Smith v. Delta Tau Delta, 988 N.E.2d 325

Appellants-plaintiffs challenge a trial court summary judgment in a wrongful death action arising from Johnny Smith's acute alcohol intoxication at the Delta Tau Delta Beta Psi chapter house at Wabash College.
Plaintiffs allege hazing and alcohol provisioning violated by the local chapter and seek to hold the national fraternity liable through agency or duty theories.
Delta Tau Delta’s constitution, bylaws, member responsibility guidelines, enforcement program, and hazing/alcohol policies governed the local chapter’s conduct and oversight.
Evidence included a Russell affidavit and two unsworn statements; plaintiffs moved to strike designated items, which the trial court denied.
Trial court granted summary judgment against plaintiffs; on appeal this court reversed in part and remanded for further proceedings, finding genuine issues of material fact exist regarding agency and duty.
Concurrence clarifies the motion to strike ruling, particularly about Russell paragraph 6 and related testimony.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred in denying the motion to strike designated evidence	Smiths contend Russell paragraphs contradict deposition and the two unsworn statements are inadmissible.	Delta Tau Delta argues designated evidence is admissible and consistent with rules	Abuse of discretion; strike approved for paragraphs and unsworn statements
Whether there is a genuine issue of material fact supporting agency liability	Delta Tau Delta, through local chapter actions, controlled or supervised pledges; agency exists	No agency relationship; local chapter acts independently under fraternity rules	Genuine issue of material fact; summary judgment reversed
Whether there is a genuine issue of material fact that Delta Tau Delta assumed a duty to protect pledges	National fraternity undertook duties through rules, education programs, and enforcement mechanisms to protect pledges	No affirmative assumption of duty; actions are generalized regulation, not duty to pledges	Genuine issue of material fact; summary judgment reversed
Whether the court properly analyzed agency/duty under comparative fault framework	If agency/duty exists, comparative fault may apply rather than dismissal	Comparative fault does not resolve agency/duty questions	Not dispositive; issues of agency/duty control the outcome

Delta Tau Delta v. Johnson, 712 N.E.2d 968 (Ind. 1999) (assumption of duty may create a duty of care)
Foster v. Purdue Univ. Chapter, 567 N.E.2d 865 (Ind.Ct. App. 1991) (fraternity affiliation and duty analysis for hazing cases)
Morrison v. Kappa Alpha Psi Fraternity, 738 So.2d 1105 (La.Ct.App. 1999) (national fraternity’s oversight can create duty to protect against hazing)
Ballou v. Sigma Nu Gen. Fraternity, 291 S.C. 140, 352 S.E.2d 488 (S.C. Ct. App. 1986) (apparent agency through initiation activities)
Swanson v. Wabash College, 504 N.E.2d 327 (Ind. Ct. App. 1987) (apparent authority concepts in institutional settings)
American Legion Pioneer Post No. 340 v. Christon, 712 N.E.2d 532 (Ind. Ct. App. 1999) ( Restatement-based duty analysis in service undertakings)
Duncan v. Duncan, 764 N.E.2d 763 (Ind. Ct. App. 2002) (summary judgment evidentiary standards and Rule 56 materials)
Kronmiller v. Wangberg, 665 N.E.2d 624 (Ind. Ct. App. 1996) (Rule 56 evidence and admissibility of unsworn statements)
Wallace v. Ind. Ins. Co., 428 N.E.2d 1361 (Ind. Ct. App. 1981) (evidentiary sufficiency and admissibility standards)
City of Crawfordsville v. Price, 778 N.E.2d 459 (Ind. Ct. App. 2002) (comparative fault/apportionment considerations in jury determinations)
Williams v. Tharp, 914 N.E.2d 756 (Ind. 2009) (summary judgment standards and material facts)
First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604 (Ind. Ct. App. 2008) (summary judgment evidentiary considerations)