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National fraternity not entitled to summary judgment in wrongful death case

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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.

 

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  1. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  2. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  3. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  4. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  5. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

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