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Garofalo v. Lambda Chi Alpha Fraternity9/7/2000
s. The university suspended the chapter, finding that it did not exercise reasonable preventive measures to ensure compliance with relevant policies (one of which was to comply with Iowa's underage drinking statute) in the course of the chapter's affairs.
Before this incident, the Iowa chapter had ten to twelve parties during a sixteen-week semester. Alcoholic beverages were available at all the parties. Although the policy was that no underage drinking was to be allowed, in fact underage persons did have access to alcohol at these parties. In 1993, the Iowa chapter put itself on probation with the national fraternity for violation of the alcohol policy against permitting underage drinking at chapter events.
Viewing all of this evidence in the light most favorable to the plaintiffs, I conclude a genuine issue of material fact exists as to the Iowa chapter's vicarious liability under section 213 of the Restatement (Second) of Agency. All of this evidence would support a finding that the Iowa chapter permitted underage drinking on its premises in the past and on the night in question in clear violation of Iowa law. Additionally, the evidence would support a finding that the Iowa chapter was negligent in supervising activities on its premises in the past and on the night in question to avoid such a violation. In short, there is evidence to support a finding that the Iowa chapter gave or otherwise supplied through its members alcohol to the decedent who was underage at the time.
II. Failure of the Iowa Chapter to Render Aid to the Decedent Under Restatement (Second) of Torts Section 322 (1965) Based on Vicarious Liability.
As mentioned, there is evidence to support a finding that the Iowa chapter gave or otherwise supplied through its members alcohol to the decedent who was underage at the time. The evidence would also support a finding that as a result of this violation of the law the decedent became intoxicated to the point that he was helpless.
Two members of the Iowa chapter—Chad Diehl and Timothy Reier—took charge of the decedent just before he passed out. The district court concluded a genuine issue of material fact existed regarding Diehl's liability under Restatement (Second) of Torts, section 322, and Diehl has not appealed from that ruling. This provision provides:
If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm.
Diehl and Reier first took charge of the decedent when they helped him to Reier's room after the decedent fell down a flight of stairs at the chapter house. The decedent passed out in Reier's room. Reier left the house to frequent a bar with his "little brother" while Diehl remained behind with the decedent. After the decedent passed out, Diehl positioned him on his side in order to reduce the chance that he would choke on his own vomit. Diehl continued to monitor the decedent's condition until about 2:30 a.m., when he retired to bed in another room.
As members of the Iowa chapter and friends returned from downtown during the early morning hours, they saw the decedent passed out. Between midnight and 6 a.m., many of them listened for signs of life, and some rearranged the decedent's sleeping position when they saw he was not sleeping on his side. The decedent was making gurgling noises. One of the decedent's friends shook the decedent and yelled at him but got no response.
Reier returned to his room at approximately 3:30 a.m. with his "little brother" who observed
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