Day on Torts
Where plaintiff knew that he would likely be paddled before joining a fraternity but did not understand the full scope of the hazing he would endure, summary judgment based on the plaintiff’s comparative fault was overturned. Further, where the college had received previous reports of hazing from the fraternity in question, summary judgment based on a lack of duty was overturned.
In Halmon v. Lane College, No. W2019-01224-COA-R3-CV (Tenn. Ct. App. May 29, 2020), plaintiff joined a fraternity at defendant college. He admittedly knew that he would be paddled as part of his initiation process, but he alleged that he was unaware of the extent of the hazing that would be involved. He claimed that he was subjected to extreme hazing, including being beaten, burned, sleep deprived, and compelled to drink concoctions. Plaintiff suffered serious injuries, forcing him to withdraw from college, and he filed this action for negligence and vicarious liability against defendant.
In his complaint, plaintiff alleged that defendant college was vicariously liable based on “the actions (and failures to act) of a Lane College employee, Calvin Walker.” Mr. Walker was the faculty adviser for the fraternity at issue, as well as a member of the fraternity, and plaintiff asserted that “Mr. Walker had failed to prevent injuries to him by failing to properly intervene in the hazing and by failing to report it.” Plaintiff also asserted that defendant was directly negligent in its hiring, supervising, and retention of Mr. Walker.
Defendant denied liability in its answer, argued that it did not owe a duty to plaintiff, and asserted the defense of comparative fault. The trial court granted defendant summary judgment, holding that “the college could not be vicariously liable because Mr. Walker had been acting outside the course and scope of employment with the College,” and it further found that plaintiff “was at least 50% or more at fault in this matter.” On appeal, the Court of Appeals reversed most of the trial court’s rulings, though it did affirm in part.
The Court of Appeals first looked at the trial court’s ruling that plaintiff was at least 50% at fault in this case, and thus barred from recovery by Tennessee’s comparative fault rules. While “there is no legal prohibition in granting a defendant summary judgment based on the defense of comparative fault,” a finding of comparative fault “is typically a question for the trier of fact.” (internal citations omitted). Here, the trial court apparently based its decision on evidence that plaintiff “knew he was going to be hit with a paddle during the pledge process…, that his signature was on a ‘Non-hazing sign in sheet,’ that he continued in the pledge process despite hazing, and that he did not report any hazing.” The Court of Appeals determined, however, that the record presented a “more nuanced picture.”
When viewing the evidence in the light most favorable to plaintiff, the Court of Appeals found that there were genuine issues of material fact as to whether plaintiff “appreciated the risks he ultimately encountered.” Plaintiff testified that “Mr. Walker had informed him that there would not be any hazing,” and that he had no idea of the extent of the physical hazing he would face. Further, there was testimony that he was afraid to report the hazing because he feared he would “get beat up for snitching,” and that he had been talked out of quitting the pledge process. Defendant relied on a non-hazing presentation that plaintiff allegedly attended, but the evidence regarding that presentation and whether it actually happened was questionable. In addition, plaintiff presented expert testimony that “there would have been great emotional consequences for [him] to quit and report the hazing,” and even defendant’s own anti-hazing class admitted that hazing victims failed to report 95% of the time. Relying on these facts and disputes, the Court of Appeals ruled that summary judgment based on comparative fault was not appropriate at this stage of the litigation.
The Court of Appeals next analyzed the granting of summary judgment on the basis that defendant did not owe a duty to plaintiff. The Court noted that the critical issue in this analysis was foreseeability, as “the critical question [was] whether it was foreseeable that [plaintiff] would be victimized and hazed as a pledge with [the fraternity].” The Court pointed out that the Vice President of Student Affairs testified that he knew the fraternity had a reputation for “hazing incidents involving death and/or serious injuries” on the national level, and that the chapter at defendant college had been suspended in 2012. In addition, while the chapter was on probation, the college received a report from a parent that her son had been hazed by the fraternity. Because of this knowledge of prior hazing incidents, the Court found that summary judgment based on a lack of duty was “not supportable.”
Finally, the Court reviewed the trial court’s findings regarding defendant’s vicarious liability for the actions of Mr. Walker. To establish an employer’s vicarious liability, “the plaintiff must prove (1) that the person who caused the injury was an employee, (2) that the employee was on the employer’s business, and (3) that the employee was acting within the scope of his employment when the injury occurred.” (internal citation omitted). Defendant argued that “the alleged intentional acts of hazing committed by Mr. Walker could not be construed to have been carried out in the course and scope of his employment,” and that it could thus not be held vicariously liable for those intentional acts. The Court of Appeals agreed, affirming summary judgment on vicarious liability claims as they related to any intentional torts by Mr. Walker.
The Court went on to explain, however, that it agreed with plaintiff that allegations of Mr. Walker’s negligent acts in “failing to intervene in, stop, or report hazing…could serve as a predicate for imposing vicarious liability.” The Court pointed out that Mr. Walker was the faculty adviser of the fraternity, and that said position “came with the specific expectation that he would monitor the pledge process.” Mr. Walker testified that “part of his responsibilities as faculty advisor was to make sure that students were not hazing other students to become members of [the fraternity].” Further, because Mr. Walker was also a member of the fraternity, he was not barred from viewing membership activities that might involve rituals, and he was thus “able to see what was happening with the fraternity in a way that [previous advisors] had not.” The Court rejected defendant’s assertion that Mr. Walker’s activities as faculty advisor were not within the scope of his employment as an Area Coordinator for the school, noting that “[e]mployees of a university may wear more than one hat.” Based on these facts, the Court of Appeals ruled that summary judgment based on vicarious liability for Mr. Walker’s negligent actions should be overturned.
Summary judgment based on comparative fault, lack of duty, and vicarious liability for any negligent actions was thus overturned; summary judgment based on vicarious liability for any intentional acts by Mr. Walker was affirmed.
The Court of Appeals made the right decision in reversing this summary judgment. Plaintiff presented evidence through his own testimony, the testimony of others, and an expert witness that created genuine issues of material fact in this case.
NOTE: There was no oral argument in this case. It decided six weeks after the final brief was filed.