Oja v. Grand Chapter of Theta Chi Fraternity Inc.

• Decision Date: 28 January 1999
• Citation: 257 A.D.2d 924,684 N.Y.S.2d 344
• Parties: 132 Ed. Law Rep. 865, 1999 N.Y. Slip Op. 597 Shambhu OJA, Individually and as Administrator of the Estate of Binaya Oja, Deceased, et al., Respondents, v. GRAND CHAPTER OF THETA CHI FRATERNITY INC. et al., Defendants, and Daniel Koehler et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 344

684 N.Y.S.2d 344

132 Ed. Law Rep. 865, 1999 N.Y. Slip Op. 597

Shambhu OJA, Individually and as Administrator of the Estate of Binaya Oja, Deceased, et al., Respondents, v. GRAND CHAPTER OF THETA CHI FRATERNITY INC. et al., Defendants and Daniel Koehler et al., Appellants.

Supreme Court, Appellate Division Third Department.

Jan. 28, 1999.

Brown, Pinnisi & Michaels P.C. (Theodore Lyons Araujo of counsel), Ithaca, for Daniel Koehler, appellant.

Smith, Sovik, Kendrick & Sugnet (Steven Ward Williams of counsel), Syracuse, for Douglas Lavarnway, appellant.

Holmberg, Galbraith, Holmberg & Orkin (Anna K. Holmberg of counsel), Ithaca, for respondents.

Before MIKOLL, J.P., MERCURE, CREW, YESAWICH and PETERS, JJ.

YESAWICH, J.

Appeal from an order of the Supreme Court (Relihan Jr., J.), entered December 29, 1997 in Tompkins County, which denied motions by defendants Daniel Koehler and Douglas Lavarnway to dismiss the fourth and ninth causes of action of the amended complaint.

The facts underlying this action have been previously set forth in a prior appeal (--- A.D.2d ----, 680 N.Y.S.2d 277). Briefly, decedent, a 17-year-old college freshman who had been invited to pledge Delta Sigma Chapter of Theta Chi Fraternity (hereinafter the fraternity), died after consuming excessive amounts of alcohol during a hazing ritual. His parents commenced this action (on decedent's behalf, as well as in their individual capacities) against, among others, several individual fraternity members who were allegedly present during the events leading to their son's death. In addition to asserting claims premised upon General Obligations Law § 11-100, plaintiffs have also charged the individual defendants with common-law negligence and violation of Penal Law § 120.16, an anti-hazing statute. Defendants Douglas Lavarnway and Daniel Koehler (hereinafter collectively referred to as defendants) moved to dismiss these latter two claims on the ground that neither states a viable cause of action. Supreme Court concluded otherwise, prompting this appeal by defendants.

We affirm. Accepting the allegations of the complaint as true, and according plaintiffs the benefit of every possible favorable inference that may be drawn therefrom (see, CPLR 3211[7]; Weimer v. City of Johnstown, 249 A.D.2d 608, ----, 670 N.Y.S.2d 624, 626, lv. denied 92 N.Y.2d 806, 677 N.Y.S.2d 781, 700 N.E.2d 320), plaintiffs' fourth cause of action, asserting common-law negligence, does not, as Supreme Court found, necessarily come within the ambit of the rule that precludes recovery, from a provider of alcoholic beverages, by one who has been injured as a result of his or her own voluntary intoxication (see, e.g., Sheehy v. Big Flats Community Day, 73 N.Y.2d 629, 636, 543 N.Y.S.2d 18, 541 N.E.2d 18; Dodge v. Victory Mkts., 199 A.D.2d 917, 919, 606 N.Y.S.2d 345). Not only have plaintiffs alleged facts that could lead a trier of fact to conclude that decedent's intoxication was not entirely voluntary, they have also cited other purportedly careless acts by defendants--beyond the mere furnishing of intoxicants--upon which a finding of negligence could be grounded. Specifically, it is alleged that after decedent had become visibly intoxicated, unable to stand and incapable of aiding or protecting himself, fraternity members took him to the third floor of the house, laid him face down on a couch with a bucket underneath his head, and left him unattended in an unconscious state. If it is found that this conduct contributed to decedent's death, it could warrant a finding of liability without regard to the defendants' earlier act of simply making the alcohol available (see, Heard v. City of New York, 82 N.Y.2d 66, 72, 603 N.Y.S.2d 414, 623 N.E.2d 541; Parvi v. City of Kingston, 41 N.Y.2d 553, 559-560, 394 N.Y.S.2d 161, 362 N.E.2d 960; O'Grady v. City of Fulton, 4 N.Y.2d 717, 171 N.Y.S.2d 108, 148 N.E.2d 317; Ferrer v. Riverbay Corp., 214 A.D.2d 312, 624 N.Y.S.2d 425; Johnson v. City of New York, 208 A.D.2d 595, 596, 617 N.Y.S.2d 200).

As for the ninth cause of action, premised upon defendants'...