Lawsuits Against Fraternities: Reveal Risks and Responsibilities

As 17-year-old freshman at the Univer^5sity of Virginia in the early 1980s, Liz ^^Ml^fceccuro attended a party hosted by a fraternity on Greek row. She had one drink, became dizzy and passed out. When she woke the next morning, she was wrapped in a bloody sheet.

Seccuro had been raped.

She went to the Charlottesville police, but they refused to believe that she did not voluntarily drink too much. She went to the dean. He called the young man who she believed had raped her to his office. He reprimanded the man for not being gentlemanly and told Seccuro not to drink so much.

Seccuro got little satisfaction from authorities, but eventually got on with her life. Still, the trauma of being raped always haunted her.

Twenty years later out of the blue she received a letter from the man who had raped her. As part of his Alcoholics Anonymous recovery program he was making amends to those he had wronged. Seccuro entered into an email correspondence with him. Through that correspondence he admitted to drugging and raping. He also shared with her another disturbing fact: three others had raped her while she was unconscious that night as well.

Seccuro brought the emails to the Charlottesville district attorney. Her rapist is now serving time in Virginia.

This story fascinated Caitlin Flanagan, a freelance writer living in Los Angeles who herself attended the University of Virginia when Seccuro was there.

"The fraternity houses were so big and beautiful and impressive and I instantly sensed that they were also very powerful places. And yet I was always told never to go there unless I was with friends because there was a lot of rape that went on in them. I remember thinking this was all very astonishing that the university would have this very formal connection with these institutions that had a lot of rape. That interested me," says Flanagan.

This interest in the power of fraternities compelled her to investigate them, and in particular court cases involving fraternities. For an entire year she researched hundreds of court cases in which college students were seriously injured or even died in and around fraternity houses.

One of the more prominent cases involved Amanda Andaverde, a freshman at the University of Idaho who attended a frat party at the Sigma Alpha Epsilon house in 2009. She arrived on foot, but left in a helicopter after falling out of an open window on a sleeping porch and landing on cement about 25 feet below. Andaverde, who suffered permanent brain damage from the fall, sued the Sigma Alpha Epsilon house, the sorority she belonged to (Delta Delta Delta), the University of Idaho and the Idaho State Board of Education. Her case, however, was dismissed because there was no evidence of an inherently dangerous condition in the house and because she clearly should have seen the window was open.

After a year of investigation Flanagan wrote a 15,000-word article for The Atlantic titled "The Dark Power of Fraternities: A yearlong investigation of Greek houses reveals their endemic, lurid, and sometimes tragic problems - and a sophisticated system for shifting the blame." Her article sheds light on the growing number of injuries and deaths in and around frat houses and the lawsuits brought as a result. She writes that lawsuits against fraternities are becoming a growing matter of public interest, in part because they record such lurid events, some of them ludicrous, many more of them horrendous. The fraternity lawsuit, she writes, is a lucrative mini-segment of the personal-injury business.

During her research she interviewed Douglas Fierberg, who she calls the best plaintiff's attorney in the country when it comes to fraternity-related litigation. He called fraternities "very risky organizations for young people to be involved in. (They) are part of an industry that has tremendous risk and a tremendous history of rape, serious injury and death, and the vast majority share common risk-management policies that are fundamentally flawed. Most of them are awash in alcohol. And most if not all of them are bereft of any meaningful adult supervision." Flanagan calls Fierberg's observation the most poignant in her entire article.

Flanagan was determined to find out just how much money was being awarded in fraternity lawsuits. Try as she might, though, she could not dig up any numbers. "I saw there was huge amounts of money flowing. I kind of used that old Watergate idea of 'follow the money' but nobody has any numbers," says Flanagan.

In 1992, four fraternities created the Fraternity Risk Management Trust, a vast sum of money used to insure fraternities. Today, 32 fraternities belong to this trust. No one outside the fraternity industry knows how much money is in the trust's coffers. "These settlements are almost always private and most of them are settled out of court because they are very clear cases and part of the settlement is confidentiality. So we don't know exactly how lucrative it is. But we are seeing more and more of these lawsuits being brought and fancier and fancier legal talent accepting these cases, which is another indicator that there is a lot of money swimming around out there. But we don't know how much," says Flanagan.

Although personal injury lawyers stand to reap enormous financial rewards from this segment of tort law, fraternity litigation is not for garden-variety personal injury lawyers. It takes special expertise to try such cases. "Big cases that could have brought in significant damages have been dismissed with summary judgment in the past because lawyers were so inexperienced," says Flanagan.

Many personal injury lawyers with little or no experience trying fraternity cases have a knee-jerk reaction and name everyone involved in their suits, like the fraternity chapter and the institution hosting the fraternity. This is a big mistake. "It's very hard to recover money from the college or university because it's protected by all sorts of things from sovereign immunity to damage caps. There's a lot of ways institutions of higher learning are indemnified from the fraternity," says Flanagan.

Even a seasoned personal injury lawyer can have limited success suing fraternities, which over the years have become very clever at protecting their assets. Some lawyers make the mistake, says Flanagan, of suing the chapter. "The chapter doesn't have any money. The chapter doesn't even own the fraternity house. The fraternity house is owned by a housing corporation," says Flanagan.

The mid- 1980s saw a sea change in tort litigation, as personal injury cases underwent a shift to the plaintiff's advantage. To protect themselves from personal injury litigation, fraternities began untangling their assets. Nowadays the most experienced personal injury lawyers representing clients injured in frat houses sue the national organization of the fraternity and almost no one else save the individual members involved in the incident.

Lawyers are not the only ones who make mistakes in fraternity lawsuits. Frat bothers named in a lawsuit assume that the national organization will protect them legally. After all, a portion of their pricey fraternity dues goes to insurance. But they couldn't be more wrong.

The national organizations cleverly indemnify themselves from their own members by creating mies so strict and hard to follow that they make tax code read like a Dick and Jane book. When a frat brother is involved in an incident that causes injury or death and a lawsuit ensues, and if the national discovers the brother broke any of the fraternity's mies, he is automatically no longer a member.

Most incidents at frat houses that cause injury or death are linked in some way to alcohol. In fact, after studying hundreds of these cases, Flanagan couldn't find one in which alcohol did not play a role. Rules about alcohol consumption at frat houses are very strict as outlined by the Fraternal Information and Programming Group (FIPG), which in the mid-1980s developed a comprehensive risk-management policy for fraternities. Currently 32 fraternities are members of the FIPG and adhere to this policy, or to their own even more rigorous versions. Contrary to popular belief, kegs and hard liquor are both forbidden at frat houses. Frat brothers who are 21 or older who attend parties and wish to drink alcohol have two options: beer in cans or bottles or wine coolers, as per the FIPG risk-management manual. According to the manual frat bothers can only bring six beers (or four wine coolers) to a party. Upon arrival the frat brother must hand his beers or wine coolers over to a "sober monitor" in exchange for a ticket indicating the precise type of beer or wine cooler he brought, and ideally affixes a "non-breakable except by cutting" wristband to his person. He can then retrieve his beers or wine coolers, one at a time, for his own personal consumption.

The rules surrounding alcohol consumption at frat houses are so strict that on any given night of the week any number of rules are being broken by frat brothers. Therefore, when an injury occurs the nationals almost always have a legal loophole.

"When someone tries to sue us as Sigma Nu because of what you did as a member they'll say, 'the minute (he broke a rule) he was no longer a member.' So it's a catch 22 for all involved. This is one of the reasons it's hard to recover money from a fraternity," says Flanagan.

The national organizations are 10 steps ahead of those who try to sue them, she says. Most families who send their son or daughter off to college never think that their loved one could come to harm at a fraternity house. "The fraternities are very well prepared. They know these incidents happen every year and they're waiting for you to bring a lawsuit and they've developed many legal theories to get out of it," says Flanagan.

To insulate themselves from legal troubles, national organizations keep their local chapters at a safe distance, and for good reason. If the nationals involve themselves in the rule-making process and actively ensure that these rules are followed, it establishes a duty of care. "So if you're over there three times a year reviewing yet again the date rape policy and a girl gets date raped then the parents who are suing can say, 'you clearly knew date rape was a problem you gave three separate seminars.' This is the motivation for the nationals to be hands off on the locals," says Flanagan.

If fraternities are such a problem at universities why do universities enter into relationships with them? The answer is simple: money. "Fraternities are connected to deep amounts of money that are given back to the colleges. The boards of trustees and the presidents are a little bit afraid to irritate the fraternity members. In a lot of ways the fraternities are more powerful than the colleges," says Flanagan.

In addition to donating money to colleges, frats make schools appear attractive to prospective students by acting as a powerful recruiting tool for them. When kids visit and see an active, lively Greek row they say "I like this school, there's a lot of partying here. I'll have fun here," says Flanagan. Hook, line and sinker.

One in eight college men belongs to a fraternity. After spending a year researching fraternities, Flanagan is still not sure if the dark power of fraternities outweighs the positive influence they have on their members. Many individuals reached out to Flanagan indicating that being a frat brother was the best thing that ever happened to them. "It's where they learned about business and running something on their own. The leadership you get from a fraternity is matchless on campus. These guys are running the houses themselves. They're given a budget, they collect the rent, they're collecting the dues, they're running the chapter meetings. In a sense, byjoining a fraternity, you're getting to run a small business," says Flanagan. "What's more not many clubs or organizations can match the connections one can make through fraternities in power fields like investment banking and politics."

Flanagan warns those who are interested in joining a fraternity to choose wisely. "You don't want to join the Animal House of today where there is binge drinking every night. But there is a lot to be gained by (joining a fraternity) ."0

The fraternities are very weil prepared. They know these incidents happen every year and they're waiting for you to bring a lawsuit and they've developed many legal theories to get out of it."

Caitlin Flanagan, author of The Dork Power of Fraternities