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.
37
______________________________________________________
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