ILNews

Justices focus on hazing, duty in Wabash fraternity case

Back to TopCommentsE-mailPrintBookmark and Share

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.
  
 

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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

ADVERTISEMENT