What is hazing? A Legal Definition

by Jim Castagnera

Mr. Webster defines “haze” as “to harass by exacting unnecessary, disagreeable, or difficult work… [or] to play abusive or humiliating tricks on, by way of initiation.” Webster’s Seventh Collegiate Diction (Springfield: G&C Merriam Co, 1963) at 382. A more recent edition of the famed dictionary hones in on the subject of this section: “to initiate or discipline by forcing to do ridiculous or painful things.” Webster’s New World Dictionary and Thesaurus (N.Y.: Hungry Minds, Inc. 2d ed. 1999) at 292.
This definition is exemplified by the case of Brueckner v. Norwich University, 169 Vt. 118, 730 A.2d 1086 (Vt. 1999). In this case, Plaintiff attended Norwich for only sixteen days as a result of his subjection to, and observation of, numerous incidents of hazing. In those sixteen days, plaintiff withstood a regular barrage of obscene, offensive and harassing language. He was interrogated at meals and thereby prevented from eating. He was ordered to disrobe in front of a female student, although he did not follow the order. He was prevented from studying during some of the assigned study periods and, on several occasions, cadre members destroyed his academic work with water. Members of the cadre also forced him to squat in the hall as they squirted him with water. He was forced to participate in unauthorized calisthenic sessions, despite an injured shoulder. He was slammed into a wall by a cadre member riding a skateboard in the hall. After cadre members vandalized his room by dumping water in it, plaintiff was ordered to clean up the mess. On two occasions, plaintiff was prevented from attending mandatory ROTC study hall on time, leading him to believe his scholarship status was endangered. One morning, as plaintiff walked along the corridor in the dormitory, he encountered two cadre members, one of whom asked plaintiff where plaintiff's nametag was. When plaintiff responded that he had forgotten it, one cadre member hit plaintiff hard in the shoulder, which was injured and in a sling. After the other cadre member told the hitter to stop, the hitter struck plaintiff again in the same shoulder, causing pain and bruises. After reporting the hazing problems to Norwich officials, plaintiff left the campus, believing that his situation would not improve. He returned briefly once more, then withdrew from Norwich, his scholarship terminated. Norwich investigated plaintiff's complaints and, as a result, several cadets were disciplined.
Plaintiff brought his action against Norwich for assault and battery, negligent infliction of emotional distress, intentional infliction of emotional distress and negligent supervision. By means of special interrogatories, the jury found Norwich liable on all counts and awarded plaintiff $100,000 for emotional distress, $8,600 for medical expenses, $80,000 for the lost four-year college scholarship and $300,000 to cover lost earnings (past and future). The jury also awarded $1.75 million in punitive damages. The court denied Norwich's post-trial motions for judgment as a matter of law and for a new trial. Norwich appealed.
The Vermont Supreme Court’s Decision. The high court explained that under the settled doctrine of respondeat superior, an employer or master is held vicariously liable for the tortious acts of an employee or servant committed during, or incidental to, the scope of employment. Norwich conceded that cadre members acted as its agents in “indoctrinating and orienting” rooks such as plaintiff. Norwich claimed, however, that the tortious acts complained of were not committed within the cadre members' “scope of employment.” Whether a given act is committed within the scope of employment, the court observed (echoing settled American common law) is properly determined by the finder of fact after consideration of the attendant facts and circumstances of the particular case.
To be within the scope of employment, conduct must be of the same general nature as, or incidental to, the authorized conduct. Conduct of the servant falls within the scope of employment if: (a) it is of the kind the servant is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve the master; and (d) in a case in which the force is intentionally used by the servant against another, it is not to be expected by the master. Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time and space limits, or too little actuated by a purpose to serve the master.
In this instance, concluded the court, the cadre were authorized by Norwich to indoctrinate and orient rooks through activities performed at various times of the day and night. A jury could reasonably find members of the cadre were acting in furtherance of their general duties to indoctrinate and orient the rooks and thus within their “scope of employment” at the time of the hazing incidents of which plaintiff complains.
Norwich argued that, because it had adopted policies against hazing and had instructed the cadre to refrain from mistreating the rooks, the tortuous conduct was outside the scope of employment. Norwich contended that McHugh v. University of Vermont, 966 F.2d 67 (2d Cir.1992), supported this result. In McHugh, the Second Circuit Court of Appeals, applying Vermont law, concluded that an employee who sexually and religiously harassed a fellow employee was not acting within the scope of employment. There, a major in the United States Army and an employee at the University of Vermont's Department of Military Studies told plaintiff, a female secretary, that his definition of a “secretary” was a “paid whore.” The employee repeatedly joked about plaintiff contracting AIDS, stating that he hoped she would be able to avoid infection. The employee also told plaintiff that it was “a good day to watch Catholic babies burn.” The court rejected the argument that the employee's conduct was within his scope of employment because it was within that scope for him to talk with the plaintiff, either to give instructions or to avoid the awkwardness of silence at work. It held: “It can hardly be contended that [the employee's] alleged conduct furthered the business” of his employer.
Rejecting this analogy, the judges wrote, “The same cannot be said of this case, where the actions involved in hazing rooks may fairly be seen as qualitatively similar to the indoctrination and orientation with which the cadre members were charged. Indeed, Norwich described some of the acts of which plaintiff complained, such as forced calisthenics and questioning at mealtime, as not far removed from the official system of military discipline and training which recruits are expected to endure. The evidence supported the jury's conclusion that the cadre members were acting within the scope of employment.”
Although the existence of policies prohibiting hazing did not save Norwich University from liability in this case, no college or university can in the absence of published policies. (Of course, such policies are empty words unless properly promulgated and consistently enforced.)