Martinez v. Wash. State Univ.

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON JULY 30, 2026 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON SARAH R. PENDLETON JULY 30, 2026 SUPREME COURT CLERK IN THE SUPREME COURT OF THE STATE OF WASHINGTON HECTOR MARTINEZ and JOLAYNE ) HOUTZ, husband and wife, individually and ) No. 104108-0 as Co-Personal Representatives of the ) ESTATE OF SAMUEL H. MARTINEZ, ) En Banc ) Respondents, ) Filed: July 30, 2026 ) v. ) ) WASHINGTON STATE UNIVERSITY, ) a subdivision of the State of Washington, ) ) Petitioner, ) ) ALPHA TAU OMEGA FRATERNITY, ) INC., an Indiana Corporation; GAMMA CHI ) CHAPTER OF ALPHA TAU OMEGA ) FRATERNITY, an association; RICHMOND ) PROPERTY GROUP, LTD., an Indiana ) Corporation; LUKE HAWKSFORD, an ) individual; ANDREW MISCHKE, an ) individual; WESLEY OSWALD, an ) individual; COLE SOREANO, an individual; ) JORDAN JAMESON, an individual; and ) JOHN DOES 1-10, individuals, ) ) Other Parties. ) ) Martinez & Houtz v. Wash. State Univ., No. 104108-0 MUNGIA, J.—On November 12, 2019, Sam Martinez, age 19, a Washington State University (WSU) freshman, died. He died from acute alcohol intoxication during a fraternity event involving hazing. The issue raised in this appeal is whether WSU had a special relationship with Gamma Chi, establishing a duty to protect Sam Martinez from foreseeable harm caused by the fraternity. This necessarily involves the question of whether WSU had a duty to take reasonable steps to ensure that fraternities in general, and Gamma Chi in particular, adhered to rules that WSU imposed on fraternities to prevent this type of accident from happening. The trial court ruled that WSU did not owe any duty to Sam. The Court of Appeals reversed, holding that WSU did owe Sam a duty of care because of its special relationship with Gamma Chi. We agree with the Court of Appeals. I FRATERNITIES BENEFIT WHEN THE UNIVERSITY RECOGNIZES THEM. IN RETURN FOR THOSE BENEFITS, THE UNIVERSITY ENTERS INTO AGREEMENTS WITH FRATERNITIES REQUIRING THEM TO ENGAGE IN, OR REFRAIN FROM, CERTAIN CONDUCT The “Greek system” 1 and WSU could have stayed completely separate. Greek houses are not on university property at WSU. Greek chapters, such as Gamma Chi here, are chartered by their national parent organizations and must abide by national rules. If fraternities remained separate from the university, WSU would not have control over fraternities and instead student activities at fraternity houses and fraternity functions would be free of university control. 1 The “Greek system” is a term for the fraternity and sorority clubs and houses of a college. 2 Martinez & Houtz v. Wash. State Univ., No. 104108-0 But that is not the case. WSU and the Greek system have concluded that they both benefit by entering into a relationship. A fraternity, when it enters into an agreement with the university, receives the benefit of university recognition. University recognition brings a host of benefits to the fraternity. One benefit is that the fraternity is allowed to use the WSU name and trademark in its marketing materials. Another major benefit to the fraternity is that the university supplies them with a list of the names of incoming freshmen and their contact information. In addition to those two benefits, fraternities receive • Access to philanthropy funds, • University advisement services, • Inclusion in WSU marketing materials, • The ability to have Greek council participation in university-sponsored events, and • Administrative support. In addition to providing fraternities with institutional support, the university, through the Center for Fraternities and Sororities Life (CFSL), actively promotes Greek life to new and prospective students and their families. The university promotes the benefits of Greek life at orientations and shares the names of its recognized fraternities. The university provides fraternities with contact information of interested prospective students to assist fraternities with their recruitment efforts. WSU provides maps of “Greek Row” housing to students as part of its Greek life marketing. 3 Martinez & Houtz v. Wash. State Univ., No. 104108-0 Another benefit to fraternities is also a benefit to the university: housing first-year students. First-year students are generally required to live on campus. However, the university does not have enough housing to meet the needs of first-year students. To help meet that need, a fraternity can also house first-year students if it agrees to adhere to the university’s terms. University requirements include the fraternity entering into a “University Approved Housing Standards Agreement” (Approved Housing Agreement). The Approved Housing Agreement requires the fraternity to employ a live-in advisor or house director. The fraternity house must be an alcohol and drug free location. WSU continually reviews the fraternity’s Approved Housing Agreement status to ensure that the fraternity is complying with university rules. WSU investigates all reported Approved Housing Agreement violations and determines the appropriate sanction for any violation. In contrast to the other agreements between WSU and recognized fraternities, the Approved Housing Agreement does not apply to a fraternity’s “live-out” house, where fraternity members may live but is not the university-approved chapter house. In exchange for these benefits, the fraternities relinquish some of their autonomy and agree to university requirements and oversight. These requirements include having a risk management policy, an emergency/crisis protocol, and following WSU’s numerous policies. In addition, fraternities are expected to work with an assigned professional from the CFSL, provide the CFSL with administrative information, and communicate with the CFSL at least monthly. The CFSL also has “the ability to consider additional support to all recognized fraternities and sororities.” Clerk’s Papers (CP) at 160 (boldface omitted). 4 Martinez & Houtz v. Wash. State Univ., No. 104108-0 Pertinent to this appeal, the university imposes rules on fraternities regarding alcohol use for activities on nonuniversity property. The university imposes additional restrictions on fraternities beyond what is required by law. These restrictions and requirements include the following: • All fraternities and sororities which house freshmen must be alcohol- free. .... • Alcohol consumption is prohibited entirely during ANY social event on chapter property. All social events on chapter property must be alcohol free. • Alcohol consumption on chapter property, if permitted at all, . . . is restricted to the private rooms of students 21 years of age and older. • All off-property social functions where alcohol is present requires a third-party vendor to serve alcohol, provide security, and verify legal age. CP at 174. In addition to the above restrictions, WSU prohibits fraternities, in no uncertain terms, from allowing minors to consume alcohol at any of their functions, regardless of where that function takes place: It is a violation of this Agreement for minors to consume alcohol on Chapter property or at Chapter functions, regardless of the function’s location. CP at 160. WSU also prohibits fraternities from engaging in hazing: No . . . student organization at Washington State University may conspire to engage in hazing or participate in hazing of another. .... 5 Martinez & Houtz v. Wash. State Univ., No. 104108-0 Hazing activities may include . . . [a]buse of alcohol during new member activities. CP at 167. The no-hazing prohibition is not limited to certain locations but instead applies regardless of location. Id. WSU actively works with fraternities to ensure they comply with the alcohol and hazing prohibitions and holds them accountable for violations. The “Relationship Agreement for Residential Fraternities & Sororities” (Relationship Agreement), which fraternities must enter into for university recognition, emphasizes that WSU holds both the organizations and their members accountable for abiding by the university’s rules of conduct: Washington State University has always emphasized the importance of individual responsibility and accountability in the lives of its students. Additionally, the rights and duties of recognized student organizations also carry with them an obligation on the part of their members, collectively, to uphold the Washington State University Standards of Conduct for Students. This statement of group accountability acknowledges that unacceptable behaviors by individuals functioning as members or officers of a student organization may have consequences for those individuals as well as for the organization. Also, the privilege of being an officer of a student organization carries with it particular responsibility for the reasonable anticipation and prevention of foreseeable violations of University policies, resulting from either deliberate or negligent behavior of the organization’s members or guests. In general, a recognized student organization may be held accountable for the behavior of its members and guests on its premises, at events sponsored (or co-sponsored) by the organization, or when a group including significant numbers of members or guests violates University policies. Organizations that violate University policies and Standards of Conduct are subject to sanctions. CP at 166. 6 Martinez & Houtz v. Wash. State Univ., No. 104108-0 Indeed, WSU put the fraternities on notice that the university would sanction them for violating the rules that applied to them as a recognized organization: Recognized or registered student organizations that violate university policies and the standards of conduct are subject to sanctions. A recognized or registered student organization may be held accountable for the behavior of its officers, members, or guests when the university demonstrates that: • (a) The organization or its officers should have foreseen that behavior constituting a violation was likely to occur, yet failed to take reasonable precautions against such behavior . . . . Id. If a fraternity violates any of the university rules, then the university has the authority to impose an array of sanctions, including (1) issuing written warnings, (2) issuing reprimands, (3) requiring educational programming, (4) placing the fraternity on probation, or (5) temporarily suspending the fraternity’s university recognition. In addition, the university has the authority to impose more severe sanctions, including (1) levying monetary fines, (2) withdrawing freshman housing privileges, and (3) permanently withdrawing WSU recognition. After Sam’s death, WSU did exercise its control over Gamma Chi. On November 15, 2019, the university issued a “Notice of Interim Loss of Recognition” to Gamma Chi. On May 18, 2020, WSU executed a “Signed Conduct Resolution Agreement” that ended its recognition of Gamma Chi and Alpha Tau Omega (ATO National), the national fraternity Gamma Chi belonged to, through May 15, 2026. 7 Martinez & Houtz v. Wash. State Univ., No. 104108-0 II WSU WAS AWARE FOR YEARS BEFORE SAM’S DEATH THAT FRATERNITIES PUT THEIR MEMBERS AND POTENTIAL MEMBERS AT RISK BY ALLOWING THEM TO DRINK ALCOHOL AND BY ENGAGING IN HAZING WSU has known for years that fraternities in general, and Gamma Chi in particular, have engaged in alcohol misuse and hazing that have put their members and potential members at risk. A. WSU Has Recognized that Fraternity Members Are at High Risk of Harm Because of Fraternity Practices Regarding Alcohol Misuse and Hazing In 2012, WSU convened a “Presidential Task Force on Alcohol Education and Prevention” “in the wake of several recent incidents involving alcohol-related harm to WSU students, and in acknowledgement that student alcohol/other drug use and misuse is a critical issue facing colleges and universities nationally, including WSU.” CP at 1152. Task force members were appointed based on their knowledge, leadership in the WSU community, and “ability to control and direct resources toward targeting alcohol and drug related concerns.” CP at 1153. Members included several fraternity advisors and directors among WSU’s administration. The task force’s findings included the following: [F]reshmen are our most vulnerable population with regard to experiencing alcohol related harm. . . . . . . [S]tudents in the Greek community, including freshman, are at significantly higher risk for binge drinking and other alcohol/other drug related harm. . . . According to data provided by the Center for Fraternity and Sorority Life, 18 out of 18 Greek chapters had received some type of sanction for an alcohol violation over the past year. PRH [Pullman Regional Hospital] data from the past year indicate that about 1/3 of students presenting to the PRH ED [emergency department] last year for alcohol related incidents were Greek affiliated; this number is 8 Martinez & Houtz v. Wash. State Univ., No. 104108-0 disproportionately high relative to the percentage of Greek affiliated students within the overall WSU Pullman student population. . . . These types of problems are particularly associated with Greek men . . . . [M]any . . . serious alcohol related incidents recently, including several serious and high profile falls and a near-fatal recent alcohol poisoning, have been associated with Greek affiliated students. CP at 1161. In addition, in 2013 the CFSL highlighted the need for increased enforcement efforts to address underage alcohol use on Greek Row and the College Hill area, where chapter houses and live-out houses are located. The CFSL recommended that WSU engage in more robust accountability and education efforts with fraternity chapters to avoid alcohol misuse. Overall, WSU has recognized Greek life as a “high risk group and culture” for underage students and has continuously worked to address alcohol and hazing issues. CP at 1140. B. Gamma Chi Has a History of Alcohol Misuse and Hazing WSU was aware of ongoing alcohol-, drug-, and hazing-related problems associated with Gamma Chi. For instance, in 2013, WSU’s University Conduct Board sanctioned Gamma Chi with loss of chapter recognition until at least spring 2014 for a hazing incident involving alcohol. However, the University Conduct Board allowed Gamma Chi to petition to regain recognition in December 2013 and be put on a two-year probation. WSU’s president ultimately modified the sanction to probation through the end of the year, provided that Gamma Chi complied with certain “remedial and instructive measures.” CP at 1417. Gamma Chi was required to meet with a CFSL staff member twice a 9 Martinez & Houtz v. Wash. State Univ., No. 104108-0 semester, complete additional educational programming from the CFSL, and provide the CFSL with monthly written reports summarizing new member activities and certifying they were alcohol free. WSU continued to address alcohol and hazing-related concerns with Gamma Chi in the following years. In 2017, a parent reported her first-year son was “ʻforced . . . to drink large quantities of alcoholʼ” and forced to “ʻwithstand various forms of aggressive hazingʼ” as part of Gamma Chi’s new member initiation. CP at 824. Like the CFSL had done with Gamma Chi before, it collaborated with ATO National to address the concerns, and ATO National took steps to assist WSU and the Gamma Chi chapter in the process. That same year, WSU’s interim assistant vice-president for student affairs and dean of students also notified the CFSL about the need to proactively communicate with ATO National about concerns over Gamma Chi’s rising alcohol-related incidents. WSU administration met with Gamma Chi students and alumni to discuss WSU’s concerns. C. Gamma Chi Had a History of Alcohol Misuse at Its Live-Out House Gamma Chi’s fraternity chapter house is not located on university property. Gamma Chi does not own the house or the real property on which the house sits. Instead, Gamma Chi rents the house from Richmond Property Group Ltd., a nonprofit corporation that is a wholly owned subsidiary of ATO National. The fraternity chapter house is subject to WSU’s Approved Housing Agreement. Gamma Chi’s chapter house is located off campus on Greek Row with WSU’s other fraternity and sorority chapter houses. Across the street from Gamma Chi’s chapter 10 Martinez & Houtz v. Wash. State Univ., No. 104108-0 house was its live-out, “Delta Chi ” or “D Chi.” CP at 1335, 1337. Gamma Chi shared the Delta Chi live-out with the Sigma Nu fraternity. WSU knew that all fraternities had live-outs in addition to their university- approved chapter houses. The chapter housing was not big enough to house the full membership of the fraternities. Although live-outs were not subject to Approved Housing Agreements, WSU recognized them as part of its jurisdiction in dealing with the safety and well-being of its students. Indeed, a majority of the CFSL’s Greek life investigations were for behavior that occurred at locations other than chapter houses. WSU addressed multiple allegations of alcohol consumption and hazing related to the Delta Chi live-out. In 2018, WSU investigated two separate incidents of student intoxication on campus. In each unrelated incident, the students admitted they were drinking at the Delta Chi live-out beforehand. In 2019, WSU received several other incident reports relating to alcohol use at Gamma Chi and Sigma Nu’s shared live-out. WSU’s response to a Sigma Nu hazing incident at Delta Chi shows how it exercised its control to address alcohol and hazing-related harms at the live-outs. WSU learned from a parent that Sigma Nu was hazing pledges with alcohol at Delta Chi. In response, WSU sanctioned Sigma Nu with an interim loss of Sigma Nu’s recognition. The loss of recognition meant that WSU withheld Sigma Nu’s university services, privileges, administrative approval, university affiliation, access to the CFSL, and Approved Housing Agreement status. WSU later amended Sigma Nu’s sanction to a 11 Martinez & Houtz v. Wash. State Univ., No. 104108-0 yearlong probation on holding “new member activities” and on hosting or attending “any social events involving alcohol.” CP at 1756-57. As a condition of reinstatement following the hazing incident, Sigma Nu entered into a “Conduct Resolution Agreementˮ with WSU’s Center for Community Standards board. One condition was that any member who wished to remain involved in the chapter had to meet individually with the national fraternity’s staff and alumni board and sign a new affirmation agreement. In addition, all members were required to participate in a risk reduction program, alcohol misuse prevention program, and hazing prevention program. The chapter also had to create risk management and future candidate development plans. WSU required Sigma Nu to periodically meet throughout the probationary period to review Sigma Nu’s progress. WSU’s response to Sigma Nu’s hazing incident is one example of how WSU controlled fraternity conduct, including misconduct at the live-outs. Around this same period, Gamma Chi’s student president contacted WSU to express his concerns about first-year students continuing to attend parties at the live-out. The CFSL encouraged implementing restrictions to keep first-year students out of the live-out. However, chapter-related parties continued to be held at the live-out, where first-year and underage students consumed alcohol. Students would usually return to the Gamma Chi chapter house after the live-out parties and continue drinking. WSU did no more to address the known concerns at that point. 12 Martinez & Houtz v. Wash. State Univ., No. 104108-0 III SAM MARTINEZ CHOOSES TO ATTEND WSU In spring of 2019, Sam Martinez and his parents visited WSU for prospective student orientation weekend. At the orientation, Sam 2 and other prospective students attended a session put on by WSU staff on the benefits of joining WSU’s Greek community. That summer, members of Gamma Chi began reaching out to recruit Sam and his friends to join the fraternity. Sam and his parents returned to WSU to attend a new student orientation later that summer. While there, they attended another presentation put on by WSU staff about the benefits of Greek membership, explaining how first-years could get involved and live in Greek housing. WSU had marketing materials advertising the individual fraternities, including ATO National, and offered more information on its website. WSU did not provide information to Sam’s parents about Gamma Chi’s history of allowing underage drinking and hazing its members. Hector Martinez, Sam’s father, testified that if he had known about Gamma Chi’s violations, he would not have allowed Sam to pledge to that fraternity. Mr. Martinez and Sam’s mother, Jolayne Houtz, paid most of the fees to ATO National that allowed Sam to pledge to Gamma Chi. Ms. Houtz, Sam’s mother, testified to the following: 17. As Sam got more serious about his decision to pledge Gamma Chi, I looked for information about the Greek System at WSU generally and at Gamma Chi specifically. 2 We refer to Sam Martinez by “Sam” because this is how his parents, parties in this case, refer to him. We intend no disrespect but instead mean to respect the family’s wishes. 13 Martinez & Houtz v. Wash. State Univ., No. 104108-0 18. I searched the WSU website for details about what Greek life was like at WSU (which I believe was the WSU “Go Greek” website). 19. I did not find information about Gamma Chi’s disciplinary history on the Go Greek website. 20. I also attended orientation events at WSU, including at least one session on Greek life. 21. At orientation, WSU gave us written information about Greek organizations. 22. This information promoted them as places where students could make friends, learn leadership skills and participate in community service. 23. WSU did not share information it had about what we later learned was a culture of excessive alcohol consumption and hazing prevalent in the WSU Greek system. 24. On the contrary, the written, online, and verbal information that WSU provided to us painted a rosy picture of leadership development, academic support, comradery, social engagement, and community service. 25. None of the information that WSU provided disclosed Gamma Chi’s troubled history on the WSU campus, including that WSU had received numerous reports of underage drinking and incidents of hazing, and that a membership review by national fraternity leaders the year before Sam was recruited resulted in nearly half of the Gamma Chi members being kicked out of the fraternity. CP at 851-52. Sam pledged to join WSU’s Gamma Chi chapter the summer before he started at WSU. Sam began his college career by living on campus in a dorm. CP at 1976. While Sam was a first-year, WSU posted flyers on campus explaining the process for students planning to move into a Greek chapter house. Sam expressed interest in moving into Gamma Chi’s chapter house within his first semester. 14 Martinez & Houtz v. Wash. State Univ., No. 104108-0 Also during Sam’s first semester, Gamma Chi held their annual “Big-Little” night where underclassmen are put into their “Greek family.” CP at 1994. This was an initiation process for incoming members, or “pledges,” to the chapter. On the evening of November 11, 2019, Sam and the other pledges were called to clean Gamma Chi’s live- out as a ruse for the Big-Little event. Once there, they were paired with their upperclassmen “big brothers.” Pledges were expected to share an alcoholic drink that their “big brother” brought for their “family.” CP at 1572-73. That evening, Sam drank at the live-out with the other Gamma Chi members as part of the Big-Little ritual. Within about an hour, the members moved from the live-out to Gamma Chi’s chapter house, where they continued to drink. Sam showed signs of heavy intoxication at the chapter house. He passed away from acute alcohol intoxication early in the morning. Following Sam’s death, WSU issued an interim loss of recognition of Gamma Chi. WSU, after conducting an investigation and making findings, terminated Gamma Chi’s recognition through May 2026. ATO National later revoked its charter of Gamma Chi at WSU due to the events at the Big-Little night leading to Sam’s death. IV SAM MARTINEZ’S ESTATE BROUGHT SUIT. THE TRIAL COURT ENTERED SUMMARY JUDGMENT IN FAVOR OF WSU. THE COURT OF APPEALS REVERSED Ms. Houtz and Mr. Martinez, Sam’s parents, brought a wrongful death suit individually and as personal representatives of their son’s estate (Estate), against WSU. They argued that WSU’s negligence contributed to Sam’s death. WSU moved for summary judgment, arguing it did not owe any duty of care to Sam. The Estate 15 Martinez & Houtz v. Wash. State Univ., No. 104108-0 responded, identifying several sources of duty, including (1) a special duty arising from Washington’s hazing statutes, RCW 28B.10.900-.908, (2) an affirmative duty flowing from WSU’s acts and omissions under Restatement (Second) of Torts § 302B (A.L.I. 1965), and (3) duties arising out of WSU’s special relationships under Restatement (Second) of Torts §§ 40 and 315(a) and (b). The trial court granted WSU’s motion for summary judgment, concluding that WSU did not owe any of these duties. The Estate appealed. Division One of the Court of Appeals stayed the case pending our decision in Barlow v. State, 2 Wn.3d 583, 540 P.3d 783 (2024). In Barlow, we held that a university did not owe a duty to protect a student from another student’s sexual assault under Restatement (Second) of Torts § 315(a) or (b). Id. at 592-97. Instead, the majority held in that context that a university’s duty to its students is “based on a student’s enrollment and presence on campus or participation in university controlled activities.” Id. at 598. After lifting the stay, the Court of Appeals distinguished this case from Barlow, holding that a special relationship between a university and its recognized fraternities is different from the relationship between a university and individual students. Martinez v. Wash. State Univ., 33 Wn. App. 2d 431, 472-73, 562 P.3d 802 (2025). The court held that the special relationship between WSU and Gamma Chi gave rise to WSU’s duty to protect Sam from foreseeable harm under Restatement (Second) of Torts § 315(a). Id. Accordingly, the Court of Appeals reversed the trial court’s order granting summary 16 Martinez & Houtz v. Wash. State Univ., No. 104108-0 judgment for WSU. Id. at 473. However, the court held that WSU did not owe Sam a duty under the Estate’s other negligence theories. Id. at 459, 464-65. WSU sought review in this court of whether its relationship with Gamma Chi gave rise to a duty under § 315(a). 3 WSU argues that the Court of Appeals’ decision contradicts our holding in Barlow and that WSU did not exercise sufficient control over Gamma Chi to impose a duty on it. In contrast, the Estate argues that the Court of Appeals correctly distinguished Barlow because the relationship between a university and a recognized fraternity is different from that between a school and individual students. In addition, the Estate argues that WSU had sufficient control over Gamma Chi to give rise to a § 315(a) duty. We agree that WSU owed a duty to protect Sam from foreseeable harm, flowing from its special relationship with Gamma Chi. Accordingly, we reverse the trial court’s summary judgment order and remand for proceedings consistent with this opinion. V WSU HAD A SPECIAL RELATIONSHIP WITH GAMMA CHI, GIVING RISE TO ITS DUTY UNDER RESTATEMENT (SECOND) OF TORTS § 315(a) Summary judgment is a determination that trial would be useless—that there is no genuine issue of any material fact, so that the moving party is entitled to judgment as a matter of law. Turner v. Dep’t of Soc. & Health Servs., 198 Wn.2d 273, 284, 493 P.3d 117 (2021). We review orders granting summary judgment de novo. Id. 3 The parties did not raise the other theories of duty. Accordingly, we do not address them. Dalton M, LLC v. N. Cascade Tr. Servs., Inc., 2 Wn.3d 36, 50-51, 534 P.3d 339 (2023). 17 Martinez & Houtz v. Wash. State Univ., No. 104108-0 In a negligence case, a plaintiff must show that the defendant owed a duty to the plaintiff. Id. Whether a duty exists is a threshold inquiry in a negligence claim and is a question of law we review de novo. Id. Determining the existence of a duty involves considerations of logic, common sense, justice, policy, and precedent. Barlow, 2 Wn.3d at 589. We are guided by the principles reflected in Restatement (Second) of Torts. Id. Actors generally do not have a duty to prevent harm to others. Even if an actor could prevent the harm, they are generally not required to do so no matter how dire the consequences. However, certain special relationships require an actor to affirmatively protect another. See RESTATEMENT (SECOND) OF TORTS §§ 315-319. As is relevant here, Restatement (Second) of Torts § 315 provides: There is no duty so to control the conduct of a third person as to prevent [them] from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection. Thus, a special relationship may be based on (a) the defendant’s control of a third party or (b) the defendant’s protective relationship with the victim. 4 This case only concerns § 315(a). 4 The dissent argues that what makes a relationship “special” under § 315(a) includes one party having responsibility for, authority over, or the ability to control the other. Dissent at 9. The dissent then cites examples from Restatement (Second) of Torts §§ 316-319 where there is a heightened level of responsibility or control to argue there is a need for a more intimate relationship to also impose a § 315 duty. Id. at 9-10. However, we have held that the heightened level of responsibility or control for those other sections of the Restatement 18 Martinez & Houtz v. Wash. State Univ., No. 104108-0 Under § 315(a), a defendant owes a duty to a third party’s foreseeable victims when (1) a definite, established, and continuing relationship exists between the defendant and the third party, giving rise to foreseeability, and (2) the defendant has an ability to control the third party to prevent harm to foreseeable victims. Volk v. DeMeerleer, 187 Wn.2d 241, 256, 386 P.3d 254 (2016); Barlow, 2 Wn.3d at 594. Here, both elements are met between WSU and Gamma Chi. First, WSU had a long-standing relationship with the Gamma Chi fraternity that gave it insight into the dangers of alcohol abuse and hazing for incoming pledges like Sam. Second, not only was the harm of alcohol abuse and hazing for Gamma Chi pledges foreseeable to WSU, but the university had the ability to exercise control over the fraternity to address these dangers. Therefore, under § 315(a), WSU owed Sam a duty to take reasonable actions to prevent harm to him arising out of Gamma Chi’s alcohol and hazing misconduct. A. WSU and Gamma Chi’s Long-standing Relationship Allowed WSU To Foresee Gamma Chi’s Dangerousness and Potential Victims WSU and Gamma Chi had a “definite, established, and continuing relationship” as required to form a § 315(a) special relationship. Volk, 187 Wn.2d at 256. WSU first are not required to establish a special relationship and duty under § 315. See, e.g., Volk v. DeMeerleer, 187 Wn.2d 241, 264-65, 386 P.3d 254 (2016) (“[T]he amount of control required to meet § 319 is not necessary to fulfill the § 315 special relationship . . . . Considering the language of the Restatement, it seems that its drafters contemplated that ‘diverse levels of control’ would ‘give rise to corresponding degrees of responsibility.’” (quoting Ests. of Morgan v. Fairfield Fam. Counseling Ctr., 77 Ohio St. 3d 284, 299, 1997 Ohio-194, 673 N.E.2d 1311)). Therefore, the dissent incorrectly inflates what is required to establish a special relationship under § 315, confusing this Restatement with others. 19 Martinez & Houtz v. Wash. State Univ., No. 104108-0 recognized Gamma Chi in 1911. The terms of WSU and Gamma Chi’s long-standing, continuous relationship were outlined in the Relationship Agreement, which both parties voluntarily entered into on an annual basis. WSU argues that it could not have a special relationship with Gamma Chi. First, WSU argues it cannot have a special relationship with Gamma Chi because a fraternity is not a “person” under § 315(a). Pet. for Rev. at 22-23. However, WSU does not point to any authority limiting the special relationship under § 315(a) to relationships with individuals. We do not find any policy reason why § 315(a) should be limited to apply only to individuals. We note that § 315(b) applies to nonindividuals. See, e.g., Niece v. Elmview Grp. Home, 131 Wn.2d 39, 929 P.2d 420 (1997); H.B.H. v. State, 192 Wn.2d 154, 429 P.3d 484 (2018). Second, WSU argues that since fraternities act through individual students, Barlow controls and immunizes WSU from liability. We do not find this argument convincing. A university’s relationship between it and its students is different from the one between it and its fraternities. In Barlow, a WSU student was assaulted by another WSU student at an off-campus party. In contrast to WSU’s relationship with Gamma Chi, in Barlow we noted that WSU 1. Did not have sufficient insight into the potential dangerousness of the assaulting student, 2. Would not have been able to identify the victim as a potential victim, and 20 Martinez & Houtz v. Wash. State Univ., No. 104108-0 3. Could not exercise sufficient control of the assaulting student to manifest a duty. 2 Wn.3d at 594. Here, each of these factors exist in WSU’s relationship with Gamma Chi, giving rise to a § 315(a) special relationship. WSU 1. Had sufficient insight into the potential dangerousness of Gamma Chi’s leaders and members not only exposing underage members to excessive alcohol use but also encouraging and requiring them to engage in excessive alcohol use, 2. Was able to identify Sam, as a fraternity member and especially as a freshman, as a potential victim, and 3. Could exercise sufficient control of Gamma Chi to take reasonable steps to prevent foreseeable harm. The first two factors provide the bases for concluding that WSU had the ability to foresee the harm, as is required under § 315(a). Regarding the first factor, the nature of WSU and Gamma Chi’s long-standing relationship gave WSU sufficient insight into the danger that Gamma Chi’s alcohol and hazing practices posed to its members. WSU had received numerous reports about, investigated, and discussed alcohol hazing concerns related to the fraternity on and off campus over the years. In the months leading up to Sam’s death, leadership from Gamma Chi and ATO National met with WSU to discuss concerns about alcohol and first-year students at the live-out. Hazing and alcohol consumption among first-year fraternity students was a well-known danger to WSU. 21 Martinez & Houtz v. Wash. State Univ., No. 104108-0 Regarding the second factor, Sam Martinez was the type of victim WSU was aware needed protecting. Not only was WSU able to identify potential victims of alcohol abuse and fraternity hazing, but it did in fact identify the class of students who were at risk of harm. WSU had documented the heightened risk of alcohol abuse for first-year recruits to Greek life organizations, especially first-year men, years prior and had taken some action to address this danger. Sam was a foreseeable victim of the dangers posed by Gamma Chi’s hazing