ILNews

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.•

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. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. 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.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. 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)

ADVERTISEMENT