The Risk Management Café solicits questions from Association of Fraternity Advisors each month. The Current Issues Committees, which include Risk Management and Legal Issues, respond to your questions. This information is provided merely for educational purposes and is not intended to take the place of seeking legal council. To submit a question for the Risk Management Café, send an email to info@fraternityadvisors.org.

The two questions being asked this month can be answered together. The first asks, "what constitutes a party and how are sororities tied to these events?" The second inquires about "the difference between risk and liability."

Let me first point out that institutions have the right to set policies for recognition of organizations as long as they are reasonable and do not discriminate against protected classes of individuals. Private institutions can set almost any policy they wish under contract law. That being said, I will answer the questions from a legal prospective.

During my years on the bench I often had to deal with minor criminal actions involving students at the local university. One refrain I often heard was "but we weren't having a party." No law criminalizes "having a party." No civil action depends on the gathering being an organized social event. It is against the law (and therefore criminal) to make unreasonable noise, to furnish and possess illegal substances, or to furnish (or sell) alcohol to minors.

Civil liability does not attach to a person merely because he or she puts someone else at risk. Civil law requires a number of elements to attach.

An organization is criminally responsible when a judge or jury finds that it engaged in a criminal act, regardless of whether it occurs on or off campus, or if it is considered "official" or not. An organization is civilly liable when a judge or jury finds that an event occurred, on or off campus, "official" or not, at which the organization had some responsibility for the event. If there is responsibility, the organization has a duty to protect its invitees against harm that is known to exist or is foreseeable. If there is a breach of that duty and that breach results in injury (physical or emotional), there is liability.

A judge or jury will determine from the weight of the evidence whether or not an organization is responsible. The mere presence of a number certain of members will not necessarily attach liability. But if the totality of the evidence leads to the conclusion it was an organization event that will be enough.

Sororities have been held to have responsibility for tragic outcomes of parties held at fraternity houses where it was found that they "co-hosted" the event and therefore had or should have had knowledge of the illegal activity (for example, serving to minors) or the dangers (such as a drunk guest raping a sorority pledge). A sorority that merely has a number of its members as guests may not share liability; one that requires attendance will share liability.

The bottom line is that any event is discussed or publicized in any way as an activity of a chapter or at which new members are pressured into attending, or chapter funds are expended will probably be construed as a chapter event if an incident occurs. One puts oneself at risk when he or she engages in dangerous or illegal activities but that risk turns to liability when the illegal or dangerous activity is one where there is responsibility for others. Absolute liability should be expected when the event involves the use of alcohol by minors or where one knows that minors attending will arrive already under the influence of alcohol or drugs.