Jean v. Bucknell University

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHN JEAN, No. 4:20-CV-01722

Plaintiff,

(Judge Brann)

v.

BUCKNELL UNIVERSITY, et al.,

Defendants.

MEMORANDUM OPINION

APRIL 16, 2021

Pending before this Court is Defendant Bucknell University’s motion to

dismiss.1 On September 22, 2020, Plaintiff John Jean commenced this suit against

Bucknell, the National Fraternity of Kappa Delta Rho (“Kappa Delta Rho”), the

Kappa Delta Rho Iota Chapter (the “Iota Chapter”) located on Bucknell’s campus,

and three members of the Iota Chapter.2 Jean alleges that he was hazed during an

event that took place from September 10-11, 2020.3

This motion is now ripe for disposition; for the following reasons,

Bucknell’s motion to dismiss is granted.

1 Doc. 23.

2 Doc. 1. The three members are William Babcock, Dillon Duttera, and Nicholas Zanghetti. Id.

I. BACKGROUND4

A. The Hazing Incident

In fall 2020, Jean, a sophomore at Bucknell, applied to join the Iota Chapter

of the Kappa Delta Rho fraternity located on Bucknell’s campus.5 His application

was accepted, and on September 8, 2020, Jean received a “bid” (invitation) to

“pledge” (join) the Iota Chapter.6 Soon after, members of the Iota Chapter

scheduled an “initiation” for that year’s “pledge class” (those students who had

received and accepted bids to join the fraternity).7 The initiation was scheduled for

the night of September 10, 2020, and was referred to by some members of the Iota

Chapter as the first of several “lessons.”8 Jean was one of seven pledges invited to

the initiation.9

At the event, the pledges were instructed to play a drinking game.10 To play,

each would take a turn drinking from a two-liter bottle of vodka.11 Regardless of

how much alcohol was left, the last pledge to drink was required to finish the

remainder of the bottle.12 The purpose of the game seems to be for each pledge to

drink enough from the bottle so as to prevent the last pledge from having to

4 All background facts are drawn from the Complaint. Doc. 1.

5 Id. ¶¶ 5, 17.

6 Id. ¶ 18.

7 Id. ¶ 19.

8 Id.

9 Id.

10 Id. ¶ 20.

11 Id.

consume a disproportionately large amount.13 Throughout the game, members of

the Iota Chapter “screamed, chanted, and cheered,” which encouraged and

pressured the pledges to drink.14

Jean was the third pledge to drink from the bottle, which became empty by

the fifth pledge.15 After finishing the game, the pledges were instructed to

continue drinking beer and hard liquor.16 Jean, who is 5’4” and weighs 130

pounds, became extremely inebriated.17 Without elaborating on the details, Jean

alleges that he was violently hazed throughout evening, and that the hazing was led

by Defendants William Babcock (the Iota Chapter president) and Dillon Duttera

(the Iota Chapter “pledge master”).18 At some point, Jean attempted to exit the

fraternity house to return to his dorm, but was not allowed to leave.19

When Jean was later able to leave the fraternity house, he was confronted

outside by Defendant Nicholas Zanghetti, one of the seven Iota Chapter pledges in

Jean’s pledge class.20 Zanghetti told Jean not to leave, and then punched him in

13 See id.

14 Id. ¶ 21.

15 Id. ¶ 20.

16 Id. ¶ 22.

17 Id. ¶ 23.

18 Id. ¶¶ 25, 31-32.

19 Id. ¶ 24.

the face.21 Jean fell and hit his head on the ground.22 He began vomiting, and lost

consciousness.23

A Bucknell Safety Officer who witnessed this happen called 911, although

he did not ultimately report the incident to the police.24 After being transported to

a nearby hospital, Jean was treated for alcohol poisoning and a head-

injury/concussion (caused by Zanghetti).25 Jean was further treated for extensive

bruising on his face, arms, torso, legs, and backside from being punched and

kicked at the initiation.26 He also suffered cigarette burns on his feet.27

Following these events, Jean alleges that Bucknell attempted to keep word

of what happened within “campus walls” in an effort to avoid taking adverse or

disciplinary action against the involved students or the Iota Chapter.28 To this end,

Jean claims that Bucknell’s Director of Fraternity and Sorority Affairs Natalie

Brewster neglected to conduct “any real investigation into what happened.”29 Jean

further maintains that Bucknell has failed to meaningfully enforce its anti-hazing

policies.30 It is not clear whether any fraternity members or the Iota Chapter were

ever punished in relation to this incident.

21 Id. ¶ 26.

22 Id. ¶ 27.

23 Id.

24 Id. ¶ 28.

25 Id. ¶¶ 29-30.

26 Id. ¶ 31.

27 Id. ¶ 32.

28 Id. ¶ 43.

29 Id. ¶ 45.

B. The 2009 Iota Chapter Ban

In 2009, Bucknell banned the Iota Chapter from campus for hazing for three

years.31 At the same time, Kappa Delta Rho National also revoked the chapter’s

recognition for four years.32 The Iota Chapter eventually returned to campus, and

it was required to remain dry (alcohol-free) for one year.33 The Complaint does

not allege that any disciplinary action has been taken against the Iota Chapter since

it returned to campus. However, the Complaint does assert that Bucknell has

created “a permissive campus environment for fraternity life,” which has resulted

in students drinking on a regular basis “in the open, out in the street, on campus,

within full view of campus security and administration officials.”34

C. Procedural Posture

On September 22, 2020, Jean filed suit against Bucknell, Kappa Delta Rho,

the Iota Chapter, and three members of the Iota Chapter (Babcock, Duttera, and

Zanghetti).35 The Complaint asserts three claims against Bucknell. These three

claims are for hazing (Count I), negligence (Count IV), and negligence per se

(Count VI).36 Bucknell now seeks to dismiss all counts against it pursuant to

Federal Rule of Civil Procedure 12(b)(6).37

31 Id. ¶ 33.

32 Id.

33 Id. ¶ 35.

34 Id. ¶ 56.

35 See generally id.

36 Id.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), the Court dismisses a

complaint, in whole or in part, if the plaintiff has failed to “state a claim upon

which relief can be granted.” A motion to dismiss “tests the legal sufficiency of a

pleading”38 and “streamlines litigation by dispensing with needless discovery and

factfinding.”39 “Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of

a dispositive issue of law.”40 This is true of any claim, “without regard to whether

it is based on an outlandish legal theory or on a close but ultimately unavailing

one.”41

Following the Roberts Court’s “civil procedure revival,”42 the landmark

decisions of Bell Atlantic Corp. v. Twombly43 and Ashcroft v. Iqbal44 tightened the

standard that district courts must apply to 12(b)(6) motions.45 These cases

“retired” the lenient “no-set-of-facts test” set forth in Conley v. Gibson and

replaced it with a more exacting “plausibility” standard.46

38 Richardson v. Bledsoe, 829 F.3d 273, 289 n.13 (3d Cir. 2016) (Smith, C.J.) (citing Szabo v.

Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook, J.)).

39 Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).

40 Id. at 326 (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).

41 Id. at 327.

42 Howard M. Wasserman, The Roberts Court and the Civil Procedure Revival, 31 Rev. Litig.

313, 316, 319-20 (2012).

43 550 U.S. 544 (2007).

44 556 U.S. 662, 678 (2009).

45 Id. at 670 (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957))

Accordingly, after Twombly and Iqbal, “[t]o survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’”47 “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.”48 “Although the

plausibility standard does not impose a probability requirement, it does require a

pleading to show more than a sheer possibility that a defendant has acted

unlawfully.”49 Moreover, “[a]sking for plausible grounds . . . calls for enough facts

to raise a reasonable expectation that discovery will reveal evidence of

[wrongdoing].”50

The plausibility determination is “a context-specific task that requires the

reviewing court to draw on its judicial experience and common sense.”51 No

matter the context, however, “[w]here a complaint pleads facts that are ‘merely

consistent with’ a defendant’s liability, it ‘stops short of the line between

possibility and plausibility of entitlement to relief.’”52

When disposing of a motion to dismiss, the Court “accept[s] as true all

factual allegations in the complaint and draw[s] all inferences from the facts

47 Id. at 678 (quoting Twombly, 550 U.S. at 570).

48 Id.

49 Connelly v. Lane Const. Corp., 809 F.3d 780 (3d Cir. 2016) (Jordan, J.) (internal quotation

marks and citations omitted).

50 Twombly, 550 U.S. at 556.

51 Iqbal, 556 U.S. at 679.

alleged in the light most favorable to [the plaintiff].”53 However, “the tenet that a

court must accept as true all of the allegations contained in the complaint is

inapplicable to legal conclusions.”54 “Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice.”55

As a matter of procedure, the United States Court of Appeals for the Third

Circuit has instructed that:

Under the pleading regime established by Twombly and Iqbal, a court

reviewing the sufficiency of a complaint must take three steps. First, it

must tak[e] note of the elements [the] plaintiff must plead to state a

claim. Second, it should identify allegations that, because they are no

more than conclusions, are not entitled to the assumption of truth.

Finally, [w]hen there are well-pleaded factual allegations, [the] court

should assume their veracity and then determine whether they plausibly

give rise to an entitlement to relief.56

III. DISCUSSION

A. Negligence

Bucknell first seeks to dismiss Jean’s negligence claim (Count IV) on the

basis that Bucknell owed no legal duty to Jean. In response, Jean sets forth two

theories purportedly establishing Bucknell’s duty of care. First, while

acknowledging no recognized duty extending to the facts of this case,57 Jean

nevertheless insists that the creation of a new common-law duty is warranted under

53 Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.).

54 Iqbal, 556 U.S. at 678 (internal citations omitted); see also Fowler v. UPMC Shadyside, 578

F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.) (“After Iqbal, it is clear that conclusory or ‘bare-

bones’ allegations will no longer survive a motion to dismiss.”).

55 Iqbal, 556 U.S. at 678.

56 Connelly, 809 F.3d at 787 (internal quotations and citations omitted).

Althaus ex rel. Althaus v. Cohen.58 Second, Jean cites three provisions of the

Restatement (Second) of Torts as imposing a common-law duty on Bucknell.

The Court concludes that Bucknell did not have a duty to Jean under these

facts. Consequently, Count IV of the Complaint against Bucknell is dismissed.

1. Althaus Factors

“The primary element in any negligence cause of action is that the defendant

owes a duty of care to the plaintiff.”59 A plaintiff may establish duty by looking to

standards of care previously recognized and accepted under state common law.60

Or, where no relevant duty of care applies, a plaintiff may ask a court to articulate

and create a new duty.61 Acknowledging that the concept of duty is rife with

amorphous considerations of public policy, the Pennsylvania Supreme Court in

Althaus set forth five factors for courts to consider when determining whether to

formulate a new duty of care.62 These factors include:

(1) The relationship between the parties;

(2) the social utility of the actor’s conduct;

58 756 A.2d 1166, 1169 (Pa. 2000).

59 Id. at 1168 (citing Gibbs v. Ernst, 647 A.2d 882, 890 (Pa. 1994)); see also Kline v. Ball, 452

A.2d 727, 729 (Pa. Super. 1982) (“Tort liability must be founded upon some blameworthy

conduct, or lack of due care resulting in the violation of a duty owing to others.).

60 See Dittman v. UPMC, 196 A.3d 1036, 1044 (Pa. 2018).

61 Althaus, 756 A.2d at 1169-70; e.g., Kenner v. Kappa Alpha Psi Fraternity, Inc., 808 A.2d 178,

183 (Pa. Super. 2002) (imposing a duty on a national fraternity and its officers to “protect

initiates from harm”).

62 Althaus, 756 A.2d at 1169 (“[T]he legal concept of duty of care is necessarily rooted in often

amorphous public policy considerations, which may include our perceptions of history, morals,

justice, and society.” (citations omitted)); see also Vickodil v. Commonwealth of Pa., Ins.

(3) the nature of the risk imposed and foreseeability of the harm incurred;

(4) the consequences of imposing a duty upon the actor; and

(5) the overall public interest in the proposed solution.63

However, just because a court may create a new duty does not necessarily

mean that it should. In fact, the Supreme Court of Pennsylvania has cautioned

courts that they should not “enter into the creation of new common law duties

lightly,” given that “the adjudicatory process does not translate readily into the

field of broad-scale policymaking.”64 Its “default position” is thus that, “unless the

justifications for and consequences of judicial policymaking are reasonably clear

with the balance of factors favorably predominating, [the Court] will not impose

new affirmative duties.”65

Jean urges this Court to articulate a new duty encompassing Bucknell’s

conduct in this case. Although he describes it only vaguely, the duty Jean seeks to

impose appears to require colleges to regulate and control fraternities that the

college specifically knows are likely to engage in hazing of new initiates and

pledges. Jean contends that such a duty is warranted under the Althaus factors, and

that it naturally extends to Bucknell’s actions here because Bucknell’s decision to

63 Althaus, 756 A.2d at 1169.

64 Feleccia v. Lackawanna College, 215 A.3d 3, 13 (Pa. 2019) (internal quotation marks omitted)

(quoting Lance v. Wyeth, 85 A.3d 434, 454 (2014)).

65 Seebold v. Prison Health Servs., Inc., 57 A.3d 1232, 1245 (Pa. 2012) (citing Cafazzo v. Central

ban the Iota Chapter from campus in 2009 put it on notice that members of the Iota

Chapter would likely haze future members in the future.

The Court disagrees because the Althaus factors do not favorably

predominate in favor of creating a new duty. First, the arrangement between

Bucknell and Jean is that of an ordinary university-student relationship, and such

an arrangement does not justify imposing a higher duty of care than what is already

provided for by Pennsylvania common law. Further, while Bucknell did allow its

fraternities to use its website to facilitate their bidding processes, this link is simply

too remote to support a heightened standard of care.66

The second factor considering the consequences of imposing a new duty on

Bucknell is similarly of no help to Jean. Imposing a high duty of care on Bucknell

(i.e., requiring it to actually prevent hazing) would place a massive burden on

Bucknell’s resources and capabilities. Beyond shuttering every fraternity

suspected of or disciplined for hazing, or requiring direct supervision of any such

fraternity, it is not clear how Bucknell would be able to meet this duty. In contrast,

imposing a reduced and more ambiguous standard of care (i.e., merely requiring

Bucknell to take steps to prevent hazing) significantly reduces the likelihood that

66 Compare Kenner, 808 A.2d. at 182-83 (citing the contractual relationship between a fraternity

member and the fraternity’s national office as supporting imposition of a duty of care to protect

Bucknell will be found to have breached its duty.67 Consequently, the Court finds

that this factor weighs against creating a new duty.

The remaining factors are also insufficient to warrant articulating a new duty

of care on Bucknell. The third regarding the nature of the harm and the harm’s

foreseeability, for example, is a wash. Although the harm caused by hazing is

extremely serious, its foreseeability with any level of specificity is low; Bucknell

might have been aware that hazing would occur on its campus at some point while

having no knowledge that Jean would be hazed at a specific initiation event.68

Further, the second and fourth factors (considering the social utility and public

interest of imposing a duty, respectively) weigh in Jean’s favor,69 but are not

enough, on their own, to justify creating a new standard of care.70

67 This is especially true given that Bucknell’s notice of the Iota Chapter’s propensity for hazing

arises from Bucknell having temporarily banned the fraternity from campus ten years prior.

See also id. at 183 (finding that the plaintiff had failed to point to facts establishing breach of

the newly created duty of care).

68 While the Kenner court considered foreseeability at a high level of generality, the Court

concludes it appropriate to also evaluate foreseeability as it would apply to specific

occurrences. The Court finds such an approach apposite given that the relationship between a

university and one of its fraternities is more attenuated than that between a national fraternal

organization and one of its local chapters. Compare id. (“Renal failure and the possibility of

death are substantial harms and injuries Kappa knew could (and did) occur during the initiation

process.”).

69 See id. (noting that “the social utility of a national fraternity’s efforts to stop hazing is not in

dispute” and that “there is a substantial public interest in assuring that individuals will not die

or suffer substantial injury in an attempt to become members of a fraternity.”).

70 The Court also notes that applying a more stringent duty of care on Bucknell also runs counter

to firmly established public policy rejecting the imposition of an in loco parentis duty on

colleges and universities. See Alumni Ass’n v. Sullivan, 572 A.2d 1209, 1213 (Pa. 1990)

(“Clearly, in modern times, it would be inappropriate to impose an in loco parentis duty upon

2. Restatement

Jean also argues that, even if the Court declines to create a new common-law

duty under Althaus, Bucknell is nevertheless subject to the standards of care set

forth in sections 314A, 344, and 323 of the Restatement (Second) of Torts.

“Generally, there is no duty to control the acts of a third party unless the

[d]efendant stands in some special relationship with either the person whose

conduct needs to be controlled or . . . with the intended victim of the conduct,

which gives the intended victim a right of protection.”71 One such relationship is

that “between a business and its invitee.”72

Section 314A clarifies that the business-invitee relationship is special and

thus an exception to the general rule, while section 344 qualifies the exception’s

scope.73 Specifically, section 344 provides that:

A possessor of land who holds it open to the public for

entry for his business purposes is subject to liability to

members of the public while they are upon the land for

such a purpose, for physical harm caused by the

accidental, negligent, or intentionally harmful acts of third

persons or animals, and by the failure of the possessor to

exercise reasonable care to

71 Reason v. Kathryn’s Korner Thrift Shop, 169 A.3d 96, 102 (Pa. Super. 2017) (alteration in

original) (internal quotation marks omitted) (quoting Paliometros v. Loyola, 932 A.2d 128,

133 (Pa. Super. 2007)).

72 Id. (citations omitted).

73 See Hills v. Bridgeview Little League Ass’n, 745 N.E.2d 1166, 1187 (Ill. 2000) (recognizing

that section 314A incorporates the “special relationship set forth in section 344” governing

landowners and invitees); see also Restatement (Second) of Torts § 314A (“A possessor of

land who holds it open to the public is under a similar duty to members of the public who enter

(a) discover that such acts are being done or are likely be

done, or

(b) give a warning adequate to enable the visitors to avoid

the harm, or otherwise to protect them against it.74

To trigger application of section 344’s standard of care, two factual

predicates must exist. First, the possessor of land must hold his land “open to the

public.”75 And second, the possessor must hold his land open for “business

purposes.”76 A party will thus not be subject to liability under section 344 if she

neither holds her land open nor does so for business purposes.77

The Court deems section 344 (and thus section 314A) inapplicable because

neither requirement is met. The Iota Chapter fraternity house, while owned by

Bucknell, is not “open to the public.” Rather, entry to the house is limited to those

who live there and their guests. Further, even if the chapter were considered open

to the public, it is not evident to the Court what business purpose would have been

served. Accordingly, the Court concludes neither section applies or imposes a duty

of care on Bucknell.

The Court likewise rejects Jean’s arguments based on section 323. Again, as

stated above, “in Pennsylvania there is no general duty on a landlord to protect

tenants against criminal intrusion.”78 However, a landlord may incur such a duty

74 Restatement (Second) of Torts § 344.

75 Id.

76 Id.

77 Id.

when she “assumes a duty . . . and so negligently performs that duty that another

suffers damage.”79 This exception, codified in section 323, states that:

One who undertakes, gratuitously or for consideration, to

render services to another which he should recognize as

necessary for the protection of the other’s person or

things, is subject to liability to the other for physical

harm resulting from his failure to exercise reasonable

care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of

such harm; or

(b) the harm is suffered because of the other’s reliance

upon the undertaking.80

Pennsylvania courts’ treatment of section 323 can be described as

“restrictive.”81 Promisees “may not expect more than is offered,” meaning that

they may only recover from a party who negligently performs a promise, not one

who makes a promise that is wholly inadequate.82 Further, courts have found

parties liable under section 323 only where they have engaged in a specific

undertaking, as opposed to a general promise.83 For example, a landlord’s offer to

79 Feld v. Merriam, 485 A.2d 742, 746 (Pa. 1984) (citations omitted).

80 Restatement (Second) of Torts § 323; Lackawanna, 215 A.3d at 14 (noting that Pennsylvania

has adopted and incorporated the duty of care set forth in section 323).

81 See James, 936 F. Supp. 2d at 634 (“Pennsylvania’s intermediate courts have heeded the

restrictive teachings laid down in Feld.”).

82 Feld, 485 A.2d at 747 (“If, for instance, one guard is offered, [a plaintiff] cannot expect the

benefits the same quality and type of protection that two guards would have provided, nor may

he expect benefits that a different program might have provided. He can only expect the

benefits reasonably expected of the program as offered and that that program will be conducted

with reasonable care.” (emphasis added)).

replace a broken lock constitutes a specific undertaking,84 but a general promise to

provide security on the premises does not.85

The Court determines that Bucknell’s anti-hazing policies do not give rise to

a legal duty under section 323. The Complaint does not discuss these policies at

length, although it alleges that Bucknell has acted negligently by failing to “have”

and “enforce” appropriate anti-hazing policies.86 But case law shows that simply

failing to “have” an adequate policy is not sufficient to trigger section 323.

Moreover, the Complaint does not allege that Bucknell made more than a general

promise to combat hazing on campus. As a result, the Court cannot hold that

Bucknell had a duty of care in this case.

B. Hazing and Negligence Per Se

Bucknell next seeks to dismiss counts I and VI of the Complaint asserting

claims for “hazing” and negligence per se. Both claims are predicated on

Bucknell’s alleged violation of Pennsylvania’s anti-hazing statute.87 Because the

viability of both counts depends on whether Bucknell has actually violated the

statute, the Court considers Bucknell’s challenges to both together.88

84 Reider v. Martin, 519 A.2d 507, 511 (Pa. Super. 1987).

85 Kerns v. Mthodist Hospital, 574 A.2d 1068, 1078 (Pa. Super. 1990).

86 Doc. 1 ¶ 64.

87 18 Pa. C.S. § 2801, et seq.

88 The Court additionally notes that the anti-hazing statute does not explicitly create a private

right of action (thus likely precluding Jean’s standalone claim for hazing). However, a party’s

“A plaintiff may satisfy the duty and breach elements of a negligence claim”

by showing that the defendant’s conduct constitutes negligence per se.89 A party is

negligent per se when she has “violated a statute ‘designed to protect the public

harm.’”90 To establish negligence per se, a plaintiff must satisfy four criteria:

(1) The purpose of the statute must be, at least in part,

to protect the interest of a group of individuals, as

opposed to the public generally;

(2) The statute or regulation must clearly apply to the

conduct of the defendant;

(3) The defendant must violate the statute or regulation;

and

(4) The violation of the statute or regulation must be the

proximate cause of the plaintiff’s injuries.91

The parties dispute only the third criteria: whether Bucknell has violated

section 2804 of Pennsylvania’s anti-hazing statute. Sections 2802 and 2803 of the

statute broadly prohibit hazing by individuals,92 and section 2804 imposes liability

on any organization that “intentionally, knowingly or recklessly promotes or

89 Piazza v. Young, 403 F. Supp. 3d 421, 438 (M.D. Pa. 2019) (quoting Schemberg v. Smicherko,

85 A.3d 1071, 1074 (Pa. Super. 2014)).

90 Id. (quoting Schemberg, 85 A.3d at 1074).

91 Schemberg, 85 A.3d at 1074 (citing Mahan v. Am-Gard, Inc., 841 A.2d 1052, 1058-59 (Pa.

Super. 2003)).

92 18 Pa. C.S. § 2802. In relevant part, section 2802 holds that “[a] person commits the offense

of hazing if the person intentionally, knowingly or recklessly, for the purpose of initiating,

admitting or affiliating a minor or student into or with an organization, for the purpose of

continuing or enhancing a minor or student’s membership or status in an organization, causes,

coerces or forces a minor student to,” among other things, violate state or federal law, consume

alcohol that puts the minor or student at risk, and endure mental, sexual, or physical brutality.

facilitates” a violation of section 2802 or 2803.93 The question before the Court is

thus whether Bucknell’s alleged behavior constitutes an intentional, knowing, or

reckless facilitation or promotion of the hazing that Jean experienced.94

The Court determines that it does not. First, Bucknell’s asserted conduct did

not facilitate or promote any incident of hazing. Jean does not allege that Bucknell

knew about the September 10, 2020 initiation, that Bucknell approved it, or in any

way promoted or funded it. Further, unlike in Humphries v. Pennsylvania State

University, Jean does not contend that Bucknell actively ignored a plaintiff’s

reports of hazing in a way that resulted in future hazing.95 The most that can be

said here is that Bucknell has failed to adequately address student alcohol

consumption on campus. But this alone did not facilitate or promote Jean’s hazing.

Second, even if the facilitation or promotion element could be established,

the Complaint has not alleged facts showing it was intentional, knowing, or

reckless. The only information even suggesting that Bucknell might have had

notice that Jean would be hazed by members of the Iota Chapter is an incident

occurring over ten years before what happened to Jean. Jean did not report any

hazing by the Iota Chapter to Bucknell, nor does he claim that Bucknell was aware

93 18 Pa. C.S. § 2804(a).

94 The Court need not address the level of specificity implicated by section 2804 because the only

alleged act of hazing was that which occurred against Jean.

95 2020 WL 5878409, at *6. Even accepting as true that Bucknell has actively attempted to keep

the September 10, 2020 incident quiet, this would not constitute a violation of section 2804

of hazing that had occurred at the Iota Chapter post-2009. Thus, on these facts, the

Court cannot hold that Jean has stated a claim for negligence per se for violation of

section 2804. Accordingly, Bucknell’s motion to dismiss counts I and VI is also

granted.

IV. CONCLUSION

Bucknell’s motion to dismiss pursuant to Rule 12(b)(6) is granted, and Jean

is granted leave to amend.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

United States District Judge