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. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

ADVERTISEMENT