In a lawsuit filed Wednesday in Charlottesville's circuit court, fourth-year Commerce student Luis Avila is seeking damages from fourth-year College student Joshua Weatherbee and Weatherbee's fraternity, Alpha Delta Phi of Virginia, Inc., for charges that include alleged assault and battery and racial and ethnic harassment and violence.
The suit also claims the fraternity is guilty of gross negligence and negligence in preventing the alleged attack on Avila.
On Dec. 12, 2003, Weatherbee pleaded guilty to a criminal charge of assault and battery against Avila. He was sentenced to 12 months jail time, with 11 months suspended.
Weatherbee could not be reached for comment.
The current civil claim for compensation and the criminal charges both refer to an incident that occurred between the night of Sept. 19 and early morning Sept. 20, 2003 at a party held at the Alpha Delta Phi fraternity house.
According to the March 17 motion for judgment, which details the charges against Weatherbee and the fraternity, Avila arrived at the party as a guest of an Alpha Delta Phi member.
"At a certain point, without provocation, Mr. Weatherbee physically attacked Mr. Avila, striking him with his fists in the face and body, throwing him to the floor, falling on him and striking him repeatedly," the document states.
The suit alleges that Weatherbee shouted threats and phrases during the assault that were "motivated by animosity toward Mr. Avila because of Mr. Avila's racial and/or ethnic background."
These are said to include, "You should go back to Mexico" and "You should be washing my dishes."
According to Avila's lawyer, Edward Wayland, these statements add another component to the incident -- a component that allows Avila to seek compensation as an alleged victim of violence, harassment or intimidation which is motivated by racial and ethnic animosity.
Avila seeks a total of $300,000 in compensatory and punitive damages from Weatherbee and Alpha Delta Phi of Virginia, Inc.
He was advised by Wayland not to talk about the suit and could not be reached for comment.
David Brewster, international president of Alpha Delta Phi, said the organization will have legal representation under an umbrella liability policy for the charges filed against Alpha Delta Phi of Virginia, Inc.
Although Brewster has not yet seen the filed papers, he said the fraternity will ask to be released from the suit.
"We don't see how it has to do with the fraternity at all," he said. "It may have happened on fraternity property, but it could easily have happened anywhere else."
However, according to Wayland, an organization is responsible for the actions of people who are its agents.
"We believe the fraternity had an obligation to its guests to protect them from people liable to become violent and harmful, and it didn't do that," Wayland said.
Although still active, the Virginia chapter of Alpha Delta Phi lost its recognition with the Inter-Fraternity Council this semester for reasons unrelated to the lawsuit.
Chapter president Christopher Moore also had yet to read the filed suit but said the fraternity is committed to standing behind Weatherbee.
While Moore said Avila "was certainly justified in filing the [criminal] charges that he did," he also said he believes Weatherbee has already paid for his inappropriate actions, noting that Weatherbee spent Christmas in jail.
In reference to the claim for racial or ethnic harassment and violence, Brewster and Moore both said they were distressed by possible harm to the fraternity's reputation.
"We're open to everybody," Moore said. "We have brothers from all races, religions and nationalities. I hope this incident doesn't give the impression that we're a racist house because I'd have to say, we're one of the most diverse houses out there."
Similarly, Brewster said any characterization of the house as racist "burns [him] up."
"The way we look at it is, society has a problem, not us," he said.
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