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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. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

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  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

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