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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. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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