Justices focus on hazing, duty in Wabash fraternity case

Indiana Supreme Court justices on Tuesday quizzed attorneys about what constitutes hazing and whether Wabash College and a fraternity chapter owed a duty to protect a pledge injured when fraternity brothers placed him in a chokehold then dropped him.

“This was so much more than boys being boys,” argued Taft Stettinius & Hollister LLP partner Anne Cowgur on behalf of former Wabash student Brian Yost. She said Yost was seriously hurt when fraternity brothers initiated a “longstanding tradition” called “showering” outlined in fraternity literature. The activity involves carrying a frat member into a shower and dousing him with water. “It was foreseeable that someone would get hurt,” Cowgur said.

The Phi Kappa Psi fraternity chapter at Wabash also outlined another activity in its literature called “creeking” that involves throwing a fraternity member into a nearby creek to mark significant life events. A fraternity member had been creeked a few hours before Yost was injured while fraternity brothers attempted to carry him to a shower, according to the court record.

But Wabash attorney Thomas Schultz of Schultz & Pogue LLP sought to shift blame to Yost. Schultz said Yost had been wrestling with another pledge before the event and woke up fraternity members in the early-morning hours. Schultz said Yost was determined to prove his toughness, and that Wabash can’t be held liable under Indiana’s criminal hazing statute for what amounted to an altercation.

“This was not a criminal act that took place with Mr. Yost, and it was not foreseeable,” Schultz said. “… Showering and creeking is irrelevant in this case.”

Wabash and the fraternity won summary judgment from a trial court and a divided Court of Appeals affirmed in Brian Yost v. Wabash College, Phi Kappa Psi Fraternity, Inc., Phi Kappa Psi Fraternity – Indiana Gamma Chapter at Wabash College, and Nathan Cravens, 54S01-1303-CT-161. Justices heard arguments at Indiana University East in Richmond.

Justice Loretta Rush appeared skeptical of claims that potential dangers of showering and creeking were unforeseeable. “They weren’t holding hands and skipping to the shower,” she said to Schultz. “It’s in the pledge manual,” she said of creeking and showering.

But Rush also challenged Cowgur on what the college or fraternity could have done to protect Yost. “Do we put someone on every floor to prevent it?”

“It’s not unreasonable to put someone in the house,” Cowgur later said, alleging a pattern of hazing at Wabash that the college has denied. “It’s sending the signal that this is OK. We shouldn’t wait for the next person to get hurt.”

Justice Mark Massa pressed Cowgur when she called the activities inherently dangerous. Massa said there was no evidence in the record that the activities presented dangers. Cowgur said that evidence would have been discovered had the case proceeded toward trial.

But Wooden & McLaughlin LLP partner Matthew Adolay, representing the fraternity, said the practices aren’t dangerous and pointed to “the unforeseeable acts of Mr. Yost."

“Brian Yost was never forced or required to do anything,” Adolay said.

Justice Robert Rucker suggested hazing might not be central to the case. Cowgur offered no counter when Rucker discussed allegations that the fraternity members grabbed Yost and asked, “Why would that not be battery?”

Schultz later said, “There’s never been an argument of assault and battery. … Mr. Yost was the instigator in this incident.”

Rucker also read from Court of Appeals Judge Nancy Vaidik’s dissent, highlighting claims that the college inadequately addressed allegations of hazing, including two deaths after Yost was hurt. Schultz disputed allegations that Wabash had failed to act on claims of hazing. He said the college has a policy against hazing.

Early in the arguments, Justice Steven David asked Cowgur, “Do you have a case against the local fraternity without the hazing statute?” Cowgur said there was a case because inclusion of the activities in fraternity literature establishes the foreseeability of harm. “At a minimum, there is a question of fact” that a jury or court should decide, she said.
 
“You can’t endorse (creeking and showering) in the pledge manual and then turn a blind eye to it when someone gets hurt,” Cowgur closed.

Read previous Indiana Lawyer coverage of the case here.