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Garofalo v. Lambda Chi Alpha Fraternity9/7/2000
of one who is drunk. The standard required is reasonable care. See id. cmt. d. When the actor has not contributed to the person's condition or made it worse, the commentary describes the actor's duty this way:
here the other's only ground of complaint is that he has failed to receive benefit from the actor's assistance, the gratuitous nature of the services is an important factor in determining whether the actor has exercised reasonable care. The care which the actor must exercise is only that which the recipient of the gratuitous services is entitled to expect. Thus the actor is not required to conform to a high standard of diligence and competence, to possess any special skill, or to subordinate his own interests to those of the other, to the same extent as would be necessary if the services were obligatory or for compensation. He must, however, act in good faith and with common decency, with due allowance made not only for physical infirmities of the actor but also for any inferiority in intelligence and judgment. Id.
At the outset we reject appellants' assertion that Reier's status as Garofalo's fraternity brother created a "special relationship," custodial in nature, that gave rise to a heightened duty to protect him. The contours of Reier's legal duty to Garofalo are not measured by the "ideals and goals of the fraternity" as appellants argue. Reier may have felt a moral obligation to look out for his fraternity brother but we know of no law imposing upon him an enhanced legal responsibility based solely on that relationship. The same holds true for other members of the fraternity. Moreover, appellants have mustered no specific facts in resistance to the chapter's motion for summary judgment to pin the "take-charge" duty on any other members but Diehl and Reier.
Thus the question boils down to whether Reier "took charge" of Garofalo on the night in question. Appellants contend Reier assumed this duty when he permitted Garofalo to lie down on the couch in his room. He acted reasonably, they concede, when he left Garofalo in Diehl's care while he went downtown. Upon Reier's return to the fraternity house, however, they contend his duty resumed. They fault Reier for "going to bed" and failing to "constantly monitor or check on Garofalo throughout the remainder of the early morning hours of September 8." They cite the fact that Reier made no attempt to awaken Garofalo before he left for class as evidence that he breached his duty to him.
We, like the district court, do not believe that these facts, viewed in their most favorable light, establish a special duty running from Reier to Garofalo based on section 324 of the Restatement. Reier was not responsible for Garofalo's intoxication. He was not his "big brother." He merely let Garofalo "sleep it off" on his couch. Even if these facts could be stretched to fit the notion of "taking charge," Reier's conduct reveals no breach of that duty. When he left the fraternity house at midnight, Garofalo was intoxicated but conscious. When Reier returned to his room at 3:00 a.m., Garofalo was asleep and snoring. Reier repositioned him on his side, mindful for his safety. When he hurried out the door for an 8:30 a.m. class, Reier glanced at Garofalo, assumed he was asleep and made no attempt to awaken or "revive" him. Although appellants fault this latter omission, we believe the standard urged by appellants is substantially higher than what is required under the Restatement. Given the gratuitous nature of the undertaking, the rule requires only acting in "good faith and with common decency" and relieves the actor from responsibility for "a high standard of diligence and competence, to possess any special skill, or to subordinate
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