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Garofalo v. Lambda Chi Alpha Fraternity9/7/2000
asked only for relief against the Iowa chapter and not against all of the members individually. There is, however, one flaw in the plaintiffs' choice of procedure: the plaintiffs have not named any members as representatives of the Iowa chapter. Because the defendants have raised no issue on this point, I will proceed on the assumption that the suit was properly instituted against the Iowa chapter as a legal entity.
As mentioned, members of an unincorporated association may be liable for the acts of officers, agents, or members of the association when such acts are known to the membership and actively or passively approved. From this, it necessarily follows that the association as an entity may be vicariously liable for such acts. This is so because an association can only act through its officers, agents, and members.
This vicarious liability finds support in Restatement (Second) of Agency section 213 (1958), which pertinently provides:
A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:
(c) in the supervision of the activity; or
(d) in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control.
The evidence in this case is that underage drinking in the Iowa chapter house was the norm rather than the exception long before the incident in question. As the majority itself notes, virtually every witness testified that beer and other alcoholic beverages were made available to underage members. A reasonable inference from the record is that virtually every member was aware this was happening and virtually every member, passively if not actively, approved of the practice.
A report of the university investigation of the incident revealed that many of the twenty-four new members who participated in the "Little Brother/Big Brother" ceremony consumed alcohol purchased by other chapter members in the chapter house after the ceremony. The report further revealed that all twenty-four new members were under the legal drinking age, as were many of the active members. Besides the forty-eight little brothers and big brothers, at least twelve other chapter members came to the ceremony, bringing the total number of members in attendance to sixty. Additionally, the report noted that three new members passed out as a result of the alcohol consumption, including the decedent. The report also noted that the decedent consumed all of the liquor provided him by chapter members within one hour after the conclusion of the ceremony.
According to the investigation report, active members, including some chapter officers (defendant Chad Diehl was the vice-president of the chapter), purchased alcohol before the ceremony with the intention of offering it to new members after the ceremony had concluded. Following the ceremony, alcohol was available in three rooms on the second floor of the chapter house and in three rooms on the third floor of the house. In all six rooms, hard liquor was available as well as beer, and in several rooms more than one variety of hard liquor was consumed. There was some evidence that other rooms in addition to the six offered an open bar. The decedent's drinking spree occurred in three of the rooms.
All of this drinking was traditional following the "Big Brother/Little Brother" ceremony and that included drinking by underage members and associate members.
The university concluded that the postceremony activities took place in the course of the Iowa chapter's affair
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