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Garofalo v. Lambda Chi Alpha Fraternity9/7/2000
, 334 N.W.2d 734, 737 (Iowa 1983)). However, as we noted in Fullmer, for a violation of the statute to occur, a defendant need "not personally fill his guests' beer glasses." Fullmer, 500 N.W.2d at 436 (holding that jury could find host supplied beer to minor on the basis that the host bought the beer, provided the cups, and joined in the party, observing his underage friends drinking from the keg, despite his claim that it was "help yourself" or "pour your own" beer party so that he made no affirmative delivery of the beer to the minor).
There is no evidence that the Iowa chapter sold alcohol to the decedent. The narrow issue then is whether there was enough evidence to generate a fact issue on whether the Iowa chapter gave or otherwise supplied alcohol to the decedent.
At the time of the decedent's death, the Iowa chapter leased a fraternity house in Iowa City from Iowa Colony House Corporation. The Iowa chapter at the time was a voluntary association. There is no allegation in the petition or facts that indicate the Iowa chapter was an incorporated association, so I proceed on the assumption that it was an unincorporated association.
An association "is a collection of persons who have united or joined together for some special purpose or business, and who are called, for convenience, by a common name." 7 C.J.S. Associations § 2, at 22 (1980). The rule regarding the liability generally of members of an unincorporated association has been stated as follows:
While mere membership in an association does not of itself impose liability for the acts of the associates, at least in the absence of participation and knowledge or approval, liability of members of a voluntary, unincorporated association may be established by a public act of the association itself, or by the acts of officers, agents, or members where such acts are known to the membership and actively or passively approved. 7 C.J.S. Associations § 30, at 74.
Iowa law has long followed these principles. In the area of contracts, "where members contract in the name of an unincorporated association, they and all of the members who authorize, approve, consent, and ratify the contract are personally liable for the obligations of such contract." Wilson & Co. v. United Packinghouse Workers of Am., 181 F. Supp. 809, 815 (N.D. Iowa 1960). Members of an unincorporated association may also be personally liable for torts of the association. Id. at 815-16.
At common law, an unincorporated association had no legal existence, so it could neither sue nor be sued in its association name only. Presbyterian Church of Osceola v. Harken, 177 Iowa 195, 199-200, 158 N.W. 692, 694 (1916). However, this court recognized early on that, if the individual members of the association were so numerous as to make it impracticable to bring them all before the court, one or more of the members could be sued as representatives of the others. Keller & Bennett v. Tracy, 11 Iowa 530, 531 (1861). If the plaintiffs choose this route, "the members of the association are treated as a whole and the unincorporated association is in effect treated as a legal entity." Wilson, 181 F. Supp. at 817. In this scenario, any money judgment recovered would be paid out of the funds of the association and would not be enforceable against the members individually. Id.
Of course, the plaintiffs have a second option: suit against the members individually. Id. Under this option, any money judgment recovered would be enforceable against the individuals. Id. at815.
Here, the plaintiffs have chosen to treat the Iowa chapter as a legal entity because the plaintiffs have not sued all of the chapter members and has
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