Smith v. Delta Tau Delta, Inc.

9 N.E.3d 154, 2014 WL 2210511, 2014 Ind. LEXIS 450
CourtIndiana Supreme Court
DecidedMay 28, 2014
DocketNo. 54S01-1405-CT-356
StatusPublished
Cited by31 cases

This text of 9 N.E.3d 154 (Smith v. Delta Tau Delta, Inc.) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Delta Tau Delta, Inc., 9 N.E.3d 154, 2014 WL 2210511, 2014 Ind. LEXIS 450 (Ind. 2014).

Opinion

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)1; 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 in part but reversed the trial court’s grant of summary judgment. 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 mo[158]*158tions. 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 eviden-tiary material by the national fraternity.

A party seeking summary judgment may submit “supporting affidavits” and must designate pleadings, discovery responses, and such other “evidentiary matter [showing] that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” T.R. 56(C). The rule contemplates the submission of supporting and opposing affidavits made on personal knowledge and setting forth facts that would be admissible in evidence and that show the affiant is competent to testify thereon. T.R. 56(E). To support its motion, the national fraternity designated four items. First, it designated specific rhetorical paragraphs of the plaintiffs’ amended complaint. The second item was the affidavit of James B. Russell, Executive Vice President of the national fraternity. The third and fourth designated items were each identified as a “Craw-fordsville Police Department Interview:” the first of Stevan Stankovich and the second of Alan Tom. The plaintiffs sought to strike the Russell affidavit because it “directly contradicts his later deposition testimony on numerous key points” and to strike the two purported Crawfordsville Police Department interviews because they are hearsay and “unsworn, unverified, and unauthenticated statements.” Appellants’ App’x at 82. The trial court denied the plaintiffs’ motion to strike.

To support their claim of trial court error in failing to grant their motion to strike the Russell affidavit, the plaintiffs assert that when particular aspects of an affidavit “contradict the affiant’s deposition testimony, the contradictory portions of the affidavit should be stricken.” Appellants’ Br. at 20; see also Appellants’ App’x at 83. For this proposition, the plaintiffs cite Hayes v. Trustees of Indiana Univ., 902 N.E.2d 303 (Ind.Ct.App.2009), trans. denied; Chance v. State Auto Ins. Cos., 684 N.E.2d 569, 571 (Ind.Ct.App.1997), trans. denied; and Kroger Co. v. Plonski, 930 N.E.2d 1 (Ind.2010). Appellants’ Br. at 20. The plaintiffs did not otherwise challenge the nature, form, or content of the affidavit, nor the competency or knowledge of its affiant.

We find the cited authorities do not support the plaintiffs’ argument. In Hayes, the Court of Appeals upheld the striking of portions of the plaintiffs affidavit because it contradicted her sworn deposition testimony, citing the principle that “a genuine issue of material fact may not be created by submitting an affidavit that contradicts earlier sworn statements.” 902 N.E.2d at 311 (emphasis added) (citing Morgan County Hosp. v. Upham, 884 N.E.2d 275, 281 (Ind.Ct.App.2008), trans. denied). Hayes does not specifically state whether the deposition preceded or followed the affidavit. The plaintiffs’ second cited authority, Chance,

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Bluebook (online)
9 N.E.3d 154, 2014 WL 2210511, 2014 Ind. LEXIS 450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-delta-tau-delta-inc-ind-2014.