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Connecticut Supreme Court to Consider Appeal in Death of Yale Student on I-95 Crash

Nearly a decade after the tragedy, the state Supreme Court may soon provide finality in the case of Nicholas Grass, who, along with three other Yale fraternity pledges, was killed on a cold day in 2003.

In the process, the court could deal a blow to hazing practices still common in many fraternities.

Grass, 19, a Yale student and member of the Delta Kappa Epsilon fraternity, was a passenger in an SUV traveling back from a fraternity event in Manhattan on Jan. 17, 2003. At about 5 a.m., the car hit an icy patch of Interstate 95 at the Fairfield-Bridgeport line and struck a tractor-trailer that had crashed and was immobile on the side of the highway.

Grass was killed, along with Sean Fenton of Newport Beach, Calif., who was driving the SUV; Andrew Dwyer, 19, of Hobe Sound, Fla.; and Kyle Burnat, 19, of Atlanta. In the years following, various lawsuits were filed — against the fraternity, the Connecticut Department of Transportation, and M. DeMatteo Construction of Massachusetts and Brunalli Construction Co. of Southington, which, it was alleged, caused an outage of overhead lights on the highway. All those cases were settled out of court, many for undisclosed sums of money.

Most recently, on Sept. 11, 2009, a trial court judge issued a summary judgment deciding against Grass' estate, on what attorney Joel Faxon said were technical grounds.  This case, of the many that have been filed, is the sole remaining lawsuit resulting from the tragedy.

Now the state Supreme Court is scheduled to hear the appeal. At issue is duty of care — whether or not the fraternity had a responsibility to make sure that Grass and his companions made it back from New York safely. Quinnipiac University law professor Neal Feigenson explained that the law recognizes two sorts of duty of care — first, if a person or organization acted in such a way as to create a foreseeable danger or, much harder to prove, that a person or organization failed to act to prevent danger.

In the second scenario, Feigenson said, a "special relationship must be established."  For example, a dependent has a special relationship with his or her caretaker or, as courts in other states have ruled, a university has a special relationship with a student, because that student entrusts his or her safety to the university.

But that's not the case here. Faxon contends that, far from failing to act, the fraternity created a situation that had foreseeable dangerous consequences, and four young men died as a result. In his Supreme Court filings, Faxon details "hell week," in which the driver of the SUV, Fenton, as well as Grass, had been participating when the crash occurred.

"The hazing practices conducted by Yale DKE included deliberate and sustained efforts to induce extreme fatigue," the filing says, going on to talk about the alleged role alcohol played in the initiation. "The Yale DKE brothers supplied alcohol to the pledges during Hell Week, notwithstanding the fact that the pledges were underage," it says. The event in Manhattan was, according to the lawsuit, the capping event to Hell Week, called the annual "hide-and-seek game."

"Clearly this was a hazing event," Faxon said in a recent interview. "Anything is hazing if it is a compulsory event that leads to an unsafe condition."

Fenton, according to the lawsuit, had slept only 25 to 30 hours over the course of the previous week. Though he was not drunk, the allegedly compulsory sleep deprivation caused an unsafe condition that Faxon contends it was the fraternity's responsibility to prevent. "Nobody's argued to the contrary," Faxon said.

Connecticut does have an anti-hazing statute on the books. It states, in part, that hazing consists of "any activity that would subject the person to extreme mental stress, such as sleep deprivation or extended isolation from social contact," and that "no student organization or member of a student organization shall engage in hazing any member or person pledged to be a member of the organization."

Violating that law could result in a fine of up to $1,500 and dissolution for at least a year. But the trial court judge ruled that Faxon, in his initial filing, hadn't specifically cited the statute and the order of summary judgment went forward.

"That is a very technical, ancient basis for throwing a case out, Faxon said, and he had filed a motion to resubmit the complaint, though that request was denied.

The state's high court, which is scheduled to hear the case at the start of 2012, has three options: It could agree with the lower court and let the summary judgment stand; it could agree with Faxon that the technicality on which the case was dismissed was improper, and that Grass' estate should have had the right to refile; or it could choose to hear both sides arguments in full and decide the case on its merits.

If the court were to side with the plaintiff, Faxon said it could have far-reaching implications for fraternities, serving first to "strengthen" existing anti-hazing statutes.

"It would say, 'not only are you and your fraternity subject to criminal prosecution, you and your fraternity can be sued if you participate,'" he said. "Maybe they'll think twice. Maybe that will save somebody's life."

Though he declined to comment on the court case, DKE National Executive Director Doug Oanther said the tragedy is still remembered in the fraternity. "It's a never-to-be forgotten crisis," Oanther said. "It tore everybody's heart out with sadness when it occurred."

Norwalk-based attorney Kevin Coles, who is representing both the national fraternity and the local chapter, did not return repeated requests for comment.