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Campus fraternity chapter may be liable for alleged hazing injury

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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.•
 

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  1. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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