Victims of 2011 Harvard-Yale Tailgate Collision Sue Members of Yale Fraternity

Two years after a fatal collision at the Harvard-Yale Game tailgate left one woman dead and two injured, 86 former and current members of Yale’s Sigma Phi Epsilon fraternity face two new lawsuits.

At the November 2011 tailgate, a U-Haul truck driven by then-Yale junior Brendan D. Ross struck and killed Nancy Barry, 30, a resident of Salem, Mass. At the time, Ross was delivering alcohol and other materials to his fraternity’s tailgate. Harvard employee Elizabeth Dernbach and Yale student Sarah Short were injured in the collision. Following his arrest and subsequent legal proceedings, Ross was granted a form of probation in February 2013 that allows him to avoid a criminal record.

In late December, Short and Barry's estate filed separate but identical claims against the Yale fraternity.

According to Ralph F. Sbrogna, one of Barry’s estate attorneys from Worcester, Mass., the estate’s original complaint named the national Sigma Phi Epsilon fraternity as a defendant in the case. However, according to Sbrogna, the national fraternity claimed that Yale’s local chapter violated some provisions of its insurance contract.

Furthermore, the Yale Daily News reported that Sigma Phi Epsilon Director of Risk Management Kathy Johnston said that the national organization is not liable for the actions of the local chapter.

“If their position was correct, it leaves us with a claim only against the local chapter,” Sbrogna said. “It appears that the national chapter is not standing behind their local affiliate.”

Short also originally named the national fraternity, in addition to U-Haul and Ross, as a defendant in her original lawsuit, Joel T. Faxon, Short’s attorney, said.

Left only with a claim against the local chapter, both Short and Barry's estate must comply with Connecticut law, which defines Yale’s fraternity as a voluntary association. According to Faxon, all individual members of a voluntary association must be sued in order to file a lawsuit against the whole chapter.

The 86 members named in the lawsuit as defendants were part of the fraternity at the time of the collision.

Although he has worked on numerous fraternity-related cases in the past, Faxon said he has never seen a national fraternity take this position.

“Before, we had not sued anybody in the local fraternity, we had no interest in that,” Faxon said. “That’s a waste of time and money.”

In response to the two new lawsuits filing claims against the fraternity members, Sigma Phi Epsilon’s insurance company, Liberty Surplus Lines, hired attorney Jeremy Platek to represent the defendants, according to Faxon.

“They have basically come full circle to the point that the insurance company realizes it has responsibility for these people,” Faxon said.

Faxon said he believes that, in the coming months, all cases pertaining to the tailgate incident will be consolidated and transferred to a complex litigation court, a branch of Connecticut’s superior court that handles multi-party cases.

Sborgna said it is too early to determine the degree of compensation Barry’s estate will receive, but Faxon said that it could be in the range of seven figures. He added that Short’s case is likely worth over a million dollars, due to the $300,000 of medical expenses she has paid so far, future medical bills, and “non-economic losses” such as physical disability.

“She was badly injured, and it’s something she’s going to have to deal with the rest of her life,” Faxon said.

A couple months after the collision, Yale introduced a stricter set of tailgating guidelines, which took effect in the latest Harvard-Yale football game. The university now prohibits oversized vehicles from university lots at athletic events unless they are driven by an approved vendor and now bans kegs from athletic events and other social functions.

—Staff writer Meg P. Bernhard can be reached at mbernhard@college.harvard.edu.