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JEFFREY V.
FUREK, Plaintiff Below, Appellant, v. THE UNIVERSITY OF DELAWARE, a Delaware
corporation; SIGMA PHI EPSILON, an unincorporated association; SIGMA PHI EPSILON
FRATERNITY, a Virginia Corporation, Defendants Below, Appellees
No. 22, 1988
Supreme Court of Delaware
594 A.2d 506; 1991 Del. LEXIS 282
May 30, 1990, Oral Argument Submitted, October 29, 1990, Supplemental Briefing.
July 24, 1991, Decided
SUBSEQUENT HISTORY: [**1] Released for Publication August 14, 1991.
Mandate.
PRIOR HISTORY: Court Below: Superior Court of the State of Delaware in
and for New Castle County; C.A. No. 82C-SE-30. Appeal from Superior Court.
DISPOSITION: Appeal from Superior Court. Affirmed in part. Reversed in
part.
COUNSEL: Roger A. Akin, Esquire and Christopher J. Curtin, Esquire
(argued), Sawyer & Akin, P.A., Wilmington, for Appellant.
Victor F. Battaglia, Sr., Esquire (argued) and Francis S. Babiarz, Esquire,
Biggs & Battaglia, Wilmington, for Appellant University of Delaware.
Richard P. S. Hannum, Esquire (argued), Prickett, Jones, Elliott, Kristol &
Schnee, Wilmington, for Appellee Sigma Phi Epsilon.
P. Clarkson Collins, Jr., Esquire (argued), Morris, James, Hitchens & Williams,
Wilmington, for Appellee Sigma Phi Epsilon Fraternity.
JUDGES: Christie, Chief Justice, Horsey and Walsh, Justices.
OPINION BY: WALSH
OPINION
[*509] This is an appeal from a decision of the Superior Court that granted
judgment notwithstanding the verdict, thus invalidating a jury award of damages,
in an action brought by a student for injuries sustained in a fraternity hazing
incident at the University of Delaware. The plaintiff below-appellant, Jeffrey
V. Furek ("Furek"), had sought damages against the fraternity, Sigma Phi
Epsilon ("Sig Ep"), its national affiliate, [**2] Sigma Phi Epsilon
Fraternity, a Virginia corporation (the "National Fraternity"), the University
of Delaware (the "University") and a fellow student Joseph Donchez ("Donchez").
During trial, the complaint was dismissed as to Sig Ep on jurisdictional
grounds. After trial, a jury awarded damages in the amount of $ 30,000.00,
apportioned on the basis of ninety-three percent liability to the University and
seven percent to Donchez with no finding of liability as to the National
Fraternity.
In a post-trial ruling, the Superior Court granted a motion for judgment n.o.v.
in favor of the University leaving Donchez liable for the entire judgment.
Furek appeals from that decision as well as from rulings dismissing Sig Ep
and denying punitive damages. Furek also challenges the jury's verdict
regarding the National Fraternity. The University cross-appeals from the trial
court's denial of motions for a directed verdict as to its defenses of
contributory negligence and assumption of risk. We affirm the rulings concerning
the local and national fraternity but reverse the grant of judgment n.o.v. as to
the University.
I
The facts developed at trial reflect the following events. In September, 1979,
[**3] Furek entered the University as a freshman after receiving a full
football scholarship, which included tuition, room and board. During his
freshmen year, Furek played linebacker for the University football team.
In the fall of his sophomore year, Furek decided to join the local
chapter of Sig Ep after being encouraged to do so by several of the fraternity's
members who were on the football team.
The University chapter of Sig Ep was established in 1908 through a charter
issued by the National Fraternity.
1 In 1980, Sig Ep was one of two fraternities
located on land owned by the University. The University leased the land to the
Sigma Phi Epsilon Alumni Corporation which, in turn, constructed the fraternity
house and permitted the members of the fraternity to occupy the house during
their stay at the University.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
1 Sigma Phi Epsilon Fraternity is a national fraternity
headquartered in Richmond, Virginia. It issues charters to chapters at
undergraduate universities and monitors and regulates those chapters. In 1980,
there were approximately 240 Sigma Phi Epsilon chapters nationwide which were
visited annually by representatives of the National Fraternity.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**4] In the fall of 1980, Furek began his pledge period at Sig Ep. The
pledge period is an eight week initiation process during which pledges, those
seeking to become members of the fraternity, are instructed concerning the
history of the fraternity and undergo a process known as "brotherhood
development." The pledges are also subjected to various forms of harassment
known as "hazing". The culmination of the initiation process is a secret ritual
known as "Hell Night" -- an extended period of hazing during which the pledges
are physically and emotionally abused. After Hell Night, the pledges are
considered members of the fraternity.
For Furek and the other members of his pledge class, Hell Night took
place on December 4, 1980. After assembling across the street from the Sig Ep
house, wearing only T-shirts and jeans, the pledges were ordered to crawl on
their hands and knees to the fraternity house while being sprayed by a fire
extinguisher. Once inside the house, the pledges were ushered to various rooms
where they were humiliated and degraded. Among other things, they were paddled,
forced to do calisthenics and ordered to eat food out of a toilet.
[*510] Donchez, a member of the fraternity, was [**5] stationed in the
kitchen and assigned the task of pouring food on the pledges. The pledges were
escorted into the kitchen blindfolded, and pancake batter, ketchup and other
foodstuffs was poured on their heads. During this process, Donchez poured a
container containing a lye-based liquid oven cleaner over the back and neck of
Furek. Furek was escorted out of the kitchen and allowed to remove his
blindfold. While waiting outside the kitchen, he was overcome by a burning
sensation on his back and neck. He rushed to the bathroom and upon looking in
the mirror observed the discoloration of the skin on his face, neck and back. He
was then taken to the hospital and treated for first and second degree chemical
burns. As a result of the events of Hell Night, Sig Ep had its charter revoked
by the National Fraternity and the University withdrew the registration of the
fraternity. Furek, permanently scarred, subsequently withdrew from the
University and forfeited his football scholarship.
Although official policy directives from the University
2 and the National Fraternity forbade hazing, Sig Ep
and other fraternities on the Newark campus had engaged in various forms of
hazing for at least [**6] five years previous to the incident in question.
Officers of the local fraternity were required to certify annually to the
National Fraternity that hazing was not occurring. Apparently, this was done
routinely although one former president of the fraternity testified that he
returned the certification to the National Fraternity in 1977 with a notation
that the "brotherhood development" program was not free of hazing.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
2 The University of Delaware "Student Guide to Policies"
for the 1980-81 academic year made explicit reference to hazing:
Respect for Dignity and Rights of Others
Respect for the dignity and rights of other students is a basic tenet of the
academic community. Hazing, the subjection of an individual to any form of
humiliating treatment and the violation of the rights of other students, have no
place in the University community.
The Guide also advised students that "The University reserves the right to deny
registration to student groups whose major focus involves activities which
expose their members to high bodily risk for which the University might to be
considered liable."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**7] In addition to the statements appearing in the Student Guide, the
University through its Dean of Students issued a statement concerning sorority
and fraternity hazing in 1978. The statement noted that "The Office of the Dean
of Students assists fraternities and sororities in developing constructive
activities and positive experiences for their members." The statement recited
the "concern . . . expressed, both nationally and locally over fraternity and
sorority activities which may be deemed 'hazing.'" The directive listed specific
instances of hazing which would "not be tolerated either on or off campus."
These instances included "paddling or striking . . . mental or emotional
intimidation . . . [and] forced participation in humiliating games,
performances, stunts or any rough practical jokes."
In April, 1977, the Director of the University Health Service reported to John
Worthen, the University Vice President for Student Affairs, that two students
had been treated for injuries received during hazing. In one case, a student had
been branded on the arm by a hot coat hanger. The following month, Stuart
Sharkey, the University's Director of Housing and Residence Life wrote to the
presidents [**8] of each fraternity sponsored by the University, including Sig
Ep, concerning these incidents. Sharkey noted that the "University is appalled
and alarmed that in 1977 this activity has occurred on our campus." He requested
that each president "conduct a thorough review" of pledging practices and
certify to the University that "your chapter will not engage in any form of
hazing."
Two years later, in November, 1979, the Assistant Dean of Students again wrote
to fraternity presidents to notify them of a "mandatory meeting" to discuss "a
number of activities involving 'disruptive conduct' as well as possible
instances of hazing pledges or forcing pledges to perform tasks and activities
against their better judgment." In May, 1980 after a speech on campus by the
mother of a student [*511] killed in a hazing incident at another university,
the University Dean of Students wrote to the presidents of the Interfraternity
Council, with copies to the presidents of local fraternities and sororities
endorsing the speaker's stand against hazing and noting the University's
willingness to revoke the charter of any fraternity or sorority which "engages
in such activity."
Despite the University's public pronouncement [**9] and warnings concerning
hazing in the three years prior to Furek's injuries, the record reflects
that the hazing activities at Sig Ep, and perhaps other fraternities as well,
continued unabated on an annual basis. Groups of pledges, carrying paddles, were
observed openly marching through the campus and on one occasion lining up on a
public street across from the Sig Ep house, and the Sigma Nu house, to start
Hell Night. Indeed, on a night prior to Hell Night, Furek and twenty-five
other pledges dressed in dark clothes for "sneaking around" were stopped by
University Security officers but were permitted to continue when the officers
were advised that they were raiding the Sig Ep house as a pledging prank.
Apparently, the University Security department was not made aware of the
specific directives against hazing nor is there any indication that University
Security was asked to investigate incidents of hazing prior to Furek's
injury.
After some delay following Furek's hospitalization for his injuries, the
hazing incident was reported to the University and eventually to the National
Fraternity. The National Fraternity conducted a separate investigation and
immediately revoked Sig Ep's [**10] charter. As a result, the local fraternity
disbanded and ceased to exist as a fraternity at the University. Although the
University conducted its own investigation of the incident, it was unable to
secure the cooperation of knowledgeable students and thus did not initiate
formal disciplinary proceedings against individual students or the local
fraternity.
Furek filed his Superior Court action on September 9, 1982, naming as
defendants the University, the National Fraternity, Sig Ep and Donchez and
seeking both compensatory and punitive damages. In his complaint, Furek
alleged that his injuries were proximately caused by the University's negligent
and reckless failure to control Sig Ep and its members; the National
Fraternity's negligent and reckless failure to monitor Sig Ep; Sig Ep's
negligent and reckless failure to take steps to control the dangerous acts of
its members; and Donchez's negligent and wanton failure to exercise reasonable
care to ascertain what foreign substance he was pouring over Furek's
body.
Prior to trial, a default judgment was entered against Sig Ep for failure to
answer or make an appearance. Service had been made on the Delaware Secretary of
State pursuant [**11] to the Delaware Long-Arm Statute, 10 Del. C. §
3104, and Robert Lundquist, the president of Sig Ep at the time Furek was
injured.
In 1986, the National Fraternity moved to dismiss on the ground, that it did not
have sufficient contacts with Delaware for the Superior Court to exercise
personal jurisdiction and because Furek was not a resident of Delaware,
he could not assert jurisdiction under 10 Del. C. § 3104. The Superior
Court ruled that the National Fraternity had minimum contacts with Delaware as a
result of its issuance of a charter to Sig Ep and that a non-resident may employ
the Long-Arm Statute to obtain personal jurisdiction over a non-resident
tortfeasor. Furek v. University of Delaware et al., Del.
Super., C.A. No. 82C-SE-30, Gebelein, J. (Jan. 9, 1986).
Concurrently with the filing of the National Fraternity's motion to dismiss on
jurisdictional grounds, Donchez and the University moved for summary judgment.
Donchez sought partial summary judgment on Furek's claim for punitive
damages asserting that his conduct was not wanton or willful. The court ruled
that this was an issue of fact precluding the grant of summary judgment. In its
motion for summary judgment, [**12] the University claimed that it had no duty
to protect Furek and that by engaging in prohibited hazing, Furek
had assumed the risk that he might be injured. The Superior Court, relying upon
[*512] § 315 of the Restatement of Torts, determined that the University had a
duty to protect Furek through its control of the fraternity. In view of
its knowledge of the dangers of hazing on its campus, Furek's claim
against the University stated a cause of action as a matter of law. The court
also ruled that factual issues precluded the grant of summary judgment on the
defenses of contributory negligence and assumption of risk.
When the case proceeded to trial in 1987, Sig Ep appeared and moved to have the
default judgment against it set aside and the action against it dismissed on the
basis of ineffective service of process. The Superior Court granted both
motions, ruling that in order to serve a defunct unincorporated association, as
Sig Ep became when its charter was revoked, service was required to be made on
each of the former members and not simply upon a former officer. Because
Furek had failed to serve each of the members of the local fraternity, the
action against the local fraternity was dismissed. [**13] Furek
v. University of Delaware, et al., Del. Supr., C.A. No. 82C-SE-30, Poppiti,
J. (Oct. 22, 1987) (ORDER). Furek's action proceeded to trial and
resulted in an award of $ 30,000.00 in compensatory damages. The trial court had
previously directed a verdict in favor of all defendants on the claim for
punitive damages. The jury apportioned ninety-three percent of liability to the
University and seven percent to Donchez. The jury absolved the National
Fraternity of liability.
Post-trial the University moved for a judgment n.o.v., contending that the
evidence did not establish a legal predicate for the imposition of a duty on the
part of the University to protect Furek from the actions of the
fraternity or its members. The trial court agreed and granted the University's
motion for a judgment n.o.v. Furek v. University of Delaware,
Del. Super., C.A. No. 82C-SE-30, Poppiti, J. (Dec. 23, 1987). The granting of
the University's motion rendered Donchez liable for the entire $ 30,000.00
judgment.
Furek has appealed the Superior Court's granting of judgment n.o.v. in
favor of the University as well as the dismissal of his claim against Sig Ep,
the denial of punitive damages and the [**14] jury's verdict in favor of the
National Fraternity. The University has cross-appealed from the trial court's
refusal to direct a verdict in its favor as to Furek's contributory
negligence and assumption of risk.
II
We address first the question of whether the Superior Court correctly dismissed
Furek's action against Sig Ep on jurisdictional grounds. Furek
contends that service upon a former officer of the local fraternity was
effective, under Delaware law, notwithstanding the previous dissolution of the
fraternity as an unincorporated association.
Furek filed his complaint in the Superior Court against all defendants on
September 9, 1982. The complaint referred to Sig Ep as "an unincorporated
fraternal association which . . . engaged in most of its activities and
conducted its business in Delaware." Through an amended complaint, Furek
asserted he had determined that certain defendants resided outside the State and
proceeded to effect service upon them pursuant to 10 Del. C. § 3104.
3 Included among the non-resident defendants
Furek listed:
Robert Lundquist
President, Sigma Phi Epsilon
25 Siek Road
Butler, NJ 07405
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
3 Delaware's Long-Arm Statute, 10 Del. C. § 3104,
provides a basis for the assertion of personal jurisdiction over any person,
association, partnership or corporation for acts committed within the State if
at the time of service such person has become a non-resident. Harmon v.
Eudaily, Del. Super., 407 A.2d 232 (1979),
aff'd, Del. Supr., 420 A.2d 1175 (1980).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**15] It is not disputed that from March, 1980, through February, 1981 Robert
Lundquist had served as Sig Ep's president and occupied that office at the time
of Furek's initiation into the fraternity. On March 1, 1981, Lundquist
was succeeded in the office of fraternity president by another individual.
Shortly thereafter, Sig Ep's charter was revoked, the fraternity disbanded
[*513] and, for all practical purposes, ceased to exist. Thus at the time
Lundquist received notice of the Furek complaint, he was not an officer
of Sig Ep but could be deemed, at most, a former member of a dissolved
unincorporated association. As previously noted, although initially the local
fraternity failed to respond to service as a result of which a default judgment
was entered against it, Sig Ep succeeded in having the default set aside and the
action dismissed for lack of effective service.
Resolution of the question of whether the Superior Court acquired jurisdiction
over Sig Ep requires consideration of two factors: Sig Ep's status on the date
service was attempted and the method of service attempted.
As an unincorporated group or association of individuals, Sig Ep became subject
to 10 Del. C. § 3904, Delaware's [**16] common name statute, which
provides:
An unincorporated association of persons, including a partnership, using a
common name may sue and be sued in such common name and a judgment recovered
therein shall be a lien like other judgments, and may be executed upon by levy,
seizure and sale of the personal and real estate of such association, and also
that of the persons composing such association in the same manner with respect
to them as if they had been made parties defendant by their individual names.
Satisfaction thereof may also be obtained by attachment process.
The basic purpose of "common name" statutes is to permit a non-corporate entity
to sue, and be sued, in the name it presents to the public without the necessity
of joining the various individuals who comprise the association. Silliman v.
DuPont, Del. Super., 302 A.2d 327, 331 (1972), aff'd sub nom. F.I.
DuPont, Glore Forgan & Company v. Silliman, Del. Supr., 310 A.2d 128 (1973).
While common name statutes, such as section 3904, are remedial in nature and
provide the basis for entity treatment of unincorporated groups or associations,
their use, although often convenient, is not mandatory. [**17] Individuals
comprising groups or associations may continue to be sued as individuals, just
as individual partners may be sued without resort to the partnership name.
See Silliman v. DuPont, 302 A.2d at 333. Before section 3904 was adopted,
unincorporated associations could be sued through service upon individual
members. Although this method was burdensome, it was nonetheless effective to
the extent of those individuals actually served. 1 Woolley Delaware Practice,
§ 144, at 91 (1906). Thus, a plaintiff faced with the prospect of filing suit
against an unincorporated association has two options: the obvious, and usually
more convenient, service upon the entity under its common name or service upon
the individuals who comprise the group. See Fassett v. Delta Kappa Epsilon
(New York), 3rd Cir., 807 F.2d 1150 (1986) (individual members of fraternity
as of date of alleged tort named as separate defendants).
If service is attempted upon the association, qua association, under its
common name, the requirements of Superior Court Civil Rule 4(f)(1)(III) control.
It requires service upon "[an] unincorporated association which is subject to
suit [**18] under common name by delivering copies of the summons, complaint
and affidavit, if any, to an officer, a managing or general agent or to any
other agent authorized by law to receive service of process and if the agent is
one authorized by statute to receive service and the statute so requires, by
also mailing a copy to the defendant." The rule mandating service upon an agent
or officer implicitly requires that at the time of service the person served be
vested with the authority of the office designated. Even if it be assumed,
arguendo, that the association continued to exist for purposes of suit after its
dissolution, it is clear that after 1981 Lundquist occupied no office nor
exercised any authority as Sig Ep's agent. Thus, to the extent that service upon
him was attempted as a method of accomplishing binding service upon Sig Ep, such
effort was a nullity.
4
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
4 Furek did not attempt, or purport, to pursue his
claim against Lundquist as an individual member of Sig Ep although that course
was conceivably available under the common law option after service upon
Lundquist under 10 Del. C. § 3104.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**19] [*514] Furek argues that invalidating service under section
3904 would permit an unincorporated association to simply "turn off" liability
through voluntary dissolution. While this result might foreclose an entity
service approach, the option continues for service of individual former members.
See Schell v. National Flood Insurers Ass'n, D. Colo., 520 F. Supp. 150,
156 (1981). Clearly the task is more difficult, but, logically, when the
unincorporated entity no longer exists there must be an end to the authority of
its former officers to represent it.
The Superior Court correctly determined that service upon Lundquist as a former
officer of a defunct unincorporated association was a nullity and personal
jurisdiction over Sig Ep, as an entity, had not been secured.
III
We next consider Furek's challenge to the jury's determination that the
National Fraternity was not liable for his injuries. Our standard of review is
imparted by the Delaware Constitution which provides that "the findings of the
jury, if supported by evidence, shall be conclusive." Del. Const. Art. IV, §
11(1)(a). Thus, if there is any competent evidence upon which the jury's verdict
could be based, the [**20] findings of the jury will not be disturbed.
Turner v. Vineyard, Del. Supr., 46 Del. 138, 80 A.2d 177, 179 (1951).
Furek does not attack the sufficiency of the trial court's instructions to
the jury regarding the duty owed him by the National Fraternity nor does he
question the ruling of the trial court that the National Fraternity could not be
vicariously liable for any allegedly tortious conduct of Sig Ep. The sole
inquiry, therefore, is whether the evidence of record, if believed, supports the
jury verdict.
There was disagreement at trial concerning the extent of the National
Fraternity's knowledge that hazing was occurring at Sig Ep and the measures it
pursued to prevent such activities. The National Fraternity granted charters to
local groups who elect their own officers. The National Fraternity provided a
measure of oversight through Regional Directors, who visit the local fraternity,
and Chapter Counselors, alumni members of the fraternity who provide guidance to
the local chapter. As previously noted, officers of Sig Ep were required to
certify annually to the National Fraternity that "the brotherhood development
program" was free of hazing. Furek points to the fact [**21] that in
1977 the then president of Sig Ep, Tony Glenn, reported to the National
Fraternity that the local fraternity was not free of hazing. In later
years, however, Glenn, acting as Chapter counselor, signed a no-hazing
certification. Upon learning of the Furek injuries, in the spring of
1981, the National Fraternity conducted an investigation of the incident and
withdrew Sig Ep's charter.
The extent of the National Fraternity's knowledge and control of hazing at the
Sig Ep chapter is open to conflicting interpretations. While the National
Fraternity was on notice through Glenn's 1977 report and the presence of pledge
paddles observed on visits that hazing might be occurring, it did not exercise
day to day control over local chapter activities. Moreover, there is evidence to
support the National Fraternity's argument that by 1980 it believed its
anti-hazing regulations were being observed. Although the extent of the National
Fraternity's precise knowledge is disputed, we conclude that substantial
evidence was introduced from which a jury could reasonably conclude that the
National Fraternity exercised reasonable care to control the activities of the
local chapter. Under our standard [**22] of review, we find no basis to disturb
the jury's verdict respecting the National Fraternity.
IV
The principal dispute in this appeal concerns what, if any, duty the University
owed to Furek to protect him from the hazing activities of Sig Ep and its
members, including Donchez. The definition of [*515] that duty in the Superior
Court was subject to a series of rulings which finally resulted in the setting
aside of the jury verdict against the University. It remains for this Court to
give this novel issue an additional turn.
A.
In denying the University's motion for summary judgment, the Superior Court
rejected the contention that the University had no duty to protect Furek
from his voluntary actions. The focus of the University's duty, the court held,
was upon the control of the fraternity arising from the special relationship
reflected in §§ 315 and 319
5 of the Restatement (Second) of Torts (1965). The
court also ruled that in view of the evidence suggesting that the University was
aware of the "dangerous propensities of the fraternities as they related to
hazing," and the fraternity's location on University property, it could not be
said, as a matter of law, that no duty was owed to [**23] Furek. Furek
v. University of Delaware, et al., Del. Super., C.A. No. 82C-SE-30, Gebelein,
J. (Jan. 9, 1986).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
5 § 315. General Principle
There is no duty to control the conduct of a third person as to prevent him 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.
* * *
§ 319. Duty of Those in Charge of Persons Having Dangerous Propensities
One who takes charge of a third person whom he knows or should know to be likely
to cause bodily harm to others if not controlled is under a duty to exercise
reasonable care to control the third person to prevent him from doing such harm.
* * *
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
When the case proceeded to trial before another Superior Court judge, the issue
of the University's duty continued to be a matter of dispute. At the conclusion
of all the evidence, the defendants moved for directed verdicts on various
issues. The University contended that the evidence failed [**24] to support
the imposition of any duty on its part to protect Furek from the
activities of the fraternity. The trial judge, noting that the factual predicate
for the court's earlier ruling "had become so attenuated," rejected § 319 of the
Restatement as a basis for submission of Furek's claim to the jury.
Instead, the trial judge ruled that the evidence supported submitting Furek's
claim against the University under a "custodial negligence" theory based on §
324A(b) of the Restatement which provides:
§ 324 A. Liability to Third Person for Negligent Performance of Undertaking
One who undertakes, gratuitously or for consideration, to render services to
another which he should recognize as necessary for the protection of a third
person or his things, is subject to liability to the third person for physical
harm resulting from his failure to exercise reasonable care to protect his
undertaking, if
* * *
(b) he has undertaken to perform a duty owed by the other to the third person,
* * *
After a reading of § 324A(b) of the Restatement, the trial judge gave the
following instruction to the jury regarding the University's duty to Furek:
Before you may find the University of Delaware negligent, [**25] you must
find,
(1) That the local fraternity was required to exercise reasonable care for the
protection of pledges; and
(2) The University undertook a duty to provide reasonable care for the
protection of pledges; and
(3) That the University failed to undertake reasonable care for the protection
of the plaintiff; and
(4) Such failure constituted a proximate cause of the injuries as I have
previously defined that term.
In his post-trial ruling which granted the University's motion for judgment
n.o.v., the trial judge concluded that the evidence presented at trial did not
support the application of § 324A(b). He ruled that [*516] § 324A(b) applies
"only when one undertakes to supplant the duty of another owed to a third
person." Since the evidence did not demonstrate that Furek or any
fraternity pledge "relied on the University for his own safety, nor believed
that the University had undertaken a duty of protection in lieu of [the
fraternity]," § 324A(b) finds no application.
Although he rejected § 324A(b) of the Restatement as a basis for fixing
liability upon the University, the trial judge went on to determine "if an
independent duty of care on the part of the University can be found to [**26]
exist on facts in evidence."
6 The trial judge then proceeded to reject any duty
on the University's part arising out of a special relationship in the general
student-University context or by reason of the University's promulgation of an
anti-hazing policy. Accordingly, the trial judge concluded that the evidence
presented at trial presented no predicate for the imposition of a duty on the
University and vacated the jury's determination that the University was
ninety-three percent liable for Furek's injuries. The effect of the
court's ruling was to render Donchez responsible for the entire amount of the
jury's verdict.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
6 Since the jury was instructed only on the application of
§ 324A(b) with respect to the University's liability, it is not clear how an
evidential predicate for another legal basis for recovery would have permitted
the jury verdict against the University to stand. However, because the
University had moved for a directed verdict at the close of all the evidence,
the court's denial of that motion is deemed to have submitted the case to the
jury subject to a later determination of the legal question raised by the
motion. Super. Ct. Civ. R. 50(b).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**27] B.
Negligent behavior is usually defined as the failure to meet the standard of
care which the law requires. However, liability for negligence is limited by the
scope of the legally defined duty. Thus, an antecedent duty of care with respect
to the interest involved must be established before liability is imposed. 5 F.
Harper, F. James and O. Gray, The Law of Torts, § 18.1, at 650 (2d ed.
1986). The scope of the duty of care often turns on the relationship between the
party claiming harm and the party charged with negligence. We here confront the
broad question of whether the law imposes upon the relationship between
university and student a duty, on the part of the university, to make and
enforce policies which might protect the student from harm occasioned by the
acts of third parties who function under the auspices of the university.
The university-student relationship is certainly unique. While its primary
function is to foster intellectual development through an academic curriculum,
the institution is involved in all aspects of student life. Through its
providing of food, housing, security, and a range of extracurricular activities
the modern university provides a setting [**28] in which every aspect of
student life is, to some degree, university guided. This attempt at control,
however, is directed toward a group whose members are adults in the
contemplation of law and thus free agents in many aspects of their lives and
life styles.
7 Despite the recognition of adulthood, universities
continue to make an effort to regulate student life and the courts have utilized
diverse theories in attempting to fix the extent of the university's residual
duty.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
7 In Healy v. James, 408 U.S. 169, 197, 92 S. Ct.
2338, 33 L. Ed. 2d 266 (1972), Justice Douglas in his concurrence noted:
"Students --- who, by reason of the Twenty-sixth Amendment, became eligible to
vote when eighteen years of age --- are adults who are members of the college or
university community."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
C.
In earlier times of strict university control, the institution was viewed as
acting in loco parentis, i.e., the university exercised delegated
parental authority with a concomitant duty of broad protection. See Dodd,
The Non-Contractual Nature of [**29] the Student-University
Contractual Relationship, 33 U. Kan. L. Rev. 701, 702 (1985). The concept of
university control based on the doctrine of in loco parentis has all but
disappeared in the face of the realities of modern college life where students
" [*517] are now regarded as adults in almost every phase of community life."
Bradshaw v. Rawlings, 3rd Cir., 612 F.2d 135, 139 (1979), cert. denied
sub nom. Doylestown v. Bradshaw, 446 U.S. 909, 100 S.Ct. 1836, 64 L.Ed.2d
261 (1980). To the extent that the doctrine of in loco parentis is still
viable, its application is limited to claims against high school authorities for
injuries to students arising out of a failure to supervise. Rupp v. Bryant,
Fla. Supr., 417 So.2d 658 (1982).
The University contends that the demise of the doctrine of in loco
parentis has dispelled the notion that any special relationship exists
between the university and its student body upon which to posit any duty to
protect students from activities of their fellow students. It is argued that the
student and the university operate at arms-length, with the student responsible
for exercising judgment for his or [**30] her own protection when dealing with
other students or student groups. In granting judgment n.o.v., the Superior
Court, in effect, agreed with this argument by rejecting Furek's claim
that lack of university supervision over the conduct of the fraternity was a
proximate cause of his injuries. While we agree that the University's duty is a
limited one, we are not persuaded that none exists.
A number of courts have examined whether a university's failure to supervise
student activities could be deemed a breach of a duty arising from the
student-university relationship. Some courts have been unwilling to impose
liability because the university is not an insurer of its students safety, and
the students are legally responsible adults who are able to take care of
themselves. Thus, these courts have rejected both a duty under the in loco
parentis doctrine and a duty of supervision under Restatement § 314A when
one assumes responsibility for another's safety or deprives another of a normal
opportunity for self-protection.
8
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
8 Restatement § 314A is entitled "Special Relations Giving
Rise to Duty to Aid or Protect." Listed under special relationships are a common
carrier, an innkeeper and "a possessor of land who holds it open to the public"
as well as:
(4) One who is required by law to take or who voluntarily takes the custody of
another under circumstances such as to deprive the other of his normal
opportunities for protection is under a similar duty to the other.
Although § 314A does not include the university-student relationship in its list
of special relationships, a caveat to that section states that "the Institute
expresses no opinion as to whether there may be other relations which impose a
similar duty." Comment b to § 314A also provides that "the relations listed are
not intended to be exclusive, and are not necessarily the only ones in which a
duty of affirmative action for the aid or protection of another may be found."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**31] A leading decision which examined a university's duty of supervision
and protection is Beach v. University of Utah, Utah Supr., 42 Utah Adv.
Rep. 30, 726 P.2d 413 (1986). Beach contended that the University, through an
accompanying member of the faculty, breached an affirmative duty to supervise
and protect her when she became intoxicated and fell from a cliff while
participating in a university sponsored field trip. The Beach court held
that a special relationship did not exist under § 314A sufficient to impose
liability for the failure to protect and supervise the plaintiff once she became
intoxicated. Nor did a duty arise because of a university prohibition against
alcohol use and her status as a minor under state law. The Beach court
concluded that "[a] realistic assessment of the relationship between the parties
precludes our finding that a special relationship existed between the University
and Beach or other adult students." Id. at 419.
The Beach court explicitly based its ruling on the social policy analysis
set forth in Bradshaw v. Rawlings, 612 F.2d at 138-39, holding that the
imposition of a duty to supervise extracurricular [**32] activities would be
unrealistic and impossible to perform since it would place the university in a
custodial relationship with its students who are legally adults. For essentially
the same reasons, the Colorado Supreme Court sitting en banc in Univ. of
Denver v. Whitlock, Colo. Supr., 744 P.2d 54 (1987), refused to find a
breach of a duty of supervision where a student was injured while intoxicated
and making use of a trampoline [*518] at his fraternity located on university
premises. Citing Restatement § 314A, comment b, the Whitlock court
concluded that there was not a relation of dependence sufficient to support a
duty to supervise based on the status of the plaintiff as a student.
9
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
9 The Whitlock court also rejected a duty based on
the lease between the plaintiffs fraternity and the University. See infra
at page 35.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Cases subsequent to Bradshaw which rejected a duty to supervise seem to
rely on the policy analysis set out in Bradshaw without considering the
factual validity of [**33] its premises or the accuracy and consistency of its
logic. The Whitlock court stated that taking away students control over
private recreational and personal safety choices would deprive students of their
recently recognized authority in these areas. Citing the California Court of
Appeals in Baldwin v. Zoradi, Cal. App., 123 Cal. App. 3d 275, 176 Cal.
Rptr. 809, 818 (1981)
10 with approval, the Whitlock court agreed
with the proposition that "only by giving them responsibility can students grow
into responsible adulthood." The Whitlock court concluded that taking
away this responsibility would "produce a repressive and inhospitable
environment, largely inconsistent with the objectives of modern college
education." 744 P.2d at 60 (quoting Beach v. University of Utah, 726 P.2d
at 419).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
10 The Baldwin court examined the university duty
arising from an injury occurring off campus that was allegedly the result of
alcohol consumption in a university dormitory. See infra at page 34.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**34] These cases provide no empirical support for the proposition that
supervision is inversely related to the maturation of college students. Aside
from the opinion in Bradshaw, no legal or other authority is cited for
the assertion that supervision of potentially dangerous student activities would
create an inhospitable environment or would be largely inconsistent with the
objectives of college education.
11 It seems equally reasonable to conclude that
university supervision of potentially dangerous student activities is not
fundamentally at odds with the nature of the parties' relationship, particularly
if such supervision advances the health and safety of at least some students.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
11 Bradshaw suggested that the college revolts of
the 1960's were the direct result of rigid controls in the university
student relationship. It could be argued with equal force, however, that the
revolts were the result of intellectual and political coercion, and not directed
against the supervision of potentially dangerous recreational activities. It is
difficult to believe that university students protested in the 1960s to prevent
the use of trampolines at fraternities or the right to haze fraternity pledges.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**35] Beach and Bradshaw may also be faulted on the logic of
their analysis. In both cases, it was asserted that the major reason for the
rejection of a university duty to supervise was that the students were
responsible adults. In both cases, the injuries were alcohol-related. However,
in the area of activity that was the subject matter of the dispute, alcohol
consumption, the students were unquestionably not deemed adults under the law
since most, if not all, participants were below the drinking age.
12
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
12 In Bradshaw, the court noted that although the
legal drinking age in Pennsylvania was 21, while the overwhelming number of
other states and foreign jurisdictions permit drinking at age 18. The court thus
viewed the "reality" that the university could not be expected to enforce a
state law against students who came from other jurisdictions. In fact, since
Bradshaw was decided in 1979, the national trend has been to raise the
drinking age in recognition of the problem of alcohol related activities on and
off college campuses. Delaware, Maryland, and New Jersey have all raised the
drinking age since Bradshaw was decided.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**36] Despite the rejection of the in loco parentis doctrine, some
courts continue to recognize the uniqueness of the student-university
relationship. In Mullins v. Pine Manor College, Mass. Supr., 389 Mass.
47, 449 N.E.2d 331 (1983), the court upheld a jury verdict against a college for
failure to provide adequate security to a student who was assaulted in a
dormitory. The Court explicitly recognized a duty arising from the "existing
social values and customs" as well as from the student-university relationship
under Restatement § 314A and the duty of protection imposed under Restatement
[*519] § 323.
13 The "consensus" duty resulted from the
recognition of the unique situation created by the concentration of young people
on a college campus and the ability of the university to protect its students.
Finding a concurrent duty under Restatement § 323, the Mullins court
defined the university's duty to include "reasonable care to prevent injury to
their students by third persons whether their acts were accidental, negligent,
or intentional." Id. at 337.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
13 Restatement (Second) of Torts § 323 states:
One who undertakes, gratuitously or for consideration, to render services to
another which he should recognize as necessary for the protection of the other's
person or things, is subject to liability to the other for physical harm
resulting from his failure to exercise reasonable care to perform his
undertaking, if (a) his failure to exercise such care increases the risk of such
harm, or (b) the harm is suffered because of the other's reliance upon the
undertaking.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**37] Other courts have recognized, although denied liability under, the duty
to supervise arising from the special relationship between university and
student. In Rubtchinsky v. State University of N.Y. at Albany, N.Y. App.
Div., 260 N.Y.S.2d 256 (1965), the plaintiff sought damages allegedly arising
out of the university's negligent failure to supervise a "push ball game" that
was part of student orientation. The Rubtchinsky court held that even
though the college had control over the activities, there was no duty to
supervise "unless such activities are so inherently dangerous that the college
authorities are under actual or constructive notice that injuries may result to
students." Id. at 259.
A duty to supervise dormitory activities involving alcohol consumption was also
deemed to support a jury verdict of partial university liability in Zavala v.
Regents of the University of Cal., Cal. App., 125 Cal. App. 3d 646, 178 Cal.
Rptr. 185 (1981).
The task of attempting to determine the extent of the legal duty owed by the
University to Furek was the subject of scrutiny by two different Superior
Court judges. At the summary judgment stage, it was [**38] ruled that the
special relationship arising out of control of third persons "having dangerous
propensities" under Restatement § 319
14 supported the imposition of such a duty. While we
do not reject entirely the concept that the relationship between the university
and the student can be "special," in our view the custodial arrangement
envisioned by § 319 does not embrace the degree of control which can be
reasonably expected by a university over student organizations. The "custody"
envisioned by § 319 finds application in situations involving close physical
control such as occurs in hospital settings. This distinction is made clear in
the Restatement Comment which notes § 319's application to two situations: (1)
where the actor has charge of a class of persons "to whom the tendency to act
injuriously is normal" or (2) where the actor has charge of an individual who
does not belong to a dangerous class but "has a peculiar tendency" to act
dangerously which the actor knows or should know. We do not view the
fraternities, or their individual members, as falling within the class of
persons whose dangerous activities impose a special duty under § 319.
Accordingly, we agree with the University [**39] that a § 319 standard is not
appropriate to measure its duty in this case.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
14 § 319 Duty of Those in Charge of Persons Having
Dangerous Propensities
One who takes charge of a third person whom he knows or should know to be likely
to cause bodily harm to others if not controlled is under a duty to exercise
reasonable care to control the third person to prevent him from doing such harm.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
We do not agree, however, with the trial judge that no legal basis exists for
imposing on the University a duty to protect Furek under the
circumstances of this case. Certain established principles of tort law provide a
sufficient basis for the imposition of a duty on the University to use
reasonable care to protect resident students against the dangerous acts of third
parties. While we acknowledge the apparent weight of decisional authority that
there is no duty on the part of a college or university to control its students
based merely on the university-student relationship, [*520] where there
is direct university involvement in, and [**40] knowledge of, certain dangerous
practices of its students, the university cannot abandon its residual duty of
control.
The trial judge initially ruled that Restatement § 324A was the proper standard
upon which to support the imposition of a duty on the University and instructed
the jury to that effect. Restatement § 324A is a special instance of the duty
recognized in § 314 that "the actor may have committed himself to the
performance of an undertaking, gratuitously or under contract, and so may have
assumed a duty of reasonable care for the protection of the other, or even third
persons as stated in §§ 323, 324 and 324A." There appears to be no decisional
authority which supports, or denies the imposition of liability under § 324A. We
agree with the trial judge that § 324A is not applicable to Furek's claim
since the assumption of the duty by the University to regulate and enforce
hazing was not directed to, or intended as a substitute for, the duty owed by
the fraternity to Furek. Although the local fraternity may have had a
duty to Furek, the University's duty of rule promulgation and enforcement
was separate.
In our view, Restatement § 323 offers a more persuasive rationale for [**41]
University liability, and a jury instruction invoking § 323 was unsuccessfully
sought by Furek at trial. Unlike the responsibility shifting effect of §
324A, § 323 addresses the duty owed by one who assumes direct responsibility for
the safety of another through the rendering of services in the area of
protection. As the Restatement comment makes clear, this section "applies to any
undertakings to render service to another which the defendant should recognize
as necessary for the protection of the other person" and the harm to be
protected against results from negligence in "performance of the undertaking or
from failure to exercise reasonable care to complete it or to protect the other
when he discontinues it." If one "takes charge and control of [a] situation, he
is regarded as entering into a relation which is attenuated with
responsibility." W. Prosser, Handbook of Torts, 56 (2nd ed. 1972). This
provision of tort law is encapsulated in Restatement § 323 and has been
recognized by this Court. See Jardel Co., Inc. v. Hughes,
Del. Supr., 523 A.2d 518, 524 (1987).
While § 323 provides the basis for a duty of protection once assumed, the
University argues that [**42] it assumed no responsibility to protect Furek
from the dangers of hazing and, given his adult status, Furek could not
reasonably have relied upon the University to do so. The evidence in this
record, however, strongly suggests that the University not only was
knowledgeable of the dangers of hazing but, in repeated communications to
students in general and fraternities in particular, emphasized the University
policy of discipline for hazing infractions. The University's policy against
hazing, like its overall commitment to provide security on its campus, thus
constituted an assumed duty which became "an indispensable part of the bundle of
services which colleges . . . afford their students." Mullins v. Pine
Manor College, 449 N.E.2d at 336.
Even though Restatement § 323 provides a basis for the University's assumed
obligation toward Furek, and all students subjected to the known dangers
of hazing, a claim for recovery in this case may also be posited upon Furek's
status as an invitee on University property. A landowner who knows or should
know of an unreasonably dangerous condition or use of his property has a duty to
invitees to safeguard the invitee against such [**43] hazards including the
conduct of third parties. This Court has applied that principle as reflected in
the Restatement of Torts to sustain liability against both a private landowner
in DiOssi v. Maroney, Del. Supr., 548 A.2d 1361 (1988) (applying
Restatement § 343) and a commercial landowner in Jardel v. Hughes
(applying Restatement [*521] § 344, the commercial counterpart of § 343).
15
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
15 § 343. Dangerous Conditions Known to or Discoverable by
Possessor
A possessor of land is subject to liability for physical harm caused to his
invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition,
and should realize that it involves an unreasonable risk of harm to such
invitees, and
(b) should expect that they will not discover or realize the danger, or will
fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
§ 344. Business Premises Open to Public: Acts of Third Persons of Animals
A possessor of land who holds it open to the public for entry for his business
purposes is subject to liability to members of the public while they are upon
the land for such a purpose, for physical harm caused by the accidental,
negligent, or intentionally harmful acts of third persons or animals, and by the
failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or
otherwise to protect them against it.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**44] The question of whether a university, qua landowner, owes its
students a duty extending to invitees is one of first impression in Delaware but
has been considered elsewhere. In Stockwell v. Board of Trustees, Cal.
App., 64 Cal. App. 2d 197, 148 P.2d 405 (1944), a student successfully
maintained an action against a university for failure to maintain its premises
in a safe condition. The student, held to be an invitee, was injured on
university property by a BB gun shot by an individual whose presence was known
to the university. The finding of liability was predicated on the university's
failure to enforce its rules forbidding the use of BB guns and the fact that
inadequate security was maintained. In Peterson v. San Francisco Comm.
College Dist., Cal. Supr., 36 Cal. 3d 799, 685 P.2d 1193, 205 Cal. Rptr. 842
(1984), a student pursuing a claim for assault by a third party on university
property was considered an invitee "to whom the possessor of the premises would
ordinarily owe a duty of due care. "The Peterson court noted that
characterizing "students as invitees is not a novel proposition." Id. at
1198 n.6, and by analogy to the private landowner duty in Restatement § 344,
[**45] found a duty to protect the defendant from dangerous conditions.
16 To the same effect is the holding in Bearman
v. University of Notre Dame, Ind. App., 453 N.E.2d 1196 (1983).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
16 The Peterson court limited the "dangerous
conditions" element of § 344 to physical defects. This Court in DiOssi,
however, construed the term "condition" in § 343, a correlative provision, to
include "the conduct of other persons on the premises." 548 A.2d at 1366.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
While Furek may be deemed an invitee, the University's duty to protect
him from dangerous conditions under Restatement § 344 is not absolute. The duty
extends only to the acts of third persons which are both foreseeable and subject
to university control. With respect to foreseeability, Comment f to § 344 is
instructive:
Since the possessor is not an insurer of the visitor's safety, he is ordinarily
under no duty to exercise any care until he knows or has reason to know that the
acts of the third person are occurring, or are about to [**46] occur. He may,
however, know or have reason to know, from past experience, that there is a
likelihood of conduct on the part of third persons in general which is likely to
endanger the safety of the visitor, even though he has no reason to expect it on
the part of any particular individual. If the place or character of his
business, or his past experience, is such that he should reasonably anticipate
careless or criminal conduct on the part of the third persons, either generally
or at some particular time, he may be under a duty to take precautions against
it, and to provide a reasonably sufficient number of servants to afford a
reasonable protection.
In Jardel, this Court recognized that "application of the principle of
foreseeability to claims based on nonfeasance -- here not anticipating acts of
third parties -- may prove difficult." 523 A.2d at 525. But where the property
owner has attempted to provide security or regulate a hazardous activity, such
affirmative action is, in itself, at least tacit recognition that the [*522]
potential for harm exists on the premises. In view of past hazing incidents
involving physical harm to students, the occurrence of the unusual [**47]
activities preceding fraternity hazing as witnessed by campus security (i.e.
students marching with paddles) and the common knowledge on campus that hazing
occurred, there was sufficient evidence for jury determination on the issue of
whether the hazing which caused injury to Furek was foreseeable.
17
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
17 If a railway company has a duty to control the
foreseeable dangerous activity of university students awaiting the return of
their victorious football team for the protection of a business invitee, it
would seem reasonable to conclude that a university would have a similar duty to
supervise dangerous activities on its campus to protect its invitee students.
See Restatement § 344, Illustration 2.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
There remains the question of control, a matter which was hotly disputed at
trial and is the principal basis for the trial court's rejection of Furek's
claim against the University. On appeal, the University points to the fact that
it owned the land on which the fraternity house was built but not the house
itself and argues [**48] that its status as a landowner conferred no right to
control what occurred on the premises. This is too limited a view of the
realities of the university-fraternity relationship at the time of Furek's
injuries. It is true that the University did not attempt or purport to regulate
day-to-day living conditions in the Sig Ep fraternity house. But in the area of
general security and of hazing in particular the University's regulation was
pervasive. The Sig Ep fraternity house was located within campus boundaries and
was thus subject to the University's security department. The University's ban
on hazing, as evidenced by its directives to fraternity officers, made no
distinction between activities occurring within or outside fraternity buildings.
Indeed, in this case the University's unsuccessful attempt to initiate
disciplinary proceedings against Sig Ep because of Furek's injuries
clearly evidences its belief that it had the authority to enforce anti-hazing
regulations for violations occurring within the fraternity house.
Premises control is not determined in absolute terms. A landowner may exercise
control in certain areas while relinquishing it in others. In Jardel,
this Court, [**49] in discussing the issue of landowner control in a
parent-subsidiary context, noted that where the parent corporation exercised
"direct operational control in several management areas, including security
decisions . . . . the jury was entitled to draw the inference, at least in the
area of security arrangements" that the landowner-parent exercised direct
control. 523 A.2d at 526-27. If control includes authority to direct, restrict
and regulate, the University with its significant involvement in the regulation
of fraternity life, particularly in the area of hazing, may be deemed to have
exercised supervision over the use of its property to permit "at least the
inference of control." For the purpose of testing the sufficiency of the
evidence to withstand the granting of a directed verdict, Furek was
entitled to the benefit of that inference.
In sum, although the University no longer stands in loco parentis to its
students, the relationship is sufficiently close and direct to impose a duty
under Restatement § 314A. Mullins v. Pine Manor College, 449 N.E.2d at
336. The university is not an insurer of the safety of its students nor a
policeman of [**50] student morality, nonetheless, it has a duty to regulate
and supervise foreseeable dangerous activities occurring on its property. That
duty extends to the negligent or intentional activities of third persons.
Because of the extensive freedom enjoyed by the modern university student, the
duty of the university to regulate and supervise should be limited to those
instances where it exercises control. Situations arising out of the ownership of
land, and within the contemplation of Restatement § 344, involving student
invitees present on the property for the purposes permitted them are within such
limitations.
As noted by the Bradshaw court, "duty is not sacrosanct in itself, but
only the sum total of those considerations of policy which lead the law to say
that a particular plaintiff is entitled to protection." 612 F.2d at 138 (quoting
W. Prosser, Law of Torts 333 (3d ed. 1964)). Even though the policy
analysis of Bradshaw has been followed [*523] by numerous courts, the
justification for following that decision has been seriously eroded by changing
societal attitudes toward alcohol use and hazing.
18 The likelihood of injury during fraternity
activities occurring [**51] on university campuses is greater than the utility
of university inaction. The magnitude of the burden placed on the university is
no greater than to require compliance with self imposed standards.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
18 Many states have passed laws making hazing a criminal
offense. See Note, Hazing and the "Rush" Toward Reform, 16 J.C.U.L.
93 (1989).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The University's motion for a directed verdict should have been granted only if
the jury could not, under any reasonable view of the evidence justifiably find
in favor of Furek and against the University. Hyman Reiver & Company
v. Merlonghi, Del. Supr., 236 A.2d 367 (1967).
In the light of that standard and our view of the University's duty in this
case, we conclude that the Superior Court erred in granting the University's
motion for judgment n.o.v. based on the merits of its motion for a directed
verdict.
V
Two of the remaining issues in this appeal are subject to summary disposition.
Furek complains that the trial judge committed error in dismissing his
claim [**52] for punitive damages against all defendants despite the earlier
ruling of another Superior Court judge which denied the University's motion for
summary judgment on the issue of punitive damages. The argument fails to
comprehend the differing standards which govern the denial of a motion for
summary judgment under Superior Court Civil Rule 55 and granting of a directed
verdict at trial.
In refusing to grant summary judgment in favor of the University and Donchez on
the issue of punitive damages, the Superior Court ruled that factual issues, and
the favorable inferences to be drawn therefrom, supported claims of "willful and
wanton conduct" on Donchez's part and "purported inaction reaching the level of
the 'I don't care attitude' on the part of the University." At trial, the full
particulars of the University's role in the hazing incident were presented.
Although the University's conduct might be faulted in terms of its failure to
exercise greater control over a known hazardous activity, the trial judge
correctly applied the standard for recovery of punitive damages reflected in
this Court's decision in Jardel v. Hughes. While the University is
chargeable with notice of hazing [**53] activities on its campus in the years
preceding Furek's injuries, its response, which a jury could deem
ineffectual, was, nonetheless, well-intentioned and not characterized by a
conscious disregard of a known risk. The Superior Court did not err in
dismissing Furek's claim for punitive damages.
The University has cross-appealed from the trial court's refusal to grant a
directed verdict on its defenses of contributory negligence and assumption of
risk. The burden of proof as to these affirmative defenses was, of course, upon
the University. We agree with the Superior Court that while Furek
voluntarily participated in the hazing, he was not chargeable with knowledge
that he would be exposed to the risk that someone would pour a caustic substance
over his head as part of a fraternity ritual. The failure to anticipate
another's negligence or dangerous activity does not itself demonstrate such lack
of care so as to bar recovery for injury. Levine v. Lam, Del. Supr., 226
A.2d 925, 926 (1967). Similarly, one does not assume a risk unless he
appreciates its danger but takes no steps to avoid it. Robinson v. Meding,
Del. Supr., 52 Del. 578, 163 A.2d 272, 276 (1960). [**54] In gauging the
conduct of the plaintiff, the standard to be applied is a subjective one,
i.e. did the plaintiff, in fact, understand and appreciate the risk involved
in a known situation. Yankanwich v. Wharton,
Del. Supr., 460 A.2d 1326, 1330 (1983) (citing Restatement of Torts 2d § 496D).
In resisting the University's motion for a directed verdict on these two
affirmative defenses, Furek was entitled to have the evidence viewed from
a perspective favorable to him. So viewed, the evidence did not justify Superior
[*524] Court's granting of the University's motion and we affirm its ruling.
VI
Our ruling that the evidence presented at trial provided a factual predicate for
the submission to the jury of Furek's claim against the University
requires that we reverse the decision of the Superior Court granting judgment
n.o.v. in favor of the University. As previously noted, however, we agree with
the Superior Court that the University's duty does not find definition in
Restatement § 324A and the jury instruction based on this section was erroneous.
Since the trial court did not instruct the jury on any alternative basis for the
University's liability, the jury verdict cannot [**55] stand. We have already
concluded that the jury's verdict as to the National Fraternity is separately
sustainable and thus we are required to address the question which was the
subject of supplemental briefing: In the event the issue of the University's
liability for compensatory damages must be remanded for a new trial, is the
jury's determination of damages also subject to retrial?
Under the common law, when a jury verdict was ruled partially incorrect, the
court was required to order a new trial as to all issues since the judgment was
considered indivisible. See Gasoline Products Co. v. Champlin Refining
Co., 283 U.S. 494, 497, 51 S. Ct. 513, 75 L. Ed. 1188 (1931). The modern
trend, and the rule in Delaware, is to permit the court to award a partial new
trial when issues are severable and no injustice will result from retaining the
verdict upon other issues. Chrysler Corp. v. Quimby, Del. Supr., 51 Del.
264, 144 A.2d 123, 126 (1958). A full retrial is ordinarily required only where
the issues of liability and damages are interwoven. Id. at 137.
The question of severability usually arises where the necessity for a new trial
is a result of an erroneous determination [**56] of damages. See 6A
Moore's Federal Practice para. 59.06, at 59-57 (1991). Thus, an inadequate award
of damages may be remedied without relitigation of liability where the damages
determination is not dependent on, or intertwined with, evidence of liability.
Yates v. Dann, D. Del., 11 F.R.D. 386 (1951). However, where the
liability and damages issues are "sufficiently independent to preserve the
findings on damages," a new trial may be limited to the issue of liability.
Pressey v. Patterson, 5th Cir., 898 F.2d 1018, 1024 (1990). Such a
disposition is particularly appropriate where the jury arrives at its decision
by detailed special verdicts. Akermanis v. Sea-Land Service, Inc., 2d
Cir., 688 F.2d 898, 906 (1982). Moreover, in light of the ever increasing
backlog in our trial courts, there is a trend favoring partial new trials.
Cf. Brimbau v. Ausdale Equipment Rental, R.I. Supr., 120 R.I. 670, 389 A.2d
1254, 1255 (1978).
The issues of liability and damages in this case appear clearly divisible. We
have sustained the trial court's rejection of Furek's claim for punitive
damages and he has not challenged the adequacy [**57] of the jury's award of
compensatory damages. Moreover, the jury's verdict was rendered in the form of
answers to seven separate and detailed interrogatories only one of which
addressed the damages claim. The jury's assessment of damages was made only
after it had separately considered Furek's liability assertions against
each of the remaining defendants -- Donchez, the University and the National
Fraternity -- as well as having separately determined that Furek was not
contributorily negligent nor had assumed the risk of injury. Manifestly, the
liability determinations rendered by the jury in this case are not interwoven
with, nor dependent upon, any assessment of damages. No purpose would be served
by permitting the parties to present evidence on damages or requiring the jury
to further consider the question. Accordingly, our remand for a new trial shall
be limited to the question of proportionate liability between Donchez and the
University.
VII
Finally, there remains the problem presented by a post-trial development which
essentially eliminated Donchez from [*525] further participation in this case.
During the pendency of this appeal but before the completion of the initial
briefing, Furek [**58] settled with Donchez for $ 29,900.00 ($ 100 less
than the jury award) and executed a joint tortfeasor's release pursuant to 10
Del. C. § 6304(a).
19 Upon disclosure of this fact, the Court ordered
supplemental briefing on the effect of that release upon the pending appeal and
any subsequent remand.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
19 Section 6304(a) provides:
A release by the injured person of one joint tort-feasor, whether before or
after judgment, does not discharge the other tort-feasor unless the release so
provides; but reduces the claim against the other tort-feasors in the amount of
the consideration paid for the release, or in any amount or proportion by which
the release provides that the total claim shall be reduced if greater than the
consideration paid.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
In addition to extinguishing Furek's claim against Donchez, the release
provides in pertinent part:
The dismissal [of the appeal and cross appeal] will not affect the plaintiff-releasor's
actions and appeals otherwise pending . . . . By this Release, Releasor is
releasing only his [**59] claims against Releasee, Joseph Donchez and those
claiming under him. Releasor expressly reserves all rights, claims, and causes
of action that he may have against the University of Delaware, Sigma Phi Epsilon
National Fraternity, Sigma Phi Epsilon Local Fraternity and its members at the
time of the incident or against any other individual, organization or
corporation, or their respective heirs, legal representatives, successors, or
assigns. In addition, Releasor expressly reserves any right that he may have to
proceed against any such other party.
The release also provides for a refund to Donchez of a portion of the
compensatory damages recovered from any other party, to a maximum of fourteen
thousand nine hundred dollars ($ 14,900.00):
If upon appeal, Releasor is successful in reinstating the verdict of the jury,
Releasor will reimburse Releasee the sum of Fourteen Thousand Nine Hundred
Dollars ($ 14,900.00). If Releasor is not successful in reinstating the verdict,
but Releasor obtains a new trial and/or through compromise, settlement, or
judgment, Releasor [recovers] a sum of money, then Releasor will reimburse
Releasee fifty percent (50%) of the amount recovered up to a maximum [**60]
total reimbursement of Fourteen Thousand Nine Hundred Dollars ($ 14,900.00).
Furek contends that his receipt of almost the entire amount of the jury's
award of compensatory damages from one joint tortfeasor should not prevent
recovery from other joint tortfeasors with respect to claims still viable on
appeal. On a theoretical level, this argument has merit. A partial satisfaction
of a judgment or claim will not prevent enforcing a greater claim even though
the amount received must be credited pro tanto against the amount
ultimately collected. Prosser, Handbook of the Law of Torts, § 48 (5th
ed. 1984); Farrall v. A.C. & S. Co., Inc., Del. Super., 586 A.2d 662
(1990). As a practical matter, however, Furek's remaining claims against
joint tortfeasors have been significantly limited on appeal, with the affirmance
of judgments in favor of Sig Ep and the National Fraternity and the sustaining
of the trial court's disallowance of punitive damages. The effect of our
decision today is to leave Furek with the right to pursue a new trial
only as to the University's liability, with the amount of compensatory damages
fixed in the event he is successful.
The University [**61] argues that since Furek has recovered $ 29,900.00
of a $ 30,000.00 award of compensatory damages, an award not separately
questioned, this Court should view the matter as substantially moot and refuse
to order further proceedings under the legal maxim, "de minimus non curat lex."
We note that a court may decline to order a remand to correct an insignificant
error in damages. Weingartner v. Bielak, Conn. Supr., 142 Conn. 516, 115
A.2d 668 (1955). While we agree that Furek's ultimate recovery on remand
may be limited, he has obligated himself to reimburse [*526] Donchez for a
substantial part of the settlement already received if Furek "obtains a
new trial." Thus, Furek may be contractually required to avail himself of
the new trial now granted. Since any retrial will necessarily require the jury
to again reallocate fault between the University and Donchez, the cost of
achieving that result when measured against the ultimate gain to Furek
may prove unrealistic to all parties. Despite the apparent impracticality of a
new trial, we decline to bar that result if Furek believes it is in his
financial or contractual interests to pursue it.
VIII
In summary, we affirm the rulings of the [**62] Superior Court which dismissed
Furek's claim against Sig Ep, denied recovery of punitive damages and
refused to grant a directed verdict on the defenses of contributory negligence
and assumption of risk. We also affirm the jury's verdict in favor of the
National Fraternity. We reverse and remand for a new trial, limited to the issue
of liability, the Superior Court's grant of judgment n.o.v. in favor of the
University.
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