Smith v. Delta Tau Delta, Inc.
2014 Ind. LEXIS 450
| Ind. | 2014Background
- Johnny Dupree Smith, an 18-year-old freshman pledge at Wabash College, died after acute alcohol ingestion; his parents sued Delta Tau Delta national, the local Beta Psi chapter, Wabash College, and individuals.
- Plaintiffs alleged (1) negligence per se for hazing, (2) negligence for furnishing alcohol to a minor, and (3) negligence for breaches of an assumed duty to protect pledges, to prevent foreseeable third-party criminal acts, and to render aid.
- The national fraternity moved for summary judgment arguing (among other points) that local members were not agents of the national body, the national did not furnish alcohol or know of visible intoxication, it assumed no duty to control local conduct, and comparative fault barred recovery.
- Trial court granted summary judgment for the national fraternity; plaintiffs appealed as to the national. The Court of Appeals reversed in part; the Indiana Supreme Court granted transfer for review in light of Yost v. Wabash College.
- Key factual/designated evidence: national constitution, bylaws, Membership Responsibility Guidelines (MRGs), an online alcohol-education program required for pledges, the power to discipline/suspend/revoke charters, appointment/approval role over chapter advisors, chapter consultants who visit periodically, and chapter-advisor duties to report violations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion to strike designated evidence (Russell affidavit; Crawfordsville police interview transcripts) | Russell affidavit contradicts later deposition so should be stricken; interviews are unsworn/hearsay | Affidavit was executed before deposition and thus is proper; interviews designated but plaintiffs previously moved to strike | Court refused to strike Russell affidavit (signed before deposition); struck/declined to consider the unsworn police interview transcripts as improper Rule 56 evidence |
| Whether national fraternity assumed a duty to protect pledges from hazing/ excessive alcohol consumption | National’s policies, educational programs, reporting/discipline powers, and active involvement (advisor, consultants) establish an assumed duty to supervise and protect pledges | National’s actions were educational/remedial only; it lacked direct day-to-day authority to prevent or control local members’ conduct and thus assumed no preventive supervisory duty | No assumed duty as alleged; national had duty to exercise reasonable care in providing guidance but did not assume direct supervisory/control duties that would make it liable for local conduct |
| Whether local chapter (or its officers/members) was agent of national such that vicarious liability attaches | National’s broad enforcement powers, chartering authority, discipline/suspension rights, approval of advisors, and reporting/consultant regime create a right of control sufficient to establish agency | National’s enforcement powers are post hoc/remedial only and do not amount to present-day-to-day control; local officers act independently and not on national’s behalf | No agency relationship as a matter of law; right to impose remedial sanctions does not establish the requisite control and consent for agency; national not vicariously liable |
Key Cases Cited
- Yost v. Wabash College, 3 N.E.3d 509 (Ind. 2014) (explains when an assumed-duty theory can create liability and applies it to national–local fraternity relationships)
- Gaboury v. Ireland Rd. Grace Brethren, Inc., 446 N.E.2d 1310 (Ind. 1983) (affidavits that contradict prior sworn testimony cannot create sham issues of fact)
- Delta Tau Delta v. Johnson, 712 N.E.2d 968 (Ind. 1999) (national fraternity’s informational materials and posters do not create an assumed duty to provide security or direct control)
- Foster v. Purdue Univ. Chapter, 567 N.E.2d 865 (Ind. Ct. App. 1991) (national fraternity’s inspections and pamphlets insufficient to establish an assumed duty to control local alcohol problems)
- Kroger Co. v. Plonski, 930 N.E.2d 1 (Ind. 2010) (limits on striking affidavits; court reversed a motion to strike where improper)
- Indiana Univ. Med. Ctr. v. Logan, 728 N.E.2d 855 (Ind. 2000) (unsworn, unverified exhibits are improper Rule 56 evidence)