(Appeal from Lee Circuit Court, CV-96-130; Court of Civil Appeals). [730 So2d Page 204]
The opinion of the court was delivered by: See, Justice.
PETITIONS FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS
Jason Jones sued Kappa Alpha Order, Inc. (the "national organization"); Kappa Alpha Order, Inc. — Nu Chapter at Auburn University (the "local chapter," or "KA"); and several individual members of KA, alleging, among other things, negligent and wanton hazing in violation of Ala. Code 1975, § 16-1-23, and assault and battery. The trial court granted the defendants' motions for summary judgment on all claims except the assault-and-battery claims against two of the individual members of KA. The trial court made its summary judgment final pursuant to Rule 54(b), Ala. R. Civ. P. Jones Appealed the summary judgment only as it related to his negligence claims. The Court of Civil Appeals affirmed the trial court's summary judgment as to the national organization, but reversed it as to KA and its individual members. The Court of Civil Appeals held that a violation of the criminal-hazing statute constituted negligence per se and common law negligence, and that a jury question existed as to whether Jones voluntarily assumed the risks of hazing. See Jones v. Kappa Alpha Order, Inc., [Ms. 2960663, December 5, 1997] 730 So.2d 197 (Ala. Civ. App. 1997). We granted KA's and the other defendants' petitions for certiorari review. Because we hold that Jones assumed the risks of hazing, we reverse and remand.
Viewed in the light most favorable to Jason Jones, the nonmovant, the evidence indicates that he enrolled at Auburn University in 1993; that in September 1993, Jones chose to become, and became, a pledge of the KA fraternity; that within two days Jones began to experience hazing by the fraternity members; and that the hazing activities continued over the next academic year, and included: (1) having to dig a ditch and jump into it [730 So2d Page 205]
after it had been filled with water, urine, feces, dinner leftovers, and vomit; (2) receiving paddlings to his buttocks; (3) being pushed and kicked, often into walls, pits, and trash cans; (4) eating such foods as peppers, hot sauce, butter, and "yerks" (a mixture of hot sauce, mayonnaise, butter, beans, and other items); (5) doing chores for the fraternity and its members, such as cleaning the fraternity house and yard, serving as designated driver, and running errands; (6) appearing regularly at 2 a.m. "meetings" during which the pledges would be hazed for a couple of hours; and (7) "running the gauntlet," during which the pledges were pushed, kicked, and hit as they ran down a hallway and down a flight of stairs. The evidence further indicates that, despite all of these hazing incidents, and although he was aware that 20% to 40% of the members of his pledge class had elected to withdraw from the pledge program, Jones continued to participate in the hazing, in the hope of becoming a full member of KA; and that Jones continued as a KA pledge and continued to participate in the hazing until Auburn University suspended him from school for poor academic performance.
In October 1995, Jones sued the national and local KA organizations, and several individual members of KA, alleging negligence and/or wantonness, in violation of Ala. Code 1975, § 16-1-23, assault and battery, negligent supervision, conspiracy, and the tort of outrage. Jones alleged that he had suffered "mental and physical injuries" as a result of the hazing engaged in by KA and its members. *fn1 The trial court granted a motion for summary judgment in favor of each defendant on each claim except for the assault-and-battery claims against Brad Sauls and Jason Hard, KA members. The trial court held that Jones assumed the risk of hazing because he voluntarily entered the pledge class, voluntarily participated in the hazing activities, and could have withdrawn at any time. The trial court made the summary judgment final pursuant to Rule 54(b), Ala. R. Civ. P. *fn1
The Court of Civil Appeals affirmed the summary judgment as to the national organization, but reversed it as to Jones's negligence claims against the local chapter and the individual members of the Auburn fraternity. Jones v. Kappa Alpha Order, Inc., supra. The Court of Civil Appeals stated that no Alabama case had recognized the tort of hazing, but then recognized that tort, based on the doctrine of negligence per se and Ala. Code 1975, § 16-1-23, which makes hazing a criminal misdemeanor, and based on a new interpretation of common-law negligence principles. The Court of Civil Appeals then held that the traditional defense of assumption of the risk did not support a summary judgment because the peer pressure associated with fraternity life placed Jones in a coercive environment and thus prevented him from voluntarily withdrawing from the pledge class.
A summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P.; Vines v. Beloit Corp., 631 So.2d 1003, 1004 (Ala. 1994). A defendant relying on the affirmative defense of assumption of the risk bears the burden of presenting substantial evidence indicating that the plaintiff assumed the risk that gave rise to his injury. Superskate, Inc. v. Nolen, 641 So.2d 231, 237 (Ala. 1994).
KA and its members assert that Jones assumed the risks of the hazing process because, they argue, he consciously and voluntarily participated in the hazing activities. Jones argues that he did not assume the [730 So2d Page 206]
risks, arguing that his participation was "not necessarily voluntary."
Alabama has long recognized the affirmative defense of assumption of the risk. See, e.g., Edwards v. Southern Ry., 233 Ala. 65, 66, 169 So. 715, 715 (1936); Dunklin v. Hanna, 229 Ala. 242, 243, 156 So. 768, 769 (1934); Louisville & N.R.R. v. Parker, 223 Ala. 626, 635, 138 So. 231, 238 (1931). The general principle of assumption of the risk is that "[a] plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm." Restatement (Second) of Torts § 496A (1965). As Prosser and Keeton explain:
"[Assumption of the risk occurs] where the plaintiff voluntarily enters into some relation with the defendant, with knowledge that the defendant will not protect him against one or more future risks that may arise from the relation. He may then be regarded as tacitly or impliedly consenting to the negligence, and agreeing to take his own chances. Thus, he may accept employment, knowing that he is expected to work with a dangerous horse; or ride in a car with knowledge that the brakes are defective, or ...