Hazing suit weighs college, fraternity liability

Back to TopCommentsE-mailPrintBookmark and Share

A former freshman pledge hurt as fraternity brothers at Wabash College carried and then dropped him will have his case heard by the Indiana Supreme Court, testing the reach of Indiana’s anti-hazing statute.

But before the court determines whether colleges, their Greek letter chapters or other entities may be liable for allegations of hazing under the law, the jushazingtices will wrestle with whether Brian Yost was hazed at all. Two of three Court of Appeals judges held that he wasn’t and that his injury was a result of spontaneous hijinks that got out of hand at Wabash’s Phi Kappa Psi house.

Justices this month agreed to hear Brian Yost v. Wabash College, Phi Kappa Psi Fraternity, Inc., Phi Kappa Psi Fraternity - Indiana Gamma Chapter at Wabash College, and Nathan Cravens, 54S01-1303-CT-161. The Court of Appeals majority in October affirmed in a 42-page ruling the Montgomery Superior Court’s grant of summary judgment for Wabash and the fraternity defendants, holding they owed no duty to Yost.

Judge Nancy Vaidik dissented, concluding that the facts could lead to a finding that Yost was hazed. “Because of this, I believe that this is a jury’s call, not ours,” Vaidik wrote, though she agreed with summary judgment for the national Phi Kappa Psi fraternity.

hazing-15col.jpg An incident in which a freshman pledge was injured at the Phi Kappa Psi House at Wabash College in Crawfordsville resulted in a suit in which the Supreme Court could draw lines under Indiana’s anti-hazing statute. (Photo courtesy of Wabash College)

As a freshman pledge, Yost was injured when four upperclassmen tried to carry him to the shower in the fraternity house and run water on him in an activity called “showering,” which was outlined in the Gamma Chapter’s pledge packet. Upperclassman Nathan Cravens put Yost in a chokehold, according to the court record. Yost became unconscious and was dropped on the floor, resulting in injuries. He subsequently withdrew from Wabash.

In her dissent, Vaidik cited two later student deaths at Wabash that she wrote, “support a showing of a culture of hazing that is present on Wabash’s campus.”

Majority Judges Terry Crone and Cale Bradford took exception. “While the dissent notes that both incidents happened after Yost’s showering, we fail to see how such subsequent developments are relevant to our concerns in this case.”

The judges also disagreed over whether Wabash turned a blind eye to hazing.

Wabash spokesman Jim Amidon said the college would not comment on pending litigation, but said in a statement that the Crawfordsville school makes clear its position on student conduct. “Wabash operates with a single rule of conduct known as the Gentleman’s Rule, which states: ‘The student is expected to conduct himself at all times, both on and off the campus, as a gentleman and responsible citizen.’”

“The high expectations we have for, and communicate to, our students are emphasized often. That said, ours is a place of education, and we constantly seek to improve the education of our men to a higher understanding of the Gentleman’s Rule and of their capabilities. Accordingly, most of our discipline is done in conversation and from an educational perspective and not, most often, from a punitive one,” the Wabash statement said.

Stephen M. Wagner, a partner with Wagner Reese LLP in Carmel, sued Wabash and a local and national fraternity over the 2008 death of freshman Johnny D. Smith of Tucson, Ariz. Smith died of alcohol poisoning at the Delta Tau Delta house at Wabash. A trial court granted summary judgment in favor of the national fraternity, and that ruling has been briefed to the Court of Appeals, Wagner said. The trial court has not yet ruled regarding Wabash and the local chapter. He said he could not comment on the Smith case.

But Wagner said Yost will be closely watched for whether justices limit their holdings to the facts of the case or reach broader liability issues.

“A key fact in Yost is that Wabash was not just the college in that scenario, but also a landlord and a premises owner,” Wagner said. That differs from universities such as Indiana or Purdue, where fraternity houses are independently owned. But Wagner believes Yost could be significant to the duties of colleges to protect students in college-owned dorms, for instance.

As reflected in the COA opinion in Yost, the definition of hazing is “a polarizing issue,” Wagner said. So is the notion of a hazing culture at Wabash. “There’s a perception about what goes on at one of the few all-male, almost all-Greek colleges,” he said. “In some of these lawsuits against Wabash, there are allegations that there’s a pattern of allowing underage drinking and allowing these kinds of activities to occur in college-owned houses.”

tidmarsh Tidmarsh

Notre Dame Law School professor Jay Tidmarsh said the Yost case appears difficult for plaintiffs to prevail on, but it’s also unpredictable. Tidmarsh previously tried numerous cases involving duty as a trial attorney with the Torts Division of the U.S. Department of Justice.

Tidmarsh said both the majority and dissent in the Court of Appeals ruling made strong cases, particularly as to what constitutes hazing. Of the hazing statute, he said, “there’s enough language in there that there’s play about whether it could encompass this kind of activity” that resulted in Yost’s injuries.

Indiana Code 35-42-2-2 defines hazing as forcing a person, with or without consent, and “as a condition of association with a group or organization ... to perform an act that creates a substantial risk of bodily injury.” Whether this statute that sets criminal penalties for hazing also may impose civil liability through a duty claim is another question for the court.

“Duty tends to arise when there’s some pre-existing relationship to the people who are doing the injuring and the defendant, or when it’s foreseeable an injury will arise and you don’t do anything about it,” Tidmarsh said. “Usually foreseeability alone isn’t going to be enough.”

Sean Callan is a founding partner of Cincinnati-based Fraternal Law Partners. The firm represents Greek letter organizations, their chapters and foundations. He said every national Greek organization prohibits hazing, and the Yost decision was refreshing because it disposed of the complaint against the national Phi Kappa Psi fraternity.

“I think the community’s efforts to eliminate hazing are laudable and effective. However, the plaintiff’s bar has consistently tried to use these anti-hazing efforts as the linchpin to an argument that by enacting these very same anti-hazing efforts, the national organization has somehow become a guarantor of every individual’s well-being. That is not reasonable or fair,” Callan said.

But Wagner said national organizations do exert control and authority over their chapters. He noted the Delta Tau Delta charter at Wabash was revoked after Smith’s death.

The Yost case, Callan said, is likely to turn on Indiana’s definition of hazing. Unlike most of the 44 states with such statutes, Callan reads Indiana’s law to be predicated on activity forced on a victim as a condition of membership.

“Based upon this statutory definition, and the developed facts, the showering activity was simply not imposed as a condition of membership,” Callan said.

Attorneys for Yost, Wabash and the Indianapolis-based Phi Kappa Psi fraternity declined to comment, saying it would be inappropriate because of the pending Supreme Court arguments.•


Post a comment to this story

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
Subscribe to Indiana Lawyer
  1. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  2. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.

  3. While if true this auto dealer should be held liable, where was the BMV in all of this? How is it that the dealer was able to get "clean" titles to these vehicles in order to sell them to unsuspecting consumers?

  4. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For imposing Taxes on us without our Consent: He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless [ ] Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. GOD BLESS THE GOVERNORS RESISTING! Count on the gutless judiciary to tie our children down and facilitate the swords being drawn across their throats. Wake Up America ...

  5. Its a valid lawsuit. Since the civil war, States have no rights anyways. Get over it, people! You are all subjects now and merely "citizens of the world" anyways, with human rights and all that. Gov'nor knows that. This is just grandstanding to try and appease the red state troops still smarting over the "Gay rights" shoved down their unwilling throats. Gotta keep them "voting" in the kayfabe elections! After all, since nobody cares about the tens of millions of Mexicans here, what's a few Syrians going to do, anyways? Guess we'll find out! LOL