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
2015 Distinguished Barrister &
Up and Coming Lawyer Reception

Tuesday, May 5, 2015 • 4:30 - 7:00 pm
Learn More


ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

ADVERTISEMENT