ILNews

Campus fraternity chapter may be liable for alleged hazing injury

Back to TopCommentsE-mailPrintBookmark and Share

A Wabash College fraternity pledge’s injury claim resulting from alleged hazing, ruled on recently by the Indiana Supreme Court, turned not on whether he was hazed inside the frat house, but on who may be liable.

“I think the court kind of took the most direct approach and applied landlord-tenant caselaw,” said Thomas R. Schultz, a partner at Schultz & Pogue LLP, who represented Wabash College in Brian Yost v. Wabash College, Phi Kappa Psi Fraternity-Indiana Gamma Chapter at Wabash College, Phi Kappa Psi Fraternity, Inc., and Nathan Cravens, 54S01-1303-CT-161.

The Supreme Court affirmed summary judgment in favor of Wabash and the national Phi Kappa Psi organization, but allowed a claim against the local Greek chapter to proceed.

“Obviously, Wabash wasn’t there that night, wasn’t there to see what was happening, and under Indiana law didn’t owe a duty of care” to Brian Yost, Schultz said. Yost was an 18-year-old freshman pledge when Phi Kappa Psi fraternity brothers were carrying him and dropped him, allegedly causing injuries that forced him to withdraw from the college.

Justices in a 4-1 opinion Feb. 13 affirmed trial and Court of Appeals rulings with regard to the college and the national fraternity. But justices reversed summary judgment in favor of the local Indiana Gamma Chapter of the fraternity, finding that Yost could pursue compensatory and punitive damages for injuries he sustained in the house.

“The local fraternity’s rules and traditions arguably may have provided the active members of the fraternity with authority over the pledges, including Yost, and the exercise of such authority may have played a role in the events that led to Yost’s injury,” Chief Justice Brent Dickson wrote for the majority. “For instance, Yost’s injury occurred when the local fraternity brothers attempted to forcibly place him in the shower, an act which resembles a celebratory tradition of the local fraternity.”

The Wabash Phi Kappa Psi chapter practiced a ritual called “creeking” in which fraternity members were tossed into a nearby creek on their birthdays. “Showering,” the activity that was being carried out when Yost was hurt, derives from that tradition.

Anne Cowgur, a Taft Stettinius & Hollister LLP partner who argued Yost’s case before the Indiana Supreme Court, declined to discuss the pending case which has been remanded to Montgomery Superior Judge David Ault. Other attorneys representing Yost and his family did not respond to messages seeking comment.

“All of us are looking forward to proceeding with this case and continuing our efforts to assist Mr. Yost,” Cowgur said.

Greek rites

For Greek organizations on college campuses, the decision buttresses the proactive stance that fraternities and sororities have taken against hazing on the national level, said Sean Callan, founding partner of Cincinnati-based Fraternal Law Partners, which represents such organizations.

“Greek organizations on a national level are sort of thankful the Yost decision came down as it did,” Callan said. Had the justices found liability on the part of the national organization, that could have jeopardized those groups’ educational outreach aimed at preventing hazing, he said.

“Every national organization has a policy against hazing of any type. It’s just something that’s not condoned or tolerated at the national level,” Callan explained. Had the national Phi Kappa organization been aware of the Wabash creeking tradition, he said, “It would have been ended immediately.”

In Yost, justices were unanimous only in agreeing that the national organization should not face a claim of liability.

“There is no genuine issue of fact tending to show the existence of an agency relationship, and thus the actions of the local fraternity and its members cannot, as a matter of law, be imputed to the national fraternity under a theory of vicarious liability,” Dickson wrote. Like numerous other Greek organizations, Phi Kappa Psi is based in Indianapolis.

The court also noted a public policy rationale for not holding the national organization liable. It “should be encouraged, not disincentivized, to undertake programs to promote safe and positive behavior and to discourage hazing and other socially undesirable conduct,” Dickson wrote.

Callan said the Yost decision could have far-reaching consequences, especially as more colleges seek ownership and control of the properties where Greek institutions are located, as was the case at Wabash.

“It’s becoming more prevalent. More and more colleges and institutions are going to a concept of a ‘Greek village’ where the college will typically own the ground and own the building and lease” to fraternities or sororities, he explained.

Back to basics

Some eight months after hearing arguments, justices formally requested a copy of the lease agreement between Wabash College and the local chapter. The court’s ruling followed several weeks later.

“What’s interesting about the opinion is the Supreme Court looked at it in a different way than the Court of Appeals,” Schultz said. As it pertained to Wabash College, “The Court of Appeals looked at it and said, ‘Is this hazing?’ … The Supreme Court looked at it as, ‘What is the duty the landlord owes to its tenant?’”

Justice Robert Rucker dissented with respect to Wabash, which he wrote had not given full control and possession of the property it leased to the local fraternity. “(A)s a landowner Wabash owed Yost – an invitee – ‘a duty to exercise reasonable care for his protection’ while on Wabash’s premises.

“Because Wabash in my view has not carried its burden of proof on this outcome-determinative issue, the trial court’s grant of summary judgment cannot be sustained on grounds that Wabash owed Yost no duty,” Rucker wrote.

Callan said the court also relied on Indiana caselaw dating back to the 1980s establishing that colleges and universities may not be subject to “in lieu of parents” theories of liability.

The Yost decision already has impacted another case in which Wabash and national and local fraternities are defendants. The parents of Johnny Smith, a freshman who died after a night of heavy drinking, won a Court of Appeals ruling in May saying national fraternity Delta Tau Delta wasn’t entitled to summary judgment in the parents’ wrongful death claim.

The case, Stacy Smith and Robert Smith, Individually and as Co-Personal Representatives of the Estate of Johnny Dupree Smith, Deceased v. Delta Tau Delta, Beta Psi Chapter of Delta Tau Delta, Wabash Col., et al., 54A01-1204-CT-169, is pending a petition to grant transfer to the Indiana Supreme Court.

Frost Brown Todd LLP partner Kevin Schiferl, who represents the national chapter of Delta Tau Delta, said a supplemental brief in that case was filed days after the Yost decision, “which we think on all four squares is the same issue.”

The Smith case also has drawn the interest of a number of Greek organizations that have filed amicus briefs in support of Fishers-based Delta Tau Delta. On the other side, the Indiana Trial Lawyers Association has filed in support of Smith, said the plaintiffs’ attorney, Stephen Wagner of Wagner Reese LLP in Carmel.

The COA ruling is “one of the first decisions around the country that found a national (Greek) organization could have liability,” Wagner said.

Wagner said he couldn’t comment about the pending case before the Supreme Court. Neither Wabash nor the local Delta Tau Delta chapter have sought summary judgment at the trial court level, he said.•
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

ADVERTISEMENT