A Wabash College fraternity pledge’s injury claim resulting from alleged hazing, ruled on recently by the Indiana Supreme Court, turned not on whether he was hazed inside the frat house, but on who may be liable.
“I think the court kind of took the most direct approach and applied landlord-tenant caselaw,” said Thomas R. Schultz, a partner at Schultz & Pogue LLP, who represented Wabash College in Brian Yost v. Wabash College, Phi Kappa Psi Fraternity-Indiana Gamma Chapter at Wabash College, Phi Kappa Psi Fraternity, Inc., and Nathan Cravens, 54S01-1303-CT-161.
The Supreme Court affirmed summary judgment in favor of Wabash and the national Phi Kappa Psi organization, but allowed a claim against the local Greek chapter to proceed.
“Obviously, Wabash wasn’t there that night, wasn’t there to see what was happening, and under Indiana law didn’t owe a duty of care” to Brian Yost, Schultz said. Yost was an 18-year-old freshman pledge when Phi Kappa Psi fraternity brothers were carrying him and dropped him, allegedly causing injuries that forced him to withdraw from the college.
Justices in a 4-1 opinion Feb. 13 affirmed trial and Court of Appeals rulings with regard to the college and the national fraternity. But justices reversed summary judgment in favor of the local Indiana Gamma Chapter of the fraternity, finding that Yost could pursue compensatory and punitive damages for injuries he sustained in the house.
“The local fraternity’s rules and traditions arguably may have provided the active members of the fraternity with authority over the pledges, including Yost, and the exercise of such authority may have played a role in the events that led to Yost’s injury,” Chief Justice Brent Dickson wrote for the majority. “For instance, Yost’s injury occurred when the local fraternity brothers attempted to forcibly place him in the shower, an act which resembles a celebratory tradition of the local fraternity.”
The Wabash Phi Kappa Psi chapter practiced a ritual called “creeking” in which fraternity members were tossed into a nearby creek on their birthdays. “Showering,” the activity that was being carried out when Yost was hurt, derives from that tradition.
Anne Cowgur, a Taft Stettinius & Hollister LLP partner who argued Yost’s case before the Indiana Supreme Court, declined to discuss the pending case which has been remanded to Montgomery Superior Judge David Ault. Other attorneys representing Yost and his family did not respond to messages seeking comment.
“All of us are looking forward to proceeding with this case and continuing our efforts to assist Mr. Yost,” Cowgur said.
For Greek organizations on college campuses, the decision buttresses the proactive stance that fraternities and sororities have taken against hazing on the national level, said Sean Callan, founding partner of Cincinnati-based Fraternal Law Partners, which represents such organizations.
“Greek organizations on a national level are sort of thankful the Yost decision came down as it did,” Callan said. Had the justices found liability on the part of the national organization, that could have jeopardized those groups’ educational outreach aimed at preventing hazing, he said.
“Every national organization has a policy against hazing of any type. It’s just something that’s not condoned or tolerated at the national level,” Callan explained. Had the national Phi Kappa organization been aware of the Wabash creeking tradition, he said, “It would have been ended immediately.”
In Yost, justices were unanimous only in agreeing that the national organization should not face a claim of liability.
“There is no genuine issue of fact tending to show the existence of an agency relationship, and thus the actions of the local fraternity and its members cannot, as a matter of law, be imputed to the national fraternity under a theory of vicarious liability,” Dickson wrote. Like numerous other Greek organizations, Phi Kappa Psi is based in Indianapolis.
The court also noted a public policy rationale for not holding the national organization liable. It “should be encouraged, not disincentivized, to undertake programs to promote safe and positive behavior and to discourage hazing and other socially undesirable conduct,” Dickson wrote.
Callan said the Yost decision could have far-reaching consequences, especially as more colleges seek ownership and control of the properties where Greek institutions are located, as was the case at Wabash.
“It’s becoming more prevalent. More and more colleges and institutions are going to a concept of a ‘Greek village’ where the college will typically own the ground and own the building and lease” to fraternities or sororities, he explained.
Back to basics
Some eight months after hearing arguments, justices formally requested a copy of the lease agreement between Wabash College and the local chapter. The court’s ruling followed several weeks later.
“What’s interesting about the opinion is the Supreme Court looked at it in a different way than the Court of Appeals,” Schultz said. As it pertained to Wabash College, “The Court of Appeals looked at it and said, ‘Is this hazing?’ … The Supreme Court looked at it as, ‘What is the duty the landlord owes to its tenant?’”
Justice Robert Rucker dissented with respect to Wabash, which he wrote had not given full control and possession of the property it leased to the local fraternity. “(A)s a landowner Wabash owed Yost – an invitee – ‘a duty to exercise reasonable care for his protection’ while on Wabash’s premises.
“Because Wabash in my view has not carried its burden of proof on this outcome-determinative issue, the trial court’s grant of summary judgment cannot be sustained on grounds that Wabash owed Yost no duty,” Rucker wrote.
Callan said the court also relied on Indiana caselaw dating back to the 1980s establishing that colleges and universities may not be subject to “in lieu of parents” theories of liability.
The Yost decision already has impacted another case in which Wabash and national and local fraternities are defendants. The parents of Johnny Smith, a freshman who died after a night of heavy drinking, won a Court of Appeals ruling in May saying national fraternity Delta Tau Delta wasn’t entitled to summary judgment in the parents’ wrongful death claim.
The case, 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, is pending a petition to grant transfer to the Indiana Supreme Court.
Frost Brown Todd LLP partner Kevin Schiferl, who represents the national chapter of Delta Tau Delta, said a supplemental brief in that case was filed days after the Yost decision, “which we think on all four squares is the same issue.”
The Smith case also has drawn the interest of a number of Greek organizations that have filed amicus briefs in support of Fishers-based Delta Tau Delta. On the other side, the Indiana Trial Lawyers Association has filed in support of Smith, said the plaintiffs’ attorney, Stephen Wagner of Wagner Reese LLP in Carmel.
The COA ruling is “one of the first decisions around the country that found a national (Greek) organization could have liability,” Wagner said.
Wagner said he couldn’t comment about the pending case before the Supreme Court. Neither Wabash nor the local Delta Tau Delta chapter have sought summary judgment at the trial court level, he said.•