ILNews

National fraternity not entitled to summary judgment in wrongful death case

Back to TopCommentsE-mailPrintBookmark and Share

The national organization of a Wabash College fraternity where a freshman pledge died after a night of heavy drinking is not entitled to summary judgment on the student’s parents’ claims arising from his wrongful death, the Indiana Court of Appeals ruled.

Johnny Dupree Smith was a freshman at Wabash in Crawfordsville and a pledge at the Beta Psi Chapter of Delta Tau Delta. During “hell week,” Smith drank heavily at a party, some of which he did while participating in a “pledge family drink night.” The morning after the party, he was found unresponsive. The coroner determined he had been dead for several hours and his blood alcohol content was nearly 0.40 percent.

His parents, Stacy and Robert Smith, sued the school, local chapter of the fraternity, the national organization, and the chapter's risk manager, alleging violations of the hazing statute and the dram shop laws and asserted a claim of negligence against Delta Tau Delta.

Delta Tau Delta has a constitution, bylaws, and member responsibility guidelines that provide policies and rules for both individual and chapter expectations, including a prohibition of hazing and providing alcohol to pledges, requires its local chapters to comply with its rules, and enforces its rules at the chapter level in a variety of ways. Delta Tau Delta also mandated that each new member of the fraternity must complete an alcohol education program.

Delta Tau Delta filed a motion for summary judgment claiming Beta Psi’s individual members were not acting as agents of Delta Tau Delta and the national fraternity had not assumed a duty to the pledges of its local chapter to protect them from hazing and the danger of excessive alcohol consumption.

“To be sure, we are presented with a very narrow legal issue today. The parties are not alleging that an actual violation of the hazing statute or dram shop laws occurred; rather, we are requested to determine whether the national fraternity assumed a duty to its pledges or an agency relationship existed with the local chapter which could propel Delta Tau Delta within the purview of liability if the perceived violations of the hazing statute and dram shop laws took place,” Judge Patricia Riley wrote in Stacy Smith and Robert Smith, Individually and as Co-Personal Representatives of the Estate of Johnny Dupree Smith, Deceased v. Delta Tau Delta, Beta Psi Chapter of Delta Tau Delta, Wabash Col., et al., 54A01-1204-CT-169.

The trial court had denied the Smiths’ motions to strike the affidavit of James Russell, Delta Tau Delta’s executive vice president, and two unsworn and uncertified statements made to police by witnesses. The trial court granted summary judgment for the national organization, the only defendant that the COA ruled on Wednesday.  

Several of the paragraphs showed contradictions as to the level of involvement the national organization has with local chapters, the Court of Appeals pointed out. And the two statements made by witnesses pertaining to the events around Johnny Smith’s death fall within the provision of investigative police reports and are inadmissible as hearsay under Ind. Evidence Rule 803(8).

The judges found that a genuine issue of material fact remains whether this level of influence alone is sufficient to find that the fraternity assumed a duty to protect its pledges from hazing and excessive alcohol consumption, the court held. The judges also found a genuine issue of material fact as to whether an agency relationship existed between the national organization and the local chapter.

Judge John Baker wrote a separate opinion in which he concurred in result with the majority and most of its analysis. But he believed the trial court did not abuse its discretion when it denied the Smiths’ request to strike Paragraph 6 of Russell’s affidavit regarding the handling of local chapter affairs.

 

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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

ADVERTISEMENT