Washington State University fights hazing liability

OLYMPIA, Wash. (CN) — A Washington university urged the state’s highest court on Thursday to overturn a ruling that it failed to protect a student who died in a hazing ritual. 

An appeals court ruled that Washington State University had a duty to shield the student from the “foreseeable harms of hazing and alcohol misuse,” but the school argues that that finding conflicts with state Supreme Court precedent.

“Barely 20 months ago, and after lengthy deliberation, this court issued the opinion of Barlow v. State,” said Nicholas Ulrich, attorney representing the university. He explained the opinion held that a university doesn’t owe a duty to students off campus and non-school-sponsored activities because it cannot control their off-campus behavior.

Sam Martinez joined the Gamma Chi fraternity at Washington State University — the school's chapter of the Alpha Tau Omega Fraternity (ATO National) — in 2019 during his freshman year. Following a new member event that November, the 19-year-old student was found unresponsive on a couch in the fraternity house’s basement with vomit on his mouth.

Martinez had a blood alcohol concentration of 0.375, and his death was attributed to alcohol poisoning. The incident caused the school to revoke its recognition of the fraternity, and the national chapter removed its charter from the campus.

The school argued that while it formally recognized the fraternity, it didn’t have any control over it, nor was its recognition of the organization a requirement for students to join it. 

But the justices questioned the university on just how much control it exerted over Gamma Chi.

In response, Ulrich noted that Gamma Chi’s off-campus “live out” house, where Martinez died, is essentially a private residence much like any non-Greek Life student house. The university could recommend the fraternity not allow freshman to live there, but that’s the extent of their control.

“They could not enforce that, they could not require it,” Ulrich said. 

Chief Justice Debra Stephens then asked about whether the school limited where its younger students could reside. 

“So, one of the options in 2019 of a place that a student was required to live was a fraternity or sorority?” Stephens said. 

Ulrich explained the university's intent was to keep new students close to campus and school resources and that Greek Row, the street that houses fraternities and sororities, is right next to the campus.

“To be clear, Washington State University has a contract with fraternities and sororities, and they also have a contract with the students that attend,” Justice Helen Whitener said. “And, but for the student being off campus at this fraternity/sorority, you’re saying there’s no liability because the student and what occurred was off campus?”

The university again pointed to the high court’s finding in Barlow, remarking it had no control over the off-campus activities of students. Students do sign a contract agreeing to live up to the student conduct code, but Ulrich emphasized that the university had little power to enforce that once a student left campus. 

The family of Martinez disagreed and argued that the school had more information about the risk fraternities posed than it admitted. 

“How can WSU dictate whether alcohol’s going to be brought into a private residence?” asked Washington Court of Appeals Judge Tracy Staab, sitting by designation after a justice recused himself.

Rebecca Roe, attorney representing Martinez’s family, said the university had, two months prior to the incident with Martinez, removed the recognition of a different fraternity after discovering it had been hazing pledges with alcohol at its off-campus house.

“They had this authority and they had the authority through the recognition agreements and through provisions, anti-hazing, wherever it was going to occur,” Roe said. 

The family said Barlow doesn’t have to control the case. In Barlow, a Washington State University student sued the school for negligence after a fellow student raped her at an off-campus apartment. The high court held that a university’s duty is limited to on-campus, school-related activities. 

Valerie ​​McOmie, an attorney representing the Washington State Association for Justice Foundation, argued the school’s promotion of the benefits of Greek Life created a duty to protect students from the harm of those activities. The school “painted a rosy picture” of fraternity life rather than share the reality, McOmie said.

“That is what WSU did, knowing it was contributing to an inaccurate picture of the entirety of what these fraternities and sororities pose,” McOmie said. 

The Supreme Court did not indicate when it would rule.