Filing # E-Filed 09/12/ :54:31 PM

Transcription

1 Filing # E-Filed 09/12/ :54:31 PM IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA NICHOLAS MAURICIO, CASE NO. Plaintiff, v. ALPHA EPSILON PI FRATERNITY, INC., OLIVER S. WALKER, IRA D. SIGMAN, HUNTER D. GODFREY, JASON A. PECK, DAVID A. LANDESS, JUSTIN M. FRIEDMAN, AIDAN G. SMYTH and MICHAEL J. NILES, Defendants. COMPLAINT The Plaintiff, NICHOLAS MAURICIO, sues the Defendants, ALPHA EPSILON PI FRATERNITY, INC., OLIVER S. WALKER, IRA D. SIGMAN, HUNTER D. GODFREY, JASON A. PECK, DAVID A. LANDESS, JUSTIN M. FRIEDMAN, AIDAN G. SMYTH and MICHAEL J. NILES and alleges as follows: 1. This is an action for damages in excess of $15,000 exclusive of interest and costs. 2. At all times material hereto, the Plaintiff, NICHOLAS MAURICIO ( MAURICIO ) was and is a resident of the State of Florida. 3. At all times material hereto, the Defendant, ALPHA EPSILON PI FRATERNITY, INC. ( ALPHA EPSILON PI ) was and is a foreign corporation doing business in Leon County, Florida. 1

2 4. At all times material hereto, the Defendant, ALPHA EPSILON PI ( the national fraternity ) does or did business in Leon County, Florida through the promotion of its fraternity including controlling the operations and/or management of the Alpha Epsilon Pi, Phi Tau chapter at 1924 Heritage Grove Circle in Tallahassee, Florida on or near the campus of Florida State University (the fraternity house ). The control included but was not limited to controlling the recruitment of new members, controlling the conduct of the members, controlling the amount of dues that would be paid by members and pledges and controlling the manner in which the traditions of the fraternity were celebrated and carried out. 5. Pursuant to Fla. Stat , ALPHA EPSILON PI is subject to the jurisdiction of this court because: a. ALPHA EPSILON PI had, at all times material hereto, through its agents, officers and representatives, operated, conducted, engaged in and carried on a business venture or agency in the State of Florida by distributing, marketing, promoting and advertising the ALPHA EPSILON PI fraternity in the State of Florida and establishing chapters of the fraternity in the State of Florida. b. ALPHA EPSILON PI has caused injuries to the Plaintiff in this state arising out of acts and omissions outside this state, during which time this Defendant was engaged in solicitation or service activities within the State of Florida through its agents, officers and representatives who were operating, conducting, engaging in and carrying on the business of the fraternity including the perpetuation of its traditions, activities and events that take place in the State of Florida. With each new pledge and new fraternity member that could be recruited, ALPHA EPSILON PI would 2

3 receive additional income that would then pay for the operations of the national fraternity, headquartered in Indianapolis, Indiana. c. ALPHA EPSILON PI has engaged in substantial and not isolated activities within the State of Florida by establishing fraternity chapters at Florida State University, the University of Florida, the University of Miami, the University of Tampa, the University of South Florida, the University of Central Florida, Florida International University, Florida Gulf Coast University and Florida Atlantic University, and/or has entered into contracts in the State of Florida. 6. At all times material hereto OLIVER S. WALKER ( WALKER ) was and is a resident of the State of Florida. 7. At all times material hereto IRA D. SIGMAN ( SIGMAN ) was and is a resident of the State of Florida. 8. At all times material hereto HUNTER D. GODFREY ( GODFREY ) was and is a resident of the State of Florida. 9. At all times material hereto JASON A. PECK ( PECK ) was and is a resident of the State of Florida. 10. At all times material hereto DAVID A. LANDESS ( LANDESS ) was and is a resident of the State of Florida. 11. At all times material hereto JUSTIN M. FRIEDMAN ( FRIEDMAN ) was and is a resident of the State of Florida. 12. At all times material hereto AIDAN G. SMYTH ( SMYTH ) was and is a resident of the State of Florida. 3

4 13. At all times material hereto MICHAEL J. NILES ( NILES ) was and is a resident of the State of Florida. 14. At the time of the incident that is the subject of this suit, Plaintiff was or recently had been a member of ALPHA EPSILON PI and Alpha Epsilon Pi, Phi Tau at Florida State University. 15. At all times material hereto the Alpha Epsilon Pi, Phi Tau chapter had an executive board ( leadership ) responsible for the day-to-day operations of the fraternity including overseeing, managing, and directing the events and traditions that would take place at the fraternity, including the events on the evening of April 9, 2018 that led to the Plaintiff s brain injury (the incident ). 16. In exercising control over the Alpha Epsilon Pi, Phi Tau chapter, ALPHA EPSILON PI appointed the following members to leadership positions: a. IRA D. SIGMAN - Master or President b. JASON A. PECK - Scribe c. AIDAN G. SMYTH - Exchequer or Treasurer 17. In addition to the above referenced officers, Alpha Epsilon Pi, Phi Tau s executive board included: a. DAVID A. LANDESS - Vice or Lieutenant Master / Vice President b. HUNTER D. GODFREY - Pledge Master c. JUSTIN M. FRIEDMAN - Member at Large 18. Defendants SIGMAN, LANDESS, SMYTH, GODFREY, PECK and FRIEDMAN, acting individually and as actual and/or apparent agents of ALPHA EPSILON PI voluntarily undertook the responsibility to serve as officers of Alpha Epsilon Pi, Phi Tau, and to serve on the executive board and, in doing so, voluntarily undertook the responsibility to manage the fraternity s meetings and events, and to perpetuate the traditions of ALPHA EPSILON PI in a manner that 4

5 would comply with the rules and regulations of ALPHA EPSILON PI, Florida State University and the laws of the State of Florida. 19. The executive board, which included Defendants SIGMAN, LANDESS, SMYTH, GODFREY, PECK and FRIEDMAN, exercised significant control over the operations of the fraternity house including its chapter meeting room and had the authority to control what events, activities and traditions took place in the chapter room and how they took place. The executive board also had the authority to refuse to permit activities from taking place in that room, to regulate the manner in which the activities were to take place and to determine who would be and would not be permitted to be present for the activities occurring in that room. 20. ALPHA EPSILON PI exercised significant control over the Phi Tau fraternity house including its chapter meeting room. In addition to appointing various officers to leadership positions, ALPHA EPSILON PI allowed the Alpha Epsilon Pi, Phi Tau chapter to conduct itself as a chapter of ALPHA EPSILON PI, to hold meetings as an official chapter of the national fraternity, to plan and host social events in the name of ALPHA EPSILON PI, to recruit and initiate new members to ALPHA EPSILON PI and to use the Greek letters and other indicia of ALPHA EPSILON PI at the chapter house and at other events on the Florida State University campus. In addition, ALPHA EPSILON PI promulgated rules and regulations that the executive board of Phi Tau and its members were required to follow, it required Phi Tau to make periodic reports regarding its membership and activities to the national fraternity as well as its dues collection and its expenditures, and it would periodically send employees of ALPHA EPSILON PI to the Phi Tau chapter house to ensure that the local chapter was performing to the standards set by ALPHA EPSILON PI. 5

6 21. At all times material hereto, NILES was acting as the chapter advisor for Alpha Epsilon Phi, Phi Tau chapter and had been appointed to that position by ALPHA EPSILON PI. Accordingly, NILES undertook the duty to supervise and guide the Alpha Epsilon Pi, Phi Tau chapter and ensure that its leadership and members complied with the rules and regulations promulgated by ALPHA EPSILON PI, Florida State University, and the laws of the State of Florida. 22. At the time of the incident that is the subject of this suit, MAURICIO was a sophomore at Florida State University. 23. During the Fall 2017 semester, ALPHA EPSILON PI encouraged the Alpha Epsilon Pi, Phi Tau chapter to recruit a large pledge class in order to increase ALPHA EPSILON PI s presence at Florida State University. 24. That semester, MAURICIO was recruited by several members of ALPHA EPSILON PI, to join the Alpha Epsilon Pi, Phi Tau chapter. After careful consideration, he decided to pledge the fraternity and was ultimately invited to become a member. 25. He subsequently paid his dues and on October 11, 2017, MAURICIO received an e- mail from ALPHA EPSILON PI, congratulating him on his decision to join the fraternity. 26. ALPHA EPSILON PI, which is also known as AEPi, was founded in 1913 and promotes itself by endorsing qualities and attributes that any pledge, or parent of a pledge, would want to see in a fraternity, including: a. We dedicate ourselves to improving our communities through leadership and service. We deliver on our promise to teach and practice charity and philanthropy. b. When you join AEPi, you are joining a brotherhood for a lifetime. 6

7 c. From mandatory study hours, to mid-term and final quiet hours for studying, AEPi chapters place education as a top priority. Our chapters are consistently ranked among the highest GPA s on their respective campuses. d. As much as AEPi s love to hit the books, we value time for social involvement. Whether it be spending time with brothers in the house, joining an intramural sport team, or participating in campus activities AEPi s are an active part of campus life. 27. ALPHA EPSILON PI publicly proclaims that it employs risk management policies aimed at preventing injuries that may result from the conduct of its members but the reality is very different. 28. As an example, during the pledge process, despite the fraternity s public facade, MAURICIO was subjected to various forms of hazing including, but not limited to, forced physical activities, sleep deprivation, the forced consumption of various drinks and standing inside a cramped bathroom for a prolonged period of time alongside his other pledge brothers. 29. Prior to the incident that gave rise to this suit, ALPHA EPSILON PI knew or should have known of several incidents of dangerous traditions at Alpha Epsilon Pi, Phi Tau and at various chapters around the country, including the allegations referenced above as well as the infamous Scumbag of the Week tradition. 30. In November 2017, MAURICIO officially became a brother of ALPHA EPSILON PI. 31. Shortly thereafter, Alpha Epsilon Pi, Phi Tau was disciplined by Florida State University for several code of conduct violations that occurred during the Fall 2017 semester. 7

8 32. Despite these obvious conduct problems, ALPHA EPSILON PI was determined to ensure that the Phi Tau chapter at Florida State University would remain open and continue on that campus. 33. In an effort to contain the fallout from the disciplinary issues and the unacceptable behavior, ALPHA EPSILON PI sent multiple representatives to the Phi Tau chapter including a representative from the Supreme Board of Governors of ALPHA EPSILON PI for a membership audit and/or membership review process. As part of that process, every member of the fraternity was required to fill out a questionnaire and interview with the ALPHA EPSILON PI representatives sent down from the national headquarters. 34. On or about February 4, 2018 MAURICIO completed the questionnaire and submitted it to ALPHA EPSILON PI. In his questionnaire, he made it clear that he was an active member of the fraternity and was living in the chapter house at 1924 Heritage Grove Circle in Tallahassee, Florida. That same day, he paid another installment of his membership dues. 35. Shortly thereafter, representatives of ALPHA EPSILON PI interviewed MAURICIO as well as the other members of Phi Tau as a part of their effort to assert control over the membership and operations of the chapter. 36. As a result of its interview process, ALPHA EPSILON PI determined that MAURICIO and others would not be selected to rejoin the Alpha Epsilon Pi, Phi Tau chapter and that they would each be considered an Alumnus in Bad Standing. ALPHA EPSILON PI advised MAURICIO of this decision by a letter dated February 26, Despite that decision, however, MAURICIO was permitted to remain a resident of the Alpha Epsilon Pi, Phi Tau fraternity house. 37. WALKER, who was not a student at Florida State University, was also designated an Alumnus in Bad Standing. 8

9 38. As a part of the membership review process and at or about the same time that it appointed SIGMAN, PECK and SMYTH to leadership positions, ALPHA EPSILON PI determined that there was no need to fill the risk manager position because the chapter would not be hosting parties or events where there was a need for risk mitigation because of the sanctions that had already imposed against the chapter by Florida State University. As a result, at the time of the incident giving rise to this suit, Phi Tau lacked the mature guidance that would have come from a properly trained and qualified risk manager who would have prevented this incident from happening. 39. Notwithstanding its decision to designate MAURICIO as an Alumnus in Bad Standing, the Defendants, acting individually and/or through their officers, agents, and apparent agents at the Phi Tau chapter, encouraged MAURICIO to continue as part of the Alpha Epsilon Pi, Phi Tau fraternity. MAURICIO, with the full knowledge and consent of the agents and apparent agents of ALPHA EPSILON PI and each of the individual defendants, continued to live in the fraternity house as before, dine with his fraternity brothers, and participate in fraternity bonding and social events all at the invitation of ALPHA EPSILON PI members, agents, and apparent agents and the leadership of Phi Tau. 40. In April 2018, the executive board, called a chapter meeting for April 9, 2018 by posting the announcement to the Phi Tau group on Facebook that included all members in good standing as well as MAURICIO and the other members who were not invited back by ALPHA EPSILON PI following the membership review. The chapter meetings are held by the brothers of the fraternity on a regular basis throughout the semester in the chapter room at the fraternity house located at 1924 Heritage Grove Circle in Tallahassee, Florida. 41. Accordingly, on April 9, 2018, MAURICIO attended his first ever chapter meeting of the fraternity. Prior to this he had been a pledge and was not permitted to attend chapter 9

10 meetings. When he and the other alumni members in bad standing arrived in the chapter room for the meeting they were welcomed by everyone there, not told to leave by anyone because of their status as alumni in bad standing and were treated in all respects just like the fraternity brothers who were present and in good standing with ALPHA EPSILON PI. 42. During this meeting, MAURICIO learned for the first time of a long-standing fraternity tradition known as Scumbag of the Week. He had no prior knowledge of what this tradition entailed since it is kept secret from the pledges. 43. ALPHA EPSILON PI, acting through its members, handpicked local chapter officers, agents, apparent agents, employees and chapter advisors, had long been perpetuating this tradition and allowed it to continue. 44. The Scumbag of the Week tradition is planned and orchestrated by the chapter s leadership, which included Defendants SIGMAN, LANDESS, SMYTH, GODFREY, PECK and FRIEDMAN. These individuals are charged with running the chapter meetings and ensuring that the traditions of ALPHA EPSILON PI are carried out at chapter meetings. 45. As part of the Scumbag of the Week tradition, the chapter also selects a Brother of the Week, which is a fraternity member selected based upon something positive or favorable that he has done and he is typically rewarded with alcohol or a reserved seat at a bar. The Scumbag of the Week, however, is someone who is singled out for being hit in the face in front of the entire group. 46. In years past, the leadership of the chapter would spin a wheel to determine whether the Scumbag of the Week would have to clean the fraternity house by himself, lick the chapter room floor with his tongue, or be struck in the face by another member of the fraternity in front of all of the brothers. Somewhere over time, the spinning of the wheel was abandoned. 10

11 47. ALPHA EPSILON PI has long been aware of the Scumbag of the Week tradition. Indeed, during a prior Alpha Epsilon Pi, Phi Tau chapter meeting, ALPHA EPSILON PI s Education Leadership Consultant Charles Cohen was present for the event and personally watched as a member of the chapter struck the Scumbag of the Week in the face. According to a member present at that meeting, Cohen reacted by laughing his head off. In addition, video depicting members of ALPHA EPSILON PI performing the Scumbag of the Week facial strike had been previously disseminated to members via social media but has since been deleted and is not recoverable. 48. At some point just prior to or during the April 9, 2018 chapter meeting, the executive board of the chapter determined that, per the tradition, the chapter would select the Scumbag of the Week during the meeting knowing that he would then get struck in the face as a consequence of his selection. 49. The executive board of the chapter then solicited nominations for Scumbag of the Week and Brother of the Week from the chapter and then had the chapter vote on the nominees. 50. Defendant PECK, in his role as Scribe, typed the nominations on his laptop, but later deleted the record of what had taken place. 51. Following the voting MAURICIO was told by the leadership of the chapter that he had been selected as Scumbag of the Week and he needed to step forward and stand before the chapter s membership in order to receive the traditional strike to the face. Defendant WALKER was selected to administer the facial strike even though he was not a student at Florida State University and was not supposed to be in attendance at a chapter meeting. The chapter s leadership then instructed the members not to video or photograph what was about to happen. 11

12 52. MAURICIO complied with the instruction from leadership to step forward having no idea that he was about to suffer a permanent brain injury by complying. He had never witnessed this event before and did not know what was in store for him. 53. The Defendants increased the likelihood of the brain injury that MAURICIO was about to sustain by permitting WALKER, who like MAURICIO had never attended the Scumbag of the Week tradition before, to be the one to strike MAURICIO. WALKER received no training for what he was about to do, no instructions from any officer about what was expected of him and no guidance from anyone who had personally struck a previous Scumbag of the Week. As a result, he succumbed to the mounting peer pressure as those in attendance kept yelling: Hit him! Hit him! Despite this brewing disaster, the Defendants permitted the tradition to continue and did nothing to stop it. 54. WALKER got the message from the chanting crowd and the green light from leadership. He proceeded to strike MAURICIO s face harder than he should have and harder than he intended. As a result, MAURICIO fell to the floor and struck his head. He was immediately rendered unconscious. He was bleeding from his mouth due to a cracked tooth, developed a golf ball sized lump on the back of his head and was subsequently diagnosed with a fractured skull, a traumatic hemorrhage of the cerebrum, a traumatic subarachnoid hemorrhage and a traumatic subdural hemorrhage. 55. MAURICIO was subsequently transported from the chapter house to Tallahassee Memorial Hospital by one or more of the Defendants and perhaps others. MAURICIO was in and out of consciousness at the time and was calling out in pain. Upon arrival at the hospital those who brought him in lied to the healthcare providers, telling them that MAURICIO had fallen down stairs 12

13 while playing basketball outside on the fraternity s deck. MAURICIO was admitted to the Neuro- Intensive Care Unit where he remained for five days. 56. As a result of ALPHA EPSILON PI s dangerous Scumbag of the Week tradition, MAURICIO suffers from encephalomalacia, or a dead area in his brain. The damage done to his right frontal lobe affects his behavior, mood, attitude, and cognitive function. He suffers from memory problems, migraines, paranoia, post traumatic stress, panic attacks and difficulty in group settings. In addition, due to the force of the blow to his face and the subsequent strike to his head on the floor, he also suffers from injuries to his neck and back which cause him further pain and suffering. 57. As a direct and proximate result of the injuries the Plaintiff has sustained from the Scumbag of the Week tradition, he has suffered bodily injury and resulting pain and suffering, disability, disfigurement, mental anguish, loss of capacity for the enjoyment of life, expense of hospitalization, medical and nursing care and treatment, loss of earnings, loss of ability to earn money and aggravation of a previously existing condition. The losses are either permanent or continuing and Plaintiff will suffer the losses in the future. COUNT I NEGLIGENCE AGAINST ALPHA EPSILON PI Plaintiff realleges and reavers paragraphs (1) - (57) and further alleges as follows: 58. At all times material hereto, ALPHA EPSILON PI owed a duty to MAURICIO to act in a non-negligent manner. The duty included but was not limited to ensuring that dangerous traditions that had the very real potential to be carried too far and cause serious injury were not continued. 59. ALPHA EPSILON PI breached that duty and was negligent in at least the following respects: 13

14 a. failing to adequately enforce its policies and procedures at the Alpha Epsilon Pi, Phi Tau chapter; b. failing to implement and enforce extremely strict controls on chapter events after Phi Tau had been dismissed from the Florida State University campus in January, 2018 and prohibited from being recognized as a university organization because of other acts of hazing, alcohol violations and acts of vandalism; c. failing to replace NILES as chapter advisor who was not doing his job; d. failing to properly train the leadership of the Alpha Epsilon Pi, Phi Tau chapter; e. failing to take adequate precautions to ensure that MAURICIO was not injured as a result of the Scumbag of the Week tradition; f. failing to terminate the Alpha Epsilon Pi, Phi Tau s Scumbag of the Week tradition despite having knowledge of its existence; g. failing to require that the Alpha Epsilon Pi, Phi Tau have a properly trained and qualified chapter advisor present at the April 9, 2018 meeting; h. failing to revoke the Alpha Epsilon Pi, Phi Tau s charter when it was aware of repeated instances of unacceptable behavior; i. failing to install a risk management officer of the Alpha Epsilon Pi, Phi Tau chapter; j. failing to require the chapter advisor to regulate and/or terminate the Scumbag of the Week tradition so that no one would get injured; k. failing to remove the chapter advisor knowing that he had permitted the Scumbag of the Week tradition to continue; 14

15 l. failing to ensure that members in bad standing were not permitted to attend chapter meetings; m. failing to ensure that non-florida State University students who were not in good standing were kept out of Phi Tau chapter meetings. 60. As a direct and proximate result of said negligence, MAURICIO was caused to suffer the damages described above. COUNT II NEGLIGENCE AGAINST MICHAEL J. NILES Plaintiff realleges and reavers paragraphs (1) - (57) and further alleges as follows: 61. At all times material hereto, NILES had voluntarily undertaken the responsibility to be the official chapter advisor for the Alpha Epsilon Pi, Phi Tau chapter. 62. As the chapter advisor, NILES had a duty to act in a non-negligent manner in discharging his chapter advisor duties and responsibilities. respects: 63. Defendant, NILES, breached that duty and was negligent in at least the following a. Failing to ensure that anyone who was in bad standing with the fraternity would not be permitted to attend the chapter meetings; b. failing to ensure that there were procedures in place to prevent people from getting injured during chapter meetings and fraternity traditions; c. failing to attend the April 9, 2018 chapter meeting to ensure that the meeting was conducted in a manner that complied with the rules and regulations of ALPHA EPSILON PI, Florida State University and the laws of the State of Florida; d. failing to warn MAURICIO of the dangers of the Scumbag of the Week tradition; 15

16 e. failing to put a stop to the chapter s longstanding history of the Scumbag of the Week tradition. f. failing to warn the executive board that striking the Scumbag of the Week in the face was no longer acceptable or permitted. g. failing to warn the executive board that WALKER, as a member in bad standing and a non-florida State University student, was not permitted to attend the April 9, 2018 chapter meeting. h. failing to warn the executive board that they should not select a person to participate in the Scumbag of the Week ceremony who had never seen it done before. i. failing to speak to WALKER in advance to ensure that he did not strike MAURICIO in a manner that would cause serious injuries to him; j. failing to stop the gathered group from inciting WALKER to strike MAURICIO hard by yelling Hit him! Hit him! 64. As a direct and proximate result of said negligence, MAURICIO was caused to suffer the damages described above. COUNT III NEGLIGENCE AGAINST OLIVER WALKER Plaintiff realleges and reavers paragraphs (1) - (57) and further alleges as follows: 65. At all times material hereto, WALKER had a duty to act in a non-negligent manner towards MAURICIO. respects: 66. Defendant WALKER breached that duty and was negligent in at least the following a. in striking MAURICIO too hard; b. in striking MAURICIO harder than he intended; 16

17 c. in failing to tell the chapter s leadership that he would not engage in any tradition that involved hitting someone in the face; d. in failing to ask for guidance from leadership or anyone else who had actually struck the Scumbag of the Week in the past in order to determine how the tradition was to be carried out; 67. As a direct and proximate result of said negligence, MAURICIO was caused to suffer the damages described above. COUNT IV NEGLIGENCE AGAINST DEFENDANTS SIGMAN, GODFREY, PECK, LANDESS, FRIEDMAN and SMYTH Plaintiff realleges and reavers paragraphs (1) - (57) and further alleges as follows: 68. At all times material hereto, Defendants SIGMAN, GODFREY, PECK, LANDESS, FRIEDMAN, and SMYTH were members of the executive board of Phi Tau who were present for the April 9, 2018 chapter meeting and they each owed a duty of reasonable care to MAURICIO. respects: 69. These Defendants breached that duty and were negligent in at least the following a. failing to ensure that there were procedures in place to prevent people from getting injured during chapter meetings and fraternity traditions; b. failing to report the Alpha Epsilon Pi, Phi Tau chapter to ALPHA EPSILON PI regarding the chapter s history of the Scumbag of the Week tradition; c. failing to stop the chapter s longstanding history of Scumbag of the Week ; d. failing to warn MAURICIO of the dangers of the Scumbag of the Week tradition; e. failing to inform WALKER and the other chapter members that hitting the Scumbag of the Week in the face was no longer permitted; 17

18 f. failing to direct and instruct WALKER on precisely how he was to make contact with MAURICIO s face so that he would not be hurt since WALKER had never witnessed the tradition before; g. failing to put a stop to the chants of Hit him! Hit him! just before WALKER struck MAURICIO; h. failing to tell WALKER that despite the requests to Hit him! he was not to inflict any blow to MAURICIO s face. 70. As a direct and proximate result of said negligence, NICHOLAS MAURICIO was caused to suffer the damages described above. COUNT V NEGLIGENCE PER SE AGAINST DEFENDANTS WALKER, SIGMAN, GODFREY, PECK, LANDESS, FRIEDMAN and SMYTH PURSUANT TO FLORIDA S ANTI-HAZING STATUTE Plaintiff realleges and reavers paragraphs (1) - (57) and further alleges as follows: 71. Florida Statute provides that it is a criminal offense to recklessly commit an act of hazing upon a student for purposes of affiliation with a student organization, including fraternities, such as ALPHA EPSILON PI. 72. Hazing includes any action or situation that recklessly or intentionally endangers the mental or physical health or safety of a student for purposes including, but not limited to, initiation or admission into or affiliation with any organization operating under the sanction of a postsecondary institution. protect. 73. Hazing also includes coercing people to break state or federal law. 74. MAURICIO was a member of the class of persons that said statute was intended to 18

19 75. Said statute imposed upon Defendants, WALKER, SIGMAN, GODFREY, PECK, LANDESS, FRIEDMAN and SMYTH, a duty of due care in their actions toward MAURICIO who was affiliated with ALPHA EPSILON PI at the time of this incident. respects: 76. Said Defendants, breached that duty and were negligent in at least the following a. permitting and/or encouraging WALKER to strike MAURICIO in the face; b. failing to ensure that there were procedures in place to prevent people from getting injured during chapter meetings and fraternity traditions; c. failing to stop the chapter s longstanding history of Scumbag of the Week ; d. failing to direct and instruct WALKER on precisely how he was to administer the Scumbag of the Week punishment to MAURICIO since WALKER had never witnessed the tradition before; e. failing to put a stop to the chants of Hit him! Hit him! which increased the likelihood that MAURICIO would be struck too hard. 77. As a direct and proximate result of said negligence, MAURICIO was caused to suffer the damages described above. COUNT VI Vicarious Liability - ALPHA EPSILON PI (Actual Agency) Plaintiff realleges paragraphs (1) through (57) and paragraphs (61) through (77) and further states as follows: 78. At all times material hereto, the leadership, members, and chapter advisor of Alpha Epsilon Pi, Phi Tau, including the individually named Defendants herein, were actual agents of the Defendant, ALPHA EPSILON PI. 19

20 79. ALPHA EPSILON PI represented to its members, its pledges and to former members, including MAURICIO, that the Phi Tau chapter was part of the national ALPHA EPSILON PI organization and that the leadership, members, and advisors, were not just members of Alpha Epsilon Pi, Phi Tau, but of ALPHA EPSILON PI as well. 80. ALPHA EPSILON PI acknowledged that the leadership of Phi Tau and its members, and chapter advisor, including the individually named Defendants herein, would act on its behalf. Specifically, ALPHA EPSILON PI instructed and authorized the individually named Defendants to act on its behalf by recruiting and initiating new members, generating revenue, perpetuating the fraternity s traditions, raising money in the name of ALPHA EPSILON PI, participating in and planning social events in the name of ALPHA EPSILON PI, and continuing to educate potential new members on the history, traditions, and operations of ALPHA EPSILON PI. 81. The individually named Defendants accepted the undertaking of acting for ALPHA EPSILON PI by agreeing to recruit and initiate new members, generating revenue for ALPHA EPSILON PI, perpetuating the fraternity s traditions, raising money for causes selected by ALPHA EPSILON PI in the name of the fraternity, participating in and planning social events in the name of ALPHA EPSILON PI and continuing to perpetuate the history, traditions, and operations of ALPHA EPSILON PI. 82. ALPHA EPSILON PI exercised significant control over the individually named Defendants in at least the following respects: a. appointing SIGMAN as MASTER or President; b. appointing PECK as SCRIBE ; c. appointing SMYTH as EXCHEQUER or Treasurer; 20

21 d. requiring the individual defendants to perpetuate the fraternity s traditions in its pledge process and chapter meetings; e. requiring the individual defendants to participate in educational programming; f. requiring the leadership to educate potential new members; g. requiring that members meet with representatives from ALPHA EPSILON PI as part of the membership audit and review; h. requiring members to display and wear fraternity colors and letters; i. requiring members to generate and provide funds to ALPHA EPSILON PI; j. requiring members to abide by and enforce the rules and regulations of ALPHA EPSILON PI. 83. In addition, ALPHA EPSILON PI had the ability to revoke a chapter s charter and suspend, expel, or otherwise change the status of individual members if they did not comply with the rules, regulations and directives of ALPHA EPSILON PI. 84. ALPHA EPSILON PI also exercised control over Alpha Epsilon Pi, Phi Tau chapter by determining: which members would be considered full voting-members of the fraternity; which leadership positions would be maintained; and which members could run for executive leadership positions. 85. At all times material hereto, and during their interactions with MAURICIO, the members and chapter advisor of Alpha Epsilon Pi, Phi Tau, including the individually named Defendants herein, were acting in the course and scope of their agency relationship with ALPHA EPSILON PI. 86. Accordingly, ALPHA EPSILON PI is vicariously liable for the negligence of the individual defendants named herein. 21

22 87. As a direct and proximate result of said negligence, MAURICIO was caused to suffer the damages described above. COUNT VII Vicarious Liability - ALPHA EPSILON PI (Apparent Agency) Plaintiff realleges paragraphs (1) through (57) and paragraphs (61) through (77) and further states as follows: 88. ALPHA EPSILON PI, through its words and actions, presented and promoted the officers, members, and chapter advisor of Alpha Epsilon Pi, Phi Tau as its apparent agents. It did so in a variety of ways including but not limited to the following: a. sending a letter from the ALPHA EPSILON PI s international headquarters to MAURICIO, congratulating him on joining the fraternity and addressing him as a new member ; b. representing on the fraternity s website that membership in ALPHA EPSILON PI could be obtained via membership in a chapter such as Alpha Epsilon Pi, Phi Tau; c. promoting Alpha Epsilon Pi, Phi Tau events and members on the ALPHA EPSILON PI website; d. creating the appearance, by virtue of its uniform use of colors, letters, and symbols, that Alpha Epsilon Pi, Phi Tau, including its members, leadership, and chapter advisor, are one and the same with ALPHA EPSILON PI; e. Listing the Phi Tau chapter on the ALPHA EPSILON PI website s chapter roll as one of the fraternity s official chapters. 89. MAURICIO decided to pledge and ultimately join Alpha Epsilon Pi, Phi Tau in reliance upon the representations that he was joining the national "brotherhood" of ALPHA EPSILON PI, including but not limited to those representations stated above. 22

23 90. Accordingly, ALPHA EPSILON PI is vicariously liable for the negligence of the individual defendants named herein. 91. As a direct and proximate result of said negligence, MAURICIO was caused to suffer the damages described above. WHEREFORE, the Plaintiff demands judgment from the Defendants and further demands a trial by jury of all issues triable as of right by a jury. Dated: September 12, 2018 STEWART TILGHMAN FOX BIANCHI & CAIN, P.A. Attorneys for Plaintiff 1 S.E. 3 rd Avenue, Suite 3000 Miami, Florida Telephone (305) By: /s/david W. Bianchi DAVID W. BIANCHI Florida Bar No dbianchi@stfblaw.com jennifer@stfblaw.com By: /s/michael E. Levine MICHAEL E. LEVINE Florida Bar No mlevine@stfblaw.com 23