Ex-swimmer for U.Va. can sue for ‘hazing’

A collegiate swimmer at the University of Virginia may sue former teammates for their purported hazing at an off-campus “Swim House,” a Charlottesville federal judge has ruled.

The complaint filed by Anthony Marcantonio alleged threats, verbal abuse, intimidation and unwanted touching. He claimed the defendant swimmers’ subsequent efforts at cover-up and retaliation prompted him to leave the team and the school.

During the initial hazing event, upperclass swimmers put buckets on the heads of the first-year swimmers and forced them to grab each other’s genitals in an “Elephant Walk,” according to the plaintiff’s complaint. They later put the newbies into a dark and heated bathroom and ordered them to drink quantities of alcohol and other beverages, and to eat live goldfish, the complaint alleged.

Marcantonio claimed that after he responded to university officials’ inquiries about the hazing, the swim team coach instructed him to practice apart from his teammates because the coach “could not guarantee” the plaintiff’s safety.

U.S. District Judge Norman K. Moon faulted Marcantonio for failing to identify which of the five defendants engaged in which of the alleged tortious acts.

One student, defendant Luke Papendick, faced only a claim for conspiracy and punitive damages, as there were only two substantive allegations leveled against him: He purportedly informed the first-year swimmers about the scheduled “Welcome Week” and was a co-creator of the “Mr. Mean” persona that emailed crude threats to the first-years.

Moon dismissed all other counts against Papendick in his Dec. 17 opinion in Marcantonio v. Dudzinski, as the complaint lacked a specific allegation that he was actually present at the Swim House on the night in question or participated in any cover-up or retaliation.

Moon determined the complaint stated claims for assault against defendants Charles Rommel, David Ingraham, Jacob Pearce and Kyle Dudzinski. Marcantonio alleged Rommel frequently screamed, yelled and slammed doors at plaintiff and others, and he shattered a glass bottle on the ground, causing shards to fly into another person’s eye.

The complaint alleged Ingraham and Dudzinski made sudden and threatening movements towards plaintiffs and defendant Jacob Pearce repeatedly slammed shut a door near plaintiff. Marcantonio supplemented these allegations with claims that the defendants threw buckets of water at him, poured liquid on him and threatened sodomy in a “menacing way.”

Marcantonio’s battery claim alleged the defendants put a garbage can on his head, led him around while blindfolded, forced him to ingest milk and prune juice and poured liquids on his head while blindfolded.

The defendants argued that Marcantonio consented to the initiation activities, but Moon said the scope of any consent was an issue in the case. And the plaintiff’s allegation that he was shut in the bathroom and could not freely leave stated a claim for false imprisonment, the court said.

Virginia’s anti-hazing law, Va. Code § 18.2-56, requires “bodily injury,” and Moon agreed with the defendants that emotional trauma, humiliation and disorientation did not constitute bodily injury. But the allegation of being forced to drink milk and prune juice until he vomited could constitute a bodily injury, the judge said.

The court dismissed the plaintiff’s claim for statutory conspiracy, but his common law conspiracy claim survived, as did the claim for punitive damages.

The “events inside the Swim House were not ‘spontaneous, parallel action’ caused by partygoers who ‘got out of hand,’” as one defendant claimed, the judge said.

“Rather, it took significant time, effort and planning for Defendants to, among other things, procure buckets to place on the first-years’ heads; obtain large containers of alcohol and other liquids to be consumed; duct-tape shut or block all exits or drains of the bathroom in which Defendants would falsely imprison Plaintiff; draft detailed and embarrassing questionnaires; compile a scavenger hunt list; and purchase goldfish ignominiously condemned to death-by-mastication,” Moon enumerated.

Moon dismissed Marcantonio’s claims for tortious interference with contractual relations and intentional infliction of emotional distress. Moon denied the plaintiff’s request to amend his complaint, but left the door open to a formal motion to amend, accompanied by an amended complaint.