Stacy Smith and Robert Smith, Individually and as Co-Personal Representatives of the Estate of Johnny Dupree Smith v. Delta Tau Delta, Inc. and Beta Psi Chapter of Delta Tau Delta

Citation: Not availableDocket: 54S01-1405-CT-356

Court: Indiana Supreme Court; May 28, 2014; Indiana; State Supreme Court

Original Court Document: View Document

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Stacy Smith and Robert Smith, co-personal representatives of the estate of their deceased son Johnny Dupree Smith, filed a wrongful death lawsuit against Delta Tau Delta, Inc., the Beta Psi Chapter of Delta Tau Delta at Wabash College, and individuals Thomas Hanewald and Marcus Manges, following Johnny's death from acute alcohol ingestion while pledging. The trial court granted summary judgment in favor of the national fraternity, allowing an appeal under Indiana Trial Rule 54(B). The Indiana Court of Appeals affirmed in part but reversed the summary judgment regarding the national fraternity. 

The plaintiffs' amended complaint includes three theories of liability against the national fraternity: 

1. **Negligence per se** for engaging in hazing, violating Indiana law.
2. **Negligence** for providing alcohol to a minor, also violating state statutes.
3. **General negligence** based on an assumed duty to protect pledges from hazing and excessive drinking, prevent foreseeable criminal acts, and render aid to Johnny when he was incapacitated.

The national fraternity contended it was not liable for the local chapter's actions, asserting that the local members were not acting as its agents, and claimed no evidence indicated it provided alcohol or was aware of Johnny's intoxication. Additionally, it argued that it did not assume a duty to manage local activities and that Johnny was over 50% at fault for his death, thus barring recovery under the Indiana Comparative Fault Act. The case is set for examination by the Indiana Supreme Court in light of similarities to a prior decision, Yost v. Wabash College.

The trial court granted summary judgment without providing specific findings of fact or conclusions of law, as neither is required by law in such rulings. The plaintiffs appeal this decision, making two main arguments: (1) the trial court improperly denied their motion to strike certain evidence presented by the national fraternity, and (2) there are genuine issues of material fact regarding the national fraternity's assumed duty to protect local chapter pledges and its potential vicarious liability for the local chapter’s representatives' negligence.

The plaintiffs' first point of contention revolves around the trial court's denial of their motion to strike an affidavit and two interview transcriptions submitted by the national fraternity. They argue that the Russell affidavit contradicts his deposition testimony and that the interview transcriptions are inadmissible hearsay. The national fraternity submitted four items to support its motion: excerpts from the plaintiffs' complaint, the Russell affidavit, and two police interview transcriptions. 

In challenging the denial of their motion to strike, the plaintiffs assert that contradictory portions of an affidavit should be excluded, citing several cases as precedent. However, the court found that the cited cases do not support their argument, as they involve different factual scenarios or uphold the principle that a genuine issue of material fact cannot arise from an affidavit that contradicts prior sworn testimony. The court emphasized that the plaintiffs did not contest the affidavit's form or content beyond its alleged contradictions.

The Indiana case Gaboury v. Ireland Rd. Grace Brethren, Inc. established that allowing a party to create a factual issue by submitting an affidavit that contradicts prior deposition testimony undermines the purpose of summary judgment. In the current case, the Russell affidavit, signed on July 22, 2011, did not contradict any earlier testimony, as the plaintiffs took Russell's deposition four months later. The plaintiffs’ attempt to strike the affidavit was based on contradictions found in the later deposition, but the court found that the affidavit was not intended to contradict prior statements. The trial court correctly refused to strike the Russell affidavit.

Additionally, the plaintiffs sought to strike police interview transcripts presented by the national fraternity as evidence. These transcripts were deemed inadmissible due to their lack of verification and failure to meet the requirements of Indiana Trial Rules for affidavits and evidence. Consequently, only the Russell affidavit was considered in evaluating the national fraternity’s motion for summary judgment.

The plaintiffs also argued that there were genuine issues of material fact regarding whether the national fraternity had a duty to protect pledges from hazing and excessive alcohol consumption, and whether the local fraternity acted as the national fraternity's agent, which would result in vicarious liability. In summary judgment reviews, appellate courts apply the same methodology as trial courts, requiring the moving party to establish no genuine issues of material fact exist. If this burden is met, the non-moving party must then demonstrate the existence of such issues. The court reviews evidence favorably towards the non-moving party.

Liability for breach of an assumed duty is contested, with plaintiffs claiming that the national fraternity failed to protect freshman pledges from hazing and excessive alcohol consumption. They argue that the national fraternity's actions, such as establishing rules against hazing and investigating incidents, demonstrate an assumption of duty to safeguard the pledges, including the plaintiffs' deceased son. The national fraternity counters that it did not have direct oversight over individual members, thus claiming no assumed duty regarding their conduct.

Prior Indiana cases are cited to support the argument. In Delta Tau Delta v. Johnson, the court found no assumed duty despite the national fraternity providing anti-date rape and alcohol abuse materials, as they did not imply any security or support. Similarly, in Foster v. Purdue Univ. Chapter, the court upheld summary judgment for the national fraternity, determining that its actions were insufficient to establish an assumed duty over local fraternity alcohol problems. Most recently, in Yost, the court ruled that even with evidence of the national fraternity's strong anti-hazing stance and various educational initiatives, there was still no assumption of duty. The overarching principle established is that without clear, affirmative actions indicating a specific undertaking, no legal duty to act carefully can be imposed.

The plaintiffs' amended complaint establishes that the local fraternity was an Indiana self-governing, unincorporated association of undergraduate students. The national fraternity's governing documents, including its constitution, bylaws, and Membership Responsibility Guidelines (MRGs), explicitly disapprove of hazing and underage drinking. To support these policies, the national fraternity provided an online alcohol education program for new members, which all pledges were required to complete in their first semester. Local chapters were encouraged to elect a house risk manager, who, while not requiring national approval, received educational materials from the national fraternity to assist in emergency situations.

The national fraternity maintained the authority to enforce its policies, including the ability to suspend charters, discipline members, or mandate additional educational programming, with decisions open to appeal. Each local chapter had a chapter advisor appointed by the national fraternity's Division President, responsible for upholding the fraternity's guidelines and managing the local chapter's official documents. Local chapters were also responsible for electing a treasurer to manage financial records and certify their accuracy monthly to the national fraternity, with periodic checks by a chapter consultant to ensure compliance.

In the case at hand, chapter advisor Doug Coy was present at the local fraternity before and during a relevant incident, tasked with ensuring adherence to the MRGs. His deposition indicates that he had a duty to report any violations, including hazing or underage drinking, and he previously acted on rumors of prohibited activities, demonstrating his commitment to upholding the fraternity's standards.

Coy, the chapter advisor, was tasked with attending monthly meetings, ensuring local fraternity members completed an alcohol education program, and reporting any violations of Minimum Risk Guidelines (MRGs) to the national fraternity. The national fraternity's involvement in addressing hazing and alcohol abuse was considered more extensive than in previous cases but lacked direct oversight or control over the local fraternity's daily activities. The national fraternity's role was primarily educational, focusing on providing information to discourage hazing and alcohol abuse, rather than preventive control.

The court found no evidence indicating that the national fraternity assumed a duty for direct supervision or control over the local fraternity's members, nor did it have an obligation to ensure the safety of freshman pledges. While the national fraternity had a duty of reasonable care in providing guidance, this did not equate to an assumption of responsibility for the local fraternity's actions.

Regarding vicarious liability, the plaintiffs argued that the local fraternity acted as an agent of the national fraternity, thereby imposing liability for negligence related to hazing and serving alcohol to minors. The national fraternity contended that no agency relationship existed, as it lacked control over the local fraternity and its officers, and they did not consent to such control. For an agency relationship to exist, there must be consent and control, with the agent acting on the principal's behalf.

The plaintiffs argue that the right to control an agent does not necessitate actual control but merely the right to exercise it, citing Trinity Lutheran Church, Inc. of Evansville, Ind. v. Miller. Their claims of vicarious liability for hazing and underage alcohol provision stem from actions of the local fraternity or its members. If an agency relationship is established, the national fraternity could be held liable for these actions. Determining the existence of such a relationship is typically a factual question, but can result in summary judgment if the evidence is undisputed.

The plaintiffs assert that the national fraternity, through broad enforcement powers, had the right to control local fraternity activities. However, these powers are primarily remedial in nature, meaning the national fraternity cannot direct personal actions of local members. Its role involves providing guidance and resources, promoting good behavior, and addressing complaints, but does not extend to managing daily operations of the local fraternity, which independently elects its officers and acts without national oversight. As a result, even with the ability to impose sanctions, the local fraternity and its members are not acting on behalf of the national fraternity.

Ultimately, the evidence demonstrates that no agency relationship exists, and the national fraternity cannot be held vicariously liable for the local fraternity's conduct. The trial court's summary judgment in favor of the national fraternity was thus affirmed. Judges Rucker, David, Massa, and Rush concurred with this decision.