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Garofalo v. Lambda Chi Alpha Fraternity9/7/2000
the decedent lying on his back and heard him making gurgling sounds. Reier rearranged the decedent's position by placing him on his right side and then went to bed. Reier woke up at 8 a.m. and left for class some fifteen minutes later without ever checking on the decedent, who appeared to be sleeping and still laying on his right side.
About three hours later, the decedent was discovered dead. The rug on the floor nearby was damp and smelled of vomit. A reasonable inference from this evidence and from the autopsy report is that the decedent died because he choked on his own vomit.
There is in evidence a publication from the national fraternity that was made available to each member of the Iowa chapter containing advice regarding intoxicated persons. One section of the publication states: "If the person passes out, monitor his or her breathing to make sure it's normal. If the person cannot be revived, call for medical help immediately. Constantly monitor a person while he or she sleeps. It's better for a person to sleep on his or her side, in case of vomiting." In his deposition, Reier testified that these instructions were common sense to him.
All of this evidence would support a finding that Diehl and Reier realized that the decedent in his helpless condition was at risk for vomiting and choking on his own vomit—the very thing that killed him. The evidence would also support a finding that their inactions—failure to constantly monitor the decedent and call for adequate assistance, medical or otherwise—indicate a lack of reasonable care on their part. Under the vicarious liability theory earlier discussed, I think this breach of duty under section 322 of the Restatement (Second) of Torts could be imputed to the Iowa chapter. There was evidence that other members of the Iowa chapter were aware of the decedent's condition but did nothing. The only two members who did do something did not do enough under the law.
III. Duty to Render Aid Running from Reier to the Decedent Under Restatement (Second) of Torts Section 324 (1965).
The majority concludes that the facts I have discussed relative to Reier's conduct do not establish a duty running from Reier to the decedent under Restatement (Second) of Torts section 324 (Duty of One Who Takes Charge of Another Who is Helpless). I disagree.
Section 324 provides:
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 bodily 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.
I think the facts regarding Reier's conduct would support the following findings. Reier together with Diehl took charge of the decedent when they placed him in Reier's room. Although Reier left Diehl in charge, the fact finder could find that Reier by leaving was not discontinuing his aid because on his return Reier (1) repositioned the decedent after decedent made gurgling sounds and was lying partially on his back and (2) made no objection to the decedent remaining in the room. Based on these findings, the fact finder could conclude that Reier assumed a duty to care for the decedent by monitoring him during the night or seeking medical attention or other assistance for the decedent. See Haben v. Anderson, 597 N.E.2d 655, 660 (Ill. Ct. App. 1992) (held that complaint stated cause of action against member of university club for br
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