The family of Marco Shemwell filed a lawsuit against the Alpha Tau Omega Fraternity and its former chapter at the University of Kentucky, saying the organizations were responsible for the death of the 4-year-old last year.
Jacob Heil, who was pledging ATO at UK, will stand trial in April on a reckless homicide and DUI charge following the September 2018 crash that killed Marco.
Heil was allegedly drinking at a fraternity-sanctioned event the morning of Sept. 15 and at the fraternity house prior to the crash.
“The ATO Fraternity has a long and troubling history of alcohol and hazing related injuries and deaths,” said Matt Minner, of Hare Wynn law firm. “At the time of this tragedy, ATO was still on Conduct Probation for alcohol related violations that left a student hospitalized. The national fraternity has wholly and completely failed to put a stop to this type of conduct. ATO is an organization that not only failed the Shemwells, but also failed its members and pledges-- this time, young Marco was the victim.”
Marco was crossing Cooper Drive near Scoville Drive with his father and brother when he was struck by a Hyundai Sonata driven by Heil.
According to Heil’s arrest citation, he “had a strong odor of alcoholic beverages, red bloodshot watery eyes and showed signs of impairment” following the crash.
A police report said Heil had a blood-alcohol level of 0.051. The legal limit for those over age 21 is 0.08. For those under 21, the limit is 0.02. He allegedly told police he drank two beers and that he was at the “game tailgating” before Marco was hit.
Heil, who was 18 at the time of the incident, was initially charged with DUI before the reckless homicide charge was added in a February indictment. He has pleaded not guilty to both charges.
The lawsuit alleges the ATO chapter at UK was punished in January 2015 and again in October 2017 for alcohol violations. In the latter incident, a female was taken by ambulance to a UK hospital for alcohol overdose, the lawsuit said.
They were placed on conduct probation for one year after the second incident, according to the lawsuit.
The tradition of off-campus tailgate parties, known by the chapter as “beer breakfasts” continued in fall 2018, while they were still on probation, the lawsuit said. On Sept. 15, over 1,000 cans of beer were purchased and served by the fraternity at a home off campus, and all of the beers were drunk by the members and pledges in two hours.
“That day, a life would be taken as a result of ATO’s persistent refusal to take corrective actions and prevent the above conduct,” the lawsuit states.
According to the lawsuit, the “beer breakfast” was broken up by Lexington police at around 11:15 a.m. due to underage drinking and noise complaints. Between 200 and 300 people were at the party, the lawsuit claims.
Heil, who allegedly had at least four beers at the breakfast, later drank more beer at the fraternity house, the lawsuit alleges. He then drove himself and others, dropping off one person at a dorm. He was returning to the fraternity house when the crash occurred, according to the court documents.
Heil crashed into Marco with enough force to throw the boy several feet toward a tree, the lawsuit states.
ATO’s “failure to address a history of underage drinking, hazing, and other dangerous practices at its chapter at the University of Kentucky ... ultimately resulted in the tragic death of 4-year-old Marco Shemwell leaving his family with tremendous loss and damages,” the lawsuit states.
Several members of the fraternity, including the chapter’s president, social chairman, risk management officer, were also mentioned in the lawsuit.
The ATO chapter at UK was dissolved soon after the death of Shemwell. Violations of ATO’s healthy and safety policy prompted the national fraternity to revoke its charter at UK, they said last year.
The chapter started in 1909 and counts famed UK basketball coach Joe B. Hall among its alumni. The national fraternity was founded in 1865 at Virginia Military Institute.
The lawsuit alleges that ATO began to cover itself and tried to separate itself from the local chapter after the revocation. The CEO of the national fraternity, Wynn Smiley, wrote to UK’s Dean of Students on Sept. 20 that the chapter no longer exists as a legal entity and so there was no eligible student organization representative to participate in the university’s investigative or disciplinary proceedings, the lawsuit states.
In a statement to the Herald-Leader, Smiley offered sympathy to the Shemwell family while claiming some of what was laid out in the lawsuit is not factual.
“We have not had sufficient time to fully review the lawsuit, however a cursory review reveals many misstatements of fact,” Smiley stated. “The National Fraternity will vigorously defend the lawsuit. Because litigation is now pending, ATO will not have additional comment at this time.”
The civil case is not yet set for trial, according to the firm who filed the lawsuit. The family is seeking an undisclosed amount of compensation for pain and suffering, funeral and burial expenses, lost wages and medical bills.
“As we approach the 1-year anniversary of this tragedy, the family, through their faith and the outpouring of love and support from the community, are continuing to work on healing,” said Minner.
Marco, who died Sept. 17, was creative and full of wonder, Rev. Mike McCormick said during the child’s funeral last year.
“His love for life, his family and Jesus was infectious,” McCormick said.