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Garofalo v. Lambda Chi Alpha Fraternity9/7/2000
e conduct of the Iowa chapter and its members to prevent them from causing physical harm to the Chapter's initiates, including Garofalo." Their argument rests on national executives' knowledge that alcohol consumption occupied a prominent place in the social activities of the Iowa chapter. They contend the undisputed record shows the national organization did nothing to enforce its alcohol policies, university regulations or state law. By failing to hold offending members accountable for supplying alcohol to underage persons, appellants argue, the fraternity breached its duty to prevent foreseeable risk of harm from excessive consumption.
For all the reasons explained in the preceding division, the national fraternity had no more duty than the Iowa chapter to protect Garofalo from his decision to drink following the big brother/little brother ceremony. It neither furnished the alcohol he consumed nor forced him to consume it as part of any recognized fraternal activity. In analogous cases in which parents have sought to hold universities responsible for injuries resulting from the drinking habits of their adult but underage children, the majority of courts have held that the adoption of institutional policies prohibiting underage drinking do not establish custodial relationships between the institution and its students so as to impose a duty of protection on the part of the institution. See Bradshaw v. Rawlings, 612 F.2d 135, 141 (3rd Cir. 1979); Booker v. Lehigh Univ., 800 F. Supp. 234, 237—38 (E.D. Pa. 1992); Beach, 726 P.2d at 419—20. As the Beach court noted, such a policy or code of behavior may authorize discipline by the college or, in this case, the fraternity, but it does not change the nature of their relationship. Beach, 726 P.2d at 420.
The district court properly recognized that a fraternity is not a custodial institution and its members, as adults, are free to make choices about their use and abuse of alcohol. No care-taking function is involved. We are unaware of any legal authority which would elevate the fraternity's failure to enforce its "Policy on Alcoholic Beverages" to an actionable civil tort. See Bohan, 567 N.W.2d at 236—37 (mere failure to act will give rise to legal duty only where special relationship is established). The district court properly granted the national fraternity judgment as a matter of law on this issue.
C. Duties arising under Restatement (Second) of Torts § 324.
In their third assignment of error, appellants contend the court improperly rejected—except as to Chad Diehl—their claim that Tim Reier and other chapter members breached their duty to "take charge" of Garofalo once he passed out from intoxication. Their argument rests on Restatement (Second) of Torts section 324, captioned "Duty of One Who Takes Charge of Another Who is Helpless." The rule states:
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. Restatement (Second) of Torts § 324, at159.
Appellants claim it is for a jury, not the court, to determine from the evidence whether chapter members and Reier, in particular, reasonably exercised their duty to Garofalo under the rule.
Comment b to section 324 of the Restatement specifically states that the rule applies to an actor who takes charge
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