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Appeal from the Montgomery Superior Court, No. 54D01-0908-CT-351. The Honorable David A. Ault, Judge. On Transfer from the Indiana Court of Appeals, No. 54A01-1201-CT-31.
ATTORNEYS FOR APPELLANT: Patrick A. Elward, Karl L. Mulvaney, Briana L. Clark, Bingham Greenebaum Doll LLP, Indianapolis, Indiana; Anne L. Cowgur, Taft Stettinius & Hollister LLP, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE WABASH COLLEGE: Thomas R. Schultz, Brandon M. Kimura, Schultz & Pogue LLP, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE PHI KAPPA PSI FRATERNITY, INC. AND PHI KAPPA PSI FRATERNITY -- INDIANA GAMMA, CHAPTER AT WABASH COLLEGE: Douglas B. King, Matthew M. Adolay, Maureen E. Ward, Wooden & McLaughlin LLP, Indianapolis, Indiana.
Dickson, Chief Justice. David, Massa, and Rush, JJ., concur. Rucker, J., concurs in part and dissents in part with separate opinion.
Dickson, Chief Justice.
The plaintiff, a college freshman and fraternity pledge, filed this personal injury action seeking damages from his college, his campus fraternity, its national organization, and a student fraternity member for personal injuries sustained in an incident at the fraternity house. We reverse the trial court's grant of summary judgment for the campus fraternity but affirm the grant of summary judgment for the college and the national fraternity organization.
The plaintiff, Brian Yost, as an 18-year-old freshman at Wabash College and a pledge at the Phi Kappa Psi fraternity, suffered injuries in an incident at the fraternity house in September 2007. Contending that his injuries resulted from a fraternity hazing incident, the plaintiff initiated this action seeking damages from Wabash College (the owner and landlord of the fraternity house), the campus local fraternity (Phi Kappa Psi Fraternity -- Indiana Gamma Chapter at Wabash College, hereafter the " local fraternity" ), the national fraternity (Phi Kappa Psi Fraternity, Inc.), and Nathan Cravens, one of the fraternity members. Further details are provided below as needed and are more fully summarized in the opinion of the Court of Appeals. See
Yost v. Wabash Coll., 976 N.E.2d 724, 728-29 (Ind.Ct.App. 2012). The college and the two fraternity defendants sought summary judgment, which the trial court granted and then ordered entry of final judgments thereon. The plaintiff appealed, and the Court of Appeals affirmed. Id. at 745. We granted transfer.
In reviewing the grant of a motion for summary judgment, the appellate court applies the same standard applicable to the trial court.
Wilson v. Isaacs, 929 N.E.2d 200, 202 (Ind. 2010). Under Indiana summary judgment jurisprudence, the moving party " bears the initial burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law."
Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 637 (Ind. 2012); see
Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1270 (Ind. 2009); see also Ind. Trial Rule 56(C);
N. Ind. Pub. Serv. Co. v. Bloom, 847 N.E.2d 175, 180 (Ind. 2006). If the moving party carries this burden, then the non-moving party must come forward with evidence establishing the existence of a genuine issue of material fact.
Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994). Review is limited to those facts designated to the trial court. Ind. Trial Rule 56(H). " All facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party."
Mangold ex rel. Mangold v. Ind. Dep't of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). " We must carefully review a decision on a summary judgment motion to ensure that a party was not improperly denied its day in
court." Id. at 974. We will separately address each party's summary judgment motion.
1. Wabash College
Wabash sought summary judgment, asserting: (a) it did not have a duty as a college or as a landlord to protect Yost from Cravens' alleged negligence or criminal attack; (b) it is not subject to vicariously liability for the actions of any co-defendant; and (c) Yost's claim for punitive damages fails as a matter of law. Appellant's App'x at 65-66. In response, Yost clarified and explained his claims. First, he emphasized, " Landowner liability -- not the doctrine of in loco parentis -- governs this case."  Id. at 133. Yost asserted that " [a]s the lessor, Wabash had a duty to control the conduct of Phi Psi, and its members," and that " [a]s the landlord, Wabash had a duty to protect [Yost] . . . from reasonably foreseeable tortious and criminal activity." Id. Second, Yost argued, " Aside from Wabash's duty as the lessor of the property, Wabash . . . assumed a duty to protect [Yost] from this incident when it prohibited hazing and responded to the many previous incidents of hazing with disciplinary measures." Id. Third, Yost claimed that Wabash is " vicariously liable for the actions of Phi Psi's members." Id. at 134. But cf. id. at 148 (expressing " vicariously liable for the actions of Phi Psi and its members" ). " Finally," Yost claimed, he " is entitled to punitive damages from Wabash." Id. at 134. Yost appears to assert a claim for punitive damages as a separate cause of action, but, while punitive damages has its own prerequisite elements of proof, such elements do not establish an independent cause of action. The prerequisite elements only define when punitive damages may be awarded as part of the damages to which a plaintiff may be entitled if successful under a recognized existing cause of action. See
Crabtree ex rel. Kemp v. Estate of Crabtree, 837 N.E.2d 135, 137-38 (Ind. 2005). We thus consider Yost's claims against Wabash to present only three theories of liability: [a] negligence as owner and landlord of the local fraternity house by failing to protect Yost from the alleged negligent or criminal act of Cravens; [b] negligent
breach of assumed duty " to supervise and regulate the activities and behavior of fraternities on its campus," Appellant's Br. at 17, by failing to protect Yost from hazing; and [c] vicarious liability for the negligence of the local fraternity and its members.
The essential elements for a negligence action are " (1) a duty owed to the plaintiff by the defendant, (2) a breach of the duty, and (3) an injury proximately caused by the breach of duty."
Pfenning v. Lineman, 947 N.E.2d 392, 398 (Ind. 2011) (citing Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120, 1123 (Ind. 2010)). Where there is no duty, there can be no breach, and thus the party cannot be found negligent.
Pfenning, 947 N.E.2d at 398. Whether a duty exists is generally a question of law for the court. Id. In making this determination, " a three-part balancing test developed by this Court 'can be a useful tool.'" Id. (quoting
Kephart, 934 N.E.2d at 1123) (citing N. Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 465 (Ind. 2003)) (referencing the factors enunciated in
Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991): " (1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and (3) public policy concerns" ). However, this test is only needed " in those instances where the element of duty has not already been declared or otherwise articulated."
Sharp, 790 N.E.2d at 465; see also Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1053 (Ind. 2003) (" Where, as in this case, the alleged duty is well-established, there is no need for a new judicial redetermination of duty." ).
With respect to claims of liability against an owner for injuries sustained on the premises, the duties of a landowner are well established. " A landowner owes to an invitee or social guest 'a duty to exercise reasonable care for his protection while he is on the landowner's premises.'"
Pfenning, 947 N.E.2d at 406 (quoting Burrell v. Meads, 569 N.E.2d 637, 639 (Ind. 1991)). To delineate this duty we have adopted the Restatement (Second) of Torts § 343 (1965):
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect ...