(CN) - A fraternity is not responsible for the actions of an unruly drunk who shot another guest at one of its parties, a New Jersey appeals court ruled.
Felix Peguero said he arrived around 11 p.m. at a large house party hosted by the Tau Kappa Epsilon fraternity of Kean University in Elizabeth, N.J. on Friday, Sept. 5, 2008.
Though the 21-year-old was not a college student, he was a regular at the local frat's parties, and this one drew 75 to 100 guests, according to the complaint.
Peguero claimed he paid $5.00 for a red plastic cup, from which he drank at least five cups of beer by the time a fight broke out in the backyard at about 1:30 a.m.
Peguero said when he investigated the fracas, he say at a group of guys pushing his friends around and telling them, to "Go back to New York." He said he tried to diffuse the situation, and it was then that he saw a "big, stocky guy" pointing a gun in someone's face.
Peguero said the next thing he knew, he had been punched twice in the face, He said that as he raised his hands to defend himself, he heard gun shots, but didn't realize he had been shot until he tried to run and found he "couldn't necessarily move," the complaint said.
He later learned that a bullet had punctured his lung and diaphragm, grazed his spine, and exited through his right rib cage, then ricocheted and injured a frat brother.
Peguero sued the local and national branches of the Tau Kappa Epsilon (TKE) fraternity, and several individual brothers, for negligence in Union County, N.J. state court. The shooter's identity, however, is still unknown.
The defendants moved for summary judgment, arguing that they had no duty to protect Peguero from an unforeseeable criminal act at an event the fraternity did not sponsor - a birthday party for a female friend - at a home not recognized as an "official chapter house."
U.S. District Judge Lisa Chrystal granted the motion on Jan. 17, 2013, finding "no evidence that TKE or its local officers knew or were expecting the assailants who shot plaintiff."
Peguero appealed, arguing that the fraternity knew that a violent incident may occur at the party, given the high consumption of alcohol and the lack of control on the enormous crowd.
But the state appeals court affirmed the lower court's ruling Thursday.
"There was no previous pattern of criminal conduct at the fraternity members' house that would have or should have alerted the individual defendants that an unknown third-party would pull out a gun and shoot at another guest in the backyard," Judge Jack Sabatino wrote for the three-judge panel. "The slim evidence plaintiff offers about having once seen a knife in a bedroom and witnessing sporadic arguments on the premises are not the sort of events that would likely escalate into gunfire at a party. The evidence does not come close to the sort of proof that would give rise to a duty to have prevented the gunfire here.
"No witness saw the shooter possessing a gun, drinking heavily, acting belligerently, or otherwise displaying a volatile or dangerous propensity until the argument in the backyard erupted," the judge added. "Nor could it be reasonably foreseen that plaintiff would attempt to intercede in the altercation. Although the house was crowded and evidently a copious amount of beer was flowing, there was no proven or reasonably foreseeable link between those factors and the sudden discharge of a handgun."
Peguero failed to show that the fraternity should have frisked guests, the ruling states.
"We are cognizant of the tragic consequences of hazing, excessive drinking, sexual assaults, and other harmful acts that have occurred at fraternity houses or at other fraternity events," Sabatino wrote. "We applaud efforts that are being made to prevent such tragedies. But the facts here do not even approach a proper basis for imposing civil damages liability upon these defendants."
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