STACY SMITH AND ROBERT SMITH, INDIVIDUALLY AND AS CO-PERSONAL REPRESENTATIVES OF THE ESTATE OF JOHNNY DUPREE SMITH, DECEASED, Appellants (Plaintiffs),
DELTA TAU DELTA, INC., Appellee (Defendant), and BETA PSI CHAPTER OF DELTA TAU DELTA, WABASH COLLEGE, THOMAS HANEWALD, AND MARCUS MANGES, (Defendants)
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Appeal from the Montgomery Superior Court, No. 54D01-1009-CT-346. The Honorable Donald L. Daniel, Special Judge. On Transfer from the Indiana Court of Appeals, No. 54A01-1204-CT-169.
ATTORNEY FOR APPELLANT: Stephen M. Wagner, Wagner Reese, LLP, Carmel, Indiana.
ATTORNEYS FOR APPELLEE: Kevin C. Schiferl, Lucy R. Dollens, Vanessa A. Davis, Frost Brown Todd LLC, Indianapolis, Indiana.
ATTORNEYS FOR AMICI CURIAE: THETA CHI FRATERNITY, INC., Gary A. Watt, Michael C. Osborne, Tiffany J. Gates, Archer Norris, PLC, Walnut Creek, California; Cynthia E. Lasher, Norris Choplin Schroeder LLP, Indianapolis, Indiana; THE NORTH-AMERICAN INTERFRATERNITY CONFERENCE, Bryan H. Babb, Bose McKinney & Evans, LLP, Indianapolis, Indiana; James B. Ewbank, II, Ewbank & Harris, P.C., Austin, Texas; 23 NATIONAL AND NATIONAL WOMEN'S GROUPS, Jeffrey A. Musser, Rocap Musser LLP, Indianapolis, Indiana; Sean P. Callan, Timothy M. Burke, Manley Burke, LPA, Cincinnati, Ohio; INDIANA TRIAL LAWYERS ASSOC., Timothy J. Vrana, Timothy J Vrana LLC, Columbus, Indiana.
Dickson, Chief Justice. Rucker, David, Massa, Rush, JJ., concur.
Dickson, Chief Justice.
After the acute alcohol ingestion death of their 18-year-old son, Johnny Dupree Smith, a freshman pledge of the Beta Psi Chapter of Delta Tau Delta fraternity at Wabash College, the plaintiffs, Stacy Smith and Robert Smith, brought this wrongful death action against Delta Tau Delta (the national fraternity); its Wabash College local affiliate chapter--Beta Psi Chapter of Delta Tau Delta (the local fraternity); Wabash College; and Thomas Hanewald and Marcus Manges. The trial court granted the national fraternity's motion for summary judgment and, finding no just reason for delay, entered a judgment in favor of the national fraternity, thus permitting the plaintiffs to bring this appeal as to the national fraternity. Ind. Trial Rule 54(B). The Court of Appeals affirmed the trial court.
Smith v. Delta Tau Delta, 988 N.E.2d 325 (Ind.Ct.App. 2013). We now grant transfer to examine the issues presented in light of our recent decision in
Yost v. Wabash College, 3 N.E.3d 509 (Ind. 2014), which presented factual similarities and related questions of law.
In the present case, as to the national fraternity, the plaintiffs' amended complaint presents three theories of liability. Count I claims negligence per se for engaging in hazing in violation of Indiana Code section 35-42-2-2. Count II alleges negligence in furnishing alcoholic beverages to a minor, in violation of Indiana Code sections 7.1-5-7-8 and 7.1-5-10-15.5. Count III asserts a claim of negligence based upon breaches of an assumed duty (a) to protect freshman pledges from hazing and excessive alcohol consumption, (b) to protect freshman pledges from the reasonably foreseeable criminal acts of third parties, and (c) to render aid to the plaintiffs' decedent after it became clear that he could not care for himself. The plaintiffs' claims in each of these counts are predicated on the alleged negligence of the national fraternity " through [its] agents and officers." Appellants' App'x at 153.
The national fraternity's motion for summary judgment asserts that there are no genuine issues of material fact and (1) that the individual members of the local chapter were not acting as agents of the national fraternity and thus it is not liable for the actions of the individual members of the local chapter with respect to any of the counts; (2) that there is no allegation or evidence that the national fraternity itself furnished alcoholic beverages or knew that the plaintiffs' decedent was visibly intoxicated; (3) that the national fraternity did not assume any duty to control the hazing and alcohol consumption at the local chapter; and (4) that the plaintiffs' decedent was more than 50% at fault for his own death as a matter of law, precluding the recovery of damages under the Indiana Comparative Fault Act. See Ind. Code § 34-51-2-1 et seq.
The trial court granted the motion for summary judgment without accompanying findings of fact or conclusions of law, neither of which are required nor prohibited in ruling on summary judgment motions.
City of Gary v. Ind. Bell Tel. Co., 732 N.E.2d 149, 153 (Ind. 2000). Challenging the grant of summary judgment, the plaintiffs' appeal asserts two principal claims: (1) that the trial court erred in denying the plaintiffs' motion to strike part of the evidence designated by the national fraternity and (2) that genuine issues of material fact prevent summary judgment as to whether the national fraternity assumed a duty to protect the local chapter pledges and as to whether the national fraternity is vicariously liable for the negligence of the officers and representatives of the local chapter. Appellants' Br. at 1.
1. Motion to Strike Designated Evidence
On appeal, the plaintiffs first challenge the trial court's denial of their motion to strike an affidavit and two purported interview transcriptions designated as ...