Brian Yost v. Wabash College, Phi Kappa Psi Fraternity, Inc., Phi Kappa Psi Fraternity - Indiana Gamma Chapter at Wabash College, and Nathan Cravens

FOR PUBLICATION

ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE WABASH
COLLEGE:
PATRICK A. ELWARD
KARL L. MULVANEY THOMAS R. SCHULTZ
BRIANA L. CLARK Schultz & Pogue, LLP
Bingham Greenebaum Doll LLP Indianapolis, Indiana
Indianapolis, Indiana
ATTORNEYS FOR APPELLEES PHI
ANNE L. COWGUR KAPPA PSI FRATERNITY, INC. AND
Taft Stettinius & Hollister LLP PHI KAPPA PSI FRATERNITY –
Indianapolis, Indiana INDIANA GAMMA CHAPTER:

DOUGLAS B. KING
MATTHEW M. ADOLAY
MAUREEN E. WARD
Wooden & McLaughlin LLP
Indianapolis, Indiana

FILED
IN THE Oct 02 2012, 9:24 am

COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court

BRIAN YOST, )
)
Appellant-Plaintiff, )
)
vs. ) No. 54A01-1201-CT-31
)
WABASH COLLEGE, PHI KAPPA PSI )
FRATERNITY, INC., PHI KAPPA PSI )
FRATERNITY – INDIANA GAMMA )
CHAPTER AT WABASH COLLEGE, and )
NATHAN CRAVENS, )
)
Appellees-Defendants. )
 APPEAL FROM THE MONTGOMERY SUPERIOR COURT
The Honorable David A. Ault, Judge
Cause No. 54D01-0908-CT-351

October 2, 2012

OPINION - FOR PUBLICATION

CRONE, Judge

Case Summary

Who is responsible when fraternity boys engage in impromptu activities that escalate

to the point where one of them is seriously injured? In this case, eighteen-year-old Wabash

College freshman Brian Yost and his fraternity pledge brothers decided to throw an

upperclassman brother in a nearby creek to celebrate his twenty-first birthday. Afterwards,

they tried to do the same thing to two other upperclassman brothers, but they were

unsuccessful. Shortly thereafter, four upperclassman brothers decided to carry Yost to the

shower and run water on him. On the way to the bathroom, upperclassman Nathan Cravens

joined the group and placed Yost in a chokehold. Yost went limp, and the brothers dropped

him on the floor. He suffered physical and mental injuries and had to withdraw from school.

Yost filed a personal injury action against Phi Kappa Psi National Fraternity (“Phi Psi

National”) and Phi Kappa Psi - Indiana Gamma Chapter (“Phi Psi”) (collectively, “Phi Psi

Defendants”), Wabash College (“Wabash”), and Cravens, seeking compensatory and punitive

damages. Wabash and the Phi Psi Defendants filed motions for summary judgment, claiming

that they owed no duty to Yost as a matter of law, and the trial court granted both motions.

2
 Yost now appeals, claiming that the trial court erred in granting summary judgment in

favor of Wabash and the Phi Psi Defendants (collectively, “Appellees”).1 Specifically, he

contends that the trial court erred in concluding as a matter of law that (1) Appellees were not

negligent because they owed him no duty to protect him from the activities that led to his

injuries; (2) Appellees did not assume a duty to Yost; (3) Appellees are not vicariously liable;

and (4) Appellees are not liable for punitive damages. Finding that the designated evidence

supports summary judgment in favor of the Appellees, we affirm.

Facts and Procedural History2

The relevant facts are largely undisputed. At approximately 1:00 a.m. on September

4, 2007, Wabash freshman Yost and some other pledges of the Phi Psi fraternity decided to

“creek” Steve Abbott, an upperclassman brother who was turning twenty-one. “Creeking”

involves taking a brother to be submerged in nearby Sugar Creek and is generally done to

celebrate either his engagement or his twenty-first birthday. After they successfully

completed the “creeking,” they unsuccessfully attempted to “creek” another brother who was

leaving to study abroad. Shortly thereafter, Yost suggested that the group “creek” another

brother, Grant Schmutte, who was a close friend of Yost and was already twenty-one. When

the group converged on Schmutte in his room at about 2:00 a.m., Schmutte resisted, and

1
Summary judgment was not entered in favor of Cravens, and he is not participating in this appeal.
2
We heard oral argument on August 7, 2012. We thank the parties for their preparation and
presentations.

3
several guys began to wrestle. Eventually, the other pledges left, and Schmutte and Yost

continued to wrestle.

Schmutte then decided to “shower” Yost, and a few upperclassmen brothers assisted.3

“Showering” involves placing a brother under running water in the shower and is often done

to celebrate birthdays or other occasions. Yost flailed and resisted, not wanting to “back

down from a fight.” Appellant’s App. at 370. As four Phi Psi brothers carried Yost to the

shower, Cravens approached. Cravens, a former wrestler, placed Yost in a chokehold, and

Yost went limp. When the brothers saw that Yost had lost consciousness, they panicked and

dropped him. Yost suffered physical injuries as well as mental injuries that affected his

memory and concentration. Neither Yost nor Phi Psi reported the incident to Wabash

officials at that time, and Yost eventually withdrew from school. He re-enrolled at Wabash

and re-pledged Phi Psi in the fall of 2008. Again, he did not complete the semester. Fifteen

months after the incident, Cravens’s parents sent Wabash officials a letter describing

negative changes in their son’s personality that they attributed to his participation in the

Greek system at Wabash.4

On August 25, 2009, Yost filed a personal injury action against Cravens, the Phi Psi

Defendants, and Wabash. The trial court entered a default judgment against Wabash for

3
To the extent Yost argues that showering was a tradition/ritual used as punishment for a failed
creeking, we note that the trial court granted the Phi Psi Defendants’ motion to strike as hearsay the portions of
Yost’s designated evidence describing showering as a punishment ritual. Because Yost does not appeal the
trial court’s decision to strike this evidence, we may not consider it.
4
Notably, portions of the parents’ letter that referenced Cravens’s negative experiences as a Phi Psi
pledge were also stricken on hearsay grounds.

4
failure to respond to Yost’s discovery requests. Wabash nevertheless filed a motion for

summary judgment, which the trial court denied. Thereafter, Wabash filed a motion for relief

from default judgment, and the trial court granted the motion.

Wabash and the Phi Psi Defendants filed motions for summary judgment, and the Phi

Psi Defendants filed a motion to strike certain documents from Yost’s designated evidence.

The trial court held a hearing on all motions. On December 14, 2011, the trial court granted

in part the Phi Psi Defendants’ motion to strike certain portions of Yost’s designated

evidence and granted summary judgment in favor of Wabash and the Phi Psi Defendants. In

its summary judgment order, the trial court concluded as a matter of law that Yost was not

the victim of hazing:

[Yost] admits that he instigated the series of events that led to the accident.
There is no evidence from which it may be inferred that his actions in initiating
the attempted creeking of his pledge father, and the wrestling that ensued, were
coerced or otherwise forced by others. There is no evidence that any of the
fraternity members’ actions—whether categorized as hazing, horseplay or a
“hall brawl”—created a substantial risk of bodily injury. Accepting [Yost’s]
version of the incident, he was not injured until (a) Cravens caused him to lose
consciousness and (b) the other (nonparty) fraternity brothers released their
grip on his arms and legs and he fell to the floor. The acts of the fraternity
brothers—including [Yost]—may have been negligent, but [Yost] has not
shown that they were criminal.

Appellant’s App. at 23-24.

Because the claims against Cravens were unresolved, Wabash and the Phi Psi

Defendants filed a motion for entry of final judgment pursuant to Indiana Trial Rule 54(B).

The trial court granted the motion and entered final judgment for Wabash and the Phi Psi

Defendants on December 29, 2011. Yost now appeals the trial court’s judgment.

5
 Discussion and Decision

Standard of Review

Yost contends that the trial court erred in granting summary judgment in favor of

Wabash and the Phi Psi Defendants. We review the trial court’s decision to grant or deny

summary judgment using the same standard as the trial court. Worman Enters., Inc. v. Boone

Cnty. Solid Waste Mgmt. Dist., 805 N.E.2d 369, 373 (Ind. 2004). A motion for summary

judgment is properly granted only when the pleadings and designated evidence reveal that

there is no genuine issue of material fact and that the moving party is entitled to judgment as

a matter of law. Ind. Trial Rule 56(C); Bank of New York v. Nally, 820 N.E.2d 644, 648 (Ind.

2005). In determining whether issues of material fact exist, we must accept as true those

facts established by evidence favoring the nonmoving party and resolve all doubts against the

moving party. Id. A trial court’s decision to grant summary judgment is clothed with a

presumption of validity, and the appellant bears the burden of proving that the trial court

erred. Alexander v. Marion Cnty. Sheriff, 891 N.E.2d 87, 92 (Ind. Ct. App. 2008), trans.

denied (2009).

Here, as part of its summary judgment order, the trial court issued an eighteen-page

statement containing the undisputed material facts and its conclusions concerning Yost’s

various theories of recovery against each defendant. We note that the trial court is not

required to provide written findings and conclusions on summary judgment and that the

conclusions are not binding on appeal, but they offer valuable insight into the trial court’s

rationale and thus help facilitate our review. First Farmers Bank & Trust Co. v. Whorley,

6
891 N.E.2d 604, 608 (Ind. Ct. App. 2008), trans. denied. We may affirm based on any theory

supported by the designated evidence. Cincinnati Ins. Co. v. Davis, 860 N.E.2d 915, 922

(Ind. Ct. App. 2007).

Negligence and Duty

Yost contends that the trial court erred in finding as a matter of law that Appellees

were not negligent. To prevail upon a negligence claim, the plaintiff must prove by a

preponderance of evidence that (1) the defendant owed a duty of reasonable care to the

plaintiff; (2) the defendant breached that duty; and (3) the plaintiff suffered an injury

proximately caused by the breach. Humphery v. Duke Energy Indiana, Inc., 916 N.E.2d 287,

290 (Ind. Ct. App. 2009). Summary judgment is rarely appropriate in negligence cases. Id.

However, the existence of a duty is a question of law, and absent a duty, there can be no

breach and therefore no negligence. Kroger Co. v. Plonski, 930 N.E.2d 1, 6-7 (Ind. 2010).

Summary judgment is appropriate when the undisputed material evidence negates one

element of a negligence claim. Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind. 2004).

Yost argues that Appellees had a duty to protect him from his brothers’ actions that

led to his injuries. In Webb v. Jarvis, our supreme court stated that the duty of reasonable

care is not owed to the world at large, but rather, to those who might reasonably be foreseen

as being subject to injury by the breach of the duty. 575 N.E.2d 992, 997 (Ind. 1991). In that

case, the court held that three factors must be balanced to determine whether a duty is owed:

(1) the relationship between the parties; (2) the reasonable foreseeability of harm; and (3)

public policy concerns. Id. at 995. However, the balancing test is unnecessary in cases

7
where duty is already clearly defined and articulated, as is the case with premises and

vicarious liability. NIPSCO v. Sharp, 790 N.E.2d 462, 465 (Ind. 2003).

Yost asserts that Appellees breached a duty to protect him from the conduct of third

persons. Absent a special relationship between the parties, there is generally no duty to

control the conduct of a third party. Swanson v. Wabash College, 504 N.E.2d 327, 330 (Ind.

Ct. App. 1987). Special relationships include parent/child, master/servant,

landowner/invitee, persons in charge of one with dangerous propensities, and persons with

custody of another. RESTATEMENT (SECOND) OF TORTS §§ 316-20 (2d ed. 1965). In this

appeal, Yost asserts that the following special relationships exist: landowner/invitee

(premises liability) and master/servant (vicarious liability). Some confusion exists as to

whether Yost also relies on the doctrine of in loco parentis as the basis for creating a duty.

Appellees correctly assert that Indiana has rejected the in loco parentis doctrine for college-

aged students. See Campbell v. Bd. of Trs. of Wabash Coll., 495 N.E.2d 227, 232 (Ind. Ct.

App. 1986) (emphasizing that because college students and fraternity members are adult

citizens, colleges and fraternities are not expected to assume in loco parentis role), trans.

denied (1987). In his reply brief, Yost states that he does not rely on the in loco parentis

doctrine, yet he also states that “Indiana’s rejection of a general in loco parentis duty for

college-age students does not relieve [the Appellees] of duties they assumed.” Reply Br. at 7.

We address assumption of duty below and need not conduct an independent discussion of the

in loco parentis doctrine.

8
 Here, the trial court found as a matter of law that neither Wabash nor the Phi Psi

Defendants owed Yost a duty to protect him under these circumstances. The court also found

as a matter of law that none of the Appellees assumed a duty to protect Yost from the

conduct that resulted in his injuries. While we agree with the trial court’s decision to grant

summary judgment in favor of the Appellees, we affirm based on our conclusion that as a

matter of law the Appellees did not breach their standard of care under the evidence

designated in this case. We will address each of Yost’s theories of recovery below.

Theories of Recovery

I. Premises Liability

Yost relies on premises liability as a basis for arguing that Wabash, as owner and

landlord of the Phi Psi house property, had a duty to protect him from the activities that led to

his injury. Landowners have a duty to take reasonable precautions to protect their invitees5

from foreseeable criminal attacks, i.e., hazing. Paragon Family Rest. v. Bartolini, 799

N.E.2d 1048, 1052 (Ind. 2003). The duty extends only to harm from the conduct of third

persons that is reasonably foreseeable to the landowner given the designated facts. Id.

Throughout the proceedings below and in his appellate filings, Yost has characterized

the September 4, 2007 incident as “hazing.” See, e.g., Appellant’s Br. at 15. He argues that

this “hazing” incident constituted criminal conduct foreseeable to landowner/landlord

Wabash based on the history of hazing on its campus and that Wabash therefore had a legal

5
An invitee is a “person who has an express or implied invitation to enter or use another’s premises
such as a business visitor or a member of the public to whom the premises are held open.” B LACK’S LAW
DICTIONARY 846 (8th ed. 2004).

9
duty to protect him from it. A finding of hazing is not dispositive of liability in this case, but

because Yost consistently characterizes the conduct as such, we begin by examining

Indiana’s anti-hazing statute as well as cases involving allegations of hazing.

Indiana’s anti-hazing statute criminalizes conduct that constitutes hazing. See, Ind.

Code § 35-42-2-2(b) (stating that a person who recklessly, knowingly, or intentionally

performs hazing is subject to prosecution for criminal recklessness). At the outset, we note

that neither the Phi Psi Defendants nor Wabash was charged with hazing as a criminal act;

however, we find the statutory definition of hazing to be instructive in this civil action for

damages. We also note that the trial court and the parties treated this definition as dispositive

in this civil hazing action. Indiana Code Section 35-42-2-2(a) defines “hazing” as “forcing

or requiring another person … with or without the consent of the other person … and … as a

condition of association with a group or organization … to perform an act that creates a

substantial risk of bodily injury.”

Yost argues that hazing was foreseeable criminal conduct at Wabash. As such, he

submitted as designated evidence a list of hazing incidents at the various Wabash fraternity

houses. In each instance, the college took action in the form of meetings with chapter

officers and members or disciplinary action against the offending chapter. Among these

were alcohol consumption incidents, physical labor incidents, incidents involving forced

boxing matches and paddle fights between pledges, incidents involving verbal hazing, an

incident involving masturbation, and an incident in which a pledge was tied to a pole.

Appellant’s App. at 457-64. None of the aforementioned involved the Phi Psi house, and the

10
only designated incidents involving the Phi Psis were two occurrences in which active

members threw trash or debris on sleeping pledges.6 Notably, these two occurrences did not

involve a substantial risk of bodily injury as required by the statute. With respect to hazing

incidents at other fraternities, we reject the notion that Wabash’s knowledge of those

incidents translates to turning a blind eye to the incidents giving rise to this case. Also, to the

extent that the list contains incidents that occurred after September 4, 2007, such incidents

are irrelevant to our discussion of foreseeable criminal conduct.

In this vein, the dissent asserts that Wabash has turned a blind eye toward hazing and

lists among the hazing incidents at Wabash two incidents that resulted in the death of

students. While the dissent notes that both incidents happened after Yost’s showering, we

fail to see how such subsequent developments are relevant to our concerns in this case. In

other words, on September 4, 2007, Wabash could not have turned a blind eye to incidents

that occurred in October 2007 and October 2008. Moreover, to the extent the dissent cites

the deaths as support for an argument that Wabash failed to take a hard line in disciplining

fraternities for hazing, we note that the fraternity involved in the 2008 incident was removed

from campus.7

Although Indiana courts have addressed liability for universities and fraternities

stemming from injuries incurred by plaintiffs on university or fraternity property, none have

6
In both instances involving Phi Psi, the dean and associate dean worked with the chapter leadership
to prevent similar occurrences.

7
With respect to the October 2007 incident, the student fell from the roof of an academic building,
and his fall was found to have no connection to the fraternity at which the decedent had been a pledge.
11
specifically addressed liability for these defendants based on allegations of injuries stemming

from an incident involving fraternity hazing.8 Courts in other jurisdictions have directly

addressed allegations of hazing within college fraternities. Generally, the defendants have

included, as here, the college, the national fraternity, the local fraternity chapter, and any

individual perpetrator(s). The cases have usually focused on activities surrounding initiation

rituals. More often than not, the hazing has involved excessive fraternity-sponsored alcohol

consumption, but in some cases, bizarre physical rituals were involved.9

In one of the most notorious cases, Furek v. University of Delaware, 594 A.2d 506

(Del. 1991), a fraternity “Hell Night” ritual involved spraying initiates with a fire

extinguisher, paddling them, forcing them to eat food out of toilets, blindfolding them, and

dousing them with ketchup and other food. During the Hell Night activities, one of the

fraternity members poured a lye-based liquid oven cleaner over initiate Furek’s back and

neck. Furek was hospitalized with first- and second-degree burns, was permanently scarred,

and withdrew from the university, forfeiting his football scholarship. Id. at 509-10. He filed

a personal injury action against the university, the local fraternity, the national fraternity, and

8
See e.g., Delta Tau Delta v. Johnson, 712 N.E.2d 968 (Ind. 1999) (sexual assault of female party
guest at fraternity house by alumni member not living at house); L.W. v. W. Golf Ass’n, 712 N.E.2d 983 (Ind.
1999) (intoxicated female member of co-ed scholarship house sexually assaulted by male co-resident); Hayden
v. Univ. of Notre Dame, 716 N.E.2d 603 (Ind. Ct. App. 1999) (spectator injured by another spectator at college
football game), trans. denied (2000); Campbell, 495 N.E.2d at 227 (female guest of individual fraternity
member injured in auto accident after consuming alcohol in member’s room); Foster v. Purdue Univ. Chapter,
The Beta Mu of Beta Theta Pi, 567 N.E.2d 865 (Ind. Ct. App. 1991) (intoxicated freshman fraternity member
rendered quadriplegic by diving onto makeshift waterslide at fraternity event), trans. denied.
9
For an overview of the potential liability of various defendants for hazing incidents, see, Cheryl M.
Bailey, Annotation, Tort Liability of College, University, Fraternity, or Sorority for Injury or Death of
Member by Hazing or Initiation Activity, 68 A.L.R. 4th 228 (1989).

12
the individual perpetrator. In reversing the trial court’s decision to grant the university’s

motion for JNOV, the Furek court considered the university’s duty as landowner and

examined the issues of foreseeability and premises control. The court also emphasized that

although a university no longer stands in loco parentis to its students, the relationship

between university and student is sufficiently close such that a duty may be imposed based on

assumption of duty or on foreseeable dangerous activities occurring on its property. Id. at

522. It is difficult to discern whether the Furek court relied on the unique cumulative

circumstances of the case, i.e., the standard of review, the university’s affirmative attempts to

control fraternity hazing, and the university’s position as landowner, in reaching its decision

or whether the court intended to create a limited special duty between university and

student.10

In Morrison v. Kappa Alpha Psi Fraternity, 738 So. 2d 1105 (La. Ct. App. 1999), writ

denied, a fraternity president physically beat a freshman student during a fraternity

membership interest meeting held in the president’s dorm room. The freshman filed a

personal injury action against the university, the university’s insurer, the national fraternity,

and the fraternity president. The Louisiana Court of Appeals affirmed a jury verdict against

the university, emphasizing that because the university had knowledge and documentation of

10
The Kansas Supreme Court interpreted it as the latter in Nero v. Kansas State University, 861 P.2d
768 (Kan. 1993), and specifically declined to follow Furek, at least to the extent that the Furek court appeared
to “impose at least a limited duty upon the university to protect students from their fellow students’ actions.”
Id. at 777. We agree with the Nero court in this respect.

13
prior hazing incidents involving the particular fraternity, it had a duty to monitor and prevent

further prohibited hazing activity by that fraternity. Id. at 1115.

In cases involving allegations of hazing by alcohol, the decisions have generally

hinged upon whether the alcohol consumption was part of a college- or fraternity-sponsored

activity or ritual. See, e.g., Ballou v. Sigma Nu Gen’l Fraternity, 352 S.E.2d 488 (S.C. Ct.

App. 1986) (holding that where pledges were forced to drink alcohol as part of local

chapter’s initiation “hell night” activities and national fraternity benefited from initiation of

new members, national fraternity was liable under apparent authority for pledge’s death due

to excessive alcohol consumption); see also Oja v. Grand Chapter of Theta Chi Fraternity

Inc., 680 N.Y.S.2d 277 (N.Y. App. Div. 1998) (affirming denial of landowner/house

corporation’s motion to dismiss action stemming from death of pledge from forced excessive

alcohol consumption as part of hazing ritual where house corporation knew of recurring

dangerous activities, had sufficient right to control such activities, and failed to do so); see

also Garofalo v. Lambda Chi Alpha Fraternity, 616 N.W.2d 647 (Iowa 2000) (affirming

summary judgment in favor of local and national fraternity in wrongful death action where

underage pledge died of alcohol poisoning following big brother/little brother ceremony,

drinking was not part of the ritual or ceremony, alcohol was purchased by big brothers and

not by fraternity, and at least one pledge chose not to drink.)

Here, the parties disagree about whether the activities resulting in Yost’s injuries were

“hazing,” the intervening criminal act of one brother, or merely horseplay that got out of

hand. Yost contends that despite Wabash’s characterization of the incident as horseplay,

14
“there is no doubt that the events leading up to Yost’s injury constituted hazing.”

Appellant’s Br. at 15 (emphasis added). It appears from the remainder of Yost’s argument

that he contends that the hazing began when the four brothers first picked him up and carried

him toward the bathroom to be showered. He cites his resistance by “kicking and screaming”

as evidence that he was being hazed. Id. at 16 (citing Appellant’s App. at 489). Appellees

cite Yost’s other statements that he initially viewed the showering as a fun event in which he

could demonstrate his ferocity by resisting the brothers’ efforts. Id. We note, however, that

the hazing statute explicitly states that consent is irrelevant in determining whether hazing

occurred.

Consent notwithstanding, the trial court and the parties treated the statutory definition

as dispositive, and the trial court applied the definition, finding as a matter of law that Yost

had not been the victim of hazing. The court specifically noted that Yost had instigated the

series of events, that the events were not coerced or forced by the other brothers, and that

until Cravens placed him the chokehold, there was no evidence that the activities created a

substantial risk of bodily injury. We disagree with the trial court’s finding that there was no

substantial risk of bodily injury until Cravens intervened, as common sense tells us that there

is a substantial risk of bodily injury whenever a person is thrown into a potentially slick

shower or a rocky creek. Nevertheless, we may affirm on any basis argued by the parties and

supported by the designated evidence. Breining v. Harkness, 872 N.E.2d 155, 158 (Ind. Ct.

App. 2007), trans. denied (2008).

15
 Other designated evidence shows that the traditions of creeking and showering were

ordinarily planned, celebratory events involving all or most of the fraternity brothers. Here,

the activities were impromptu and not in keeping with the parameters specified in the pledge

manual. This is not to say that, in order to constitute hazing, the objectionable activity must

be attended by all members of a given fraternity. See e.g., Morrison, 738 So. 2d at 1110 n.1

(finding liability for hazing where fraternity president physically beat freshman potential

pledge in president’s dorm room during fraternity membership interest meeting even though

only one other active fraternity member and two other potential pledges were present).

Nonetheless, here, pledge training had not officially begun on the night when Yost and his

pledge brothers decided to creek Abbott and Schmutte. Yost was the person who made the

decision to creek Schmutte, who was neither engaged nor having a birthday, and he chose

Schmutte based on their friendship. Also, by the time the upperclassmen brothers decided to

shower Yost, Yost’s pledge brothers had scattered and gone to bed. Moreover, Yost’s desire

to impress the brothers by fighting ferociously did not amount to a condition of his

membership. On the contrary, the designated evidence contains Schmutte’s affidavit, in

which he characterized Yost as one of his “very best friends” and specifically stated,

My efforts to place [Yost] in the shower had nothing to do with his status as a
pledge or my status as an active brother in the fraternity …. [and] [t]he attempt
… was in no way a condition of his association with the fraternity [and that,]
[r]egardless of whether he did or didn’t resist, his standing in the fraternity
would not have been affected in any way.

Appellant’s App. at 836-38.

16
 In short, neither the brothers’ attempt to shower Yost nor Cravens’s chokehold were

activities forced upon Yost as a condition of membership; rather, they simply amounted to an

escalation of the preceding impromptu activities, i.e., the attempted creeking and the

wrestling. Even though showering was a recognized chapter tradition, in these particular

circumstances, it was a spontaneous act of a few brothers rather than a fraternity-sponsored

activity.11 Consequently, we find that the designated evidence supports the trial court’s

conclusion that as a matter of law Yost’s showering did not amount to hazing.

Notwithstanding, the special relationship between landowner/landlord and

invitee/tenant creates in the former a duty to protect the latter from foreseeable criminal

activity, whether hazing or otherwise. In 1999, our supreme court simultaneously decided a

trio of cases concerning a landowner/landlord’s duty to take reasonable care to protect its

invitees/tenants from criminal attack. Delta Tau Delta, Beta Alpha Chapter v. Johnson, 712

N.E.2d 968 (Ind. 1999); Vernon v. Kroger Co., 712 N.E.2d 976 (Ind. 1999); and L.W. v.

Western Golf Ass’n, 712 N.E.2d 983 (Ind. 1999).

In the lead opinion, Delta Tau Delta, 712 N.E.2d at 973, the court applied a totality of

circumstances test and reasoned that although landowners are not insurers of an invitee’s

safety, they are required to take reasonable precautions to prevent foreseeable criminal acts

against the invitees. Id. Under the totality of the circumstances test, a court considers all of

11
To the extent Yost relies on stricken evidence to support his argument that he was being showered
as punishment for a failed creeking, we reiterate that we cannot consider such evidence. The designated
evidence includes Schmutte’s affidavit, in which he states that it “is not mandatory for pledges or active
members of the fraternity to creek another Wabash Phi Psi member on [his] 21st birthday, and there is no
penalty to active or pledge members of the fraternity for failing to attempt, or to complete, the creeking of a
fraternity member …” Appellant’s App. at 835.
17
the circumstances surrounding an event, including the nature, condition, and location of the

land, as well as prior similar incidents, to determine whether a criminal act was foreseeable.

Id. at 972.

Years later, in Bartolini, supra, our supreme court declined to follow the “totality of

circumstances test” that it had laid down in Delta Tau Delta and its companion cases, stating

that “where … the alleged duty is well-established, there is no need for a new judicial

redetermination of duty.” 799 N.E.2d at 1053. The Bartolini court also stated, “There is no

doubt, however, that reasonable foreseeability is an element of a landowner or business

proprietor’s duty of reasonable care. The issue is merely at what point and in what manner to

evaluate the evidence regarding foreseeability.” Id. That same year, then-Justice Theodore

Boehm wrote a law review article on the subject of duty and reasoned that instead of

resolving cases by finding that no duty exists, “it would seem more accurate to identify the

reason the plaintiff lost as a failure to establish either unreasonable conduct or causation.”

Hon. Theodore R. Boehm, A Tangled Webb-Reexamining the Role of Duty in Indiana

Negligence Actions, 37 Ind. L. Rev. 1, 4 (2003). In keeping with the approach adopted by

our supreme court in Bartolini and explained by Justice Boehm, we dispose of this claim

based on our finding as a matter of law that Yost failed to establish that Wabash breached its

landowner duty to act reasonably toward him under these circumstances.

Notwithstanding, we find that Delta Tau Delta and Western Golf are worthy of

discussion due to their factual and contextual similarities to this case. Delta Tau Delta

involved an intoxicated female party guest, Johnson, who was sexually assaulted at a

18
fraternity house by a fraternity alumnus who had attended the same fraternity-sponsored

after-football-game party. Our supreme court held that the local fraternity chapter had a duty

as landowner to take reasonable care to protect Johnson from a foreseeable sexual assault.

Id. at 973. The Court found that the sexual assault against Johnson was foreseeable based on

two prior incidents of assault at the Delta Tau Delta house within the two years preceding the

assault as well as literature that the local chapter had recently received from its national

fraternity containing statistics on sexual assault at fraternity houses and the fraternities’

exposure to liability therefrom. Id. at 973-74. Without expressing a view on the overall

merits of the negligence claim against the local chapter, our supreme court held that summary

judgment was inappropriate and remanded the case for trial on this issue. Notably, the sexual

assault in Delta Tau Delta occurred at the chapter house following a party that was sponsored

by the local chapter. In contrast, where injury is sustained as a result of individual activity

not sponsored by the fraternity or college, courts are more reticent to find duty based on

foreseeability. See, e.g., Campbell, 495 N.E.2d at 228-29 (holding that neither college nor

fraternity owed a legal duty to protect social guest of individual fraternity member where

guest and fraternity member privately consumed alcohol provided by member, not in

conjunction with any college- or fraternity-sponsored event, and guest was injured when

intoxicated member drove off the road while driving her home).

In Western Golf, 712 N.E.2d at 985, our supreme court affirmed the trial court’s

summary judgment order, holding that under the totality of the circumstances, the landowner

association and foundation did not owe a duty to protect a female member of the Evans

19
Scholars house from being raped by a male Evans Scholars member while she was

unconscious on her bed due to intoxication. The Western Golf court noted that while the

record contained evidence of childish pranks and embarrassing conduct by a few isolated

individuals, it did not contain evidence of prior violent acts or sexual assaults at the co-ed

Evans Scholars house such as to make the perpetrator’s actions reasonably foreseeable. Id.12

We find an interesting factual parallel between Western Golf and the instant case, in

that each neither case involves the classic criminal conduct of a third party. Instead, these

cases both involve co-tenants, each with a right to be on the premises, and acts committed

between/among those co-tenants within the walls. The incident within Phi Psi’s walls

culminated in Yost being placed in a chokehold and dropped on the floor. There is no

evidence indicating that Cravens or any other brother was charged with a crime, i.e., assault

or battery, based on those acts. Although the lack of an actual criminal charge is not

dispositive, we find no designated evidence of criminal intent on the part of Cravens,

Schmutte, or the other brothers.13 Thus, we conclude as a matter of law that landowner

Wabash did not breach its duty to protect Yost from foreseeable criminal conduct.

12
In the third case in the trio, Vernon v. Kroger Co., supra, our supreme court found reasonable
foreseeability sufficient to preclude summary judgment for Kroger in a personal injury action brought by a
shopper who was beaten by a fleeing shoplifter in the store parking lot. Id. at 979. The Vernon court cited the
history of shoplifting and battery offenses at the particular Kroger store. Id. at 980.
13
As previously noted, Cravens was a wrestler and placed Yost in a wrestling-like hold. There is
simply no evidence that he possessed criminal intent to harm Yost. The only insight into the alleged negative
changes in Cravens’s personality is gained through his parents’ letter, which post-dated the Yost incident and
which was stricken in part on motion of the Phi Psi Defendants.

20
 Notwithstanding, we can envision a scenario in which a landowner college may be

liable for inherently dangerous activities that fall short of criminal activity but create a

substantial risk of bodily injury. In other words, a college might breach its duty of care to its

students/invitees by creating or allowing an inherently dangerous environment to exist where

no crime is committed but where it is foreseeable that students/invitees will be placed in

jeopardy as a result, i.e., a college-sponsored event in which students are drinking and

engaging in dangerous activities such as a slip-and-slide or a race involving bicycles or all-

terrain vehicles.

Here, Wabash did not create the danger, and the record contains no evidence that the

danger was foreseeable. Wabash was not even aware of Phi Psi’s traditions of creeking and

showering, and to the extent Yost cites Wabash’s right to enter the chapter house to ensure

that its anti-hazing rules are enforced, we note that a landlord’s right to enter does not impose

a correlating duty upon the landlord to enter in the middle of the night to ensure that the co-

tenants are behaving reasonably with respect to each other. To the extent Yost bases his

argument upon Wabash’s knowledge of prior fraternity hazing activities on its campus, we

reiterate that all but two of the designated incidents involved fraternities other than Phi Psi,

and where we recognize that such incidents indicate a general foreseeability with respect to

hazing, we reject the notion that foreseeability that one or more “animal houses” have a

propensity to haze operates as foreseeability vis-à-vis all fraternities on a given campus. The

only designated incidents involving Phi Psi were two occurrences in which the active

brothers threw trash/debris on sleeping pledges, an activity which, while demeaning, does not

21
involve a substantial risk of injury as required under the statutory definition of hazing. At the

time of Yost’s injury, pledge training had not officially begun at Phi Psi, and the prior

incidents involving their particular fraternity did not portend the activities that precipitated

Yost’s injury.

Simply put, Wabash was not the guarantor of Yost’s safety, and, short of placing a

representative of the college on every floor of the fraternity on a round-the-clock basis, it is

difficult to discern what Wabash could have done differently to protect him under these facts.

See Oja, 680 N.Y.S.2d at 278 (“[T]he owner of a fraternity house does not ordinarily have a

legal duty to affirmatively supervise those present in the house to prevent them from

voluntarily engaging in conduct that creates a risk of harm to themselves.”). Yost has failed

to establish a genuine issue of material fact regarding whether Wabash breached its

landowner duty to protect him under the circumstances.

II. Assumption of Duty

Yost also claims that Appellees affirmatively assumed a duty for his safety. During

the summary judgment proceedings, Yost framed his assumption of duty argument in terms

of Appellees affirmatively assuming a duty to protect him from hazing. Appellant’s App. at

133-34, 400-03. He now argues that the Phi Psi Defendants affirmatively assumed a duty for

his general health and safety. In support of his broader argument that the Phi Psi Defendants

assumed a general duty of safety and health, he now cites two statements contained in Phi Psi

National’s manual: (1) that the “traditions and character of Phi Psi will take the place of

parental restrictions;” and (2) that “[a]t the very least, the chapter is responsible for

22
safeguarding the health, safety and well-being of its pledges.” Appellant’s App. at 646, 651.

We find that Yost has waived this argument by failing to raise it during the summary

judgment proceedings. See Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind. Ct.

App. 2009) (stating that “substantive questions independent in character and not within the

issues presented to the trial court shall not be first made upon appeal”) (citation omitted),

trans. denied. Below, the trial court concluded as a matter of law that Yost was not hazed.

As such, the conclusion was dispositive of Yost’s argument that Appellees assumed a duty to

protect him from hazing. The trial court cannot now be found to have erred regarding an

argument that it never had an opportunity to consider. Id.

Waiver notwithstanding, a duty of care may arise where one party gratuitously or

voluntarily assumes such a duty. Delta Tau Delta, 712 N.E.2d at 975. An assumption of

duty creates a special relationship between the parties and a corresponding duty to act as a

reasonably prudent person. Id. Although the existence and extent of an assumed duty is

generally a question of fact for the jury, it may be resolved as a matter of law if the

designated evidence is insufficient to establish such a duty. Id. Restatement (Second) Of

Torts Section 324A(b) (2d ed. 1965) states that one who undertakes to render services to

protect a third person is subject to liability to the third person resulting from his failure to

exercise reasonable care if he has undertaken to perform a duty owed by the other to the third

person.14 “The actor must specifically undertake to perform the task he is charged with

14
According to Restatement (Second) Of Torts Section 319 (1965), one who takes charge of a third
person who he knows or should know is likely to cause bodily harm to others if not controlled is under a duty
to exercise reasonable care to control the third person to prevent him from doing such harm.
23
having performed negligently, for without the actual assumption of the undertaking there can

be no correlative legal duty to perform the undertaking carefully.” Am. Legion Pioneer Post

No. 340 v. Christon, 712 N.E.2d 532, 535 (Ind. Ct. App. 1999) (citation and quotation marks

omitted), trans. denied. This means that the defendant must have undertaken the duty both

“specifically and deliberately …. [I]t is also important that the party on whose behalf the duty

is being undertaken relinquish control of the obligation; the party who adopts the duty must

be acting ‘in lieu of’ the original party.” Griffin v. Simpson, 948 N.E.2d 354, 360 (Ind. Ct.

App. 2011), trans. denied.

In Delta Tau Delta, our supreme court held as a matter of law that the national

fraternity did not gratuitously assume a duty to protect a female sexual assault victim by

sending a series of posters to the local chapter professing that Delta Tau Delta Fraternity was

a leading fighter against date rape and alcohol abuse. Id. There, the court distinguished the

ruling in Ember v. B.F.D., Inc., 490 N.E.2d 764 (Ind. Ct. App. 1986), modified, 521 N.E.2d

981 (Ind. Ct. App. 1988), wherein another panel of this Court found that the defendant tavern

had gratuitously assumed a duty to protect persons in the vicinity of the tavern by distributing

flyers specifically touting its security patrol. Delta Tau Delta, 712 N.E.2d at 975.

In Foster, 567 N.E.2d at 865, another panel of this Court affirmed summary judgment

in favor of the national fraternity and local fraternity association where inebriated freshman

fraternity member Foster broke his neck after diving onto a waterslide at the chapter house

during a party. Id. The court rejected Foster’s argument that the local fraternity association

affirmatively assumed a duty to control the chapter members’ conduct based on its execution

24
of chapter by-laws, noting first that the association resolutions were recommended but not

binding and that even if they were binding on fraternity members, Foster, as a member,

would be contractually bound to control his own behavior. Id. at 871. The Foster court also

rejected the injured member’s argument that the national fraternity had affirmatively assumed

a duty to control its members by distributing an advisory pamphlet on alcohol abuse,

sanctioning at least one chapter for alcohol-related problems, and conducting an inspection of

his chapter. Id. at 872.

In contrast, in Furek, supra, the Delaware Supreme Court held that the university’s

actions amounted to an assumption of duty as one in charge of a person having dangerous

propensities:15

The evidence in this record … strongly suggests that the University not only
was knowledgeable of the dangers of hazing but, in repeated communications
to students in general and fraternities in particular, emphasized the University
policy of discipline for hazing infractions. The University’s policy against
hazing, like its overall commitment to provide security on its campus, thus
constituted an assumed duty which became “an indispensable part of the
bundle of services which colleges ... afford their students.”

594 A.2d at 520 (citation and quotation marks omitted).

With respect to assumption of duty by the national fraternity, the Louisiana Court of

Appeals concluded in Morrison, supra, that based upon the national fraternity’s complex

hierarchical system for controlling its local chapters’ charters as well as its knowledge of

prior hazing incidents at the particular local chapter, the national fraternity had undertaken a

duty to regulate that local chapter to the extent necessary to protect Morrison from hazing.

15
RESTATEMENT (SECOND) OF TORTS § 319 (2d ed. 1965).

25
738 So. 2d at 1118. The Morrison court also held that based on the amount of control it had

maintained over its collegiate chapters, the national fraternity had undertaken a duty to

regulate, protect against, and prevent hazing. Cf. Walker v. Phi Beta Sigma Fraternity (RHO

Chapter), 706 So. 2d 525 (La. Ct. App. 1997) (holding that national fraternity did not assume

a duty to protect members from hazing where national fraternity had no knowledge of hazing

activities at local chapter and local chapter purposely hid hazing activities from national

fraternity).

In Coghlan v. Beta Theta Pi Fraternity, 987 P.2d 300 (Idaho 1999), the Idaho

Supreme Court confronted a claim that a university and several Greek houses had assumed a

duty for the safety of a freshman sorority member. There, the intoxicated freshman, Coghlan,

was injured when she fell from a third-floor fire escape at her sorority after drinking alcohol

at two different fraternity parties in conjunction with “Rush Week” festivities. Id. at 305.

She filed a negligence action against the university, her sorority, and the three fraternities that

sponsored the parties. The trial court dismissed the claim against the university, finding that

Coghlan had failed to state a claim and that the university did not owe her a duty of care. The

trial court granted summary judgment in favor of the sorority and the three fraternities. On

appeal, the Idaho Supreme Court recognized the diminished custodial role of modern

universities and “decline[d] to hold that Idaho universities have the kind of special

relationship creating a duty to aid or protect adult students from the risks associated with the

students’ own voluntary intoxication.” Id. at 400. However, the court found that by sending

two of its employees to supervise one of the fraternity parties that Coghlan attended, the
26
university may have voluntarily undertaken to perform an act, creating a duty where one

previously did not exist. Id. The court withheld opinion on the merits but reversed the

dismissal order, holding that the pleadings were sufficient to state a claim against the

university for assumption of duty. Id. Likewise, concerning Coghlan’s sorority, the court

held that the sorority’s “limited influence over Coghlan did not constitute a special

relationship sufficient to create an affirmative duty … to aid or protect Coghlan from injuries

resulting from her voluntary intoxication.” Id. at 401. However, the Coghlan court held that

the designated evidence concerning the sorority’s affirmative acts of sending Coghlan to

alcohol parties and assigning her an older member to serve as her “guardian angel” were

sufficient to preclude summary judgment on the issue of assumption of duty. Id. at 402.

A. Wabash

Here, the trial court found as a matter of law that Wabash did not assume a duty to

protect Yost from this incident. Yost asserts that Wabash affirmatively assumed a duty to

supervise and regulate its fraternities by: implementing a strict anti-hazing policy that

imposed on the fraternities a duty to report hazing; specifically designating an associate dean

as housing officer to oversee issues involving all fraternities on campus; designating an inter-

fraternity council (“IFC”) to promote high standards for all fraternities on campus; imposing

sanctions against fraternities for prior infractions; and reserving the right to enter the

fraternity chapter houses. These activities are largely responsive in nature. In other words,

the college promulgated the policy, but the roles of both the dean and the IFC are to educate

and to respond to fraternity issues. They cannot possibly be in the business of preventing

27
each and every activity taking place inside the walls of every fraternity, nor did they

deliberately undertake to do so. Thus, we conclude that the undisputed designated evidence

simply does not support a finding that Wabash affirmatively assumed a duty to protect Yost

under these facts.

B. The Phi Psi Defendants

The trial court also found as a matter of law that the Phi Psi Defendants did not

affirmatively assume a duty to protect Yost from hazing. Yost claims that Phi Psi National

affirmatively assumed a duty to protect him from his injuries based on specific rules and

literature that it disseminated to local fraternity chapters as well as its right to discipline

offending chapters. He relies on language contained in Phi Psi National’s manual as well as

language contained in a risk management guide. To the extent that he relies on the contents

of the risk management guide, we note that the guide was a product of Phi Psi National’s

insurer, which is not a party to this action. The cases on the subject of assumption of duty

seem to hinge not merely upon the promulgation of rules, but upon the degree of activity by

the national fraternity in policing its collegiate chapters, i.e., in the form of direct on-site

interaction with chapters, control over intake and expulsion of members, etc.

Yost specifically cites Phi Psi National’s promulgation of an anti-hazing policy, which

states,

No chapter, colony, student or alumnus shall conduct nor condone hazing
activities. Hazing activities are defined as:
“Any action taken or situation created, intentionally, whether on or off
fraternity premises, to produce mental or physical discomfort, embarrassment,
harassment, or ridicule. Such activities may include but are not limited to the
following: use of alcohol; paddling in any form; creation of excessive fatigue;
28
 physical and psychological shocks; quests, treasure hunts, scavenger hunts,
road trips, or any other such activities carried on outside or inside of the
confines of the chapter house; wearing of public apparel which is conspicuous
and not normally in good taste; engaging in public stunts and buffoonery;
morally degrading or humiliating games and activities; and any other activities
which are not consistent with academic achievement, fraternal law, ritual or
policy or the regulations and policies of the educational institution.”

Appellant’s App. at 654-65. Phi Psi National’s manual also includes a history section, which

states in part that in recognition that activities concerning pledges were “not always

wholesome, constructive, or safe … [in 1928,] Phi [] Psi became the first national social

fraternity to create a department to oversee and improve this portion of fraternity life.” Id. at

648.

Other designated evidence shows that Phi Psi National is an Indianapolis-based

organization with sixteen employees and ninety-six collegiate Phi Psi chapters throughout the

country. Phi Psi National’s manual describes the local chapter as “a complete self-governing

body.” Id. at 854. Its constitution, bylaws, and rules give the local chapter original

jurisdiction for matters concerning the conduct of a member, and Phi Psi National may not

insert itself into any action unless the aggrieved member appeals the local chapter’s decision

or the local chapter fails to act. Id. at 863, 866-67. Phi Psi National also designated evidence

that the creeking and showering were not part of the national fraternity’s traditions or rituals

and that Phi Psi National was not even aware that they were local chapter traditions. As

such, the designated materials are devoid of any evidence that Phi Psi National assumed a

duty to protect Yost in this instance.

29
 With respect to Phi Psi’s local chapter rules and policies, Yost cites his pledge packet,

which requires the pledges to participate in an online program called “GreekLifeEdu.” Id. at

517. He also emphasizes that the pledge packet includes creeking and showering as chapter

traditions to be followed: “Indiana Gamma Traditions: Anyone reaching his 21st birthday or

becoming engaged is thrown into Sugar Creek. Anyone having a birthday other than his 21st

is to be thrown in the shower.” Id. Yost argues that by establishing these traditions and

rituals, Phi Psi assumed a duty to supervise them. Notably, however, neither Yost’s

attempted creeking of Schmutte (who was already twenty-one and had not become engaged)

nor the upperclassmen’s attempted showering of Yost (who was not having a birthday) fit

within the occasions listed in the traditions section of the manual. The dissent relies on

language in Phi Psi National’s manual as support for its conclusion that Phi Psi local

assumed a duty to oversee its members. See Id. at 648 (stating, “The activities required [for

membership] were not always wholesome, constructive, or safe, so Phi Kappa Psi became the

first national social fraternity to create a department to oversee and improve this portion of

fraternity life. This was accomplished in 1928[.]”). However, the National Manual merely

amounted to a historical report concerning steps that Phi Psi National had taken eighty-five

years earlier to address hazing issues and addressed national, not local, oversight.

Also, other designated evidence indicates that creeking and showering were typically

performed as planned events involving the whole house, not as spontaneous events instigated

by an isolated group. Tradition notwithstanding, the local Phi Psi chapter simply cannot be

expected to supervise unscheduled creekings or showerings about which they are unaware.

30
Thus, based on the undisputed designated evidence, we conclude as a matter of law that Phi

Psi did not assume a duty to protect Yost under these circumstances.

III. Vicarious Liability

In a closely-related argument involving the issue of control, Yost asserts that the trial

court erred in concluding as a matter of law that Appellees were not liable on the basis of

vicarious liability. To be liable on this theory, an agency relationship must exist. Foster, 567

N.E.2d at 872. “Agency is a relationship which results from manifestation of consent by one

party to another. The elements of agency are consent and control. An agent must acquiesce

to the arrangement, and be subject to the principal’s control.” Id. Where apparent authority

is at issue, it must be initiated by a manifestation of the principal. Swanson, 504 N.E.2d at

331 (citations and quotation marks omitted). In other words,

the necessary manifestation is one made by the principal to a third party who in
turn is instilled with a reasonable belief that another individual is an agent of
the principal. It is essential that there be some form of communication, direct
or indirect, by the principal, which instills a reasonable belief in the mind of
the third party. Statements or manifestations made by the agent are not
sufficient to create an apparent agency relationship.

Id. at 331-32.

Vicarious liability may also be based on the doctrine of respondeat superior, which

states that an employer is for the torts of its employee committed within the scope of

employment. Trinity Lutheran Church, Inc. v. Miller, 451 N.E.2d 1099, 1102 (Ind. Ct. App.

1983). The test to determine the existence of an employer/employee relationship is the right

to direct and control the employee’s conduct at the time the tortious act occurred. Id. In

Trinity Lutheran, another panel of this Court affirmed a jury verdict against a church and in
31
favor of a motorcycle rider who was struck by a vehicle driven by a church member who was

delivering baskets to shut-in church members. The Trinity Lutheran Court found that even

though the church member was acting gratuitously, he was subjecting himself to the control

of the church guild as he delivered the baskets. Id. at 1102-03. The court emphasized the

church guild’s acts of inviting the church member to drive, organizing his delivery route,

providing the goods for delivery, and instructing him to deliver according to the plan. Id. As

such, the evidence was sufficient to support the jury’s finding of liability under respondeat

superior.

In the college/student context, vicarious liability based on respondeat superior is less

likely to be established due to the difficulty in establishing that the student acted within the

scope of any employment relationship with the college. Cf. Brueckner v. Norwich University,

730 A.2d 1086 (Vt. 1999) (military college held liable under respondeat superior where cadre

of older students assigned to indoctrinate and orient incoming freshmen physically assaulted

a freshman student, destroyed his academic work, vandalized his room, and verbally harassed

him). In Swanson, another panel of this Court upheld summary judgment in favor of the

college in a personal injury action claiming both respondeat superior and apparent authority.

There, a senior baseball player at Wabash conducted off-season baseball practice sessions for

current or potential players interested in practicing during the fall semester. When he

approached the Wabash coach about it, the coach stated that he had no objections but that he

could not participate in it himself due to scheduling constraints. He allowed the senior player

to use some of the team’s equipment, but informed him that he was otherwise “on his own.”

32
504 N.E.2d at 332. The Dean of Men gave him some money for baseballs, but had no

communication with any of the other participants. The senior player placed an

announcement in the college circular and ran the practices at a nearby city-owned park.

During an outfield practice, freshman potential player Swanson was hit in the eye with the

ball and suffered injuries. He filed a personal injury action against Wabash, claiming that the

college was vicariously liable. In affirming a summary judgment order in favor of Wabash,

the Swanson court found that the college had no right to control the senior player’s conduct

and that the senior player was acting neither as an agent nor as an employee of the college

when he conducted the off-season practices. Id.

A. Wabash

Yost asserts that Wabash and Phi Psi had a principal/agent relationship based on their

landlord/tenant relationship and on the college/student relationship between Wabash and Phi

Psi’s members. The trial court found that the landlord/tenant relationship between Wabash

and Phi Psi did not extend to an agency relationship. In Mooney-Mueller-Ward, Inc. v.

Woods, 175 Ind. App. 302, 306-07, 371 N.E.2d 400, 403-04 (1978), another panel of this

Court found that where the tenant controlled every facet of the commercial operation on the

leasehold premises and the landlord had no control over the day-to-day operation, the

relationship did not amount to an agency relationship.

Here, Yost cites Wabash’s retention of a right to enter the Phi Psi house as evidence of

control and consent. He also cites Wabash’s entry on the premises to inspect for cleanliness.

The landlord’s reservation of the right to enter the leasehold premises for inspection does not

33
necessarily constitute a reservation of a right to control the tenants’ actions. Olds v. Noel,

857 N.E.2d 1041, 1044 (Ind. Ct. App. 2006). In this case, the dean could also enter the

premises to discuss membership and disciplinary matters with officers. However, Wabash

lacked control over both the day-to-day operations of Phi Psi and the bylaws by which the

chapter operated, and Phi Psi did not consent to be controlled on a daily basis by Wabash.

Moreover, Yost’s second basis for the alleged agency relationship between Wabash

and Phi Psi members, i.e., college/student, does not amount to an agency relationship. As

discussed, a college does not have a parental duty to supervise or control its adult students.

Campbell, 495 N.E.2d at 232. The record is devoid of any designated evidence that Wabash

was even aware of Phi Psi’s local traditions of creeking and showering. As such, Wabash did

not direct the activities between Yost and the active brothers within Phi Psi’s walls at 2:00

a.m. on September 4, 2007. Thus, the trial court did not err in determining as a matter of law

that Wabash was not vicariously liable.

B. Phi Psi National

The trial court found that the Phi Psi National was not vicariously liable for the acts of

the local Phi Psi chapter or its members. Yost argues that Phi Psi National’s anti-hazing

policies and power to discipline the local chapters and their members amount to an agency

relationship under which Phi Psi National had the right to control the activities that led to his

injuries and the local Phi Psi chapter acquiesced to that control. The designated evidence

indicates that Phi Psi National is basically a resource and support services organization that

provides educational programming to its chapters. Although the chapters have agreed to

34
adhere to the overall policies and principles espoused by Phi Psi National, their

implementation and procedures are matters left to the local chapters. Phi Psi National’s

disciplinary power is more akin to an appellate tribunal than a constant controlling hand.

Moreover, with respect to the specific activities that preceded Yost’s encounter with Cravens,

Phi Psi National was unaware that Phi Psi even had the local traditions of creeking and

showering, let alone that they were listed as traditions in the local chapter’s pledge packet.

Based on the foregoing, we find no error in the trial court’s decision to grant summary

judgment in favor of Phi Psi National on the issue of vicarious liability.

IV. Punitive Damages

Finally, Yost claims that the trial court erred in granting summary judgment in favor

of the Appellees on his claim for punitive damages. “Punitive damages may be awarded only

if there is clear and convincing evidence that [the] defendant acted with malice, fraud, gross

negligence, or oppressiveness which was not the result of a mistake of fact or law, honest

error or judgment, overzealousness, mere negligence, or other human failing.” Williams v.

Younginer, 851 N.E.2d 351, 358 (Ind. Ct. App. 2006) (citation and internal quotation marks

omitted), trans. denied. Yost correctly notes that a punitive damages analysis usually

involves questions of fact. Cheatham v. Pohle, 789 N.E.2d 467, 472 (Ind. 2003). However,

a punitive damages claim can be sustained only if it is accompanied by a viable claim for

compensatory damages. Id. at 473-74. As previously discussed, there is no viable underlying

claim for compensatory damages in this case. Thus, there is no viable claim for punitive

35
damages, and the trial court did not err in granting summary judgment in favor of Appellees

on this claim.

Conclusion

In sum, we find as a matter of law that Yost was not a victim of hazing under

Indiana’s anti-hazing statute or of other foreseeable criminal conduct. However, such a

finding is not dispositive of the issue of duty. For example, there may be circumstances in

which the challenged conduct is not necessarily criminal and not necessarily hazing, but

where a college and/or fraternity have created an inherently dangerous environment such that

other obligations are created and liability arises. This is not one of those circumstances. We

agree that a college cannot simply turn a blind eye to inherently dangerous activities on its

campus; neither can a fraternity ignore such activities within its walls. Nevertheless, we

reiterate that such institutions/organizations are not guarantors or insurers of their adult

student-members’ safety, and we reject the notion that all fraternities should be impugned

based on the activities of a few. Moreover, we recognize the untenable situation that can be

created when colleges and fraternities attempt to deal with potentially dangerous activities by

promulgating rules, only to have the enactment and enforcement of those rules thrown back

at them as an assumption of duty.

We find as a matter of law that Appellees did not breach any duty owed to Yost.

While we reject Wabash’s argument that its sole duty to its students is to protect them from

foreseeable criminal activity, we also reject any attempt to create a special limited duty just

short of in loco parentis. We conclude that the analysis adopted in the alcohol consumption

36
cases, i.e., whether the activity was college- or fraternity-sponsored or -controlled, is a

reasonable approach in other civil hazing actions when assessing whether the college or

fraternity breached a duty to act reasonably under the circumstances.

Finally, we are mindful of the injuries suffered by Yost and other college students in

their pursuit of fellowship via brotherhood, yet we find that “the ideals of fellowship

espoused by [a fraternity] are insufficient, standing alone, to create a duty … to protect [a

participant] from his voluntary, adult choice.” Garofalo, 616 N.W.2d at 654. Based on the

foregoing, we affirm the trial court’s judgment in all respects.

Affirmed.

BRADFORD, J., concurs.

VAIDIK, J., concurs in part and dissents in part with separate opinion.

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______________________________________________________

IN THE
COURT OF APPEALS OF INDIANA

BRIAN YOST, )
)
Appellant-Plaintiff, )
)
vs. ) No. 54A01-1201-CT-31
)
WABASH COLLEGE, PHI KAPPA PSI )
FRATERNITY, INC., PHI KAPPA PSI )
FRATERNITY – INDIANA GAMMA )
CHAPTER AT WABASH COLLEGE, and )
NATHAN CRAVENS, )
)
Appellees-Defendants. )
)

VAIDIK, Judge, concurring in part, dissenting in part.

Based on the designated evidence, I agree with the majority’s decision to affirm summary

judgment in favor of Phi Psi National, but I respectfully dissent from the majority’s decision that

Yost failed to establish a genuine issue of material fact regarding whether Wabash and Phi Psi owed

him a duty of care under the circumstances. I find that there is an issue of fact concerning whether

the events of that night constituted criminal hazing and whether they were reasonably foreseeable to

Wabash. I also find that there is an issue of fact over whether Phi Psi assumed a duty of care toward

Yost. I therefore believe that the trial court erred by granting summary judgment in favor of both

Wabash and Phi Psi.
38
 As my colleagues note, Yost argues that Wabash owed him a duty of care under the theory of

premises liability since Wabash was the owner and landlord of the Phi Psi fraternity house and

“[l]andowners have a duty to take reasonable precautions to protect their invitees from foreseeable

criminal attacks, i.e., hazing.” Slip op. p. 9 (citing Paragon Family Rest. v. Bartolini, 799 N.E.2d

1048, 1052 (Ind. 2003)). However, the majority holds that as a matter of law Yost’s showering was

not hazing and therefore not criminal. Id. at 16. Unlike my colleagues, I find that there is a question

of fact as to whether the actions involved in this case were hazing.

Yost stated that he wanted to demonstrate his “ferocity” to the other Phi Psis, so he resisted

by “kicking and screaming.” Appellant’s App. p. 222, 513. Despite his resistance, the Phi Psis

involved still tried to shower him, stopping only when Cravens rendered him unconscious. This act

did not take place within a vacuum. Rather, it took place in an atmosphere where “creeking” and

“showering” were explicitly outlined in the Phi Psi pledge handbook. Id. at 517. It also took place

while Yost, an incoming freshman and soon-to-be formal pledge, was living in the Phi Psi fraternity

house. The house was owned by the school and provided student housing for the incoming

freshman. Yost, Wabash, and Phi Psi all knew Yost’s living circumstances; if Yost did not follow

through with pledging Phi Psi, he would have had to discuss his reasons for leaving with the

Associate Dean of the school and find a new living arrangement just months into his freshman year.

Id. at 472. These designated facts create a genuine issue of material fact as to whether Yost’s

showering was a condition of his membership in Phi Psi and a condition for continuing residency at

the house.16 As such, this is a jury decision and not ours.

In addition to presenting a question about its status as hazing, I also find that the designated

16
At least one fraternity brother seemed to think so. Jessie McCarley testified that if a member resisted
a showering and the brothers continued to shower him, that would constitute hazing. Appellant’s App. p. 537.

39
evidence supports the conclusion that any hazing of Yost or other fraternity pledges was reasonably

foreseeable by Wabash. Since the early 2000s, there have been fifteen reported instances of hazing

that Wabash was aware of and took action on, two of which resulted in the death of students, and

three others which directly involved the Phi Psi house.17 Id. at 458-64. This is sufficient evidence to

create the reasonable inference that the hazing was foreseeable in Wabash’s fraternity houses.

Additionally, while Wabash did sanction the fraternities involved in some of these hazing

instances, other times the college leadership did not take specific disciplinary action, they just

“worked very closely with rising house leadership each year to try to prevent similar occurrences.”

Id. Instead of taking a hard line against hazing, a reasonable inference from the designated evidence

is that Wabash even encouraged such behavior by doing such things as failing to recognize hazing as

hazing, promoting drinking during class and drinking with campus security, and failing to enforce

the Gentleman’s Rule.18 Id. at 228-30, 244-46, 264. This also suggests that Wabash has a pattern of

turning a blind eye to hazing on its campus, thereby breaching its duty as a landowner to Yost. 19 The

facts presented therefore create genuine issues of fact both as to whether Yost’s injury was the result

of hazing and whether Wabash breached the duty it owed to Yost, again making this a jury question.

I also respectfully disagree with the majority’s decision that summary judgment in favor of

Phi Psi was appropriate; I find that there is a genuine issue of fact as to whether Phi Psi assumed a

duty of care toward Yost. The Phi Psi manual explicitly states that “Phi Kappa Psi became the first

17
We recognize that the two student deaths occurred after the incident involved in this case. However,
those deaths further support a showing of a culture of hazing that is present on Wabash’s campus.

The Gentleman’s Rule is Wabash’s rule for student behavior and states: “The student is expected to
18

conduct himself at all times, both on and off the campus, as a gentleman and a responsible citizen.”
Appellant’s App. p. 466-68.
19
Turning a blind eye to this behavior is no different than “a wink and a nod” that unofficially
sanctions those actions. See A Few Good Men (Columbia Pictures 1992).
40
national social fraternity to create a department to oversee and improve this portion of fraternity life,”

in reference to the pledging process and the problems it historically had. Id. at 648 (emphasis

added). The manual goes on to say, “At the very least, the chapter is responsible for safeguarding the

health, safety and well-being of its pledges.” Id. at 651. Further, “creekings” and “showerings” are

outlined in the pledge manual as “Indiana Gamma Traditions,” indicating that they are events

sanctioned by the chapter. Id. at 517.

Because Phi Psi has sanctioned these events and has explicitly stated that it oversees

pledging, there is evidence supporting the inference that Phi Psi has assumed a duty toward Yost in

this instance. The majority says this is not the case because Yost’s showering was not conducted in

the manner that is outlined in the pledge manual, specifically this was not a “planned, celebratory

event[] involving all or most of the fraternity brothers.” Slip op. p. 15. This statement punctuates

the difference between the majority’s view and mine. In my opinion, the majority’s view of pledging

and consequently hazing is far too restrictive. Hazing need only be conduct which requires a person

to perform an act as a condition of association with the group. To be sure, evidence of the number of

active brothers involved in the conduct and the similarity of the conduct with the formal

requirements set forth in the pledge book is evidence to be considered in deciding whether a hazing

occurred; but, these are only two of the many factors that must be considered. In my view, the fact

that showering was conduct outlined in the pledge manual, Phi Psi oversees the pledging process,

and there is a material question as to whether hazing occurred creates a genuine issue of material fact

as to whether Phi Psi assumed a duty to Yost. Therefore, I would reverse the trial court’s decision to

grant summary judgment in favor of Phi Psi.

All said, I believe that the designated facts could reasonably lead a trier of fact to conclude

that hazing occurred here—hazing that both Phi Psi and Wabash had a duty to stop yet ignored.

41
Because of this, I believe that this is a jury’s call and not ours.

42