Case Number: BC586769 Hearing Date: June 08, 2018 Dept: NCD

TENTATIVE RULING

Calendar: 17

Case Number: BC 586769

Date: 6/8/18 Trial date: October 1, 2018

Case Name: Serrato v. Pi Kappa Phi Fraternity, Inc., et al.

MOTIONS FOR SUMMARY JUDGMENT (2)

Relief Requested:

Summary judgment in favor of defendant Mario Ernesto Castro

Summary judgment in favor of defendant James N. Rogan

Moving Party: Defendant Mario Ernesto Castro

Defendant James M. Rogan

Responding Party: Plaintiffs Maria Serrato and Armando Villa

RULING:

Defendant Mario Ernesto Castro’s Motion for Summary Judgment is DENIED.

Plaintiffs have submitted sufficient evidence and legal authority to raise triable issues of material fact with respect to whether defendant Castro owed a duty to decedent Villa. Specifically, plaintiffs have submitted evidence suggesting that defendant Castro, as Historian of the Chapter, and a member of the Executive Council was delegated and assumed responsibility for implementing national and local hazing policy and participating in training, and had the ability and the duty to report or discipline other members who had participated in hazing activities. [See Additional Facts Nos. 30-33, 40, 46, and evidence cited] Plaintiffs also submit evidence suggesting that defendant was aware of other incidents of hazing within the Chapter, which were not reported, including boot style camp physical training, required consumption of stomach-churning food, the dumping of food on a pledge’s head, and “carry the rope” and “SoCo” shoot traditions, as well as conduct which Castro considered hazing of decedent’s pledge class. [Additional Facts Nos. 21, 79, and evidence cited]. This conduct was not reported by defendant, and suggests a knowledge of a situation in which hazing of pledges was permitted to continue in violation of local and national policy, as well as California statutory prohibitions. The circumstances suggest that a special relationship has arisen, a duty undertaken, and that the application of the general factors supporting duty under Rowland v. Christian (1968) 69 Cal.3d 108 supports the imposition of a duty owed by defendant to decedent.

Defendant’s Objections to Plaintiffs Evidence: Objections Nos. 1-26 are SUSTAINED. Objection No. 27 is OVERRULED.

Defendant James Rogan’s Motion for Summary Judgment is DENIED.

Plaintiffs have submitted sufficient evidence and legal authority to raise triable issues of material fact with respect to whether defendant Rogan owed a duty to decedent Villa. Specifically, plaintiffs have submitted evidence suggesting that defendant Rogan, as Treasurer of the Chapter, the third highest ranking officer, and a

member of the Executive Council, was delegated and assumed responsibility for implementing national and local hazing policy and participating in training, and had the ability and the duty to report or discipline other members who had participated in hazing activities. [See Response to UMF Nos. 8-25, and evidence cited, Additional Facts Nos. 36-39, 46, 52, 57, 59-64, 90, and evidence cited]. Plaintiffs also submit evidence

suggesting that defendant was aware of other incidents of hazing within the Chapter, which were not reported, including boot style camp physical training, the requirement of consumption of stomach churning foods including hot dogs topped with fish and other offensive condiments, pledges being blindfolded and taken to unknown locations, as well as the “carry the rope,” and “SoCo” hazing traditions, and threatened bestiality with a sheep or goat. [Additional Facts Nos. 17-24, 84, and evidence cited]. This conduct was not reported by defendant, and suggests a knowledge of a situation in which hazing of pledges was permitted to continue in violation of local and national policy, as well as California statutory prohibitions. The circumstances suggest that a special relationship has arisen, a duty undertaken, and that the application of the general factors supporting duty under Rowland v. Christian (1968) 69 Cal.3d 108 supports the imposition of a duty owed by defendant to decedent.

Defendant Rogan’s Objections to Evidence are SUSTAINED.

Causes of Action from Second Amended Complaints

1) Negligence

SUMMARY OF COMPLAINT:

The lead action in this matter is brought by plaintiffs Maria Serrato and Joseph Serrato who allege that they are the mother and stepfather and lawful heirs of Armando Daniel Villa, who died on July 1, 2014. Plaintiffs allege that defendants the California State University, Pi Kappa Phi Fraternity and its Zeta Mu Chapter, failed to properly supervise, monitor and control the activities by fraternities associated with the University. Plaintiffs allege that decedent, and several individual defendants who were officers, members or pledges of the fraternity, went on an initiation hike in Big Tujunga Canyon as part of a fraternity hazing ritual, which defendants failed to adequately direct and supervise, including failing to provide adequate supplies and services, and that defendants required that the hike take place during extremely hot weather and with little or no cover, so that Villa died while participating in the hike.

The case has been consolidated with a complaint brought by plaintiff Armando Villa, the father and lawful heir of decedent, making virtually identical allegations.

ANALYSIS:

Under CCP § 437c(p)(2) a defendant “has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant… has met that burden, the burden shifts to the plaintiff… to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.”

Defendants Mario Ernesto Castro, the historian of the Zeta Mu Chapter of Pi Kappa Phi, and James N. Rogan, treasurer of the Chapter, seek to establish that plaintiffs will be unable to prove that moving defendants as individuals, members, officers or directors of the fraternity chapter owed a duty to decedent Villa. Defendants also argue that plaintiff will be unable to establish any vicarious liability for decedent’s death.

To establish a claim for negligence, a plaintiff must plead and prove the following elements: Defendant owed a legal duty of care to plaintiff; defendant breached the duty (negligent act or omission); plaintiff was injured as a result (proximate or legal cause); and damages. Palmer v. Crafts (1936) 16 Cal.App.2d 370, 375

In California, the general rule is that all persons have a duty “to use ordinary care to prevent others being injured as the result of their conduct…” Rowland v. Christian (1968) 69 Cal.2d 108, 112.

It is recognized that the issue of whether a duty of care was owed is a question of law, amenable to determination on summary judgment. See Clarke v. Hoek (1985) 174 Cal.App.3d 208, 213 (“The question of the existence of a legal duty of care in a given factual situation presents a question of law which is to be determined by the courts alone.”).

“The existence of a duty owed by a defendant to a plaintiff is a question of law for the court, reviewed de novo on appeal.” Garcia v. Paramount Citrus Association, Inc. (2008) 164 Cal.App.4th 1448, 1452.

Defendant Castro submits evidence that he was initiated into the Chapter in January of 2013, his sophomore year at California State University, Northridge. [UMF No. 1, and evidence cited]. He submits evidence that during his initiation he went on a hike in the Little Tujunga canyon called the “Delta Sigma Hike,” and that although the hike was long and tiring, he had plenty of food and water. [UMF No. 2, and evidence cited]. He also indicates that in 2014 he was the historian for the chapter, attending the National Fraternity Conference in Texas as an executive board member, but that his job included alumni relations and keeping archives, and did not include any duties with the pledging program. [UMF Nos. 5, 6]. He also submits evidence that he did not plan the initiation or the hike, and did not attend, nor was required to attend. [UMD Nos. 9-11, and evidence cited].

Defendant Rogan submits evidence that at the time of the hike he was the treasurer of the Chapter. [UMF No. 3]. He also submits evidence that a similar hike had been a tradition for at least five years before he joined the fraternity, and that he had participated in such a hike, but did not consider it dangerous and that no hazing of any kind occurred on that hike. [UMF Nos. 4, 5]. He also submits evidence showing he did not personally attend the subject hike, or help organize, plan, direct or supervise it in any way. [UMF Nos. 7-21]. He also submits evidence that he did not authorize or request that any hazing take place during the hike, and had no knowledge that such hazing was going to occur. [UMF Nos. 22-25].

Ordinarily, a person is not liable for the actions of others and is under no duty to protect another from harm “’unless the defendants stands in some special relationship either to the person whose conduct needs to be controlled, or to the foreseeable victim of such conduct.’” Romero v. Superior Court (2001) 89 Cal.App.4th 1068, 1079, quoting Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1564 (italics in original).

Defendant Castro argues that this case is in the nature of Thompson v. County of Alameda (1980) 27 Cal.3d 741, in which the California Supreme Court affirmed the trial court’s dismissal of an action after a demurrer was sustained without leave to amend, where plaintiffs brought an action against the County of Alameda alleging that it had improperly released a juvenile offender with known dangerous and violent propensities regarding young children, on temporary leave into the custody of his mother, who lived a few

doors from plaintiffs and their five-year-old son. Within 24 hours of the release, the juvenile offender murdered plaintiffs’ son in the garage of his mother’s home. The complaint alleged that the County had been grossly negligent in releasing the juvenile into the community, in failing to warn parents of young children in the immediate vicinity of the release, failing to maintain control over the juvenile through his motion, and failing to exercise due care in selecting the mother as the County’s agent to maintain such control.

Defendant relies on the portion of that decision in which the Court found that the County had no duty to warn, based in part on the failure of plaintiffs to have alleged “that a direct or continuing relationship between and County existed through which County placed plaintiffs’ decedent in danger, nor that their decedent was a foreseeable or readily identifiable target of the juvenile offender’s threats.” Thompson, at 753.

Defendant argues that the most important consideration in establishing duty in third party cases is foreseeability, in reliance on both Thompson and Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434.

Defendant argue that the incident here was not foreseeable to Castro because although he knew the hike was going to take place, and had participated in it before, his experience was that it was long and tough, but that there was plenty of food and water and there was no threat of dehydration. [UMF No. 2, and evidence cited; Castro Decl., p. 61]. Defendant Rogan submits similar evidence. [UMF Nos. 4, 5].

Defendant Castro also argues that he cannot be held vicariously liable for the death of decedent based on his position as a member, officer or director of the Chapter, as the Chapter was a nonprofit organization, and under Corporations Code 18605, “A member, director, or agent of a nonprofit association is not liable for a debt, obligation, or liability of the association solely by reason of being a member, director, officer, or agent.”

Defendant also relies on Corporations Code § 18620, which provides

“(a) A member, director, officer, or agent of a nonprofit association shall be liable for injury, damage, or harm caused by an act or omission of the association or an act or omission of a director, officer, or agent of the association, if any of the following conditions is satisfied:

(1) The member, director, officer, or agent expressly assumes liability for injury, damage, or harm caused by particular conduct and that conduct causes the injury, damage, or harm.

(2) The member, director, officer, or agent engages in tortious conduct that causes the injury, damage, or harm.

(3) The member, director, officer, or agent is otherwise liable under any other statute.

(b) This section provides a nonexclusive list of existing grounds for liability, and does not foreclose any common law grounds for liability.”

Defendant argues that Castro did not directly engage in any tortious conduct, or expressly assume liability here.

The motions appear to have sufficiently established that these defendants have no personal responsibility for the conduct of the hike which resulted in decedent’s death based on vicarious liability, or stand in some special relationship with respect to the subject outing, shifting the burden to plaintiffs to raise triable issues of material fact.

Defendant Rogan further argues that the doctrine of primary assumption of the risk applies here, and provides a complete defense to defendant Rogan.

This doctrine as it now applies to sports and recreational activities was set forth in the California Supreme Court case Knight v. Jewett (1992) 3 Cal.4th 296. In that case, a plurality of the court upheld the granting of summary judgment in favor of a co-participant in a touch football game against plaintiff, who had been injured in the game. The court evaluated the status of the primary assumption of risk doctrine in the wake of Li v. Yellow Taxi Cab, and California’s adoption of comparative negligence. The court concluded that in the context of sports and recreational activities, the doctrine of primary assumption of the risk continued to operate as a complete bar to plaintiff’s recovery.

The court held that once it is determined that plaintiff is participating in a sport or recreational activity, coparticipants in the sport have “a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.” Knight, at 316. The court set out the following standard:

“We conclude that a participant in an active sport breaches a legal duty of care to other participants— i.e, engages in conduct that properly may subject him or her to financial liability— only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.”

Knight, at 320.

The application of the affirmative defense of assumption of risk requires a legal conclusion concerning the elements of duty which must be resolved as a matter of law by the court. Knight, at 314-315. As such, the Supreme Court has noted, “Thus, the question of assumption of the risk is much more amenable to resolution by summary judgment under a duty analysis…” Id. The burden of persuasion remains with the party moving for summary judgment. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. On appeal this determination is reviewed de novo. Knight, at 314-315.

The argument is that since Rogan did not participate in the hike, or take any steps to direct it, he cannot be found to have increased the risks inherent in the sport of hiking.

However, the opposition points out that the doctrine is held not to apply where a specific statute imposing a duty has been enacted and the injured person is “within the class of persons” the statute was “designed to protect” then “it cannot be held, as a matter of law,” that the injured person “voluntarily assumed the risk” of the breach of a legally imposed duty of care. Lucas v. Fresno Unified School District (1993) 14 Cal.App.4th 866, 872 (statutory duty under Education Code § 44807 to supervise pupils on school grounds).

The State of California does have a statutory recognition of a public policy to prohibit hazing. Penal Code § 254.6 provides:

“(a) It shall be unlawful to engage in hazing, as defined in this section.

(b) “Hazing” means any method of initiation or preinitiation into a student organization or student body, whether or not the organization or body is officially recognized by an educational institution, which is likely to cause serious bodily injury to any former, current, or prospective student of any school, community college, college, university, or other educational institution in this state. The term “hazing” does not include customary athletic events or school-sanctioned events.

(c) A violation of this section that does not result in serious bodily injury is a misdemeanor, punishable by a fine of not less than one hundred dollars ($100), nor more than five thousand dollars ($5,000), or imprisonment in the county jail for not more than one year, or both.

(d) Any person who personally engages in hazing that results in death or serious bodily injury as defined in paragraph (4) of subdivision (f) of Section 243 of the Penal Code, is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.

(e) The person against whom the hazing is directed may commence a civil action for injury or damages. The action may be brought against any participants in the hazing, or any organization to which the student is seeking membership whose agents, directors, trustees, managers, or officers authorized, requested, commanded, participated in, or ratified the hazing.

(f) Prosecution under this section shall not prohibit prosecution under any other provision of law.”

It accordingly appears that if a trier of fact finds that the activity at issue involved hazing, it could not then be found that plaintiff assumed the risk of participating in such an activity.

Plaintiffs in opposition do not base their theory on vicarious liability, but argue that executive officers of the chapter owe a duty as they do stand in a special relationship with the pledges and other members of the chapter, based on the recent California Supreme Court decision in Regents of the University of California v. Superior Court (2018) 2018 WL 1415703, in which the Court reversed a court of appeal decision on a motion for summary judgment, ordering the trial court to grant it, in a case in which plaintiff, a student at UCLA, alleged that the university and several of its employees had negligently failed to protect her from the foreseeable violent conduct of a classmate, who the university had become aware was experiencing delusions and required mental health treatment, and who one morning stabbed plaintiff during a chemistry lab.

The Court framed the issue before it and its conclusion as follows:

“This case involves whether, and under what circumstances, a college or university1 owes a duty of care to protect students like Rosen from harm. Considering the unique features of the collegiate environment, we hold that universities have a special relationship with their students and a duty to protect them from foreseeable violence during curricular activities.”

Regents, at 1, footnote omitted.

Plaintiffs argue that the Court in Regents observed that special relationships giving rise to a duty generally share certain key features, which are present here in connection with the relationship between the executive council members and pledges like decedent.

“Relationships that have been recognized as “special” share a few common features. Generally, the relationship has an aspect of dependency in which one party relies to some degree on the other for protection. (See Baldwin v. Zoradi (1981) 123 Cal.App.3d 275, 283, 176 Cal.Rptr. 809 (Baldwin); Mann v. State of California (1977) 70 Cal.App.3d 773, 779-780, 139 Cal.Rptr. 82.) The Restatement authors

observed over 50 years ago that the law has been “working slowly toward a recognition of the duty to aid or protect in any relation of dependence or of mutual dependence.” (Rest.2d Torts, § 314A, com. b, p. 119.)

The corollary of dependence in a special relationship is control. Whereas one party is dependent, the other has superior control over the means of protection. “[A] typical setting for the recognition of a special relationship is where ‘the plaintiff is particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over the plaintiff’s welfare.’ [Citations.]” (Giraldo v. Department of Corrections & Rehabilitation (2008) 168 Cal.App.4th 231, 245-246, 85 Cal.Rptr.3d 371.) One court observed that “the epitome” of such a special relationship exists between a jailer and prisoner. (Id. at pp. 250-251, 85 Cal.Rptr.3d 371.) Common carriers and their passengers present another quintessential example. In Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 789, 221 Cal.Rptr. 840, 710 P.2d 907, we held this special relationship gives common carriers a duty to protect passengers from onboard violence, noting that passengers are sealed together in a moving vehicle, with the means of entry and exit under the exclusive control of the driver. “Thus, passengers have no control over who is admitted on the bus and, if trouble arises, are wholly dependent upon the bus driver to summon help or provide a means of escape.” (Ibid.)

Special relationships also have defined boundaries. They create a duty of care owed to a limited community, not the public at large. We have held that police officers are not in a special relationship with the citizens in their jurisdiction (see Williams v. State of California, supra, 34 Cal.3d at pp. 27-28, 192 Cal.Rptr. 233, 664 P.2d 137), even when officers are aware of risks to a specific potential victim (see Davidson, supra, 32 Cal.3d at pp. 208-209, 185 Cal.Rptr. 252, 649 P.2d 894). Nor is a government entity in a special relationship with all citizens who use its facilities. (Zelig v. County of Los Angeles, supra, 27 Cal.4th at p. 1130, 119 Cal.Rptr.2d 709, 45 P.3d 1171.) In declining to find a duty of care owed to courthouse visitors, we observed that a “county, ‘as with all public entities,’ has the responsibility to ‘exercise reasonable care to protect all of its citizens’ [citation], but does not thereby become liable to each individual for all foreseeable harm.” (Id. at p. 1131, 119 Cal.Rptr.2d 709, 45 P.3d 1171.) Because a special relationship is limited to specific individuals, the defendant’s duty is less burdensome and more justifiable than a broad-ranging duty would be. (See Rest.3d Torts, Liability for Physical and Emotional Harm, § 40, com. h, p. 43.)

Finally, although relationships often have advantages for both participants, many special relationships especially benefit the party charged with a duty of care. (Rest.3d Torts, Liability for Physical and

Emotional Harm, § 40, com. h, p. 43.) Retail stores or hotels could not successfully operate, for example, without visits from their customers and guests.”

Regents, at 6.

Plaintiffs rely on evidence showing that in this case, defendants as executive officers of the fraternity assumed responsibility for implementing national and local hazing policy and participating in training, and had the ability and the duty to report or discipline other members who had participated in hazing activities, but failed to do so. [See Castro, Additional Facts Nos. 30-33, 40, 46,and evidence cited; Rogan, Response to UMF Nos. 8-25, and evidence cited, Additional Facts Nos. 36-39, 46, 52, 57, 59-64, 90, and evidence cited]. Plaintiffs also rely on evidence showing that defendants were each aware of other incidents of hazing within the Chapter. Castro was evidently aware of boot style camp physical training, pledges being yelled at, required consumption of stomach-churning food, such as cereal with milk and hot sauce, the dumping of food on a pledge’s head, making the pledges clean the filthy fraternity house, requiring “carry the rope,” keeping all members together, and “SoCo” shoot, involving the consumption of swigs of Southern Comfort whiskey, and what Castro states he considered hazing of decedent’s pledge class. [Additional Facts Nos. 21, 79, and evidence cited]. Rogan was evidently aware of such physical training, the requirement of consumption of stomach churning foods including hot dogs topped with fish and other offensive condiments, pledges being blindfolded and taken to locations, as well as the “carry the rope, and SoCo shoot drinking game, and threatened bestiality with a sheep or goat. [Additional Facts Nos. 17-24, 84, and evidence cited].

The argument is that each of the Regents features is present in this case, as 1) pledges are dependent and reliant on those in charge of the fraternity to ensure safety, risk management compliance and non-hazing at pledge activities, and the Executive Council is the local leadership charged with enforcing these policies; 2) the “corollary of dependence” is present here as each Executive Council member had “superior control over the means of protection,” charged with upholding and abiding by chapter and national rules, and enforcing anti-hazing policy and upholding risk management policies, and 3) recognizing a special relationship here extends only to a very limited defined community, in effect, pledges of the chapter.

There appears to be a strong argument that the Chapter itself would be responsible to the pledges under this legal authority. The question remains whether defendants, by virtue of their positions as executive officers and on the executive council of the Chapter, with the responsibility and duty to report and discipline members they know to be engaged in hazing, and with some knowledge concerning the members engaging in hazing, owed a special duty to the other members, and decedent as a matter of law.

It does appear that the executive council members of the chapter had been assigned responsibility to ensure that the non-hazing policy would be enforced to assure safety to pledges, and that these executive council members had superior control over the means of protection, and also superior knowledge of the history of the hazing rituals, and that such activities had not been controlled in connection with past activities of the Chapter. The community is a defined one, unlike that in Thomas, consisting of the members and pledges of the Chapter. While moving defendants are not postured in relationships which especially benefit them, like the retail stores or hotels mentioned in Regents, the other features of a special relationship appear to have been met here, such that the court does not find there is no duty owed by the moving defendants as a matter of law.

The parties also rely on the application of the factors typically used to evaluate the existence of a duty, as set forth in Rowland v. Christian (1968) 69 Cal.3d 108, which include:

(1) The foreseeability of harm to plaintiff;

(2) The degree of certainty that plaintiff suffered injury:

(3) The closeness of the connection between defendant’s conduct and the injury suffered;

(4) The moral blame attached to defendant’s conduct;

(5) The policy of preventing future harm;

(6) The extent of the burden to defendant and the consequences to the community of imposing a duty;

(7) The availability, cost and prevalence of insurance for the risk involved.

See Rowland v. Christian (1968) 69 Cal.2d 108; Christensen v. Superior Court (1991) 54 Cal.3d 868.

Defendants argue that there are no facts indicating that the moving defendants should have been aware that a hike was likely to cause serious bodily injury to decedent, as a hike is merely an athletic activity which would not inherently create peril, and that any duty to prevent hazing would be irrelevant as hazing was not the cause of the death. The argument is that the officers who did not plan or execute the hike, or have knowledge of weather conditions, availability of water or gear, should not have reasonably perceived a risk, that the degree of certainly of injury is not that attributable to the hiking itself, and that the moral blame is not significant here due to hiking being a benign activity.

Defendants argue that the policy of preventing future harm is not served by imposing a duty in this case, as defendants had no reason to believe hiking was “hazing,” and, indeed, society in general would not recognize hiking as harmful, and that the consequence to the community does not support imposition of a duty, but would discourage student activities if board members of student groups were to face personal liability for functions of the group in which they were not involved.

Defendants also argue that the availability of insurance for such risks does not favor imposing liability, as hazing does not appear to be insurable conduct.

Plaintiffs argue that the foreseeability analysis here would favor the imposition of a duty, given that the death was hazing related, and that deaths to pledges flowing from a failure to properly implement or enforce risk management policies, including those involving hazing, are foreseeable, in fact, so foreseeable that California enacted Penal Code § 245.6, criminalizing hazing and providing for direct actions, quoted above. The argument is also that the degree of certainty of injury could not be stronger, as the case involves death, and the closeness of the connection between the injury and defendants’ failures to report or control hazing activities directed at pledges also favors imposing a duty of care here.

Plaintiffs argue that the public policy factors also favor imposition of a duty, as the moral blame attached to the conduct includes consideration that the pledges were powerless and lacked any control over their initiation experience, including being subjected to hazing, while hazing is considered criminal, and the policy of preventing future harm also supports the imposition of a duty on these grounds. Plaintiffs also point out that there would be no burden on the local Chapter leadership because, as in Regents, there are already in place policies and systems for risk management and hazing protections. Plaintiffs also argue that the availability of insurance supports imposing a duty because insurance is “obviously available” for this type of risk.

On balance, it appears that if the evidence is considered most favorably for plaintiffs, including that the deprivation of water on the hike was part of a hazing incident with respect to the pledges, and that moving defendants as executive council members had the responsibility and procedures in place to report, discourage,

and discipline with respect to hazing, past incidents of which they were aware and took no action, it appears that the only Rowland factor which would not favor imposing a duty here would be the availability of insurance for the risk, which appears could be available to the Chapter itself, and fairly required, but that the risk does not necessarily appear to be one against which individual students would be expected to or should be required to maintain insurance.

Moving defendants have accordingly failed to establish that the circumstances warrant a finding that they owed no duty to decedent as a matter of law, and the motions are denied.