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Dayton Daily News (Ohio)
Max Engelhart, a 6-foot-1, 270-pound offensive lineman at UD, went to a party and woke up the next day at a house on Chambers Street with what was diagnosed as a concussion.
Max Engelhart alleges he was forced to chug alcoholic drinks as part of an initiation to the University of Dayton football team. He says he woke up on Chambers Street. Defendants in his suit include two coaches and others.
University of Dayton Department of Public Safety incident logs for a December 2014 incident show "hazing" hand-written on the right side. Former UD football player Max Engelhart alleges that hazing led to his serious head injury. School lawyers argue the incident does not fit the legal definition of hazing.
State Sen. Cecil Thomas says, "I did not know that the hazing law ended at the point of that first entry into (a group)."
State Sen. Kevin Bacon says, "With respect to that part of the code, I think it very well may need to be broadened."
As University of Dayton attorneys try to get a hazing lawsuit thrown out because they say the alleged activity doesn't match the law, two legislators say Ohio's anti-hazing statute should be reviewed and updated.
UD lawyers want a judge to dismiss the lawsuit brought Max Engelhart, a freshman football player in 2014 who claims that hazing led to his traumatic brain injury.
In Montgomery County Common Pleas Court filings, UD's lawyers have said that even if true, Engelhart's allegations - being forced to drink to excess during a "Mad Dogs" party that football staffers knew about - were not illegal. UD argues Ohio's law only addresses activities that are related to an "initiation into" a group.
"What is described is not hazing as a matter of law, no matter how many times plaintiff uses the word," UD attorneys wrote, calling the December 2014 alleged party after Engelhart's freshman season a "social gathering" and denying his allegations.
Law 'does not go far enough'
Senate judiciary chairman Kevin Bacon, R-Minerva Park, andcommitteememberCecil Thomas, D-Cincinnati, both said they were surprised by the law's wording and suggested a review.
"I did not know that the hazing law ended at the point of that first entry into (a group)," Thomas said. "Obviously, the law does not go far enough."
The first paragraph of Ohio Revised Code 2903.31 - enacted March 3, 1983, and never amended - states: "As used in this section, 'hazing' means doing any act or coercing another, including the victim, to do any act of initiation into any student or other organization that causes or creates a substantial risk of causing mental or physical harm to any person."
The "initiation into" phrase is used by attorneys defending both the University of Dayton and the University of Toledo in a separate suits.
"That part seems to be too narrow if it could be interpreted that you're limiting it only to an active initiation," Bacon said. "With respect to that part of the code, I think it very well may need to be broadened."
Party a 'social gathering'
Engelhart claimed he was forced to chug high-alcohol drinks as part of a "Mad Dogs" or "Mad Caps" initiation to the UD football team. Defendants include UD football coach Rick Chamberlin, strength coach Jared Phillips and others.
Engelhart, then a 6-foot-1, 270-pound offensive lineman, woke up Dec. 8, 2014, covered in his own vomit, feces and urine and with a headache later diagnosed by UD's team physician as a concussion. Engelhart claims he had to quit football, leave the university and has been prescribed a medicine typically given to Alzheimer's and dementia patients.
"We are concerned with UD's position on hazing," said Scott Jones, one of Engel-hart's attorneys. "UD's own public safety records state that, at Mad Dogs 2014, upperclassmen football players forced freshmen players to drink large quantities of alcohol, shaved freshmen players' heads, and spray painted pictures of genitalia on the freshmen players.
"Some of the freshmen players who were forced to participate specifically described the activities as 'hazing' to UD Public Safety. Yet, in papers filed with the court, UD has chosen to describe the event as a 'social gathering.'
"More troubling, however, is UD's position that once a student athlete accepts an offer to be on a university team, Ohio's anti-hazing statute offers that student athlete no protection."
In his amended complaint, Engelhart claimed hazing, negligence, intentional and negligent infliction of emotional distress and civil conspiracy to cover up allegations of hazing.
UD tweaked policy in early 2014
Visiting Judge Peter Handwork, formerly of the Sixth District Court of Appeals, set a hearing on the defense's motion to dismiss for July
21. Handwork was assigned to the case after both Judge Dennis Langer and Judge Steven Dankof asked to be disqualified due to possible conflicts of interest.
UD officials said that the school's student development professionals adjusted the guidelines in early 2014 "so the policy is clear and unambiguous to our students; it also reflects sound higher education practices regarding hazing prevention, education and response."
UD's hazing policy addresses "any planned/ executed action or activity, by or against an active member, associate member, pledge or potential member or new member of an organization or group."
UD's policy says any activity that causes "physical or mental harm, distress, anxiety, or which may demean, degrade, embarrass or disgrace any person, regardless of location, consent or intention is prohibited."
The policy cites examples of hazing such as forced consumption of food, alcohol or drugs and other physical activity
"Students may not imply that a person would be shunned, removed, or not initiated for failing to participate in any form of hazing," the policy also states. "Any action or situation that intentionally or unintentionally endangers a student, who is attempting admission into or affiliating with any student organization, is prohibited."
UD policy about 'prevention'
When asked about the differences between Ohio's anti-hazing law - a fourth-degree misdemeanor punishable by up to 30 days in jail and a $250 fine - and UD's bylaws, university officials said best practices at higher education institutions often go beyond what the law requires.
"The University of Dayton's policies and student code of conduct are detailed and specific because our efforts are geared toward prevention," university officials said in a statement. "It's important to identify and quickly address behavior that might start small, but if unchecked could grow into something far more serious."
Bacon said it's important to have a strong anti-hazing law that protects more than just students entering an organization.
"I don't know that anyone ever intended to say we're only going to count this as initiation, but it's OK your second year in a fraternity and we haze you then, then we can't use the statute," Bacon said. "I certainly think it would stand to reason that you could use the hazing statute at any stage, regardless of how long they were in the fraternity or otherwise, the football team, whatever it may be."
Law may be 'behind the times'
Bacon said Ohio's penalty for hazing — a fourth-degree misdemeanor with maximums of 30 days in jail and a $250 fine - could be reviewed.
"It may be worth looking into having different tiers (of penalties)," he said.
Ohio law also has a hazing civil liability statute that, like the criminal law, says administrators who knew about or tolerated the hazing could be held accountable. But the civil liability law uses the definition of hazing from the criminal statute, limiting it to "initiation into" a group.
Many hazing policies in Ohio are much more expansive and specific than Ohio's law.
"If the colleges are already way ahead of the law itself, that basically says that the law is behind the times and maybe we need to update the law if it hasn't been updated since 1983," Thomas said.
UD officials emailed this news organization portions of hazing policies from Miami University, Ohio State University, Wright State University and Xavier University.
University hazing policy language
Miami University's policy prohibits coercing activity not just as an initiation into, but also "as a condition of participation in" an organization.
Ohio State's policy prohibits "doing, requiring or encouraging any act, whether or not the act is voluntarily agreed upon, in conjunction with initiation or continued membership or participation in any group, that causes or creates a substantial risk of causing mental or physical harm or humiliation."
Similarly, Xavier's policy prohibits intentional, reckless or coercive acts "for initiation into, admission to, affiliation with, or continued membership in any group or organization, and which causes or creates a substantial risk of causing mental or physical harm, harassment, discomfort, embarrassment, or ridicule to any person."
Wright State's policy states, "Group loyalty and unity is built on trust and mutual respect. Hazing is an abuse of power and relationships, and puts individuals at risk."
Death at Penn State
At Penn State University, 18 members of the now-disbanded Beta Theta Pi fraternity were charged last month with crimes up to involuntary manslaughter related to the death of 19-year-old Timothy Piazza.
Piazza was a sophomore who investigators said repeatedly fell down a flight of stairs Feb. 2 after pledges were made to run a gantlet of drinking stations guzzling vodka, beer and wine.
His blood-alcohol level was .40 - five times the legal limit. Piazza suffered a traumatic brain injury and died Feb. 4.
Security camera video was shown to grand jury members that allegedly showed one fraternity brother slam another into a wall when the first member suggested Piazza needed medical attention.
Investigators said fraternity members tried to cover up what happened and, only several hours later, that they tried to revive him for 40 minutes before calling 911.
Pennsylvania's anti-hazing law includes activity "for the purpose of initiation or admission into or affiliation with, or as a condition for continued membership in any organization operating under the sanction of or recognized as an organization by an institution of higher education."
Like Thomas, Bacon said he hadn't studied the hazing statute before but that he plans to gather more information, consult colleagues and vet the subject: "I think that, with these two incidents hitting the newspaper and, candidly, (the Dayton Daily News) bringing this to my attention, I think this is something that we should look at."
UD attorneys cite a rejected Court of Claims case about which UD attorneys wrote that University of Toledo freshman football Kyle Cameron severely injured his head while trying to dunk a football over the goal post during the offensive line's "Freshman Olympics" during summer practices before the season.
UD lawyers wrote that the court rejected the Toledo player's hazing claim on grounds that the plaintiff "was already a member of the team."
Cameron's attorney, Guy Barone, told this news organization that the Court of Claims case was argued in front of the Tenth District Court of Appeals and a decision is possible in the next couple months.
Baron said attorneys from the office of Ohio Attorney General Mike DeWine zeroed in on the fact Cameron had signed his letter of intent to play football at the school.
"If that was so, you could never have hazing in the military, you couldn't have it in any athletics programs and so forth," Barone said. "I think that's ridiculous. If it's not hazing, then it's my position is that it's negligence."
Contact this reporter at 937-225-6951 or email Mark.
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