relevant staff employment records bearing on lapses in oversight, knowledge or foreseeability of hazing, and adequacy of staff or school district responses.33 It may be helpful, if not critical, to retain an expert in hazing, student behavior or peer pressure, injury and consequences, or causation, although using such an expert is likely to prompt challenges from defense counsel.34

But the bigger challenge may be working with the victim, pledge line, fraternity or club members, or alumni advisers who are the primary witnesses to hazing conduct. Not only are they likely to hide behind a code of silence or to have offered inconsistent stories in the immediacy of the incident, but they may also have limited recall of events due to their own alcohol use, sleep deprivation, or hazing experiences.35 If you doubt whether information is reliable, or access to witnesses or records is limited, consider using an investigator to uncover facts.

At trial, consider allowing criminal convictions, physical evidence, institutional or police investigations, and cellphone and disciplinary records to speak for themselves, so the victim and his or her colleagues need only confirm conduct, chronology, or details. Adduce expert testimony on hazing and its impact, campus or fraternity culture, and reasonable prevention or remediation standards a school or organization might be required to meet.

Holding perpetrators and organizations accountable for injuries and deaths caused by hazing is difficult but important. Attorneys have obtained some significant verdicts and settlements in hazing cases brought against perpetrators, fraternities, and, more rarely, school districts and colleges under state and federal law. Civil rights statutes permit attorney-fee awards and, often, punitive damages, once the plaintiffs overcome the serious hurdles of civil rights statutory standards and immunities.

Litigation may prompt schools, fraternal organizations, students, and others to prevent hazing and respond appropriately when it occurs. It’s not a panacea, but hazing litigation might well be a call for accountability and action nationwide.

William S. Friedlander is a partner at Friedlander, Friedlander & Arcesi in Ithaca, N.Y. He can be reached at wsf@friedlanderlaw.com.

 

Notes

For example, in the wake of a pledging death in 2011, Cornell University—previously exempted from civil liability by court rulings such as Lloyd v. Alpha Phi Alpha Fraternity, Inc., 1999 WL 47153 (N.D.N.Y Jan. 26, 1999)—revoked the fraternity’s recognition, barred freshmen from attending frat parties serving alcohol, convened a campus committee to improve Greek member intake, and improved the anti-hazing message on its website, creating a public file of campus hazing violations and sanctions. See Michael Winerip, When a Hazing Goes Very Wrong, N.Y. Times (Apr. 12, 2012), www.nytimes.com/2012/04/15/education/edlife/a-hazing-at-cornell.html?pagewanted= all&_r=0.

Inside Hazing, High School Hazing, www.insidehazing.com/statistics_25_high.php; Nadine C. Hoover, Alfred Univ., National Survey of Sports Teams (Aug. 1999),www.alfred.edu/sports_hazing.

Elizabeth J. Allan & Mary Madden, Hazing in View: College Students at Risk, Natl. Study for Student Hazing (Mar. 2008); Hoover, supra n. 2.

Hank Nuwer, The Hazing Reader (Ind. Univ. Press Apr. 2014),www.hanknuwer.com/hazingdeaths.html.

CBS News Sunday Morning, Seeking an End to Hazing Deaths (Feb. 5, 2012) (TV broad.), www.cbsnews.com/news/seeking-an-end-to-hazing-deaths/; Allan & Madden, supra n. 3.

Inside Hazing, supra n. 2; Allan & Madden, supra n. 3.

Links for state hazing statutes can be found at StopHazing, States With Anti-Hazing Laws, www.stophazing.org/laws/states-with-anti-hazing-laws.

See e.g. N.J. Rev. Stat §2C:40-4 (2013) (consent not available as defense to hazing); 24 Pa. Consol. Stat. Ann. §5352 (West 2014); Or. Rev. Stat. §163.197 (3) (2010).

Cornell Univ. Campus Code of Conduct, Art. 11.A.1.f,//hazing.cornell.edu/cms/hazing/issues/laws/index.cfm# CP_ JUMP_10236.

Fraternity Info. & Programming Group, FIPG Risk Mgt. Man. 8 (Jan. 2013),//cmssites.theginsystem.com/uploads/fipg/userfiles/FIPG_MANUAL.pdf.

Hoover, supra n. 2, at What are Initiation Rites and Hazing?.

Fraternity Info. & Programming Group, supra n. 10, at 33–34.

Oja v. Grand Chapter of Theta Chi Fraternity, Inc., 257 A.D.2d 924 (N.Y. App. Div. 3d Dept. 1999).

Landmark Am. Ins. Co. v. Rider Univ., 2009 WL 1905107 (D.N.J. June 30, 2009).

See e.g. Doe ex rel. Farley, Piazza & Assoc. v. Gladstone Sch. Dist., 2012 WL 2049173 (D. Or. June 6, 2012) (negligence per se claim for failure to enforce state bullying law).

See e.g. Covenant Ins. Co. v. Sloat, 2003 WL 21299384 (Conn. Super. May 23, 2003).

Restatement (Second) of Torts, §§323–24 (1965).

Id. at §§314, 314A, 315.

See e.g. Oja, 257 A.D.2d 924; Partamian v. Suconick, 2012 N.Y. Slip Op. 30183(U) (N.Y., Queens Co. Sup. Apr. 23, 2012) (passed-out pledges left to die alone); see also Yost v. Wabash College, 3 N.E.3d 509 (Ind. 2014) (question of fact regarding local fraternity’s assumption of duty during pledging activities); Grenier v. Commr. of Transp., 51 A.3d 367 (Conn. 2012) (question of fact regarding fraternity’s assumption of control over pledge’s transportation); Furek v. Univ. of Del. 594 A.2d 506 (Del. 1991) (liability under Restatement (Second) of Torts, §324).

See e.g. Partamian, 2012 N.Y. Slip Op. 30183(U) (acting in concert); Oja v. Grand Chapter of Theta Chi Fraternity, Inc., 255 A.D.2d 781 (N.Y. App. Div. 3d Dept. 1998) (landowner liability); Kenner v. Kappa Alpha Psi Fraternity, Inc., 808 A.2d 178 (Pa. Super. 2002) (fraternity chapter adviser liability).

See e.g. Alexander v. Kappa Alpha Psi Fraternity, Inc., 464 F. Supp. 2d 751 (M.D. Tenn. 2006) (Tennessee comparative negligence law); Nkemakolam v. St. John’s Military Sch., 2012 WL 6610980 (D. Kan. Dec. 18, 2012) (Kansas comparative fault law not applicable to intentional torts); see also Griffen v. Alpha Phi Alpha, Inc., 2007 WL 707364 (E.D. Pa. Mar. 2, 2007) (arbitration clause in fraternity application form binds victim and family).

On the demise of in loco parentis and liability arising from university oversight, see e.g. Lloyd, 1999 WL 47153; Pasquaretto v. Long Is. Univ., 106 A.D.3d 794 (N.Y. App. Div. 2d Dept. 2013); cf. Furek, 594 A.2d 506.

See e.g. Stephen Hudak, Claims Bill Would Compensate FAMU Drum Major’s Family in Hazing Death, Orlando Sentinel (Aug. 2, 2013),www.orlandosentinel.com/features/education/famu-hazing-band/os-famu-hazing-champion-claims-20130802,0,6992265.story.

Cf. Cortese v. W. Jefferson Hills Sch. Dist., 2008 WL 9404638 (Pa. Cmmw. Dec. 9, 2008) (district and teachers immune from claims of hazing); Caldwell v. Griffin Spalding Co. Bd. of Educ., 503 S.E.2d 43 (Ga. App. 1998) (coach and principal entitled to official immunity for discretionary acts).

See Davis v. Monroe Co. Bd. of Educ., 526 U.S. 629 (1999) (setting standards of hostile environment, responsible employee, and deliberate indifference for Title IX student-on-student harassment).

See e.g. Roe v. Gustine Unified Sch. Dist., 678 F. Supp. 2d 1008 (E.D. Cal. 2009) (Title IX supports action based on same-sex hazing at school football camp); cf. Cortese, 2008 WL 9404638 (no Title IX liability for football hazing where harassment was not pervasive or shown to be gender-based).

See e.g. Winerip, supra n. 1 (noting defensive claims of victim’s alcohol consumption and comparative negligence).

See e.g. Meredith v. Montgomery, 2004 WL 5913350 (Fla. 11th Cir. Feb. 17, 2004) (plaintiff used expert testimony to defeat consent defense); see also Gregory S. Parks & Tiffany Southerland, The Psychology and Law of Hazing Consent, 97 Marquette L. Rev. 1 (2013) (citing statutes, cases, and research on the psychology of consent).

See e.g. Nkemakolam, 2012 WL 6610980 (discovery of police reports, prior complaints, medical records, school’s internal investigations); see also Cornell Univ.,//hazing.cornell.edu (posted policies, guidelines, reporting protocols, and online summaries of recent hazing sanctions by year); Sigma Alpha Epsilon’s links to the fraternity’s risk-management manual and its health and safety regu­lations,www.sae.net/2013-Admin-Fraternity-Laws-and-Policies.

20 U.S.C. §1232(g) (2013).

Rhaney v. Univ. of Md. E. Shore, 880 A.2d 357 (Md. 2005) (noting FERPA amendment allowing disclosure of disciplinary records).

Jeanne Clery Act, Disclosure of Campus Security Policy and Campus Crime Statistics, 20 U.S.C. § 1092(f) (2008).

See e.g. Davis v. Carmel Clay Schs., 282 F.R.D. 201 (S.D. Ind. 2012) (court orders discovery of school disciplinary and investigative records).

See e.g. Kenner, 808 A.2d 178 (expert testimony regarding fraternity’s duty and adviser’s breach are critical to case against adviser).

See e.g. Winerip, supra n. 1 (code of silence and other investigative barriers); Alton v. Tex. A&M Univ., 168 F.3d 196 (5th Cir. 1999) (per court, proof is “made more difficult by deep loyalties of participants internal to the very custom [plaintiff] would prove”); cf. Anne M. Payne, Public School District Liability for Injury or Damage to Student Resulting From Bullying or Other Nonsexual Harassment by Another Student, 111 Am. Jur. Trials 123 (2009) (article outlining school district liability for injuries resulting from student bullying and harassment).

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