A jury can decide whether Fairleigh Dickinson University and four student resident assistants were at fault in a drunk driving crash involving a then-underage student, who suffered permanent traumatic brain injuries including blindness and loss of his ability to speak.

Kenneth Franco was 20 when he attended an on-campus party in an apartment-style dorm in 2014. He had plans to stay the night within the suite of one of his fraternity brothers who was co-hosting the event, according to an appeals court decision released on March 25.

Franco got drunk at the party, as several friends re-affirmed with him his intent not to drive home, according to court documents, and then he fell asleep on a common area couch, as his friend had offered him.

The gathering of 20 to 30 people had broken up by 2 a.m., and one of the students staying in a bedroom of the dorm suite said they had seen Franco still asleep on the couch between 2 a.m. and 4 a.m.

Among those who had at some point attended the Thursday night football party were four RAs, two of them off-duty for that evening and one of whom was assigned to the same dorm.

Around 5 a.m., Franco woke up, left the suite, got into his car, and drove off campus, according to the decision.

While on Route 287 northbound, Franco's car went off the road, up an embankment and struck a parked construction vehicle, slid back down and flipped over.

Franco suffered a traumatic brain injury, lost his eyesight and ability to speak, and his critical motor functions were permanently disabled.

A blood sample taken following the crash at the hospital before 7 a.m. showed that Franco's BAC was .164%, or more than twice the legal limit.

The appeals court said it would be up to a jury to decide whether any of the RAs were “grossly negligent” in the hours leading up to Franco’s crash, or if they reasonably believed that Franco would not leave the dorm suite while still drunk and attempt to drive.

It’s a reversal of the previous decision that the school and its RAs were protected by the Charitable Immunity Act, which shields them from claims based on simple negligence.

None of the RAs who attended the party took any steps to determine if any underaged guest was drinking alcohol and did not report any violations of the alcohol policy, as required by their positions, according to the court paperwork.

The Park Avenue residence hall for upperclassmen, in which the party was hosted, was among FDU’s so-called "wet" dorms, which allowed students 21 and older to have alcohol for personal use, while not serving it to any minors.

In the year before Franco's crash, FDU reported 528 alcohol violations, more of them at the Park Avenue hall than at any other dorm, according to FDU's Public Safety Assistant Director.

The appellate decision upheld the previous decision that the suite-mates and other student guests were not at fault in leading to Franco’s drunk driving crash and permanent injuries.


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