JONES v. PI KAPPA ALPHA INTERNATIONAL FRATERNITY, INC. et al

Filing 206

OPINION. Signed by Judge Kevin McNulty on 12/17/2019. (sms)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JANE JONES,
Plaintiff,
V.

P1 KAPPA ALPHA INTERNATIONAL
FRATERNITY, INC.; BRETT HELBERG;
DAVID MALINOWSKI; P1 KAPPA ALPHA
FRATERNITY LOCAL CHAPTER MU
ZETA at RAMAPO COLLEGE; SKENDER
AGIC; JOHN HOGAN; JOSHUA WILLIAM
NEWMAN; RAMAPO COLLEGE OF NEW
JERSEY; RAMAPO COLLEGE BOARD OF
TRUSTEES; VINCENT MARKOWSKI;
PETER MERCER; CORY ROSENKRANZ;
MELISSA VAN DER WALL;
CHRISTOPHER RAINONE; JUSTIN
SOMMERS; KORIN LEVETSANOS; WAYNE
JOHNSON; CHRISTIAN LOPEZ; NAKEEM
GARDNER; JOHN/JANE DOES 1-20; and
XYZ CORPORATIONS 1-10,
--

Civ. No. 2:16-cv-7720-KM-MAH

OPINION

Defendants.

MCNULTY. U.S.D.J.:
Plaintiff Jane Jones1 has asserted twenty causes of action regarding
alleged sexual assaults at Ramapo College on November 14, 2014. (Compl.

¶

(DE 161)).2 Two persons criminally charged with commission of the sexual
This fictional name is used to protect the plaintiffs privacy.
2

Citations to certain record items will be abbreviated as follows:
DE

=

Docket entry number

Compl.

=

First Amended Complaint and Jury Demand (DE 161)

Def. Brf. = PIKE Fraternity Defendants’ Brief in Support of Motion to Dismiss
(DE 148-1)
P1. Brf.

=

Plaintiffs Brief in Opposition (DE 159)
1

33

assaults, Nakeem Gardner and Christian Lopez, have now pled guilty and been
sentenced.3 This action is brought against Ramapo College, the fraternity of
which the assailants were members, and a number of individuals.
Currently before the Court is the motion of one group of defendants for
judgment on the pleadings. See Fed. R. Civ. P. 12(c). The movants (referred to
collectively as the “PIKE Fraternity Defendants”) are Pi Kappa Alpha
International Fraternity, Inc. (“PIKE”), Brett Helberg, and David Malinowski.
Helberg and Malinowski (the “Individual Defendants”) are alleged to be advisers
or consultants to PIKE and are being sued in both their personal and official
capacities.4
The counts of the First Amended Complaint at issue on this motion are
Counts 3, 4, and 11. Count 3 (Social Host Agency) and Count 4 (Negligent
Supervision) are asserted against all of the PIKE Fraternity Defendants. Count
11 (New Jersey Law Against Discrimination (“NJLAD”), N.J. Stat. Ann.

§

10:5-

12) is asserted against PIKE only.5
For the reasons set forth below, the PIKE Fraternity Defendants’ motion
to dismiss the First Amended Complaint is granted in part and denied in part.

Def. Reply Brf.

PIKE Fraternity Defendants’ Reply Brief in Further Support of
Motion to Dismiss (DE 164)

=

This action was stayed pending resolution of the criminal case. (DE 100) After
the criminal proceedings were concluded, Plaintiffs motion to file an amended
complaint was granted. (DE 142, 160). Among other things, the first amended
complaint now names Gardner and Lopez as defendants. (They had previously been
referred to in the factual narrative by their initials, N.G. and C.L.) The PIKE
Defendants’ motion to dismiss was filed prior to the filing of the amended complaint,
but the amendments do not affect the issues asserted in that motion. For simplicity,
this Opinion cites to the facts as alleged in the first amended complaint (DE 161).
3

Also named as defendants are other fraternity members or officers, who are not
movants here.
Counts 1—2, 5—8, and 12—20 of the First Amended Complaint are not asserted
against the PIKE Fraternity Defendants. The parties have stipulated that Count 11 is
dismissed as to the Individual Defendants, leaving only PIKE itself. (DE 191). The
parties have also stipulated that Counts 9 and 10 are dismissed as to the PIKE
Fraternity Defendants. (DE 76).
5

2

I.

FACTUAL BACKGROUND

In considering a motion to dismiss, the Court is required to treat the
facts alleged in the complaint as true and to draw all reasonable inferences in
the plaintiff’s favor. I summarize those allegations as follows:
On or about Friday, November 14, 2014, PIKE’s Mu Zeta Chapter held a
“Date Night” party on the Ramapo College Campus. (Compl.

¶11

38-39). The

party was held at the on-campus apartment of defendant John Hogan, the
fraternity chapter’s sergeant-at-arms. (Id.

¶

12, 39). Plaintiff Jane Jones was a

nineteen-year-old Ramapo student at the time. (Id.

¶

40). She was not

originally invited to the party, but entered after several fraternity members
recruited “random students outside of the apartment building” to attend the
party by “calling down” from Hogan’s balcony. (Id.

¶

43),

When Jones arrived at the party, a twenty-four-year-old fraternity
“pledge” named Christian Lopez served her alcoholic drinks until she was
“complete[ly] inebriated.” (Id. ¶‘! 42, 44). Lopez then “lured” Jones into Hogan’s
bedroom. (Id.

¶

44). Lopez and Joshua William Newman played “Rock, Paper,

Scissors” outside Hogan’s bedroom door “to determine who would get to
sexually assault and rape” Jones. (Id.

¶

45). Lopez then sexually assaulted her.

(Id.).
Other fraternity members, including Hogan, became aware of the sexual
assault. (Id.

¶

46). Instead of intervening to protect Jones, the other fraternity

members expelled Lopez and Jones from the party. (Id.

¶

47). Left behind at

the party were Jones’s shoes, undenvear, jacket, and school identification. (Id.

¶

57).
Christopher Rainone, Justin Sommers, and Wayne Johnson, who were

then Ramapo students, assisted Lopez in putting the “visibly intoxicated” Jones
into Lopez’s car. (Id.

¶

50), Lopez drove Jones across campus, passing through

a number of campus security checkpoints, to Mackin Hall, the freshman

3

dormitory. (Id.

¶ 6 1-62). Lopez, who was not a freshman, did not have access to
the dorm. (Id. ¶ 62). However, Rainone and Sommers provided Lopez with one
of their ID cards and allowed Lopez to use their dorm room. (Id. ¶ 63-64).
Lopez and another individual, Nakeem Gardner, took Jones to the dorm room,

where they repeatedly sexually assaulted and raped her. (Id.

¶

65). During

much of this assault, the door was open; Jordyn Massood, Rainone, Sommers,
and Korin Levetsanos watched, “celebrated,” and Massood, Rainone, and
Sommers videotaped the assaults. (Id.

¶1

70-72).

Jones suffered permanent and severe physical and psychological injuries
and emotional and mental distress, as well as economic and other damages.
(Id.

77). She was unable to continue at Ramapo College, and this incident has

had a negative effect on her educational career. (Id.

¶

78).

Jones alleges that PIKE sets the policies and standards for each local
fraternity chapter. (Id.

¶

83). The PIKE Fraternity Defendants allegedly knew or

should have known that the Mu Zeta Chapter had been previously disciplined
for alcohol violations and sexual assault incidents. (Id.

¶

156). The Individual

Defendants were allegedly advisors or consultants to the Mu Zeta Chapter on
behalf of PIKE and were responsible for training, supervising, monitoring and
enforcing PIKE’s code of conduct with respect to the Mu Zeta Chapter. (Id.

¶1J

8-9).
II.

APPLICABLE LEGAL STANDARD

Federal Rule of Civil Procedure Rule 12(c) provides for judgment on the
pleadings after the pleadings have been closed. “A motion for judgment on the
pleadings will be granted, pursuant to Fed. R. Civ. P. 12(c) if, on the basis of
the pleadings, the movant is entitled to judgment as a matter of law. The court
will accept the complaint’s well-pleaded allegations as true, and construe the
complaint in the light most favorable to the nonmoving party, but will not
accept unsupported conclusoiy statements.” DiCarlo v. St. Manj Hosp., 530
F.3d 255, 262-263 (3d Cir. 2008) (internal citations omitted). For present
purposes, there is no material difference in the legal standards between a Rule
4

12(c) motion and a Rule 12(b)(6) motion. Spntill v. Gil/is, 372 F.3d 218, 223 n.2
(3d Cir. 2004).
Federal Rule of Civil Procedure Rule 12(b)(6) provides for the dismissal of
a complaint, in whole or in part, if it fails to state a claim upon which relief can
be granted. The defendant, as the moving party, bears the burden of showing
that no claim has been stated. Animal Science Products, Inc. v. China Minmetals
Corp., 654 F.3d 462, 469 n.9 (3d Cir. 2011). For the purposes of a motion to
dismiss, the facts alleged in the complaint are accepted as true and all
reasonable inferences are drawn in favor of the plaintiff. New Jersey Carpenters
& the Tnistees Thereof v. Tishman Const. Corp. of New Jersey, 760 F.3d 297,
302 (3d Cir. 2014).
Federal Rule of Procedure 8(a) does not require that a complaint contain
detailed factual allegations. Nevertheless, “a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the
complaint’s factual allegations must be sufficient to raise a plaintiffs right to
relief above a speculative level, so that a claim is “plausible on its face.” Id. at
570; see also West Run Student Housing Assocs., LLC v. Huntington Nat. Bank,

712 F.3d 165, 169 (3d Cir. 2013). That facial-plausibility standard is met
“when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
While “[t]he plausibility standard is not akin to a ‘probability requirement’
asks for more than a sheer possibility.” Iqbal, 556 U.S. at 678.
III.

ANALYSIS

Section III.A discusses Count 3 (Social Host Agency) and Count 4
(Negligent Supervision), in relation to the Individual Defendants. Section B
addresses Count 11 (NJLAD Hostile Educational Environment), asserted

5

...

it

against PIKE. Section C addresses the Individual Defendants’ motion to
dismiss various crossclaims.
A. State-Law Tort Claims

Counts 3 and 4 are asserted against all of the PIKE Fraternity
Defendants, but defendants do not dispute that these counts state a claim
against PIKE itself. (Def. Reply Brf. at 1). Therefore, I will consider the motion
to dismiss Counts 3 and 4 only insofar as they are asserted against the
Individual Deiendants, Helberg and Malinowski.
1. Social Host Liability

In Count 3, Jones alleges that the Individual Defendants are subject to
“social host agency” liability. That, at least as it might apply here, is a novel
legal theory in New Jersey.
Social host liability was introduced in New Jersey through its Supreme
Court in Kelly v. Gwinnell, 96 N.J. 538 (1984). Certain of the principles stated
in Kelly were codified by the legislature several years later in N.J. Stat. Ann.

§ 2A: 15-5.5 to -5.8 (the “Social Host Statute”). Liability under that statute is
limited to injuries arising out of the “negligent operation of a vehicle.” N.J. Stat.
Ann.

§ 2A: 15-6.6(b)(3). Further, the Social Host Statute declares itself to be

“the exclusive civil remedy for personal injury or property damage resulting
from the negligent provision of alcoholic beverages by a social host to a person
who has attained the legal age to purchase and consume alcoholic beverages.”
N.J. Stat. Ann.

§ 2A: 15-5.6(a).

Injuries caused by the operation of a vehicle are not at issue here, so the
Social Host Statute does not apply. The statute preempts other bases for
liability for serving alcohol to an adult, but leaves open liability for serving
alcoholic beverage to minors. See Dower v. Gamba, 647 A.2d 1364, 1369 (N.J.
Super. Ct. App. Div. 1994) (citing cases imposing liability for serving alcohol to
minors, stating that the Social Host Statute left such liability “subject to
common-law development by the courts”). Thus a pre-Social Host Statute case

6

applied the reasoning in Kelly to provide a cause of action to an intoxicated
minor guest against the parents who owned the residence where the party
occurred. Batten by Batten v. Bobo, 528 A.2d 572, 573 (N.J. Super. Ct. Law
Div. 1986). A post-Social Host Statute case cited Batten as good authority,
agreeing that the wording of the statute “strongly suggest[ed] that principles of
liability for permitting minors to obtain alcoholic beverages is a subject for
common-law development by the courts.” Morella u. Machu, 563 A.2d 881, 884
(N.J. Super. Ct. App. Div. 1989). The parents, Morella held, were not present in
their home when the party occurred, but nevertheless “had a duty to the public
to exercise reasonable care to arrange for competent supervision of their
teenagers while they were out of the state on vacation.” Id. at 885.
A recent Appellate Division case discussed at length the current state of
the law as to liability for provision of alcohol to minors. Estate of Narleski v.
Gomes, 211 A.3d 737 (N.J. Super. Ct. App. Div.) (Sabatino, J.), certf granted,
218 A.3d 292 (2019). I take it as a guide here.
Narleski discussed the Social Host Statute,6 but also considered an
alternative basis for liability under a “quasi-criminal statute,” N.J. Stat. Ann.

§ 2C:33-17 (the “Service to Underage Drinkers” statute). 211 A.3d at 744-45.
The Service to Underage Drinkers statute mandates that anyone who
“purposefully or knowingly offers or serves or makes available an alcoholic
beverage to a person under the legal age for consuming alcoholic beverages or
entices or encourages that person to drink an alcoholic beverage” or “makes
real property owned, leased or managed by him available to, or leaves that
property in the care of, another person with the purpose that alcoholic
beverages will be made available for consumption by, or will be consumed by,
persons who are under the legal age for consuming alcoholic beverages” shall
be guilty of a disorderly persons offense. N.J. Stat. Ann.

§ 2C:33-17. While

Unlike this case, Narleski involved injury related to the operation of a vehicle, a
prerequisite to Social Host Statute liability.
6

7

allowing for the possibility of such liability, the Narleski court set it aside on
factual grounds.
The parent, the Narleski court found, did not make alcohol available and
was unaware that her son as host, or his friends, were drinking there. Nor did
the parent evince any purpose to make alcoholic beverages available to the
underage drinkers in their home. As for the host, her son, the Court found that
it was actually a third party who purchased the alcohol and furnished it—i.e.,
made it “available.” And the son did not own, lease, or manage his parents’
home, where the consumption occurred.
The same holds true here. The Service to Underage Drinkers statute
limits liability to those who (1) purposefully or knowingly made alcohol
available to an underage drinker or (2) owned, leased or managed real property
where alcohol will be consumed by underage drinkers. On the first prong, there
is no factual allegation that the Individual Defendants themselves made alcohol
available to any of the fraternity members or their guests. At best, the
complaint alleges that they were generally responsible for supervising the
fraternity. As for the second, real-property prong, Jones alleges that the party
took place on the Ramapo College campus, and there is no allegation that the
fraternity, let alone the Individual Defendants, had any ownership, rental, or
management-based interest in the property.
Narleski then discussed common law theories of liability. To understand
the discussion, it is necessanT to know that the general age of majority in New
Jersey is 18, although the drinking age is 21.
Narleski acknowledged the general principle that parents, even when
absent, are responsible to make reasonable arrangements for supervision of
their minor children in relation to alcohol. See, e.g., Batten, supra. In relation
to an adult child, however, the court declined to recognize a parental duty
giving rise to social host liability. 211 A.3d at 747—48. The single, narrow
exception to that rule was based on a “special relationship” that might apply to
the parent of, e.g., an adult child with a mental disability. Id. at 748.
8

Narleski turned to the liability of the 19-year-old host. The court had no
difficulty with the concept that the host, already a parent himself, owed a duty
“to injured parties to desist from facilitating the drinking of alcohol by
underage adults in his place of residence, regardless of whether he owns, rents,
or manages the premises.” Id. at 749. Such an expansion of liability, however,
was imposed only prospectively.7
The common law claim is similarly lacking here. Where, despite a strong
common-law background presumption of liability, the parent of a 19-year-old
cannot be held liable for service of alcohol in her home, I cannot hold that
“advisers and/or consultants” of a national fraternity can be held liable for
service of alcohol at a local fraternity chapter’s party. Assuming that, e.g.,
Lopez (not a minor) could be liable for serving alcohol to Jones, who was under
the legal age for the consumption of alcohol, I see no basis for extending that
liability to the Individual Defendants. Nor, for what it is worth, was this oncampus property the Individual Defendants’ “residence” for purposes of the
rules announced in Narleski.
I find no support for the legal viability of the cause of action alleged here.
Accordingly, Count 3 is dismissed as against the Individual Defendants.
2. Negligent Supervision
In Count 4, Jones asserts a claim of negligent supervision against the
PIKE Fraternity Defendants for failure to exercise reasonable care in
supervising the Mu Zeta Chapter, members of which were responsible for the
assault on her. (Compl.

¶

160-167).

According to Jones, the local Mu Zeta Chapter is an unincorporated
association. (Compl.

¶

10). While not liable in equity, unincorporated

associations may be sued. N.J. Stat. Ann.

§

2A: 64-1, -6.

The court’s caution in this area is palpable. It suspended its holding for 180
days to accommodate any further judicial or legislative response. 211 A.3d at 749.

7

9

Few New Jersey cases have “addressed the scope of duties that may be
owed by a college fraternity, or its officers or members, to protect guests from
violent conduct that may occur at a social event hosted by members of a
fraternity.” Peguero v. Tau Kappa Epsilon Local Chapter, 106 A.3d 565, 571
(N.J. Super. Ct. App. Div. 2015) (considering liability of national fraternity for
the shooting of a party guest by an unknown assailant); see also D.D. v.
Stockton University, No. 18-13506, 2019 WL 3369709 (D.N.J. 2019)
(considering liability of national fraternity for an alleged sexual assault
occurring at a fraternity house); Jackson-Locklear v. William Patterson8
University, No. 16-5449, 2018 XML 1942521 (D.N.J. 2018) (considering liability
of a national fraternity for the suicide of a woman who had alleged she was
raped at a fraternity path’). No New Jersey case has addressed whether an
adviser or consultant of a national fraternity, as opposed to the fraternity itself,
may be personally liable for tortious conduct of a local chapter’s members.
Therefore, I will analyze these Individual Defendants’ potential liability under
general principles of tort law. See Peguero, 106 A.3d at 57 1-575 (analyzing
fraternity liability under the general principles of tort law).
The tort of negligent supervision has elements parallel to those of the tort
of negligent hiring, which has its roots in principles of agency law. See Smith v.
Harrah’s Casino Resort of Atl. City, No. A-0855-12T2, 2013 WL 6508406, at 3
4 (N.J. Super Ct. App. Div. 2013). What is required is a showing that “the
employer knew or had reason to know that the employee exhibited dangerous
characteristics, that there was a reasonable foreseeability of harm to others,
and that the negligent supervision was the proximate cause of the injuries.”
Forrest v. Parry, 930 F.3d 93, 112 (3d Cir. 2019) (citing Panarello v. City of
Vineland, 160 F. Supp. 3d 734, 769 (D.N.J. 2016)). Where, as here, the
relationship between the supervisor and the tortfeasor is not expressly that of
employer and employee, courts have applied principles of agency and control to
determine whether the alleged supervisor had a duty to supervise the
8

Sic.
10

tortfeasor. See Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.s.
440, 448 (2006) (applying the common-law element of control as the “principal
guidepost” in determining whether an individual was an employee under
federal statutes); see also Lewis v. Bellows Falls Congregation of Jehovah’s
Witnesses, 248 F. Supp. 3d 530, 540—42 (D. Vt. 2017) (applying Vermont’s
agency law-based test to a claim of negligent supervision).
In New Jersey, “[a]n agency relationship is created when one party
consents to have another act on its behalf, with the principal controlling and
directing the acts of the agent. Sears Mortg. Corp. v. Rose, 634 A.2d 74, 79 (N.J.
1993) (citations omitted). “[D]irect control of principal over agent is not
absolutely necessary; a court must examine the totality of the circumstances to
determine whether an agency relationship existed

.

.

.

.“

Id. at 80. New Jersey

courts have not ruled on whether a fraternity officer (again, as opposed to the
fraternity itself) is in an agency relationship with a local chapter or its
members.
Here are the allegations that describe the positions of Helberg and
Malinowski, the Individual Defendants:
8. At times relevant herein, specifically, at the time of the
brutal sexual assault, Defendant Brett Helberg was a Member of
the Pi Kappa Alpha International Fraternity, Inc. Upon information
and belief, Defendant Brett Helberg served as an Adviser and/or
Consultant to the Mu Zeta Chapter at Ramapo College on behalf of
Pi Kappa Alpha Fraternity Inc. Upon further information and belief,
Defendant Brett Helberg was responsible for training, supervising,
monitoring and enforcing the National Fraternity’s Code of
Conduct and Policies as to that Chapter. Defendant Brett Helberg
is being sued in his individual and official capacities.
9. At times relevant herein, specifically, at the time of the
brutal sexual assault, Defendant David Malinowski was a Member
of the Pi Kappa Alpha International Fraternity, Inc. Upon
information and belief, Defendant David Malinowski served as an
Adviser and/or Consultant to the Mu Zeta Chapter at Ramapo
College on behalf of Pi Kappa Alpha Fraternity Inc. Upon further
information and belief, Defendant David Malinowski was
11

responsible for training, supervising, monitoring and enforcing the
National Fraternity’s Code of Conduct and Policies as to that
Chapter. Defendant David Malinowski is being sued in his
individual and official capacities.
(Compi.

¶ 7, 8)

Count 3 (“Social Host Agency”) contains the following factual allegations
regarding the roles of the Individual Defendants:
153. At all times relevant hereto, an agency relationship existed
between Defendant Pi Kappa Alpha International Fraternity, Inc.
and Defendant Pi Kappa Alpha, Mu Zeta Chapter.
154. Indeed, Defendants David Malinowski and Brett Helberg,
upon information and belief, served as Advisers and/or
Consultants to the Mu Zeta Chapter at Ramapo College on behalf
of Pi Kappa Alpha Fraternity Inc.
155. At all times relevant hereto, Defendant Mu Zeta Chapter was
acting in furtherance of the interests of the Defendant Pi Kappa
Alpha International Fraternity, Inc. to wit: The purpose of the
“Date Night” Fraternity Party included, but was not limited to,
promotion of membership in Pi Kappa Alpha International
Fraternity, Inc.
156. At all times relevant hereto, the PIKE Fraternity Defendants
ratified by acquiescence in the service of alcohol at social functions
such as the aforesaid “Date Night” Frat Party by the following:
a, In failing to establish and communicate, and/or enforce, to
individual Chapters and their Members, standards for the
conduct of their activities;
b. In failing to monitor the conduct of Mu Zeta Chapter and
other local Chapters;
c. In failing to take disciplinary action against the Mu Zeta
Chapter for acts of misconduct, including prior incidents
involving that Defendant;
d. In failing to take disciplinary action against the Mu Zeta
Chapter after the PIKE Fraternity Defendants knew or should
have known that Defendant Mu Zeta Chapter had been

12

disciplined for the types of alcohol violations and sexual assault
incidents similar to those that impacted Plaintiff; and
e. In continuing to sanction or permit Mu Zeta Chapter to hold
social events where the consumption of alcohol was encouraged
and/or promoted in direct contravention of the established
policy of Ramapo College of New Jersey, New Jersey statute and
common law.
(Compi.

¶

153—56) Those allegations are incorporated by reference in Count 4

(Negligent Supervision). (Compl.

¶

160) Count 4 contains the following

additional allegations concerning the roles of the Individual Defendants:
161. The PIKE Fraternity Defendants retain the right to control the
activities of their Members and Chapters.
162. Indeed, Defendants David Malinowski and Brett Helberg,
upon information and belief, served as Advisers and/or
Consultants to the Mu Zeta Chapter at Ramapo College on behalf
of Pi Kappa Alpha Fraternity Inc.
163. Among other things, because of the actual relationship
between the PIKE Fraternity Defendants and Defendant Mu Zeta
Chapter, and its Members; because all social functions are on and
for the benefit of the Defendant Pi Kappa Alpha International
Fraternity, Inc.; because the PIKE Fraternity Defendants knew
and/or reasonably should have known, that their duly authorized
representative Chapters are managed by under-experienced
students who are dependent upon the PIKE Fraternity Defendants
for safety procedures and policies at Fraternity Events; because the
PIKE Fraternity Defendants benefit financially from the activities
for its duly authorized representative Chapters, its Members and
student initiates (Pledgees like Christian Lopez); because the PIKE
Fraternity Defendants create all risk management policies for the
Chapters, its Members and student initiates given its specialized
knowledge of the dangers that “Frat parties” can pose; and because
the PIKE Fraternity Defendants have the ultimate power to revoke,
suspend, cancel, permit, grant or allow membership in Pi Kappa
Alpha Fraternity by Chapters, Members, or student initiates, the
PIKE Fraternity Defendants had a duty to control and supervise its
Fraternity Members and Chapters with an obligation to exercise
reasonable care in supervising its Fraternity Members and

13

chapters and a duty to oversee Fraternity events/functions (such
as “Date Night”) for Mu Zeta Chapter.
164. The PIKE Fraternity Defendants failed to use reasonable care
by permitting its Members to host a Fraternity party which would
include providing alcoholic beverages to minors.
(Compl.

¶t

160—64)

From these allegations, it can plausibly be inferred that an agency
relationship existed between the national

fraternity

and

its local chapter. It is

plausible that members of a fraternity chapter consent to supervision by the
national organization as a condition of membership. The Individual Defendants
are alleged to have been the persons who, in particular, were responsible for
supervising the Mu Zeta Chapter. Jones has alleged further that PIKE had the
power to revoke or suspend membership based on noncompliance with the
national fraternity’s oversight. (Compi.

¶

163). This allows an inference of

PIKE’s control over the local chapter and its members, control which was in
this case to be exercised through the Individual Defendants. That inference
might or might not be borne out in discovery, but it is sufficiently alleged. I add
as a makeweight that the specific roles of these Individual Defendants in the
governance

those

facts

I

of

the

are

turn

to

fraternity

are

excusably alleged on information and belief, as

within the control
whether

Jones

of

the PIKE Fraternity Defendants.

has plausibly stated a claim that the Individual

Defendants were negligent in their supervision of the chapter. The elements of
such a claim, drawn from Forrest, 930 F.3d at 112, are (1) whether they knew
that the chapter exhibited dangerous characteristics; (2) whether they could
reasonably have foreseen harm to others; and (3) whether their negligent
supervision was the proximate cause of Jones’s injuries. The Complaint alleges
defendants’ likely awareness of “studies available throughout the fraternity
industry.., that guests at sponsored parties are in need of protection.” (Compl.
80) In addition, the Individual Defendants allegedly knew or should have
known that the Mu Zeta Chapter had been disciplined in the past for similar
incidents of alcohol policy violations and sexual assault. (Id.
14

¶

156(d)). Such

¶

allegations satisfy the first two elements, i.e., knowledge of dangerous
characteristics and foreseeability of harm.
Cases rejecting potential liability are distinguishable. In Peguero, the
plaintiff did not allege any similar prior conduct that might have put the
defendants on notice of the danger. 106 A.3d at 574. Similarly, in Jackson
Locklear, the court declined to find that the plaintiff’s sexual assault was
foreseeable, in part because there was no “previous pattern of conduct at [the
fraternity] which put the fraternity on notice that females were at risk of being
assaulted on their premises.” 2018 WL 1942521, at *4• Here, by contrast, the
plaintiff has alleged information about college sexual assaults in general, which
“may be relevant in assessing foreseeability.” Id. She has also alleged, however,
that there had been a pattern of similar conduct, i.e., sexual assaults, at the
fraternity. Accordingly, Jones has plausibly alleged that the assault against her
was foreseeable.
As for the third prong, New Jersey courts have held that the standard for
proximate cause depends on the nature of the tortious conduct:
In routine tort cases, “the law requires proof that the result
complained of probably would not have occurred ‘but for’ the
negligent conduct of the defendant. In cases where concurrent
causes of harm are present, the law requires consideration of the
“substantial factor” test. The “but for” standard concentrates on
one cause that sets the other causes in motion, while the
‘substantial factor’ test recognizes that a tortfeasor will be held
answerable if its negligent conduct was a substantial factor in
bringing about the injuries, even where there are other intervening
causes which were foreseeable or were normal incidents of the risk
created. Under the substantial factor test, the law of negligence
recognizes that there may be any number of concurrent causes of
an injury, and it is enough if they are a “substantial factor” in
bringing it about, even if those acts by themselves are capable of
producing the injury.
Marina District Development Co., LLC v. They, No. 14-2283, 2018 WL 1469013,
at *6 (D.N.J. 2018) (quoting and citing Camp v. Jiffy Lube No. 114, 706 A.2d

15

1193 (N.J. Super Ct. App. Div. 1998) (internal citations, and quotation marks
omitted).
Jones has alleged wrongdoing on the part of multiple tortfeasors. The
role of each is plausibly alleged to have been a substantial factor in her
injuries. The full extent of the Individual Defendants’ role, if any, in the
organization of the “Date Night” party is not known at this stage. Jones has
alleged, however, that they were responsible for implementing PIKE’s “risk
management” policies, were supposed to supervise the Mu Zeta Chapter, and
had the power to revoke membership, presumably for noncompliance with
standards. According to the allegations, fraternity members became aware of
the sexual assault against Jones during the “Date Night” party, and, instead of
intervening, encouraged the assailant to leave the premises with his victim, the
visibly intoxicated Jones. Supervision by fraternity advisors such as the
Individual Defendants allegedly could have prevented both the initial and
subsequent assaults from taking place. Therefore, Jones has met her burden in
alleging that negligent supervision by the Individual Defendants was a
proximate cause of her injuries.9
Whether such allegations are supported by evidence, as I have indicated,
is a question for another day. For now, I find that Jones has plausibly alleged
the elements of a negligent supervision claim against the Individual
Defendants. The motion to dismiss Count Four is therefore denied.
B. Discrimination Claims
The PIKE Fraternity Defendants contend that Count 11 fails to state a
claim against them. As discussed above, the parties have stipulated that Count
11 does not apply to the Individual Defendants. The cause of action at issue is
Foreseeability reenters the analysis at the proximate cause stage. See Marina
District Development Co., 2018 WL 1469013, at *7 (citing Komlodi v. Picciano, 89 A.3d
1234, 1251-52 (N.J. 2014)). Whether or not there was a superseding cause also affects
the proximate cause analysis, but a superseding cause does not break the chain of
causation if the superseding action was foreseeable. Id. As discussed above, the
assault is plausibly alleged to have been foreseeable by the Individual Defendants; the
acts of assault, then, are a part of, not a break in, the chain of causation.
16

whether defendant PIKE is liable for violating the New Jersey Law Against
Discrimination (“NJLAD”) on a “hostile educational environment” theory. The
theory, while representing an extension of existing law, is sufficiently alleged to
permit the case to go forward.
NJLAD is aimed at eradicating the “cancer” of discrimination, and by its
own terms is to be “liberally construed.” N.J. Stat. Ann.

§

10:5-3. Thus NJLAD

provides that “[a]ll persons shall have the opportunity to obtain

...

all the

accommodations, advantages, facilities, and privileges of any place of public
accommodation

§

...

without discrimination because of

10:5—4. See also N.J. Stat. Ann.

§

...

sex

....“

N.J. Stat. Ann.

10:5-12(f).

Membership-based organizations can qualify as places of public
accommodation. See Dale v. Boy Scouts of America, 706 A.2d 270, 280 (N.J.
Super. Ct. App. Div. 1998), rev’d on other grounds, 530 U.S. 640 (2000)
(classifying the national Boy Scouts organization as a place of public
accommodation); Nat’? Org. for Women v. Little League Baseball, 318 A.2d 33,
37-38 (N.J. Super. Ct. App. Div. 1974) (classifying a municipal Little League
baseball program as a place of public accommodation). Whether an
organization can be so classified depends on “whether the invitation to gather
is open to the public at large.” Kiwanis Intern. u. Ridgewood Kiwanis Club, 806
F.2d 468, 474 (3d Cir. 1986) (citing Little League Baseball, 318 A.2d at 37-38)
(emphasis omitted).
Whether this fraternity qualifies as a place of public accommodation may
raise factual issues. Jones has alleged that, at least with respect to the “Date
Night” party, the solicitation was general. Indeed, members “call[edj down to
recruit guests to the party” from the apartment’s balcony. (Compl.

¶

43). The

PIKE Fraternity Defendants have emphasized PIKE’s selectivity of membership
and secrecy of rituals. (Def. Brf. at 9). That emphasis may be misplaced, as
Jones does not claim that she sought and was denied membership.
True, NJLAD public accommodation claims often do involve
discriminatory policies or practices in relation to membership or access. Denial
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of access is not the only basis for liability, however. NJLAD is broad enough to
accommodate a “hostile environment” claim. Typically, such a claim relates to
discriminatory conditions in the workplace. See, e.g., Nuness v. Simon &
Schuster, Inc., 325 F. Supp. 3d 535, 556 (D.N.J. 2018); Barroso v. Lidestri
Foods, Inc., 937 F. Supp. 2d 620, 629 (D.N.J. 2013). The hostile environment
theory has been extended, however, “into other contexts, such as a school
setting.” Doe v. Sthweizler, No. 06-3529, 2008 WL 4066338, at *4 (D.N.J.
2008) (citing L.W v. Toms River Regional Schools Rd. of Education, 915 A.2d
535, 550 (N.J. 2007)). Thus, in Schwerz?er, the court found that a student from
School A had a viable claim against School B that she had a right to participate
in School B’s swim team events without being sexually harassed. 2008 WL
4066338, at *5
Less well established, but nevertheless present in the case law, is a
NJLAD cause of action based on the discriminatory behavior of a business
owner. Such behavior may be actionable if it is outrageous enough to imply’ a
design to discourage an individual’s use of that public accommodation on
account of her protected status. See

Turner

v. Wong, 832 A.2d 340, 355-356

(N.J. Super. Ct. App. Div. 2003) (denying defendant’s motion for summary
judgment on NJLAD claim in which the operator of a doughnut store shouted
racial slurs at a customer but did not deny service) (citing Franek v. Tomahawk
Lake Resort, 754 A.2d 1237, 1244 (N.J. Super. Ct. App. Div. 2000) (operator of
recreational resort heard to remark that “I don’t want those kind of people
here” in connection with handicapped patron who left voluntarily)).
In this case, the allegations relate not to Jones’s exclusion from the
fraternity event, but rather to her treatment when she attended it. Jones is
alleging hostile educational environment discrimination on the basis of sex.
(Compl.

¶

238). She alleges that she was sexually assaulted by a PIKE pledge

while at an event hosted by PIKE’s local chapter. Other fraternity members
encouraged or were at best indifferent to the assault. Such an environment

18

would tend to subject a female person to discrimination in the enjoyment of the
facilities of that fraternity.
The contours of a hostile educational environment claim remain
somewhat unsettled. It is unclear, for example, whether the plaintiff would
have to demonstrate PIKE’s actual notice and deliberate indifference. Likewise
unclear is the extent to which a hostile educational environment claim may
extend to a fraternity social event, albeit one occurring on campus.
In short, the NJLAD theory of this claim has some novel features. I will
not cut it off at this early stage, but will permit factual development. See
generally JM. ex rel. A.M. v. E. Greenwich flop. Rd. of Ethic, No. 07-2861, 2008
WL 819968, at *9 (D.N.J. 2008) (“As noted above, this Court in Woodntffv.
Hamilton Twp. Public Schools, 2007 WL 1876491, *4 (D.N.J. June 26, 2007)
recognized in that case that the plaintiffs pleaded a novel theory of law for a
hostile educational environment claim under the NJLAD, and consequently did
not dismiss that claim pursuant to the defendants’ Rule 12(b)(6) motion.”); K.P.,
reL S.C. v. Corsey, 228 F. Supp. 2d 547, 551 (D.N.J. 2002), rev’d in part, 77
F. App’x 611 (3d Cir. 2003) (District court should not have exercised
supplemental jurisdiction over issue of school district’s NJLAD liability for
sexual harassment by coach, which presented novel issues of state law).
PIKE’s motion to dismiss Count 11 (NJLAD Hostile Educational
Environment) is therefore denied.
C. Cross Claims
The PIKE Fraternity Defendants move, not very specifically, to dismiss
crossclaims asserted by codefendants against the Individual Defendants.
Federal Rules of Civil Procedure 13(g) governs crossclaims:
A pleading may state as a crossclaim any claim by one party
against a coparty if the claim arises out of the transaction or
occurrence that is the subject matter of the original action or of a
counterclaim, or if the claim relates to any property that is the
subject matter of the original action. The crossclaim may include a
claim that the coparty is or may be liable to the crossclaimant for
19

all or part of a claim asserted in the action against the
crossclaimant.
The PIKE Fraternity’ Defendants do not state which crossclaims they seek
to dismiss. They merely assert that since the cross-claimants have asserted no
facts against them, the crossclaims must be dismissed. The crossclaims,
however, are all based—as they must be—on the same factual transactions
alleged in the complaint. Dismissal of crossclaims is not appropriate at this
stage.
CONCLUSION

For the foregoing reasons, the PIKE Fraternity Defendants’ motion to
dismiss the First Amended Complaint is GRANTED as to Count 3 insofar as it
relates to the Individual Defendants, Helberg and Malinowski. The motion to
dismiss is DENIED as to all other Counts and claims. What remains of Counts
3, 4, and 11 are the following:
Count 3 (against PIKE only)
Count 4 (against PIKE, Helberg, and Malinowski)
Count 11 (against PIKE only)
An appropriate Order follows.
Dated: December 17, 2019

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