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Prime v. Beta Gamma Chapter of Pi Kappa Alpha5/31/2002
Affirmed.
This personal injury action arose out of a fraternity initiation event where Matthew Prime excessively consumed alcoholic beverages, which led to his hospitalization. Prime sued the local chapter and the national organization of the fraternity, the corporate owner of the real property where the fraternity chapter is housed, five individual fraternity members, the University of Kansas, and the Board of Regents. The university and regents were dismissed by Prime. Prime appeals from the trial court's order dismissing the local chapter and the trial court's order granting summary judgment to the remaining defendants. This court transferred the case from the Court of Appeals. K.S.A. 20-3018(c).
Matthew Prime was a 19-year-old pledge of the Beta Gamma chapter of Pi Kappa Alpha fraternity at the University of Kansas when he attended Pledge Dad Night at the fraternity house. Prime was provided alcoholic beverages in large quantities and encouraged but not required to drink them during the occasion. Prime drank excessively and lost consciousness. Fraternity members took Prime to the hospital. Prime was hospitalized with a blood alcohol concentration of .294. He alleged that he incurred medical expenses but no permanent injuries.
The district court's findings of fact specific to the various defendants will be set out where necessary to the discussion of the issues.
Prime raises four issues on appeal: (1) Is Beta Gamma chapter, an unincorporated association, a legal entity that can be sued; (2) did the district court erroneously enter summary judgment in favor of the individual fraternity member defendants; (3) did the district court erroneously enter summary judgment in favor of Pi Kappa Alpha; (4) did the district court erroneously enter summary judgment in favor of Mount Oread House Corporation?
The district court granted Beta Gamma Chapter's motion to dismiss on the ground that the chapter is an unincorporated association, which cannot be sued in the name of the association. The district court's decision involved only a question of law, and this court's review is unlimited.
In Kansas Private Club Assn. v. Londerholm, 196 Kan. 1, 408 P.2d 891 (1965), the court stated: "It is the general rule to which this jurisdiction has long adhered, that in the absence of a statute to the contrary, an unincorporated association is not a legal entity and can neither sue nor be sued in the name of the association. [Citations omitted.]" 196 Kan. at 3. Prime contends that after the decision in Kansas Private Club Assn. was issued, a statute was enacted that superseded the general rule stated in the case.
The statute cited by Prime is K.S.A. 60-223b, which became effective on publication in Kansas Reports and in K.S.A. 1969 Supp. It provides:
"An action brought by or against the members of an unincorporated association as a class by naming certain members as representative parties may be maintained only if the court is satisfied that the representative parties will fairly and adequately protect the interests of the association and its members. In the conduct of the action the court may make appropriate orders corresponding with those described in K.S.A. 60-223 (d), and the procedure for dismissal or compromise of the action shall correspond with that provided in K.S.A. 60-223 (e)."
K.S.A. 60-223b plainly applies only to class actions.
Prime recognizes that a decision issued by the Court of Appeals long after K.S.A. 60-223b became effective cites Kansas Private Club Assn. and follows the general rule stated in that case. See Frey, Inc. v. City of Wichita, 11 Kan. App. 2d 116, 715 P.2d 417 (1986).
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