Ballou v. Sigma Nu General Fraternity

• Decision Date: 13 October 1986
• Docket Number: No. 0824,0824
• Citation: 291 S.C. 140,352 S.E.2d 488
• Court: South Carolina Court of Appeals
• Parties: Sanford Ray BALLOU, Administrator of the Estate of Lurie Barry Ballou, Respondent, v. SIGMA NU GENERAL FRATERNITY and Maurice Littlefield, Defendants, of whom Sigma Nu General Fraternity is the Appellant. . Heard

Page 488

352 S.E.2d 488

291 S.C. 140

Sanford Ray BALLOU, Administrator of the Estate of Lurie Barry Ballou, Respondent, v. SIGMA NU GENERAL FRATERNITY and Maurice Littlefield, Defendants of whom Sigma Nu General Fraternity is the Appellant.

No. 0824.

Court of Appeals of South Carolina.

Heard Oct. 13, 1986.

Decided Dec. 1, 1986.

James W. Alford, and R. Lewis Johnson, Barnes, Alford, Stork & Johnson, Columbia, for appellant.

D. Kenneth Baker and Olin L. Purvis, III of Baker & Purvis, P.A., Darlington, for respondent.

GOOLSBY, Judge.

In this action for wrongful death, the appellant Sigma Nu General Fraternity (Sigma Nu), an unincorporated association, appeals from a jury verdict in favor of the respondent Sanford Ray Ballou (Ballou), the administrator of the estate of his son, Lurie Barry Ballou (Barry). We affirm.

The questions on appeal relate to (1) the sufficiency of the evidence as to failure to exercise due care, (2) the sufficiency of the evidence as to proximate cause, (3) the sufficiency of the evidence as to the scope of the agency relationship between Sigma Nu and its local chapter at the University of South Carolina, (4) the admission of certain expert testimony, (5) the trial judge's failure to charge the Good Samaritan Act, (6) the applicability of the charge as to last clear chance, (7) the trial judge's failure to grant a mistrial on the basis of statements made by counsel during opening argument, and (8) the sufficiency of the evidence to support an award of punitive damages.

Barry pledged the local chapter of Sigma Nu at the University of South Carolina during the 1979 fall semester. He remained a pledge throughout the fall semester.

Sigma Nu's pledging process at the University traditionally ended the first week of the spring semester, a week referred to by pledges and active brothers alike as "hell week." An informal initiation party called "hell night" concluded hell week. Attendance at hell night was mandatory for all pledges.

The local chapter scheduled its hell night for the evening of January 24, 1980, and told its pledges, nineteen in all, to be at the fraternity lounge at a certain hour. The pledges understood, according to Sigma Nu pledge James Graham, that they "would be pretty much expected to do a good bit of drinking." Indeed, Barry himself expected to get "bombed."

Before leaving to participate in hell night, Barry ate a large dinner at his apartment.

Barry and Graham arrived at the fraternity house between 8:00 and 9:00 o'clock and met with the other pledges in an upstairs room where they remained for approximately fifteen to forty minutes.

From the upstairs room, the pledges went downstairs into a lounge area of the fraternity house. There, an active brother told all the pledges to strip down to their underwear and to line up.

Active brothers then led the pledges one by one into the fraternity's barroom. Once inside, an active brother asked the pledge a question. After the pledge answered it, an active brother handed him, as described by Graham, a "goblet-shape[d]," "trophy-type cup" called the "cup of truth." It contained an unknown mix of intoxicating liquids of undisclosed alcoholic strength.

The pledge, Graham testified, was "expected to chug a certain portion" of the cup of truth's contents. Sometimes, the active brothers applauded if a pledge drank all the liquid in the cup; however, if he drank only a small amount, the active brothers ridiculed him or "poked fun" at him.

As additional pledges were led into the barroom, other active brothers seated the pledges who had been examined and had drunk from the cup of truth against the wall in another room. The active brothers gave the pledges bottles of beer, wine, or liquor and asked them to drink it. They also passed around for the pledges' consumption what appeared to be cans of soft drinks. The cans actually contained more alcohol.

At one point, Graham was handed a bottle of bourbon and refused to drink it. An active brother, however, insisted that he do so. When Graham drank only a small amount, the active brother suggested that "maybe [Graham] was a wimp" or he questioned Graham's "masculinity."

Thereafter, when all the pledges were together, active brothers shook cans of beer and soft drinks and sprayed the pledges as they sat in a circle on the floor, sang fraternity songs, and consumed additional alcohol given them by active brothers. One song that they sang, entitled "I Drink to Sigma Nu" and taken from the Legion of Honor, a Sigma Nu publication, urged, "Drink! Drink! Drink! Men brave and true. Drink! Drink! Drink! To our Sigma Nu."

Following this, active brothers required the pledges to play games called "flood" and "air raid." These games required the pledges either to stand on their tip toes or to fall to the floor, now soaked with soft drinks, beer, wine, and liquor.

When all the pledges were wet, active brothers required the pledges, who were still clad in their underwear, to run to another fraternity house nearby where a party attended by coeds was being held.

The pledges subsequently returned to Sigma Nu's house. By now, most of them, Barry included, were very intoxicated. In fact, Barry vomited "right outside the front door" to the fraternity house.

Several pledges then went upstairs and soaped and wet down a hallway. For about fifteen minutes, they slid up and down it.

By 10:30 p.m., Barry and three other pledges had passed out. Barry lay on a couch in the fraternity lounge.

Graham and three active brothers checked on Barry shortly before midnight. Barry's pale color and his lack of responsiveness concerned them.

Although the four discussed taking Barry to the infirmary, they left him lying face down and unconscious on the couch. A pledge who lived in the fraternity house placed Barry in this position because he feared Barry, if he remained on his back, might vomit and suffocate.

The following morning an active brother found Barry dead. An autopsy revealed that he died from "acute alcohol intoxication with a terminal aspiration of [his] gastric contents." His blood-alcohol level read 0.46%. He was 20 years old.

Investigating officers discovered numerous whiskey bottle caps, beer cans, and wine bottles inside the fraternity house. They found broken liquor bottles outside the building.

Had Barry been removed to the infirmary or to a hospital, the higher level of treatment that would have been available would have afforded a greater "potential for success" in preventing Barry from aspirating his gastric contents.

Barry's father subsequently filed this action against Sigma Nu and its executive director, Maurice Littlefield. Among other things, Ballou alleged that his son "was forced by harassment and psychological manipulation to consume enormous quantities of alcoholic beverages."

The trial court dismissed Littlefield as a party defendant at the end of Ballou's case. The jury returned a verdict against Sigma Nu in the amount of $200,000 actual damages and $50,000 punitive damages.

I.

Sigma Nu contends that the record contains no evidence of actionable negligence on its part and that the trial judge, therefore, committed error in denying its motion for judgment notwithstanding the verdict.

The duty of exercising care to protect another person against injury may be created by contract or by operation of law. See Griffin v. Blankenship, 248 N.C. 81, 102 S.E.2d 451 (1958). A statute is not always required for the duty to arise by operation of law. Rice v. Turner, 191 Va. 601, 62 S.E.2d 24 (1950). The duty may result from the relation of the parties. Id. "Whether the relation between two persons is such as gives rise to a duty to use care is a pure question of law for the court to determine." 57 Am.Jur.2d Negligence § 36 at 384 (1971).

In South Carolina, our Supreme Court has determined that a fraternal organization owes a duty of care to its initiates not to cause them injury in the process. See Easler v. Hejaz Temple of Greenville, 285 S.C. 348, 329 S.E.2d 753 (1985) (wherein the court viewed the manner in which an unincorporated association conducted part of its initiation ceremonies as hazardous and constituting actionable negligence).

In determining whether a motion for judgment notwithstanding the verdict should be granted, the evidence and all reasonable inferences that can be drawn therefrom must be considered in the light most favorable to the party opposing the motion and most strongly against the party making it. Ellison v. Pope, 290 S.C. 100, 348 S.E.2d 367 (Ct.App.1986). The motion should be refused if more than one reasonable inference can be drawn from the evidence. Id.

When the evidence here and all its reasonable inferences are so viewed, a jury issue concerning the question of actionable negligence clearly appears.

The evidence reasonably suggests that Sigma Nu required Barry to attend hell night as part of its initiation process and that on hell night Sigma Nu through its active brothers created a hazardous condition by hazing him and the other pledges, plying them with dangerous quantities of alcoholic liquors and beverages over a short period of time, and pressuring them to consume these intoxicants to excess. See Davies v. Butler, 95 Nev. 763, 602 P.2d 605 (1979) (wherein the court held that the evidence supported an instruction regarding the willful or wanton misconduct of the respondent social "drinking club" where the jury could conclude that the club's intent was to administer dangerous quantities of alcohol to the decedent within a short period of time); Ibach v. Jackson, 148 Or. 92, 111, 35 P.2d 672, 680 (1934) (wherein the court held that the administration of alcohol by one person to another "in such quantities as to cause death, is a breach of duty and a tortious act....").

The evidence reasonably suggests also that, after Barry became helplessly drunken as a result of consuming an excessive amount of the alcohol so furnished him,...