By Dr. Colleen A. McGlone
This case centers on hazing claims that involve the University of Virginia Men’s Swim Team. Specifically, the plaintiff is seeking damages related to the allegation that he was subjected to various types of hazing, threats, verbal abuse, intimidation, and unwanted physical touching. The plaintiff claims that he was subjected to “hazing” by the upperclassman of the team. In addition, the plaintiff alleges that the defendants retaliated against him as a way to cover up the incident.
The plaintiff selected to attend and swim for UVA based upon its academic reputation as well as what he found to reflect a “supportive environment surrounding the team (Compl. P.17). This included the hazing policy at UVA included in the student handbook, which stated “any action …by members of a student organization towards [another] member []…designed to or produc[ing] mental or physical harassment, discomfort or ridicule” was prohibited. The code of conduct also states that hazing and physical assault are prohibited.
The plaintiff claims that he and the other first-year swimmers were subjected to an environment that could be perceived as hostile. The events started with an email from “Mr. Mean” a moniker that the codefendants created. The email stated where the “welcome week” events were to occur including the time and place and contained threatening language including the threat of sodomy for failure to comply with the instructions as directed. Upon arriving at the designated location, the plaintiff contends that he and the other first years were subjected to a frightening environment in which they were taunted and insulted, blindfolded, forced to complete and elephant walk, subjected to dark spaces, answer questions of an embarrassing nature and forced to drink copious amounts of alcohol in a hot humid dark room, which led to intoxication among other things. Following the events of the first night the first years were also instructed to go on a scavenger hunt that involved theft, which was also a violation of the school honor code. The plaintiff claims that he participated as he was worried that the defendants “had the power to deprive him of his ability to swim for UVA.”
Once the coach learned about the events, the plaintiff was told to alter (practice apart from) his practice times, as the coach could not guarantee the plaintiff’s safety.
In total, ten counts are contained in this case: 1) Assault, 2) Battery, 3) False Imprisonment, 4) Hazing, 5) Tortious interference with Contractual Relations, 6) Intentional infliction of Emotional Distress 7) Punitive Damages 8) Common Law Conspiracy 9) Statutory Conspiracy and 10) Negligence. The court dismisses the claims of tortious interference with contractual relations and intentional infliction of emotional distress based upon failure to state a claim. The counts regarding punitive damages and common law conspiracy remain pending at this time. The rest of the claims are discussed below.
The defendants have filed a motion to dismiss due to a failure of the plaintiff to state a claim. The court took the following actions. The court dismisses the claim against one of the defendants who was shown not to be present during the activity citing that assault cannot take place if the defendant is too far away to commit a battery. (Goforth v. Office Max, 1999). The court does not dismiss against the other defendants as they made “sudden and threating movements” toward the plaintiff in addition to yelling, throwing buckets of water at the plaintiff, pouring liquids on him and threatening sodomy in a “menacing way.” The argument to dismiss the battery claim was based on the defendants’ argument that the plaintiff consented to the alleged touching due to showing up for welcome week because of his own desire to fit in. They also claim that since there is no indication that the plaintiff tried to leave, this was considered “voluntary participation” and was therefore consensual. This claim suggests that the plaintiff was delirious and no longer able to think clearly, that he was afraid for his life, and he felt compelled to comply out of fear. Thus arguing that is consent is coerced or obtained by fraud, the touching is unlawful (Gnadt v Commonwealth., 1998). The court does not dismiss the count of battery. The claim of false imprisonment is not dismissed due to the fact that plaintiff was shut in the bathroom with no means of escape.
In terms of the hazing claim, Virginia law states it is “unlawful to haze so as to cause bodily injury.” The defendants claim no bodily injury had occurred through the acts of emotional trauma, fear, humiliation, or disorientation nor did the plaintiff seek any type of medical attention nor showed any visible signs of injury therefore no hazing occurred. The facts in the case allege that the defendants caused bodily injury by forcing the plaintiff to drink large amounts of alcohol. Lastly, moving to the negligence claim the case contains several facts to support this claim.
Failure to State a Claim Argument Is Tied to a Lack of Specificity
This case is interesting in terms of the arguments that are presented. The most intriguing is the argument that since the plaintiff does not specifically identify the person doing the alleged activities at times and lumps defendants together that this leads to failure to state a claim against a defendant as it is too vague to state a claim. Using the reasonable person stature one could argue that it would be impossible to know exactly who perpetrated the assault or battery in this case while the plaintiff was blinded either through the fact that a bucket was placed on his head or while being blindfolded. In this case, this becomes an interesting argument as what claims are being upheld and what claims get dismissed. The question is: Does the court need to know the principal actor or does it hold all coconspirators liable for the actions that took place?
As in all hazing cases, the way the state law is worded also leads to discussion of what acts are considered to be hazing. In the State of Virginia, hazing must include bodily harm. Thus the plaintiff must be able to prove bodily harm existed. In this case with no physical signs of bodily harm combined with the fact that no medical attention was sought, this could have been argued successfully either way as the burden of proof is placed on the plaintiff and the plaintiff’s representation to show bodily harm.
Other claims of interest that stem from this case is the question of what this author views as a property right, which in the case falls under interference with contractual relations. While this has played out in the courts before the question in this case is interesting on its own merits. The question of did the plaintiff have a contract to attend and swim for UVA? The plaintiff was forced to practice separately from the team based on the fact the coach could not guarantee his safety after the hazing was reported. As a result the plaintiff ultimately decides to leave UVA. This leads to very interesting discussions and arguments about the contractual nature of the relationship and the expectation contained whereof.
In conclusion, this case while similar to countless other hazing cases leads to salient arguments on both sides of the case, thus leading those who may encounter hazing in a legal realm to reexamine the questions and arguments contained within and analyze with a broader lens.
Dr. McGlone is a professor and chair of the Department of Recreation and Sport Management College of Science Coastal Carolina University
