Justices focus on hazing, duty in Wabash fraternity case

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Indiana Supreme Court justices on Tuesday quizzed attorneys about what constitutes hazing and whether Wabash College and a fraternity chapter owed a duty to protect a pledge injured when fraternity brothers placed him in a chokehold then dropped him.

“This was so much more than boys being boys,” argued Taft Stettinius & Hollister LLP partner Anne Cowgur on behalf of former Wabash student Brian Yost. She said Yost was seriously hurt when fraternity brothers initiated a “longstanding tradition” called “showering” outlined in fraternity literature. The activity involves carrying a frat member into a shower and dousing him with water. “It was foreseeable that someone would get hurt,” Cowgur said.

The Phi Kappa Psi fraternity chapter at Wabash also outlined another activity in its literature called “creeking” that involves throwing a fraternity member into a nearby creek to mark significant life events. A fraternity member had been creeked a few hours before Yost was injured while fraternity brothers attempted to carry him to a shower, according to the court record.

But Wabash attorney Thomas Schultz of Schultz & Pogue LLP sought to shift blame to Yost. Schultz said Yost had been wrestling with another pledge before the event and woke up fraternity members in the early-morning hours. Schultz said Yost was determined to prove his toughness, and that Wabash can’t be held liable under Indiana’s criminal hazing statute for what amounted to an altercation.

“This was not a criminal act that took place with Mr. Yost, and it was not foreseeable,” Schultz said. “… Showering and creeking is irrelevant in this case.”

Wabash and the fraternity won summary judgment from a trial court and a divided Court of Appeals affirmed in 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. Justices heard arguments at Indiana University East in Richmond.

Justice Loretta Rush appeared skeptical of claims that potential dangers of showering and creeking were unforeseeable. “They weren’t holding hands and skipping to the shower,” she said to Schultz. “It’s in the pledge manual,” she said of creeking and showering.

But Rush also challenged Cowgur on what the college or fraternity could have done to protect Yost. “Do we put someone on every floor to prevent it?”

“It’s not unreasonable to put someone in the house,” Cowgur later said, alleging a pattern of hazing at Wabash that the college has denied. “It’s sending the signal that this is OK. We shouldn’t wait for the next person to get hurt.”

Justice Mark Massa pressed Cowgur when she called the activities inherently dangerous. Massa said there was no evidence in the record that the activities presented dangers. Cowgur said that evidence would have been discovered had the case proceeded toward trial.

But Wooden & McLaughlin LLP partner Matthew Adolay, representing the fraternity, said the practices aren’t dangerous and pointed to “the unforeseeable acts of Mr. Yost."

“Brian Yost was never forced or required to do anything,” Adolay said.

Justice Robert Rucker suggested hazing might not be central to the case. Cowgur offered no counter when Rucker discussed allegations that the fraternity members grabbed Yost and asked, “Why would that not be battery?”

Schultz later said, “There’s never been an argument of assault and battery. … Mr. Yost was the instigator in this incident.”

Rucker also read from Court of Appeals Judge Nancy Vaidik’s dissent, highlighting claims that the college inadequately addressed allegations of hazing, including two deaths after Yost was hurt. Schultz disputed allegations that Wabash had failed to act on claims of hazing. He said the college has a policy against hazing.

Early in the arguments, Justice Steven David asked Cowgur, “Do you have a case against the local fraternity without the hazing statute?” Cowgur said there was a case because inclusion of the activities in fraternity literature establishes the foreseeability of harm. “At a minimum, there is a question of fact” that a jury or court should decide, she said.
“You can’t endorse (creeking and showering) in the pledge manual and then turn a blind eye to it when someone gets hurt,” Cowgur closed.

Read previous Indiana Lawyer coverage of the case here.


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  1. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  2. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  3. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  4. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  5. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well