Six months after the signing of the Declaration of Independence, students organized to form the first Greek-letter fraternity.  However, it was not until 2015 that the New Jersey Appellate Division issued a reported decision that addressed the scope of duties owed by a fraternity to protect guests from violent conduct at a social event.  In Peguero v. Tau Kappa Epsilon, a premises liability case, plaintiff sued the nation’s largest fraternity (“TKE”) seeking damages for personal injuries after being shot while breaking up a fight at a house party.  Peguero v. TKE, 439 N.J. Super. 77 (2015).

The case was presented as one based upon premises liability in tort.  Traditionally, New Jersey courts have viewed these cases based upon the plaintiff’s relationship to the property, e.g. trespasser, social guest, business invitee.  The duty owed depended upon this classification.  However, more recently, where “the duty of care is not well settled,” the courts have taken a new approach by looking at four factors: (1) relationship of the parties; (2) the nature of the risk; (3) the opportunity and ability to exercise care; and (4) public policy.  See Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993)(realtor had duty to warn invitees at a residential open house).  This has generally expanded the duty owed.

In Peguero, the court applied this test to the claim against the fraternity and found that no duty was owed to the party attendee.  The two driving considerations were foreseeability and public policy.  The Court held that plaintiff did not establish foreseeability of harm because this case lacked any evidence of a prior pattern of criminal conduct, any prior altercations or “alarming data.”   Although the plaintiff had been to other parties, he had never witnessed any other incidents.  The University had not been made aware of any problems at the fraternity.  No witness had observed anything to forewarn that someone had a gun at the party.  Under these facts, the Court found that public policy interests did not warrant an expansion of the duty of care because it could potentially create confusion and uncertainty in the law.

Given the dearth of evidence that the fraternity had some way to foresee the shooting and an opportunity to exercise care, this court was reluctant to find a duty was owed.  However, a different underlying fact pattern may produce a different result.  In fact, the Court hinted that a duty might be found in a case of hazing, excessive drinking or sexual assault.  In addition, the Court distinguished the case from the duty of care that might exist, for example, if the fraternity allowed a block of ice to melt creating a wet floor.  While the injuries in this case were tragic, this decision underscores the importance of a fact-specific defense strategy to counterbalance the factors now considered with respect to the duty of care in premises liability cases.

Thanks to Ann Marie Murzin for her contribution.

For more information, contact Denise Fontana Ricci at .