Opinion
No. CV03-0484661
July 28, 2010
MEMORANDUM OF DECISION
The plaintiffs Robert S. and Joan Pawlowski (plaintiffs) were appointed administrators of the estate of their son 18-year-old Steven Pawlowski (Pawlowski). On November 10, 2001, Pawlowski, a freshman at Quinnipiac University in Hamden, Connecticut attended a fraternity party at a private residence at 3327 Whitney Avenue in Hamden, Connecticut. The party was organized by the individual defendants who were present and past members of the defendant Theta Iota Chapter, which is a chapter of the defendant Delta Sigma Phi Fraternity, Inc. (Delta Sigma Phi Fraternity). Pawlowski was illegally served alcoholic beverages at the party. At approximately 1:00 a.m., Pawlowski left the party in an intoxicated state and was tragically struck and killed by a motor vehicle while crossing the street. In the first and second counts of the second amended complaint filed on March 17, 2006, the plaintiffs allege negligence and recklessness on the part of Delta Sigma Phi Fraternity. The gravamen of the plaintiffs' claims against Delta Sigma Phi Fraternity is that it failed to properly supervise the members of the Theta Iota Chapter during the party and prevent their provision of alcohol to underage drinkers. Delta Sigma Phi Fraternity has moved for summary judgment on these counts claiming that it had no duty as a matter of law to prevent the intoxication of the plaintiffs' decedent and his subsequent injuries.
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . Scrapchansky v. Plainfield, 226 Conn. 446, 450 (1993). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather, to determine whether any such issues exist. Cortes v. Cotton, 31 Conn.App. 569, 575 (1993). [I]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . Johnson v. Meehan, 225 Conn. 528, 535 (1993). Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578 (1990)." (Internal quotation marks omitted.) Warner v. Lancia, 46 Conn.App. 150, 158 (1997). See also Practice Book § 17-49. The test is whether a party would be entitled to a directed verdict on the same facts. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105-06 (1994).
In support of its motion for summary judgment, Delta Sigma Phi Fraternity presented the following uncontradicted evidence based on the affidavit of Scott D. Wiley, the current executive director of Delta Sigma Phi Fraternity. Delta Sigma Phi Fraternity is a national fraternity organization with its headquarters in Indianapolis, Indiana. In November 2001, it had approximately ninety local chapters located at colleges and universities across the United States. Theta Iota Chapter was one of the local chapters chartered by Delta Sigma Phi Fraternity. Delta Sigma Phi Fraternity did not control the day to day activities of its local chapters, including Theta Iota Chapter, in November 2001. The responsibility for the control of the operations of each local chapter rested with that chapter's officers and members.
With respect to the serving of alcoholic beverages, each local chapter is subject to and bound by state and local laws and Delta Sigma Phi Fraternity does not authorize or permit at fraternity functions the consumption of alcohol by members or guests who are under the legal drinking age. Delta Sigma Phi Fraternity did not authorize, sponsor or support the party on November 9th and 10th, 2001 and it had no knowledge of the party or the provision of alcohol at the party. Delta Sigma Phi Fraternity did not have any property interest in or manage the property at 3327 Whitney Avenue where the party occurred.
Delta Sigma Phi Fraternity contends that under these facts it had no duty to control the actions of the members of its local chapter to prevent injury to Pawlowski. I agree.
"The existence of a duty of care is a prerequisite to a finding of negligence." Gomes v. Commercial Union Insurance Co., 258 Conn. 603, 614 (2001). The existence of a duty is a question of law. Vitale v. Kowal, 101 Conn.App. 691, 698 (2007). "If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384-85 (1994). "[A] count based on reckless and wanton misconduct must, like an action in negligence, allege some duty running from the defendant to the plaintiff." Sheiman v. Lafayette Bank Trust Co., 4 Conn.App. 39, 46 (1985).
"[T]he test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case. The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy." (Internal quotation marks and citations omitted.) Mendillo v. Board of Education, 246 Conn. 456, 483 (1998). It is not necessary to address the first prong of foreseeability if the court determines that no duty exists based on the public policy prong. Neuhaus v. Decholnoky, 280 Conn. 190, 218 (2006).
A public policy analysis establishes that Delta Sigma Phi Fraternity had no duty to control the conduct of the individual members of its Theta Iota Chapter so as to protect Pawlowski. Connecticut adheres to the principle recognized in the Restatement (Second) of the Law of Torts that generally there is no duty to control the conduct of a third person. Murdock v. Croughwell, 268 Conn. 559, 567 (2004) citing 2 Restatement (Second), Torts § 314 (1965). Exceptions are made to this general rule only where a special relationship exists between the defendant and either the third person or the injured party. "There is no duty so 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 or (b) a special relationship exists between the actor and the other which gives to the other a right of protection." 2 Restatement (Second), Torts § 315 (1965). "[I]n the absence of a special relationship of custody or control, there is no duty to protect a third person from the conduct of another." (Emphasis in original. Citations and internal quotation marks omitted.) Id. See also Ryan Transportation, Inc. v. M G Associates, 266 Conn. 520, 525-26 (2003).
Under the facts of this case, the Delta Sigma Phi Fraternity did not have a special relationship with the individual defendants which imposed upon it a duty to control the conduct of the individual defendants and prevent them from dispensing alcoholic beverages to minors, including Pawlowski. First, the Restatement identifies the relations between the actor and the third person which require the actor to control the third person's conduct. 2 Restatement (Second), supra, § 315 comment c. None of those relations are applicable here.
Section 316 of the Restatement (Second) imposes a duty on a parent to prevent his minor child from intentionally harming a third party. Section 318 imposes a duty on the possessor of land or chattels to control the conduct of a licensee. Section 319 requires those exercising custodial control over an individual, such as sheriffs or wardens, to prevent such an individual from harming third parties. While section 317 does address the duty of a "master" to control the conduct of its "servants," that section is clearly inapplicable because it is limited to the conduct of an off-duty employee when the conduct complained of occurs on the employer's premises or utilizes the chattel of the employer. See Murdock v. Croughwell, supra, 268 Conn. 570.
Second, even if these relationships are not deemed exclusive, nothing in the facts of this case establish such a special relationship between the Delta Sigma Phi Fraternity and its local chapter or the individual defendants so as to warrant imposition of a duty to control the actions of the individual defendants in serving alcoholic beverages to minors. Delta Sigma Phi Fraternity did not control the day-to-day operations of its Theta Iota chapter. That control was left to the officers and members of the local chapter. Numerous appellate courts from other jurisdictions have concluded that, in the absence of control of the day-to-day activities of the local chapter, a national fraternity does not have a duty to supervise the activities of a local chapter in order to prevent harm to third parties. Garofalo v. Lamda Chi Alpha Fraternity, 616 N.W.2d 647 (Iowa 2000) (National fraternity did not have duty to student who died after illegally consuming alcohol at fraternity event at local fraternity chapter); Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840 (Ky. 2005) (National fraternity did not have duty to student who died in car accident after imbibing alcohol at local fraternity chapter because it did not control activities of the chapter); Walker v. Phi Beta Sigma Fraternity, 706 So.2d 525 (La.Ct.App. 1997) (National fraternity did not owe duty to victim of hazing by members of local chapter because it did not control day-to-day actions of the chapter and did not have knowledge of any hazing activity); Colangelo v. Tau Kappa Epsilon Fraternity, 517 N.W.2d 289 (Mich.Ct.App. 1994) (National fraternity had no duty to supervise the activities of its local chapter for the protection of third parties in incident where both student decedent and student tortfeasor had become legally intoxicated at a party hosted by local chapter); and Alumni Association v. Sullivan, 572 A.2d 1209 (Pa. 1990) (National fraternity was not responsible for the conduct of one of its chapters which served alcohol to underage student). Contra Estate of Hernandez v. Delta Tau Delta Fraternity, Inc., 924 P.2d 1036 (Ariz.Ct.App. 1995). I find those decisions persuasive.
The plaintiffs also argue that Delta Sigma Phi Fraternity is liable for the acts of the members of its local chapter under the doctrine of respondeat superior. The flaw in this claim is that Delta Sigma Phi Fraternity is a corporation. As such, it acts through its officers, agents and employees. Keithan v. Massachusetts Bonding Ins. Co., 159 Conn. 128, 135 (1970). The plaintiffs do not claim that the individual fraternity members were officers or employees of the national fraternity. There is also no evidence that they were its agents. "[T]he three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking." Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 543 (2006). Absent such a showing, there is no basis to hold Delta Sigma Phi Fraternity vicariously liable for the conduct of the individual defendants.
For the aforementioned reasons, summary judgment shall enter in favor of the defendant Delta Sigma Phi Fraternity on counts one and two of the plaintiffs' second amended complaint.