A brand-new fraternity hazing case filed against Cornell University (in fact, it was just filed on January 28), which was reported upon in yesterday's edition of the New York Law Journal, resulting from a student's death highlights one of the biggest challenges to proving liability in these cases:

What do you do when you don't really know what happened?

Indeed, in responding to questions from the NYLJ's reporter, the attorney for the student's parents conceded that they lacked critical information pertaining to exactly how this 18 year-old freshman ended up dying, "contending vigorously that each defendant party, from the university and its police department to Phi Kappa Psi, have refused to give Tsialas’ parents any meaningful information linked to their son’s death and the ensuing investigation after his body was discovered Oct. 26."

Here's why, from a pragmatic viewpoint, the lack of information is deeply problematic for all parties:

From the plaintiffs' perspective, they still bear the burden of proof to establish how each defendant that they've sued is responsible for the student's death. Without facts to back up their assertions, the Court will likely be obliged to dismiss claims against any defendant that has not been shown to bear liability for the occurrence.

From the defendants' perspective, on the other hand, their apparent refusal to provide the parents information for nearly three (3) months after their son turned up dead at their school paints them in an absolutely awful light, and certainly gives the impression that they are more concerned with circling their proverbial wagons to protect themselves than to be decent to these grieving parents, and allow them some badly needed closure. In fact, I would argue that the defendants' apparent stonewalling would enrage any rational parent in their shoes, and, I suggest, almost forced the hand of the parents to sue - even if they otherwise had been disinclined to do so.

What a Plaintiff Must Do When They Don't Know What Happened

From a review of the Law Journal article, it appears that plaintiffs' counsel is - correctly - intending to seek discovery from the defendants on an expedited basis (and likely seeking court intervention to help speed up the process) because, candidly, right now they really don't know who, if anyone, really bears liability for this incident. Simply put, the plaintiffs need to concede the possibility that none of the defendants - or only some of them - may bear any responsibility for this tragic death. And the only way to make that determination is by allowing plaintiffs access to the investigation materials. Of course, in a case like this, it would certainly behoove the plaintiffs to retain their own investigator, with the understanding that in all likelihood, that investigator will face an uphill climb in securing meaningful information, on account of the defendants' anticipated unwillingness to cooperate.

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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