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Fraternity pledge loses appeal involving alleged hazing incident

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Two Indiana Court of Appeals judges found that an incident involving “showering” at a Wabash College fraternity in 2007 – which led to injuries to a freshman pledge – were not considered hazing under Indiana law. Judge Nancy Vaidik, who dissented, found the majority’s view of pledging and hazing “far too restrictive.”

Brian Yost sued Wabash College, his fraternity Phi Kappa Psi, the fraternity’s national chapter, and fraternity brother Nathan Cravens for personal and mental injuries he sustained in an incident at the house. Yost and his fraternity pledge brothers wanted to throw an upperclassman brother into a near by creek, which is called “creeking,” to celebrate his 21st birthday. After being unsuccessful, four upperclassman brothers decided to carry Yost to the shower and run water on him, which is called “showering.” When to perform both activities is explained in the pledge handbook. This incident of “showering” was spontaneous.

While trying to “shower” Yost, Cravens placed Yost in a chokehold, causing him to lose consciousness. The other brothers dropped Yost’s body on the floor. The incident led to Yost eventually withdrawing from college.  

The trial court granted Wabash College and the Phi Kappa Psi defendants’ motions for summary judgment, which Judges Terry Crone and Cale Bradford affirmed. Summary judgment was not entered for Cravens, and he is not participating in the appeal in Brian Yost v. Wabash College, Phi Kappa Psi Fraternity, Inc., Phi Kappa Psi Fraternity - Indiana Gamma Chapter at Wabash College, and Nathan Cravens, 54A01-1201-CT-31.

Yost maintained the incident surrounding his injuries was hazing and those defendants turned a blind eye and owed him a duty of reasonable care. The majority opinion noted that no Indiana court has specifically addressed liability for university and fraternities based on allegations of injuries stemming from an incident involving hazing.

But the majority found that this incident did not amount to hazing under Indiana’s criminal anti-hazing law or other foreseeable criminal conduct, and that the activities that night were impromptu and not keeping with the parameters specified in the pledge manual.

“We agree that a college cannot simply turn a blind eye to inherently dangerous activities on its campus; neither can a fraternity ignore such activities within its walls. Nevertheless, we reiterate that such institutions/organizations are not guarantors or insurers of their adult student-members’ safety, and we reject the notion that all fraternities should be impugned based on the activities of a few,” Crone wrote for the majority, which found that the defendants did not breach any duty owed to Yost.

In her dissent, Vaidik found genuine issue of material fact regarding whether Wabash and the Phi Psi local chapter owed Yost a duty of care, and whether the events of that night constituted criminal hazing that were reasonably foreseeable to Wabash.

She noted since the early 2000s, there have been 15 reported instances of hazing that Wabash was aware of and took action on – three of which directly involved the Phi Psi house.

“All said, I believe that the designated facts could reasonably lead a trier of fact to conclude that hazing occurred here—hazing that both Phi Psi and Wabash had a duty to stop yet ignored,” she wrote.

 

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  1. 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)

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