Plaintiffs, Defendants. COMPLAINT. the Estate of NOLAN MICHAEL BURCH, Deceased, by their attorneys, Brewer &

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1 IN THE CIRCUIT COURT OF MONONGALIA COUNTY, WEST VIRGINIA THERON J. BURCH and KIMBERLY BURCH, as Administrators of the Estate of NOLAN MICHAEL BURCH, Deceased, -vs- Plaintiffs, KAPPA SIGMA FRATERNITY, KAPPA SIGMA FRATERNITY GAMMA-PHI CHAPTER, KAPPA SIGMA HOUSE ASSOCIATION, WEST VIRGINIA UNIVERSITY, JORDON HANKINS, RICHARD SCHWARTZ, THOMAS RICHEY, LINDA RICHEY, and JOHN DOE 1-20, Civil Action No. Judge Defendants. COMPLAINT Plaintiffs, THERON J. BURCH and KIMBERLY BURCH, as Administrators of the Estate of NOLAN MICHAEL BURCH, Deceased, by their attorneys, Brewer & Giggenbach, PLLC, and Connors & Vilardo, LLP, allege upon information and belief: INTRODUCTION 1. On or about November 14, 2014, plaintiffs lost their only son, Nolan Michael Burch, a victim to the all-too-often overlooked culture of fraternity hazing. 2. At the time of his death, Nolan was a student at West Virginia University pledging to join the Kappa Sigma Fraternity through its local chapter, Gamma Phi.

2 3. In the course of pledging, Nolan was required to attend a Big/Little ceremony held by Gamma Phi on November 12, 2014, where members of Gamma Phi negligently, carelessly, and recklessly endangered Nolan s health and safety by pressuring him to drink excessive amounts of alcohol in order to be accepted for admission into Kappa Sigma. 4. As a result, Nolan suffered central nervous system depression and cardiopulmonary failure and died on November 14, This tragic event is part of an epidemic of fraternity-related deaths that has plagued this country for years. 6. Certain fraternities carelessly and recklessly pressure underage, first-year students to submit to hazing and to abuse alcohol in connection with this sort of pledging event. 7. Indeed, Gamma Phi in particular had a reputation for promoting dangerous activities in connection with its events, including hazing and both underage and excessive drinking. 8. Notwithstanding the well-documented risks of such careless and reckless conduct, Gamma Phi was allowed to carry on these dangerous activities, and, for that reason alone, Nolan Burch is now dead. 9. As a result, Nolan s family has experienced incredible sorrow and mental anguish and has been deprived of the irreplaceable society, companionship, comfort, guidance, kindly offices, advice, income, services, protection, care, and assistance that Nolan provided to his family. 2

3 10. Accordingly, plaintiffs bring this action against the Kappa Sigma Fraternity, Kappa Sigma Fraternity Gamma-Phi Chapter, Kappa Sigma House Association, West Virginia University, Jordon Hankins, Richard Schwartz, Thomas Richey, Linda Richey, and John Doe 1-20 to hold them accountable for their negligent, careless, and reckless misconduct, to recover compensatory and punitive damages for Nolan s pain and suffering and wrongful death, and to deter others and prevent the needless loss of other children. PLAINTIFFS 11. At all times herein, plaintiffs, Theron J. Burch and Kimberly Burch, were and are residents of the Town of Amherst, the County of Erie, and the State of New York. 12. Plaintiffs are the surviving parents of decedent, Nolan Michael Burch, and the personal representatives of the decedent s Estate, having been issued Letters of Limited Administration by the New York State Surrogate s Court, Erie County, on June 10, Plaintiffs bring this action for Nolan s wrongful death and predeath personal injury in their representative capacity on behalf of Nolan s Estate pursuant to West Virginia Code and FRATERNITY DEFENDANTS 14. At all times herein, defendant Kappa Sigma Fraternity ( Kappa Sigma ) was and is a corporation existing by and under the laws of the 3

4 Commonwealth of Virginia with its principal place of business at 1610 Scottsville Road, Charlottesville, Virginia At all times herein, Kappa Sigma was and is an international fraternity. 16. At all times herein, defendant Kappa Sigma Fraternity Gamma-Phi Chapter ( Gamma Phi ) was and is an association existing by and under the laws of the State of West Virginia with its principal place of business at 200 Belmar Avenue, Morgantown, West Virginia Kappa Sigma chartered and established Gamma Phi as its local chapter at West Virginia University. 18. Gamma Phi was controlled, governed, and/or regulated by Kappa Sigma. 19. Gamma Phi acted for, under the direction, and/or on behalf of Kappa Sigma. 20. Kappa Sigma exercised and/or had the right to exercise control over the operations and activities of Gamma Phi and its officers and members acting on behalf of Kappa Sigma. 21. Kappa Sigma provided financial support to Gamma Phi. 22. Kappa Sigma held out Gamma Phi to the public as its local chapter at West Virginia University. 23. Kappa Sigma allowed Gamma Phi to act in Kappa Sigma s name. 4

5 24. At all times herein, defendant Kappa Sigma House Association was and is a corporation existing by and under the laws of the State of West Virginia with its principal place of business at 200 Belmar Avenue, Morgantown, West Virginia At all times herein, Kappa Sigma House Association owned and owns real property located at 200 Belmar Avenue, Morgantown, West Virginia ( Kappa Sigma House ). 26. The building located at 200 Belmar Avenue, Morgantown, West Virginia 26505, was known as the Kappa Sigma House or Gamma Phi House. 27. The building was intended to be used and was used by Kappa Sigma and Gamma Phi for housing its members and hosting its events. WEST VIRGINIA UNIVERSITY 28. At all times herein, defendant West Virginia University was and is a public land-grant university established by the State of West Virginia with its main campus located in Morgantown, West Virginia. 29. At the time of his death, Nolan Burch was attending and enrolled as an undergraduate student at West Virginia University. 30. Prior to Nolan s death, West Virginia University recognized Kappa Sigma, through its local chapter, Gamma Phi, as a student organization at West Virginia University. 5

6 31. West Virginia University regulated Kappa Sigma s and/or Gamma Phi s operations as a recognized student organization at West Virginia University. 32. Before recognizing Kappa Sigma and/or Gamma Phi as a student organization, West Virginia University required Kappa Sigma and/or Gamma Phi to undergo an application process, which West Virginia University ultimately approved. 33. West Virginia University permitted Kappa Sigma and/or Gamma Phi to operate as a recognized student organization at West Virginia University. 34. West Virginia University held out Kappa Sigma and/or Gamma Phi to its student body as a recognized student organization at West Virginia University. 35. West Virginia University listed Kappa Sigma and/or Gamma Phi on its student organization listing website and identified them as organizations that students have the opportunity to explore. 36. West Virginia University facilitated Kappa Sigma s and/or Gamma Phi s operations as a recognized student organization at West Virginia University. 37. West Virginia University offered advice to Kappa Sigma and/or Gamma Phi to help them get the word out about their organizations events. 38. West Virginia University assigned a member of its faculty and staff to act as an advisor to Kappa Sigma and/or Gamma Phi and required the advisor to be actively involved in the affairs and operations of the organization. 6

7 39. West Virginia University allowed Kappa Sigma and/or Gamma Phi to use West Virginia University s name. HANKINS & SCHWARTZ 40. At all times herein, defendant Jordon Hankins was and is a domiciliary of the State of New Jersey with his principal residence located at 504 Perrineville Road, Hightstown, New Jersey At all times herein, Hankins was attending and enrolled as a student at West Virginia University. 42. At all times herein, Hankins was a member of Kappa Sigma. 43. At all times herein, Hankins was a member and, in fact, the Grand Master of Ceremonies of Gamma Phi. 44. At all times herein, defendant Richard Schwartz was and is a domiciliary of the State of New York with his principal residence located at 170 Quantico Court, Williamsville, New York At all times herein, Schwartz was attending and enrolled as a student at West Virginia University. 46. At all times herein, Schwartz was a member of Kappa Sigma. 47. At all times herein, Schwartz was a member and, in fact, the Grand Treasurer of Gamma Phi. 7

8 THOMAS & LINDA RICHEY 48. At all times herein, defendant Thomas Richey was and is a domiciliary of the Commonwealth of Pennsylvania with his principal residence located at 428 Carson Street, Monongahela, Pennsylvania At all times herein, Thomas Richey owned and owns, in whole or in part, real property located at 305 Glendon Street, Morgantown, West Virginia, ( Glendon Property ). 50. At all times herein, defendant Linda Richey was and is a domiciliary of the Commonwealth of Pennsylvania with her principal residence located at 428 Carson Street, Monongahela, Pennsylvania At all times herein, Linda Richey owned and owns, in whole or in part, the Glendon Property. 52. Thomas and Linda Richey have listed the Glendon Property as well as other real property owned by them on West Virginia University s website as off-campus housing for students. 53. As of November 2014, Thomas and Linda Richey were leasing the Glendon Property to individuals whom they understood to be students at West Virginia University. 54. Thomas and Linda Richey were aware that the Glendon Property was in a neighborhood where many fraternity and sorority members lived. 55. As of November 2014, Thomas and Linda Richey were leasing the Glendon Property to individuals whom they understood to be fraternity members. 8

9 JOHN DOE DEFENDANTS 56. Defendants John Doe 1-20 represent individuals that plaintiffs believe exist and may have acted individually, together, and/or in concert with the other defendants specifically named herein. 57. Defendants John Doe 1-20 include both members of Kappa Sigma and Gamma Phi and other individuals involved in the events that gave rise to this action. 58. The allegations set forth below are incorporated as and against each John Doe as if fully set forth against him or her. KAPPA SIGMA & GAMMA PHI S ACTIVITIES AT WEST VIRGINIA UNIVERSITY 59. In the nineteenth century, Kappa Sigma chartered and established Gamma Phi as its local chapter at West Virginia University. 60. Since then, Gamma Phi has developed a reputation for allowing and, indeed, promoting dangerous activities in connection with its events, including hazing and both underage and excessive drinking. 61. Kappa Sigma knew or had reason to know of Gamma Phi s dangerous pledging activities and rituals, but Kappa Sigma did not prevent them and, instead, facilitated them. 62. Kappa Sigma and/or Gamma Phi s authority to operate at West Virginia University was suspended or revoked in the first decade of the 2000 s. 9

10 63. Kappa Sigma and Gamma Phi were thereafter reinstated at West Virginia University, but the pattern of misconduct continued. 64. Nor was Gamma Phi the only Kappa Sigma chapter to develop a reputation of endangering students health and safety. 65. For instance, the University of Southern California Interfraternity Council sanctioned Kappa Sigma s local chapter for recruiting violations and temporarily expelled Kappa Sigma in the spring of Likewise, earlier this year, the Undergraduate Interfraternity Council at the University of Colorado at Boulder expelled Kappa Sigma s local chapter due to safety and welfare concerns. 67. Prior to Nolan Burch s death, West Virginia University received formal and/or informal complaints regarding Gamma Phi s activities during Nevertheless, prior to Nolan s death, West Virginia University continued to allow Kappa Sigma and/or Gamma Phi to operate as a recognized student organization at the school. NOLAN S PLEDGE TO JOIN KAPPA SIGMA 69. Nolan Burch began attending West Virginia University as a firstyear undergraduate student during the 2014 fall semester; he was only seventeen years old. 70. During that semester, Nolan pledged to join Kappa Sigma through its local chapter, Gamma Phi. 10

11 71. As part of the pledging process, Nolan had to satisfy various requirements established by Kappa Sigma and Gamma Phi. 72. For instance, Nolan was required to pay and did pay a pledging fee to Kappa Sigma. 73. Likewise, Nolan was required to participate in a number of events hosted by Gamma Phi. 74. At many of these events, members of Gamma Phi carelessly and recklessly pressured Nolan and other pledges to consume large amounts of alcohol. 75. For instance, on or about September 12, 2014, at a Gamma Phi event during rush week, members of Gamma Phi carelessly and recklessly pressured Nolan to drink a large quantity of beer and liquor. 76. As a result, Nolan was taken to the hospital by ambulance shortly after midnight on or about September 13, Another event held by Gamma Phi in connection with the pledging process was known as a Big/Little ceremony. 78. The event was mandatory for all Gamma Phi pledges, including Nolan. 79. Before the event, Kappa Sigma never represented to the public that Gamma Phi s Big/Little ceremony was not a Kappa Sigma event. 80. Before the event, Kappa Sigma never told Nolan that Gamma Phi s Big/Little ceremony was not part of the process for pledging to become a member of Kappa Sigma. 11

12 81. Thus, Nolan reasonably believed that participation in Gamma Phi s Big/Little ceremony was necessary for him to join Kappa Sigma. 82. The purpose of the Big/Little ceremony was to reveal to each pledge his assigned big brother within Gamma Phi. 83. Kappa Sigma s other chapters typically hold Big/Little ceremonies for that reason as well. 84. In fact, Big/Little ceremonies are well steeped in fraternity traditions and practiced by many other fraternities across the country. 85. Typically, pledges are instructed and expected to respect their big brothers and follow their guidance and directions. 86. Indeed, one of Kappa Sigma s missions is instilling in its members a sense of loyalty and commitment to other fraternity brothers. 87. Unfortunately, Big/Little ceremonies often involve big brothers and other fraternity leaders pressuring pledges to imbibe large amounts of alcohol. 88. Pledges know that if they want to join the fraternity, they are expected to follow those instructions. 89. For that reason, Big/Little ceremonies are recognized as one of the most dangerous fraternity events. 90. Indeed, Big/Little ceremonies have resulted in the deaths of numerous fraternity pledges across the country. 12

13 GAMMA PHI S BIG/LITTLE CEREMONY RESULTING IN NOLAN S DEATH 91. Gamma Phi s Big/Little ceremony was held on November 12, The event began at the Kappa Sigma House. 93. Hankins, as Grand Master of Ceremonies, led the ceremony. 94. Hankins and/or other Gamma Phi members provided alcoholic beverages to Nolan and other pledges at the Kappa Sigma House. 95. Gamma Phi members then blindfolded and escorted Nolan and other pledges to the Glendon Property. 96. There, Nolan and other pledges were introduced to their big brothers. 97. Schwartz was revealed as Nolan s big brother. 98. Schwartz gave Nolan a bottle of liquor. 99. Schwartz and/or other Gamma Phi members instructed, pressured, and coerced Nolan to drink the bottle of liquor and/or other alcoholic beverages as part of the Big/Little ceremony The other Gamma Phi pledges were given bottles of liquor and instructed to drink them as well Gamma Phi members led Nolan and the other pledges to believe that they had to obey their instructions to drink this alcohol if they wanted to join Kappa Sigma and Gamma Phi. 13

14 102. At the direction of Hankins, Schwartz, and/or other Gamma Phi members, Nolan consumed a large quantity of alcohol during the course of the Big/Little night Later that night, Nolan was found unresponsive while still at the Glendon Property Schwartz and/or other Gamma Phi members carried Nolan back to the Kappa Sigma House Gamma Phi members laid Nolan down on a table in a common room at the Kappa Sigma House Nolan was not the only Gamma Phi pledge to leave the Big/Little party heavily intoxicated Another unconscious or semiconscious pledge was similarly laid down on a couch in the same common room as Nolan At approximately 11:50 p.m., a Gamma Phi member observed that Nolan s face had a blue coloration to it representing obvious evidence of cyanosis A Gamma Phi member then tried to wake Nolan, but Nolan was still unresponsive A Gamma Phi member then discovered that Nolan did not have a pulse Only then at or after approximately 11:50 p.m. did a Gamma Phi member call for paramedics. 14

15 112. Around the same time, a Gamma Phi member attempted to perform CPR on Nolan, but those efforts were unsuccessful When paramedics arrived, they continued resuscitative efforts and transported Nolan to Ruby Memorial Hospital in Morgantown, West Virginia Throughout this commotion, the other pledge remained passed out in the Gamma Phi common room and also had to be hospitalized Despite the extensive efforts to revive Nolan, he never recovered, and on November 14, 2014, he died from central nervous system depression and cardiopulmonary failure due to the careless and reckless conduct of defendants before and during the Big/Little night As a result of Nolan s death, his family has experienced incredible sorrow and mental anguish and has been deprived of the irreplaceable society, companionship, comfort, guidance, kindly offices, advice, income, services, protection, care, and assistance that Nolan provided to his family Accordingly, plaintiffs bring this action against Kappa Sigma, Gamma Phi, Kappa Sigma House Association, West Virginia University, Hankins, Schwartz, Thomas Richey, Linda Richey, and John Doe 1-20 to recover damages for Nolan s pre-death injuries and wrongful death pursuant to West Virginia Code and On August 7, 2015, plaintiffs served written notice of their claim on West Virginia University and the Attorney General by certified mail pursuant West Virginia Code (a), and more than thirty days have since elapsed. 15

16 119. Therefore, all requirements precedent to suit have been met. FIRST CAUSE OF ACTION (Negligence Kappa Sigma) 120. Plaintiffs repeat and reallege each and every allegation in the foregoing paragraphs with the same force and effect as if fully set forth herein Kappa Sigma owed a duty of reasonable care to West Virginia University students pledging to join Kappa Sigma and Gamma Phi, including Nolan Burch Kappa Sigma breached its duty of care and acted negligently, carelessly, and/or recklessly by, inter alia: (a) (b) (c) (d) (e) Failing to adequately train Gamma Phi and its officers and members regarding risk and crisis management and policies and procedures prohibiting the use of alcohol or hazing during recruitment and pledging activities; Failing to provide adequate supervision and control over Gamma Phi and its officers and members in connection with recruitment and pledging activities, including Gamma Phi s Big/Little ceremony; Failing to develop appropriate policies and procedures prohibiting the use of alcohol or hazing during recruitment and pledging activities, including Gamma Phi s Big/Little ceremony; Failing to implement reasonable measures to enforce policies and procedures prohibiting the use of alcohol or hazing during recruitment and pledging activities, including Gamma Phi s Big/Little ceremony; Failing to provide reasonable safeguards, restrictions, and controls to prevent excessive 16

17 drinking, underage drinking, and/or hazing during recruitment and pledging activities, including Gamma Phi s Big/Little ceremony; (f) (g) (h) (i) (j) Failing to implement reasonable measures to enforce West Virginia law and West Virginia University s rules, regulations, and policies prohibiting excessive drinking, underage drinking, and hazing; Failing to implement reasonable measures to stop excessive drinking, underage drinking, and hazing activities that it knew or had reason to know were occurring or would occur within Gamma Phi, including in connection with Gamma Phi s Big/Little ceremony; Failing to appropriately discipline Gamma Phi and its officers and members for orchestrating and/or facilitating excessive drinking, underage drinking, and/or hazing activities; Facilitating and/or orchestrating the use of excessive drinking, underage drinking, and/or hazing in connection with recruitment and pledging activities, including Gamma Phi s Big/Little ceremony; and Otherwise acting negligently, carelessly, and/or recklessly Kappa Sigma s negligence, carelessness, and/or recklessness caused Nolan Burch to experience pain and suffering and, ultimately, death Therefore, plaintiffs are entitled to recover monetary damages from Kappa Sigma for Nolan Burch s pre-death injuries and the injuries suffered by Nolan s survivors as a result of his death pursuant to West Virginia Code and

18 SECOND CAUSE OF ACTION (Negligence Gamma Phi, Kappa Sigma) 125. Plaintiffs repeat and reallege each and every allegation in the foregoing paragraphs with the same force and effect as if fully set forth herein Gamma Phi owed a duty of reasonable care to West Virginia University students pledging to join Kappa Sigma and Gamma Phi, including Nolan Burch Gamma Phi breached its duty of care and acted negligently, carelessly, and/or recklessly by, inter alia: (a) (b) (c) (d) (e) Failing to adequately train its officers and members regarding risk and crisis management and policies and procedures prohibiting the use of alcohol or hazing during recruitment and pledging activities; Failing to provide adequate supervision and control over its officers and members in connection with recruitment and pledging activities, including Gamma Phi s Big/Little ceremony; Failing to develop appropriate policies and procedures prohibiting the use of alcohol or hazing during recruitment and pledging activities, including Gamma Phi s Big/Little ceremony; Failing to implement reasonable measures to enforce policies and procedures prohibiting the use of alcohol or hazing during recruitment and pledging activities, including Gamma Phi s Big/Little ceremony; Failing to provide reasonable safeguards, restrictions, and controls to prevent excessive drinking, underage drinking, and/or hazing during recruitment and pledging activities, including Gamma Phi s Big/Little ceremony; 18

19 (f) (g) (h) (i) (j) Failing to implement reasonable measures to enforce West Virginia law and West Virginia University s rules, regulations, and policies prohibiting excessive drinking, underage drinking, and hazing; Failing to implement reasonable measures to stop excessive drinking, underage drinking, and hazing activities that it knew or had reason to know were occurring or would occur, including in connection with Gamma Phi s Big/Little ceremony; Failing to appropriately discipline its officers and members for orchestrating and/or facilitating excessive drinking, underage drinking, and/or hazing activities; Facilitating and/or orchestrating the use of excessive drinking, underage drinking, and/or hazing in connection with recruitment and pledging activities, including Gamma Phi s Big/Little ceremony; and Otherwise acting negligently, carelessly, and/or recklessly Gamma Phi s negligence, carelessness, and/or recklessness caused Nolan Burch to experience pain and suffering and, ultimately, death Gamma Phi was therein acting as an actual or apparent agent of Kappa Sigma, thereby rendering Kappa Sigma vicariously liable for Gamma Phi s negligence, carelessness, and/or recklessness Therefore, plaintiffs are entitled to recover monetary damages from Gamma Phi and Kappa Sigma for Nolan Burch s pre-death injuries and the injuries suffered by Nolan s survivors as a result of his death pursuant to West Virginia Code and

20 THIRD CAUSE OF ACTION (Negligence Hankins, Schwartz, Kappa Sigma, Gamma Phi) 131. Plaintiffs repeat and reallege each and every allegation in the foregoing paragraphs with the same force and effect as if fully set forth herein Hankins, Schwartz, and the other officers and members of Gamma Phi owed a duty of reasonable care to West Virginia University students pledging to join Kappa Sigma and Gamma Phi, including Nolan Burch In pressuring pledges to consume large quantities of alcohol that they knew or should have known carried the risk of serious injury or death, and in otherwise organizing, promoting, facilitating, and engaging in Gamma Phi s Big/Little ceremony, Hankins, Schwartz, and the other officers and members of Gamma Phi breached their duty of care and acted negligently, carelessly, and/or recklessly The negligence, carelessness, and/or recklessness of Hankins, Schwartz, and the other officers and members of Gamma Phi caused Nolan Burch to experience pain and suffering and, ultimately, death Hankins, Schwartz, and the other officers and members of Gamma Phi were therein acting as actual or apparent agents of Kappa Sigma and Gamma Phi, thereby rendering Kappa Sigma and Gamma Phi vicariously liable for their negligence, carelessness, and/or recklessness Therefore, plaintiffs are entitled to recover monetary damages from Hankins, Schwartz, Kappa Sigma, and Gamma Phi for Nolan Burch s pre-death 20

21 injuries and the injuries suffered by Nolan s survivors as a result of his death pursuant to West Virginia Code and FOURTH CAUSE OF ACTION (Reckless Hazing Hankins, Schwartz, Kappa Sigma, Gamma Phi) 137. Plaintiffs repeat and reallege each and every allegation in the foregoing paragraphs with the same force and effect as if fully set forth herein West Virginia Code and prohibit any person from recklessly endangering the mental or physical health or safety of another person for the purpose of initiation or admission into or affiliation with any organization operating under the sanction of or recognized as an organization by an institution of higher education In connection with Gamma Phi s Big/Little ceremony, Hankins, Schwartz, and the other officers and members of Gamma Phi recklessly endangered the mental and physical health and safety of pledges, including Nolan Burch, for the purpose of initiation into Kappa Sigma and Gamma Phi Hankins, Schwartz, and the other officers and members of Gamma Phi thereby violated West Virginia Code and The actions of Hankins, Schwartz, and the other officers and members of Gamma Phi in violation of West Virginia Code and caused Nolan to experience pain and suffering and, ultimately, death. 21

22 142. Hankins, Schwartz, and the other officers and members of Gamma Phi were therein acting as actual or apparent agents of Kappa Sigma and Gamma Phi, thereby rendering Kappa Sigma and Gamma Phi vicariously liable for their actions Therefore, plaintiffs are entitled to recover monetary damages from Hankins, Schwartz, Kappa Sigma, and Gamma Phi for Nolan Burch s pre-death injuries and the injuries suffered by Nolan s survivors as a result of his death pursuant to West Virginia Code and FIFTH CAUSE OF ACTION (Conspiracy Hankins, Schwartz, Kappa Sigma, Gamma Phi) 144. Plaintiffs repeat and reallege each and every allegation in the foregoing paragraphs with the same force and effect as if fully set forth herein Hankins, Schwartz, and the other officers and members of Gamma Phi acted in concert and conspired to pressure Gamma Phi pledges, including Nolan Burch, to drink excessive amounts of alcohol and recklessly endanger the pledges health and safety in connection with Gamma Phi s Big/Little ceremony In furtherance of that conspiracy, Hankins, Schwartz, and the other officers and members of Gamma Phi acted wrongfully and carelessly and recklessly endangered the safety of Gamma Phi pledges in organizing, promoting, facilitating, and engaging in Gamma Phi s Big/Little ceremony The wrongful actions of the officers and members of Gamma Phi caused Nolan Burch to experience pain and suffering and, ultimately, death. 22

23 148. The officers and members of Gamma Phi were therein acting in furtherance of their conspiracy, thereby rendering each conspirator, including Hankins and Schwartz, liable for the actions of each of the other conspirators The officers and members of Gamma Phi were therein acting as actual or apparent agents of Kappa Sigma and Gamma Phi, thereby rendering Kappa Sigma and Gamma Phi vicariously liable for their actions Therefore, plaintiffs are entitled to recover monetary damages from Hankins, Schwartz, Kappa Sigma, and Gamma Phi for Nolan Burch s pre-death injuries and the injuries suffered by Nolan s survivors as a result of his death pursuant to West Virginia Code and SIXTH CAUSE OF ACTION (Negligence West Virginia University) 151. Plaintiffs repeat and reallege each and every allegation in the foregoing paragraphs with the same force and effect as if fully set forth herein West Virginia University owed a duty of reasonable care to its students, including Nolan Burch, to prevent Kappa Sigma and/or Gamma Phi from causing them foreseeable harm Indeed, in allowing Kappa Sigma and/or Gamma Phi to operate as a recognized student organization and holding them out to Nolan as such West Virginia University assumed an affirmative duty to regulate and police Kappa Sigma and/or Gamma Phi and to prevent them from causing Nolan foreseeable harm. 23

24 154. West Virginia University knew that failing to adequately regulate and police Kappa Sigma and/or Gamma Phi could cause Nolan harm West Virginia University had direct contact with Nolan and directly represented to him that it regulated and policed Kappa Sigma and/or Gamma Phi Nolan justifiably relied upon West Virginia University s affirmative undertaking to regulate and police Kappa Sigma and/or Gamma Phi and prevent them from causing Nolan foreseeable harm Thus, West Virginia University had a special relationship with Nolan and owed him a special duty of care West Virginia University breached its duty of care and acted negligently, carelessly, and/or recklessly by, inter alia: (a) (b) (c) (d) Allowing Kappa Sigma and/or Gamma Phi to operate as a recognized student organization despite knowing or having reason to know that they were engaging in and promoting hazing, excessive drinking, and underage drinking; Facilitating Kappa Sigma s and/or Gamma Phi s operations as a recognized student organization despite knowing or having reason to know that they were engaging in and promoting hazing, excessive drinking, and underage drinking; Holding Kappa Sigma and/or Gamma Phi out to its students as a recognized student organization despite knowing or having reason to know that they were engaging in and promoting hazing, excessive drinking, and underage drinking; Failing to timely and adequately investigate allegations of Gamma Phi s misconduct; 24

25 (e) (f) (g) (h) (i) (j) (k) (l) (m) (n) Failing to enforce its own rules, policies, and/or procedures prohibiting hazing; Failing to enforce its own rules, policies, and/or procedures prohibiting underage drinking; Failing to enforce its own rules, policies, and/or procedures prohibiting excessive drinking; Failing to enforce its own rules, policies, and/or procedures requiring a member of its faculty and staff to be actively involved in the affairs and operations of Kappa Sigma and/or Gamma Phi; Failing to enforce its own rules, policies, and/or procedures regarding investigating allegations of misconduct; Failing to adequately supervise and/or train Kappa Sigma and/or Gamma Phi regarding holding pledging events, such as Gamma Phi s Big/Little ceremony; Failing to adequately supervise and/or train the member of its faculty and staff assigned as an advisor to Kappa Sigma and/or Gamma Phi; Failing to implement reasonable measures to stop excessive drinking, underage drinking, and hazing activities that it knew or had reason to know were occurring or would occur within Gamma Phi, including in connection with Gamma Phi s Big/Little ceremony; Failing to appropriately discipline Gamma Phi and its officers and members for orchestrating and/or facilitating excessive drinking, underage drinking, and/or hazing activities; Otherwise acting negligently, carelessly, and/or recklessly. 25

26 159. West Virginia University s negligence, carelessness, and/or recklessness caused Nolan Burch to experience pain and suffering and, ultimately, death Therefore, plaintiffs are entitled to recover monetary damages from West Virginia University for Nolan Burch s pre-death injuries and the injuries suffered by Nolan s survivors as a result of his death pursuant to West Virginia Code and Recovery against West Virginia University is sought under and up to the limits of the State of West Virginia s liability insurance coverage. SEVENTH CAUSE OF ACTION (Premises Liability Kappa Sigma House Association) 162. Plaintiffs repeat and reallege each and every allegation in the foregoing paragraphs with the same force and effect as if fully set forth herein As the owner of the Kappa Sigma House, Kappa Sigma House Association owed and owes a duty of reasonable care to non-trespassing entrants upon that property, including Nolan Burch Kappa Sigma House Association knew or had reason to know that its real property would be used as a venue for fraternity-related events involving misuse of alcohol, provision of alcohol to minors, and/or hazing Kappa Sigma House Association knew or had reason to know that such conduct would create an unreasonable risk of serious injury or death. 26

27 166. In consenting to such conduct or failing to prohibit it, Kappa Sigma House Association breached its duty of care and acted negligently, carelessly, and/or recklessly Kappa Sigma House Association s negligence, carelessness, and/or recklessness caused Nolan Burch to experience pain and suffering and, ultimately, death Therefore, plaintiffs are entitled to recover monetary damages from Kappa Sigma House Association for Nolan Burch s pre-death injuries and the injuries suffered by Nolan s survivors as a result of his death pursuant to West Virginia Code and EIGHTH CAUSE OF ACTION (Premises Liability Thomas Richey, Linda Richey) 169. Plaintiffs repeat and reallege each and every allegation in the foregoing paragraphs with the same force and effect as if fully set forth herein As owners of the Glendon Property, Thomas Richey and Linda Richey owed and owe a duty of reasonable care to non-trespassing entrants upon that property, including Nolan Burch Thomas Richey and Linda Richey knew or had reason to know that their real property would be used as a venue for fraternity- or college-related events involving misuse of alcohol, provision of alcohol to minors, and/or hazing. 27

28 172. Thomas Richey and Linda Richey knew or had reason to know that such conduct would create an unreasonable risk of serious injury or death In consenting to such conduct or failing to prohibit it, Thomas Richey and Linda Richey breached their duty of care and acted negligently, carelessly, and/or recklessly Thomas Richey s and Linda Richey s negligent, careless, and/or reckless conduct caused Nolan Burch to experience pain and suffering and, ultimately, death Therefore, plaintiffs are entitled to recover monetary damages from Thomas Richey and Linda Richey for Nolan Burch s pre-death injuries and the injuries suffered by Nolan s survivors as a result of his death pursuant to West Virginia Code and PUNITIVE DAMAGES (Kappa Sigma, Gamma Phi, Kappa Sigma Housing Association, Hankins, Schwartz) 176. Kappa Sigma, Gamma Phi, Kappa Sigma House Association, Hankins, and Schwartz engaged in reckless and wanton misconduct and/or otherwise aggravated wrongdoing, thereby entitling plaintiffs to an award of punitive damages in an amount that is fair and just. JOINT AND SEVERAL LIABILITY 177. Each and every defendant is jointly and severally liable to plaintiffs for all compensatory damage claims in this case. 28

29 PRAYER FOR RELIEF WHEREFORE, plaintiffs, THERON J. BURCH and KIMBERLY BURCH, as Administrators of the Estate of NOLAN MICHAEL BURCH, Deceased, demand judgment against defendants, as follows: (1) Damages for the physical pain, mental suffering, and emotional distress suffered by Nolan Burch before his death; (2) Damages permitted to be recovered pursuant to West Virginia Code , including, inter alia: (a) (b) (c) (d) Sorrow, mental anguish, and solace, which may include society, companionship, comfort, guidance, kindly offices, and advice of the decedent; Compensation for reasonably expected loss of (i) income of the decedent, and (ii) services, protection, care, and assistance provided by the decedent; Expenses for the care, treatment, and hospitalization of the decedent incident to the injury resulting in death; and Reasonable funeral expenses; (3) Punitive damages in a fair and just amount; (4) Prejudgment and post-judgment interest; (5) Costs and attorney s fees and expenses; and (6) Such other and further relief as may become apparent from discovery as this matter matures for trial. 29

30 REQUEST FOR JURY TRIAL Plaintiffs request a jury trial on all questions of fact raised in the within complaint. DATED: Morgantown, West Virginia October 7, 2015 William C. Brewer, Esq. WV State Bar No. 448 J. Tyler Slavey, Esq. WV State Bar No BREWER & GIGGENBACH, PLLC P.O. Box 4206 Morgantown, WV (304) and Terrence M. Connors, Esq. Lawlor F. Quinlan III, Esq. Paul A. Woodard, Esq. CONNORS & VILARDO, LLP 1000 Liberty Building Buffalo, New York (716) (Application for Admission Pro Hac Vice Forthcoming) Attorneys for Plaintiffs 30