Garofalo v. Lambda Chi Alpha Fraternity , 2000 Iowa Sup. LEXIS 149 ( 2000 )

NEUMAN, Justice.

The principal question on this appeal is whether a “special relationship” exists between a fraternity and its members so as to create a legal duty of care, actionable in tort, when a young initiate’s excessive drinking results in death. The district court concluded as a matter of law that no such duty exists under the material facts of this case. It therefore dismissed, on summary judgment, plaintiffs’ wrongful death action against their son’s national fraternity, its local chapter, and one of his fraternity brothers.

Having now considered the arguments on appeal, a majority of this court affirms dismissal of the action against Lambda Chi Alpha Fraternity and Timothy Reier. The district court’s decision to dismiss Lambda Chi Alpha University of Iowa Chapter stands affirmed by operation of law. See Iowa Code § 602.4107 (1999). We remand the case for further proceedings against the remaining defendant, Chad Diehl.

I. Scope of Review.

Because this case reaches us on appeal from entry of summary judgment, well-settled rules guide our review. We, like the district court, are obliged to view the factual record in the light most favorable to the resisting party, affording that party all reasonable inferences that the record will bear. Hildenbrand v. Cox, 369 N.W.2d 411, 413 (Iowa 1985). Summary judgment is proper only if the record made shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 237(c). “If the conflict in the record concerns only the legal consequences flowing from undisputed facts, entry of summary judgment is proper.” Farm, Bureau Mut. Ins. Co. v. Milne, 424 N.W.2d 422, 423 (Iowa 1988). Whether a particular duty arises out of the parties’ relationships is a matter of law properly resolved in a summary judgment proceeding. Tenney v. Atlantic Assocs., 594 N.W.2d 11, 15 (Iowa 1999); Kelly v. Sinclair Oil Corp., 476 N.W.2d 341, 354 (Iowa 1991). Our review, therefore, is for the correction of errors at law. Sankey v. Richenberger, 456 N.W.2d 206, 207 (Iowa 1990).

With these principles in mind, we turn to the record made before the district court. That record consists of the pleadings, deposition testimony, written institutional policies, and investigative reports of police officers and university officials.

II. Facts.

Appellants Edward and Monica Garofalo aqe the parents of Matt Garofalo, now deceased, who was an associate member of Lambda Chi Alpha, a national fraternity with a local chapter in Iowa City, Iowa. Matt was nineteen and a sophomore at the University of Iowa when he died from pulmonary edema caused by aspiration of his gastric contents after consuming excessive quantities of beer and hard liquor. Matt consumed the alcohol following a “Big Brother/Little Brother” ceremony at the fraternity house.

The ceremony took place at about 10:00 p.m. on Thursday, September 7, 1995. It lasted fifteen to twenty minutes, followed a script, and culminated in the introduction of each new pledge to his “big brother.” The purpose was to establish a mentoring relationship that would last throughout the pledge year. Attendance at the ceremony was not mandatory but most, if not all, of the members took part. No alcohol was served or consumed during the ceremony.

It was traditional following the ceremony for each big brother to invite his new little brother to his room to toast their new relationship with drinks before adjourning to downtown taverns for more serious partying. The beer and liquor consumed for this purpose was purchased by each individual big brother. This was in contrast to other fraternity functions which often involved a “slush fund” collected by the social chairman who then purchased the desired alcoholic beverages. A written fraternity policy prohibited the use of chapter funds to purchase alcohol. The policy likewise directed chapters to conform their liquor possession and distribution practices to state law and institutional policy. It appears these policies were more often honored in their breach. Virtually every witness testified that beer and other alcoholic beverages were made available to members under the legal drinking age of twenty-one. See Iowa Code § 123.47A (1995). Moreover, five out of the six previous visits by national fraternity officers yielded reports suggesting that alcohol emphasis within the context of social development in the house was “strong.”

Matt Garofalo’s assigned big brother was defendant Chad Diehl. In advance of the ceremony, Diehl purchased beer and a bottle of Southern Comfort with the intent of sharing it with Garofalo. Diehl also purchased beer and vodka for defendant Tim Reier. Reier was an older member, and a big brother, but was under age for purposes of legally purchasing alcohol. The young men set up informal bars in their rooms and shared the liquor with whomever wandered in.

Garofalo drank heavily. He drank straight from the Southern Comfort bottle, as well as other available liquor bottles, along with the forty-ounce Mickey’s brew furnished by Diehl. He soon began to stagger and became loud, announcing he would drink everyone else under the table. Diehl told him to “slow down.” By 11:30 p.m. it was evident Garofalo was in no shape to go to the downtown bars. He stumbled and fell down a small flight of stairs. Diehl and Reier helped him up and decided he should lie down on a spare couch in Reier’s room. At that point Ga-rofalo was conscious and walking under his own power. But they moved him along, in Reier’s words, “like an injured player from the field.”

Garofalo passed out on the couch. Diehl and Reier positioned him on his side so he would not aspirate in case of vomiting. Around midnight Reier and his little brother headed down to the bars. Diehl stayed with Garofalo for roughly half an hour. He then left to attend to an altercation on the fraternity lawn. No one else took charge of Garofalo. Some time later, Diehl checked on him and found him snoring or, perhaps, “gurgling.” Two young women, who had been high school classmates with Garofalo, also checked on him during the early morning hours. One found that someone had drawn a beard on his face with magic marker and painted his ear with whiteout. She wiped off his face but was not otherwise concerned about his wellbeing.

Reier returned to the fraternity house around 3:00 a.m. Garofalo was still on his couch. In Reier’s words, “He was snoring and looked fine.” Reier turned him over, adjusted his pillow and noted that Garofalo “looked pretty content.” Reier awoke at 8:00 a.m., just in time for an 8:30 a.m. class. He glanced at Garofalo as he headed out the door. Garofalo appeared to be sleeping.

Around 11:30 a.m. it was discovered that Garofalo wras dead. The rug on the floor nearby was damp and smelled of vomit. A later autopsy estimated the time of death was between 7:00 a.m. and 8:00 a.m. His blood alcohol count was .188, leading the medical examiner to conclude Garofalo’s alcohol level “may have peaked at .250 to .300% eight hours before he died.”

Subsequent investigations led both police and university officials to conclude that no “hazing” was involved in the events in question, i.e., no one intentionally or recklessly engaged in “forced activity” endangering the health or safety of a student as a condition of initiation into the fraternity. See Iowa Code § 708.10 (crime of hazing defined). The assistant dean of students reported that the liquor consumed following the ceremony “had been purchased on an individual basis rather than part of an organized activity.” A police report summed up the events this way:

The ceremony may have created an opportunity for members to be together which could have spawned an opportunity to drink alcohol, but the ceremony itself carried no imperative for consumption. Further, it appears that events after the ceremony took on different forms as well. Some members left the area, others remained at the house, while others left for the downtown to “go out” which appears to be typical for the house on a Thursday night. Indications regarding Garofalo’s intake of alcohol reflect a decision on his part to consume rather than a mandate from his house mates to that effect.

III. Proceedings.

Garofalo’s parents, as co-administrators of his estate, filed a wrongful death action against the national fraternity, its Iowa chapter, Tim Reier, and Chad Diehl, as well as two other members of the Iowa chapter who were later dismissed as parties. Plaintiffs’ suit alleged negligence in the defendants’ conduct toward Garofalo, both in connection with the big brother/little brother ceremony and in failing to properly care for him after “securing [his] intoxication.”

All four defendants moved for summary judgment in advance of trial. As to plaintiffs’ claims against Tim Reier, the court found no proof that he affirmatively harmed Garofalo by furnishing him alcohol, nor did their relationship spawn a duty on Ms part to care for Garofalo once he became inebriated. As for the national fraternity and its local chapter, the court found no proof that Garofalo’s alcohol consumption was forced or involuntary. It also rejected plaintiffs’ claim that any legal duty flowed from these defendants to Ga-rofalo requiring them to protect him from self-inflicted harm. Finally, the court denied Diehl’s motion for summary judgment. Based on evidence that Diehl furnished alcohol to Garofalo in violation of state law, and disputed facts surrounding his conduct once Garofalo became intoxicated and passed out, the court ruled summary judgment in Diehl’s favor would be inappropriate. This appeal by Edward and Monica Garofalo followed.

IY. Arguments on Appeal.

Appellants pose a three-part challenge to the district court’s dismissal of their claims against the national fraternity, its Iowa chapter, and Tim Reier. First, they claim the court erred by failing to hold the Iowa chapter responsible for Garofalo’s intoxication and death. Second, they contest the court’s refusal to recognize the national fraternity’s duty of care to Matt Garo-falo and its breach. And, third, they cite error in the court’s refusal to hold Reier, and other members of the chapter, accountable for Garofalo’s care once he became helpless and unable to adequately protect himself. We shall consider the arguments in turn.

A. Duty of Iowa chapter concerning consumption of alcohol. Appellants’ first point rests on a theme repeated throughout this appeal — that a “special relationship” exists between a fraternity (local and national) and its members that gives rise to a heightened duty of care and protection. They then contend that the local chapter breached that duty when its members furnished alcoholic beverages to Ga-rofalo (1) in violation of state law, and (2) in quantities that were foreseeably dangerous. The fraternity counters that there is no legal or factual basis for these claims under the record before us. Our consideration of the relevant principles, described below, leads us to agree.

1. Special relationship. As a general rule the law imposes no duty upon an individual to act for the protection of others. Restatement (Second) of Torts § 314, at 116 (1965). Likewise, there is no duty to control the conduct of third persons so as to prevent that person from causing physical harm to another unless

(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or

(b) a special relation exists between the actor and the other which gives to the other a right to protection.

Restatement (Second) of Torts § 315, at 122; accord Bohan v. Hogan, 567 N.W.2d 234, 236 (Iowa 1997); Sankey, 456 N.W.2d at 209; Hildenbrand, 369 N.W.2d at 415. Commonly recognized “special relations” include common carrier/passenger, innkeeper/guest, landlord/invitee, and peace officer/arrestee. Restatement (Second) of Torts § 314A, at 118. In general, “special relations” are those in which the law recognizes a duty to aid or protect persons in a relationship of “dependence or mutual dependence.” Id. cmt b; accord Beach v. University of Utah, 726 P.2d 413, 415-16 (Utah 1986). So, for example, a peace officer who stops an intoxicated driver but does not take him into custody has no “special relation” with the driver such that the law will recognize a duty of protection, and impose liability upon the officer, when the driver later kills himself in an accident. Hildenbrand, 369 N.W.2d at 415. But a tavern owner, who has no duty to the patron who drinks himself to death, may be held to have breached a duty of care if the drunk is wrongfully expelled from the saloon, late at night, to die of cold and exposure. Weymire v. Wolfe, 52 Iowa 533, 534, 3 N.W. 541, 542 (1879); accord Hildenbrand, 369 N.W.2d at 415.

2. Underage drinking. Iowa statutory law prohibits a person from giving, selling, or otherwise supplying alcoholic liquor, wine, or beer to persons between the age of eighteen and twenty-one except in limited circumstances prescribed by statute. Iowa Code § 123.47A. Violation of this law will support a common law cause of action by the underage person against the person furnishing the alcohol. Sage v. Johnson, 437 N.W.2d 582, 584-85 (Iowa 1989). “To prevail on such a cause of action, however, a plaintiff must prove the defendant’s knowing and affirmative delivery of the [alcoholic beverage] to the underage person.” Fullmer v. Tague, 500 N.W.2d 432, 434 (Iowa 1993) (emphasis added). “The statutory term ‘otherwise supply’ means more than merely permitting or allowing beer to be consumed on a defendant’s premises.” Id. (citing DeMore v. Dieters, 334 N.W.2d 734, 737 (Iowa 1983)); accord Snyder v. Fish, 539 N.W.2d 197, 199 (Iowa App.1995).

3. Analysis. Appellants seek to bring the local chapter within the reach of these rules regarding duty and underage drinking. Several jurisdictions have considered similar laws in the context of injuries stemming from fraternity parties. But the cases upon which appellants rely all involve coerced consumption of enormous amounts of alcohol by underage pledges as an integral part of organized fraternity initiation ceremonies. See, e.g., Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity, 155 Ill.App.3d 231, 107 Ill.Dec. 824, 507 N.E.2d 1193, 1195 (1987) (as part of pledge night initiation ceremony, each pledge directed to drink forty-ounce pitcher of beer “without letting the pitcher leave the pledge’s lips or until the pledge vomited” followed by an eight ounce bottle of whiskey); Ballou v. Sigma Nu Gen. Fraternity, 291 S.C. 140, 352 S.E.2d 488, 491 (Ct.App.1986) (pledges, clad only in underwear, expected to “chug ... unknown mix of intoxicating liquids of undisclosed alcoholic strength” at mandatory hell-night initiation party); Haben v. Anderson, 232 Ill.App.3d 260, 173 Ill.Dec. 681, 597 N.E.2d 655, 660 (1992) (recognizing cause of action against fraternity where consuming alcohol a requirement of membership and in violation of law prohibiting hazing); Oja v. Grand Chapter of Theta Chi Fraternity, Inc., 174 Misc.2d 966, 667 N.Y.S.2d 650, 651 (N.Y.Sup.Ct.1997) (recognizing cause of action brought by estate of deceased son “who died as the result of alcohol poisoning suffered in the course of a night of hazing conducted at the defendant fraternity”).

Appellants suggest these cases rest on a “special relationship” between a fraternity and its members which, they argue, gives rise to a duty to protect the initiates from harming themselves through excessive drinking. In fact the cited cases recognize an affirmative duty on the part of the fraternities and their members not to cause injury, through violation of underage drinking and hazing laws, during the initiation process. Quinn, 107 Ill.Dec. 824, 507 N.E.2d at 1198 (duty to conduct initiation free from unreasonable risk of harm); Ballou, 352 S.E.2d at 492 (fraternity owes “duty to its initiates not to cause them injury in the process”). The distinction is important as we consider the summary judgment record before us.

In contrast to the cases cited by appellants, the facts established in the record before us reveal no affirmative harm by the Iowa chapter of Lambda Chi Alpha, illegal or otherwise, toward Garofalo. The drinking that ultimately led to Garofalo’s death was not part of any initiation ritual or ceremony. No chapter funds were used to purchase the liquor. It is true that tradition played a part in the decision by individual members to drink with underage pledges after the ceremony, and liquor was bought for that very purpose. But appellants have come forward with no proof to suggest, even impliedly, that Garofalo or any other member’s consumption was coerced or required as a condition of chapter membership. To the contrary, the record yields proof that Garofalo was an experienced, if not sensible, drinker and that at least one of his peers chose not to drink at all. Thus we are unpersuaded by appellants’ claim that disputed factual issues exist concerning the voluntariness of Garofalo’s conduct. See Fullmer, 500 N.W.2d at 435 (party resisting motion for summary judgment must come forth with specific facts demonstrating the existence of genuine issue for trial).

Viewing the record in the light most favorable to the appellants, we find no support for their claim that the Iowa chapter stood in a “special relation” to Matt Garofalo or affirmatively breached a duty owed to him. Neither the chapter nor its members (with the exception of defendant Chad Diehl) furnished him alcohol in violation of statute. Garofalo’s consumption of alcoholic beverages was not required or compelled as a condition of membership in the chapter. In short, the ideals of fellowship espoused by the chapter are insufficient, standing alone, to create a duty on the part of the chapter to protect Garofalo from his voluntary, adult choice to drink to excess. The district court was correct in so ruling.

B. Duty of national chapter. Appellants claim the national fraternity “had a duty to control the 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, at 159. 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 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:

[Wjhere 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 Garo-falo 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 his own interests to those of the other.” Id. cmt. d. Thus Reier, and the chapter, were entitled to judgment as a matter of law on this claim.

AFFIRMED AS TO DEFENDANTS LAMBDA CHI ALPHA FRATERNITY AND TIMOTHY REIER, AFFIRMED BY OPERATION OF LAW AS TO LAMBDA CHI ALPHA UNIVERSITY OF IOWA CHAPTER AND REMANDED.

McGIVERIN, C.J. and CADY, J. concur in this opinion. LAVORATO and LARSON, JJ. concur in division IV.B of the majority opinion and dissent as to divisions IV.A and IV.C. TERNUS, J. concurs in all but division IV.A of the majority opinion and joins divisions I and II of the dissent. CARTER and SNELL, JJ. take no part.