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Hazing suit weighs college, fraternity liability

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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.•

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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