Prime v. Beta Gamma Chapter of Pi Kappa Alpha

• Decision Date: 31 May 2002
• Docket Number: No. 85,861.,85,861.
• Citation: 47 P.3d 402,273 Kan. 828
• Parties: MATTHEW J. PRIME, Appellant, v. BETA GAMMA CHAPTER OF PI KAPPA ALPHA, a Kansas Voluntary Association, PI KAPPA ALPHA FRATERNITY, a Tennessee Mutual Organization, TODD GUERRIERI, JEFF FAY, BRIAN HARPER, CORY AUBUCHON, JOHN KOSCIULUK, AARON HARPER, and THE MOUNT OREAD HOUSE CORPORATION, a Kansas Corporation, Appellees.
• Court: Kansas Supreme Court

273 Kan. 828

47 P.3d 402

MATTHEW J. PRIME, Appellant, v. BETA GAMMA CHAPTER OF PI KAPPA ALPHA, a Kansas Voluntary Association, PI KAPPA ALPHA FRATERNITY, a Tennessee Mutual Organization, TODD GUERRIERI, JEFF FAY, BRIAN HARPER, CORY AUBUCHON, JOHN KOSCIULUK, AARON HARPER, and THE MOUNT OREAD HOUSE CORPORATION, a Kansas Corporation, Appellees.

No. 85,861.

Supreme Court of Kansas.

Opinion filed May 31, 2002.

Theodore J. Lickteig, of Law Offices of Theodore J. Lickteig, of Overland Park, argued the cause and was on the brief for appellant.

Brian G. Boos, of Gehrt & Roberts, Chartered, of Topeka, argued the cause for individual appellees, and Craig C. Blumreich, of the same firm, for appellee Brian Harper; John E. Bordeau and Jana V. Richards, of Sanders Conkright & Warren LLP, of Kansas City, Missouri, for appellee Jeffrey Fay; and Wayne E. Smith, of Dougherty, Modin & Holloway, of Kansas City, Missouri, for appellees Cory Aubuchon, John Kosciuluk, and Todd Guerrieri, and were on the briefs of individual appellees.

Michael K. Seek, of Fisher, Patterson, Sayler & Smith, L.L.P., of Overland Park, argued the cause and was on the brief for appellees Mount Oread House Corporation and Pi Kappa Alpha Fraternity.

Rod L. Eisenhauer, of Seigfreid, Bingham, Levy, Selzer & Gee, P.C., of Kansas City, Missouri, argued the cause and was on the brief for appellee Beta Gamma Chapter of Pi Kappa Alpha.

The opinion of the court was delivered by

ALLEGRUCCI, J.:

This personal injury action arose out of a fraternity initiation event where Matthew Prime excessively consumed alcoholic beverages, which led to his hospitalization. Prime sued the local chapter and the national organization of the fraternity, the corporate owner of the real property where the fraternity chapter is housed, five individual fraternity members, the University of Kansas, and the Board of Regents. The university and regents were dismissed by Prime. Prime appeals from the trial court's order dismissing the local chapter and the trial court's order granting summary judgment to the remaining defendants. This court transferred the case from the Court of Appeals. K.S.A. 20-3018(c).

Matthew Prime was a 19-year-old pledge of the Beta Gamma chapter of Pi Kappa Alpha fraternity at the University of Kansas when he attended Pledge Dad Night at the fraternity house. Prime was provided alcoholic beverages in large quantities and encouraged but not required to drink them during the occasion. Prime drank excessively and lost consciousness. Fraternity members took Prime to the hospital. Prime was hospitalized with a blood alcohol concentration of .294. He alleged that he incurred medical expenses but no permanent injuries. The district court's findings of fact specific to the various defendants will be set out where necessary to the discussion of the issues.

Prime raises four issues on appeal: (1) Is Beta Gamma chapter, an unincorporated association, a legal entity that can be sued; (2) did the district court erroneously enter summary judgment in favor of the individual fraternity member defendants; (3) did the district court erroneously enter summary judgment in favor of Pi Kappa Alpha; and (4) did the district court erroneously enter summary judgment in favor of Mount Oread House Corporation?

The district court granted Beta Gamma Chapter's motion to dismiss on the ground that the chapter is an unincorporated association, which cannot be sued in the name of the association. The district court's decision involved only a question of law, and this court's review is unlimited.

In Kansas Private Club Assn. v. Londerholm, 196 Kan. 1, 408 P.2d 891 (1965), the court stated: "It is the general rule to which this jurisdiction has long adhered, that in the absence of a statute to the contrary, an unincorporated association is not a legal entity and can neither sue nor be sued in the name of the association. [Citations omitted.]" 196 Kan. at 3. Prime contends that after the decision in Kansas Private Club Assn. was issued, a statute was enacted that superseded the general rule stated in the case.

The statute cited by Prime is K.S.A. 60-223b, which became effective on publication in the Kansas Reports and in K.S.A. 1969 Supp. It provides:

"An action brought by or against the members of an unincorporated association as a class by naming certain members as representative parties may be maintained only if the court is satisfied that the representative parties will fairly and adequately protect the interests of the association and its members. In the conduct of the action the court may make appropriate orders corresponding with those described in K.S.A. 60-223 (d), and the procedure for dismissal or compromise of the action shall correspond with that provided in K.S.A. 60-223 (e)."

K.S.A. 60-223b plainly applies only to class actions.

Prime recognizes that a decision issued by the Court of Appeals long after K.S.A. 60-223b became effective cites Kansas Private Club Assn. and follows the general rule stated in that case. See Frey, Inc. v. City of Wichita, 11 Kan. App.2d 116, 715 P.2d 417 (1986). In Frey, now-Justice Abbott wrote for the Court of Appeals that a homeowners association "was never incorporated; therefore, it is not a legal entity and can neither sue nor be sued in the name of the Association." 11 Kan. App.2d at 117.

The rule in Kansas is that an unincorporated association can neither sue nor be sued, and K.S.A. 60-223b does not affect application of the rule in this nonclass action. The district court properly dismissed Prime's claims against the Beta Gamma Chapter of the Pi Kappa Alpha fraternity.

Prime next contends that Fay, Guerrieri, Aubuchon, Kosciuluk, and Harper owed him a duty not to haze him and a duty not to provide beer and liquor in harmful quantities. The district court entertained three motions for summary judgment from the individual defendants and granted each of the motions.

With regard to Fay, the district court wrote:

"The Court finds that Kansas does not recognize a cause of action against Jeff Fay for negligently furnishing liquor to Matthew Prime, a minor, pursuant to Mills v. City of Overland Park, 251 Kan. 434, 837 P.2d 370 (1992). The Court further finds no authority supporting a cause of action against defendant Fay for hazing pursuant to K.S.A. 21-3434. Based upon the uncontroverted facts submitted by defendant Fay and admitted by plaintiff, Mr. Prime had very little interaction with Jeff Fay on Pledge Dad Night. Plaintiff further admitted that Jeff Fay did not do or say anything to encourage him to drink and was informed while in Jeff Fay's room on Pledge Dad Night that he did not have to drink if he didn't want to. This Court further finds that defendant Fay had no legal duty to prevent plaintiff from injuring himself due to the ingestion of alcohol."

With regard to Guerrieri, Aubuchon, and Kosciuluk, the district court repeated that Kansas courts do not recognize a cause of action for furnishing alcoholic beverages to a minor and cited Mills. The district court further stated that Prime voluntarily consumed alcoholic beverages to the levels that made him ill and that Guerrieri, Aubuchon, and Kosciuluk owed Prime no duty.

In ruling for Harper, the district court made the following findings of fact and conclusions of law:

"Findings of Uncontroverted Fact

"1. At the time of the incident in question the Plaintiff was a pledge seeking admission to membership in Pi Kappa Alpha.

"2. The Plaintiff was nineteen years of age on the date of the incident in question.

"3. The Plaintiff had consumed alcoholic beverages prior to the incident in question both in high school and college.

"4. Prior to the incident in question the Plaintiff had been intoxicated on more than one occasion and was familiar with the signs of becoming intoxicated.

"5. When the Plaintiff arrived at Pi Kappa Alpha the evening of February 26, 1997 for his assigned duties and study time he learned that Pledge Dad Night would take place that evening.

"6. Pledge Dad Night was a social function customarily held by Pi Kappa Alpha to introduce pledges to their assigned pledge fathers.

"7. The Plaintiff understood that the function of a pledge dad in the fraternity would be an active member of the fraternity who could provide advice to the pledge son. Plaintiff had requested Brian Harper to be assigned as his pledge dad.

"8. On the evening of Pledge Dad Night the pledges, including the Plaintiff, went from room to room in the fraternity to ask questions of person in those rooms seeking to obtain information as to the identity of their respective pledge dads. Alcohol was available for the pledges to consume in each of these rooms.

"9. The Plaintiff was told he did not have to drink if he did not want to but, `if you want to drink that would be fine because it will be "the time of your life." The Plaintiff cannot recall who actually told him drinking would make Pledge Dad Night the time of his life.'

"10. No one in the fraternity told the Plaintiff that he would have to drink alcoholic beverages to participate in Pledge Dad Night or to become a member Pi Kappa Alpha. The Plaintiff consumed alcoholic beverages because of what he perceived to be `peer pressure' and to `fit in.'

"11. The Plaintiff spent only about five minutes with Brian Harper during Pledge Dad Night. Brian Harper was in the sixth and last room.

"12. In the last room, Brian Harper told the Plaintiff that Harper was his pledge dad and handed him a bottle of Mad Dog 20/20. It was traditional for pledge dads to provide a bottle of Mad Dog 20/20 to their pledge sons. Brian Harper did not request or suggest that the Plaintiff open the bottle or drink out of it. The Plaintiff did not seek any advice from Brian Harper. After spending a total of approximately five minutes total in the room the Plaintiff and Brian Harper went downstairs to join other fraternity members in singing fraternity songs.

"13. Brian Harper

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