(concurring in part and dissenting in part).
I concur in division IV.B of the majority opinion. I dissent as to divisions IV.A and IV.C. For reasons that follow, I conclude there are genuine issues of material fact sufficient to overcome the defendants’ motions for summary judgment as to the Iowa chapter and Timothy Reier. Of course, implicit in my conclusion is that both defendants owed a duty to the decedent. I will address the law and facts that I find establish a duty running from each defendant to the decedent.
I. Vicarious Liability of the Iowa Chapter.
Contrary to the majority’s position, I think a genuine issue of material fact exists on whether the Iowa chapter violated Iowa Code section 123.47A(1) (1995)— Iowa’s underage drinking statute. That statute provides in part:
A person shall not sell, give, or otherwise supply alcoholic liquor, wine, or beer to any person knowing or having reasonable cause to believe that the person is age eighteen, nineteen, or twenty.
As the majority correctly notes, a violation of section 123.47A(1) will support a common-law cause of action by the underage person against the person furnishing the alcohol. Sage v. Johnson, 437 N.W.2d 582, 584-85 (Iowa 1989).
We have said that
[njegligence is the breach of legal duty or obligation recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks. It has been defined as conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. It is immaterial whether the standard is one imposed by the rule of common law requiring the exercise of ordinary care not to injure another, or is imposed by statute designed for the protection of others.
Lewis v. State, 256 N.W.2d 181, 188 (Iowa 1977) (emphasis added) (citations omitted). Leíais held that section 123.43 — predecessor to section 123.47A(1) — “sets a minimum standard of care for conduct generally required of the reasonably prudent man under like circumstances for purposes of a common law action of negligence based on the sale or the furnishing of intoxicating liquor.” Id. at 189. In short,’ section *657123.47A(1) imposes a duty not to furnish alcohol to underage persons and a breach of that duty is negligence.
The key issue here is whether a genuine issue of material fact exists on whether the Iowa chapter sold, gave, or otherwise supplied alcohol to the decedent, who was underage at the time of this tragic incident. The terms “sell,” “give,” and “supply” in section 123.47A(1) require a defendant’s knowing and affirmative delivery of alcohol to an underage person. Snyder v. Fish, 539 N.W.2d 197, 199 (Iowa App.1995). “Otherwise supply” in this statute “means more than merely permitting or allowing beer to be consumed on a defendant’s property.” Fullmer v. Tague, 500 N.W.2d 432, 434 (Iowa 1993) (citing DeMore v. Dieters, 334 N.W.2d 734, 737 (Iowa 1983)). However, as we noted in Fullmer, for a violation of the statute to occur, a defendant need “not personally fill his guests’ beer glasses.” Fullmer, 500 N.W.2d at 436 (holding that jury could find host supplied beer to minor on the basis that the host bought the beer, provided the cups, and joined in the party, observing his underage friends drinking from the keg, despite his claim that it was “help yourself’ or “pour your own” beer party so that he made no affirmative delivery of the beer to the minor).
There is no evidence that the Iowa chapter sold alcohol to the decedent. The narrow issue then is whether there was enough evidence to generate a fact issue on whether the Iowa chapter gave or otherwise supplied alcohol to the decedent.
At the time of the decedent’s death, the Iowa chapter leased a fraternity house in Iowa City from Iowa Colony House Corporation. The Iowa chapter at the time was a voluntary association. There is no allegation in the petition or facts that indicate the Iowa chapter was an incorporated association, so I proceed on the assumption that it was an unincorporated association.
An association “is a collection of persons who have united or joined together for some special purpose or business, and who are called, for convenience, by a common name.” 7 C.J.S. Associations § 2, at 22 (1980). The rule regarding the liability generally of members of an unincorporated association has been stated as follows:
While mere membership in an association does not of itself impose liability for the acts of the associates, at least in the absence of participation and knowledge or approval, liability of members of a voluntary, unincorporated association may be established by a public act of the association itself, or by the acts of officers, agents, or members where such acts are known to the membership and actively or passively approved.
7 C.J.S. Associations § 30, at 74.
Iowa law has long followed these principles. In the area of contracts, “where members contract in the name of an unincorporated association, they and all of the members who authorize, approve, consent, and ratify the contract are personally liable for the obligations of such contract.” Wilson & Co. v. United Packinghouse Workers of Am., 181 F.Supp. 809, 815 (N.D.Iowa 1960). Members of an unincorporated association may also be personally liable for torts of the association. Id. at 815-16.
At common law, an unincorporated association had no legal existence, so it could neither sue nor be sued in its association name only. Presbyterian Church of Osceola v. Harken, 177 Iowa 195, 199-200, 158 N.W. 692, 694 (1916). However, this court recognized early on that, if the individual members of the association were so numerous as to make it impracticable to bring them all before the court, one or more of the members could be sued as representatives of the others. Keller & Bennett v. Tracy, 11 Iowa 530, 531 (1861). If the plaintiffs choose this route, “the members of the association are treated as a whole and the unincorporated association is in effect treated as a legal entity.” Wilson, 181 F.Supp. at 817. In this scenario, any money judgment recovered would be *658paid out of the funds of the association and would not be enforceable against the members individually. Id.
Of course, the plaintiffs have a second option: suit against the members individually. Id. Under this option, any money judgment recovered would be enforceable against the individuals. Id. at 815.
Here, the plaintiffs have chosen to treat the Iowa chapter as a legal entity because the plaintiffs have not sued all of the chapter members and has asked only for relief against the Iowa chapter and not against all of the members individually. There is, however, one flaw in the plaintiffs’ choice of procedure: the plaintiffs have not named any members as representatives of the Iowa chapter. Because the defendants have raised no issue on this point, I will proceed on the assumption that the suit was properly instituted against the Iowa chapter as a legal entity.
As mentioned, members of an unincorporated association may be liable for the acts of officers, agents, or members of the association when such acts are known to the membership and actively or passively approved. From this, it necessarily follows that the association as an entity may be vicariously liable for such acts. This is so because an association can only act through its officers, agents, and members.
This vicarious liability finds support in Restatement (Second) of Agency section 213 (1958), which pertinently provides:
A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:
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(c) in the supervision of the activity; or
(d) in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instru-mentalities under his control.
The evidence in this case is that underage drinking in the Iowa chapter house was the norm rather than the exception long before the incident in question. As the majority itself notes, virtually every witness testified that beer and other alcoholic beverages were made available to underage members. A reasonable inference from the record is that virtually every member was aware this was happening and virtually every member, passively if not actively, approved of the practice.
A report of the university investigation of the incident revealed that many of the twenty-four new members who participated in the “Big Brother/Little Brother” ceremony consumed alcohol purchased by other chapter members in the chapter house after the ceremony. The report further revealed that all twenty-four new members were under the legal drinking age, as were many of the active members. Besides the forty-eight little brothers and big brothers, at least twelve other chapter members came to the ceremony, bringing the total number of members in attendance to sixty. Additionally, the report noted that three new members passed out as a result of the alcohol consumption, including the decedent. The report also noted that the decedent consumed all of the liquor provided him by chapter members within one hour after the conclusion of the ceremony.
According to the investigation report, active members, including some chapter officers (defendant Chad Diehl was the vice-president of the chapter), purchased alcohol before the ceremony with the intention of offering it to new members after the ceremony had concluded. Following the ceremony, alcohol was available in three rooms on the second floor of the chapter house and in three rooms on the third floor of the house. In all six rooms, hard liquor was available as well as beer, and in several rooms more than one variety of hard liquor was consumed. There was some evidence that other rooms in addition to the six offered an open bar. *659The decedent’s drinking spree occurred in three of the rooms.
All of this drinking was traditional following the “Big Brother/Little Brother” ceremony and that included drinking by underage members and associate members.
The university concluded that the postceremony activities took place in the course of the Iowa chapter’s affairs. The university suspended the chapter, finding that it did not exercise reasonable preventive measures to ensure compliance with relevant policies (one of which was to comply with Iowa’s underage drinking statute) in the course of the chapter’s affairs.
Before this incident, the Iowa chapter had ten to twelve parties during a sixteen-week semester. Alcoholic beverages were available at all the parties. Although the policy was that no underage drinking was to be allowed, in fact underage persons did have access to alcohol at these parties. In 1993, the Iowa chapter put itself on probation with the national fraternity for violation of the alcohol policy against permitting underage drinking at chapter events.
Viewing all of this evidence in the light most favorable to the plaintiffs, I conclude a genuine issue of material fact exists as to the Iowa chapter’s vicarious liability under section 213 of the Restatement (Second) of Agency. All of this evidence would support a finding that the Iowa chapter permitted underage drinking on its premises in the past and on the night in question in clear violation of Iowa law. Additionally, the evidence would support a finding that the Iowa chapter was negligent in supervising activities on its premises in the past and on the night in question to avoid such a violation. In short, there is evidence to support a finding that the Iowa chapter gave or otherwise supplied through its members alcohol to the decedent who was underage at the time.
II. Failure of the Iowa Chapter to Render Aid to the Decedent Under Restatement (Second) of Torts Section 322 (1965) Based on Vicarious Liability.
As mentioned, there is evidence to support a finding that the Iowa chapter gave or otherwise supplied through its members alcohol to the decedent who was underage at the time. The evidence would also support a finding that as a result of this violation of the law the decedent became intoxicated to the point that he was helpless.
Two members of the Iowa chapter— Chad Diehl and Timothy Reier — took charge of the decedent just before he passed out. The district court concluded a genuine issue of material fact existed regarding Diehl’s liability under Restatement (Second) of Torts, section 322, and Diehl has not appealed from that ruling. This provision provides:
If the actor knows or has reason to know that by his conduct, whether tor-tious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm.
Diehl and Reier first took charge of the decedent when they helped him to Reier’s room after the decedent fell down a flight of stairs at the chapter house. The decedent passed out in Reier’s room. Reier left the house to go to a bar with his “little brother” while Diehl remained behind with the decedent. After the decedent passed out, Diehl positioned him on his side in order to reduce the chance that he would choke on his own vomit. Diehl continued to monitor the decedent’s condition until about 2:30 a.m., when he retired to bed in another room.
As members of the Iowa chapter and friends returned from downtown during the early morning hours, they saw the decedent passed out. Between midnight and 6 a.m., many of them listened for signs of life, and some rearranged the decedent’s sleeping position when they saw he was *660not sleeping on his side. The decedent was making gurgling noises. One of the decedent’s friends shook the decedent and yelled at him but got no response.
Reier returned to his room at approximately 8:30 a.m. with his “little brother” who observed the decedent lying on his back and heard him making gurgling sounds. Reier rearranged the decedent’s position by placing him on his right side and then went to bed. Reier woke up at 8 a.m. and left for class some fifteen minutes later without ever checking on the decedent, who appeared to be sleeping and still laying on his right side.
About three hours later, the decedent was discovered dead. The rug on the floor nearby was damp and smelled of vomit. A reasonable inference from this evidence and from the autopsy report is that the decedent died because he choked on his own vomit.
There is in evidence a publication from the national fraternity that was made available to each member of the Iowa chapter containing advice regarding intoxicated persons. One section of the publication states: “If the person passes out, monitor his or her breathing to make sure it’s normal. If the person cannot be revived, call for medical help immediately. Constantly monitor a person while he or she sleeps. It’s better for a person to sleep on his or her side, in case of vomiting.” In his deposition, Reier testified that these instructions were common sense to him.
All of this evidence would support a finding that Diehl and Reier realized that the decedent in his helpless condition was at risk for vomiting and choking on his own vomit — the very thing that killed him. The evidence would also support a finding that their inactions — failure to constantly monitor the decedent and call for adequate assistance, medical or otherwise — indicate a lack of reasonable care on their part. Under the vicarious liability theory earlier discussed, I think this breach of duty under section 322 of the Restatement (Second) of Torts could be imputed to the Iowa chapter. There was evidence that other members of the Iowa chapter were aware of the decedent’s condition but did nothing. The only two members who did do something did not do enough under the law.
III. Duty to Render Aid Running from Reier to the Decedent Under Restatement (Second) of Torts Section 324 (1965).
The majority concludes that the facts I have discussed relative to Reier’s conduct do not establish a duty running from Reier to the decedent under Restatement (Second) of Torts section 324 (Duty of One Who Takes Charge of Another Who is Helpless). I disagree.
Section 324 provides:
One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by
(a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge, or
(b) the actor’s discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him.
I think the facts regarding Reier’s conduct would support the following findings. Reier together with Diehl took charge of the decedent when they placed him in Reier’s room. Although Reier left Diehl in charge, the fact finder could find that Reier by leaving was not discontinuing his aid because on his return Reier (1) repositioned the decedent after decedent made gurgling sounds and was lying partially on his back and (2) made no objection to the decedent remaining in the room. Based on these findings, the fact finder could conclude that Reier assumed a duty to care for the decedent by monitoring him during the night or seeking medical attention or other assistance for the decedent. *661See Haben v. Anderson, 232 Ill.App.3d 260, 173 Ill.Dec. 681, 597 N.E.2d 655, 660 (1992) (held that complaint stated cause of action .against member of university club for breaching a voluntarily assumed duty to care for recruit who drank excessive amounts of alcohol by alleging that the member allowed the recruit to be placed on his floor unconscious, that he checked on him during the night and heard him gurgling, that he allowed the recruit to remain there, and that the recruit died of acute alcohol intoxication).
I would reverse and remand for further proceedings as to the Iowa chapter and Reier.
LARSON, J., joins this concurrence in part and dissent in part. TERNUS, J., joins divisions I and II of this concurrence in part and dissent in part.