National fraternities face more legal risk after court ruling

Back to TopCommentsE-mailPrintBookmark and Share

A national fraternity with chapters on more than 125 campuses must stand trial over the drinking death of a Wabash College freshman, an Indiana court said in a ruling that may force the organizations to take more responsibility for misconduct at chapter houses.

The Indiana Court of Appeals on May 8 reinstated a lawsuit against Delta Tau Delta by the family of Johnny Dupree Smith. Smith, 18, was found dead on Oct. 5, 2008, his blood alcohol level at five times the limit for legal intoxication. He had passed out during “Pledge Family Drink Night,” according to the complaint in the wrongful-death case.

The ruling is the first by an appellate court in Indiana, where many fraternities are based, that a national fraternity must face a trial for injury or death at a chapter house, Stephen Wagner, a lawyer for Smith’s parents, said.

Unless reversed on appeal, the decision may compel national fraternities “to re-double their efforts to protect all their members” from injury, said Robert Heidt, who teaches negligence law at Indiana University’s Maurer School of Law in Bloomington. “If every court in the country did this, I bet it would change the structure of fraternities.”

The ruling comes as Greek life rebounds in the U.S., with membership up 29 percent since 2005. Death and injury from fraternity-related hazing, drinking and partying are also climbing. Since 2005, at least 54 students across the U.S. have died and six were paralyzed in incidents connected with such activities, according to a Bloomberg analysis of lawsuits, news accounts and interviews.

Beset by lawsuits claiming negligent supervision, national fraternities have argued in court that they’re not responsible for misconduct at their local affiliates because they don’t actively supervise them. One fraternity lawyer recently told national groups that most state courts won’t hold them liable if they’re “predominantly passive” in their supervision of affiliates’ “daily activities.”

Last week’s ruling, if upheld, may make it harder for national fraternities to take that middle-of-the-road approach, said Donald Gjerdingen, who also teaches torts at Maurer. Instead, national fraternities will have to decide whether to supervise fully or not at all, he said.

“You can imagine the scenario where the fraternity says we’re going to take these things on,” said Gjerdingen. “Or they’ll say, ‘It’s not worth it -- we leave it up to the local’” chapters to supervise its members.

The lawsuit also names Wabash College, an all-male institution of 900 students 48 miles northwest of Indianapolis, and the local fraternity chapter. It claims Delta Tau Delta, which is based in Fishers, Indiana, and Crawfordsville, Indiana- based Wabash encouraged hazing and excessive drinking.

According to the complaint, Smith, who was from Tucson, Ariz., attended a chapter party where new initiates were told there would be “an abundance of alcohol.” After drinking beer and vodka, he was unable to walk, could barely talk and fell down a stairwell, according to the complaint.

Left on a mattress in an upstairs bedroom, Smith was placed on his side “so he wouldn’t choke on his vomit,” according to court papers. He was found dead the next morning.

The appeals court detailed how Delta Tau Delta set rules, monitored and punished its local chapter for hazing, drinking and other wrongdoing. The court said jurors at a trial must determine whether the fraternity had assumed a “duty to protect” Smith, and then breached the duty.

“Through its chapter consultants and chapter advisors, Delta Tau Delta remained apprised of the daily activities of their local chapters,” a three-judge panel said. “Not only were chapter advisors required to report conduct violations, they also were responsible to ensure the local chapter complied with any enforcement and corrective mechanisms.”

The appellate court didn’t rule on the merits of the case in reinstating claims, dismissed by a lower court last year, against Delta Tau Delta.

Kevin Schiferl, Delta Tau Delta’s lawyer, said in an interview that he hasn’t decided whether to appeal the decision to the state Supreme Court. The national fraternity “had no involvement in this incident,” he said.

Since 2005, three student deaths have been associated with local affiliates of Delta Tau Delta, which was founded 150 years ago. The fraternity and a related charitable foundation had revenue of $5.5 million in 2011. A fraternity spokesman didn’t immediately return a call for comment on the ruling.

Jim Amidon, a spokesman for Wabash, declined to comment.

The ruling is controlling only in Indiana. Plaintiffs injured in other states may try to sue in Indiana if a fraternity is based there, Heidt said.

Heidt, who was critical of the ruling, said it may drive national fraternities to abandon oversight of their chapters.

“In a way, the message sent by this is that national organizations should make no effort at enforcing their guidelines,” he said.

Separately the Indiana Supreme Court is reviewing a case in which a national fraternity was found not responsible for what a student said was hazing at another local chapter at Wabash. Gjerdingen said he expected the state Supreme Court to review the Smith case if Delta Tau Delta asks it to do so.



  • Personal responsibility
    This lawsuit is completely ridiculous. The article clearly states that the student, Johnny, was 18 years old. 18 is old enough to vote or to be enlisted in the military. Clearly both of these act involve a great deal of personal responsibility. Where is the personal responsibility in this case? If the kid is old enough to go off to war, he should be old enough and responsible enough to say "no" if he doesn't want a drink. I've had a number of friends attend Wabash College over the years and I couldn't think more highly of the institution. It does an incredible job of educating young men and setting the foundation for a successful life. While this is clearly a tragic loss of a life, the lawsuit is ridiculous and, rather than suing, perhaps the student's parents should be questioning their own parental abilities and lessons about peer pressure, alcohol abuse, and taking care of oneself.
  • Liability Ins.
    Funny how the national chapter charges each kid in the fraternity system $300 + a year for liability insurance but then denies any responsibility. So what't the insurance money for?
  • Wabash U and local police
    I have a newphew at Wabash U in a fraternity. During his time there the frat house provided a lot of free alcohol that has gotten him in trouble. This seems to be standard practice for under age students. The university allows this clearly. Why don't local police raid frat houses or the university police to stop this? This is a serious problem.
  • A double standard
    Having lived both in dorms and in a fraternity house, it's obvious that heavy drinking can occur in either. My dorm floor had kegs of beer available on weekends, for instance. The difference is that if someone drinks themselves to death in a dorm, it's considered their fault. If they drink themselves to death in a fraternity, then it's the fraternities's fault. Unless the national fraternity organization was encouraging or promoting alcohol related parties (which I seriously doubt), then this case against the national fraternity has no merit. Most national fraternities have been very careful for many years now not to condone alcohol use at chapters, and since they seldom have on-site representatives at every chapter, they can't be expected to know what goes on every day in every local fraternity member's room.

    Post a comment to this story

    We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
    You are legally responsible for what you post and your anonymity is not guaranteed.
    Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in IBJ editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
    No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
    We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

    Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

    Sponsored by

    facebook - twitter on Facebook & Twitter

    Follow on TwitterFollow IBJ on Facebook:
    Follow on TwitterFollow IBJ's Tweets on these topics:
    thisissue1-092914.jpg 092914

    Subscribe to IBJ
    1. Cramer agrees...says don't buy it and sell it if you own it! Their "pay to play" cost is this issue. As long as they charge customers, they never will attain the critical mass needed to be a successful on company...Jim Cramer quote.

    2. My responses to some of the comments would include the following: 1. Our offer which included the forgiveness of debt (this is an immediate forgiveness and is not "spread over many years")represents debt that due to a reduction of interest rates in the economy arguably represents consideration together with the cash component of our offer that exceeds the $2.1 million apparently offered by another party. 2. The previous $2.1 million cash offer that was turned down by the CRC would have netted the CRC substantially less than $2.1 million. As a result even in hindsight the CRC was wise in turning down that offer. 3. With regard to "concerned Carmelite's" discussion of the previous financing Pedcor gave up $16.5 million in City debt in addition to the conveyance of the garage (appraised at $13 million)in exchange for the $22.5 million cash and debt obligations. The local media never discussed the $16.5 million in debt that we gave up which would show that we gave $29.5 million in value for the $23.5 million. 4.Pedcor would have been much happier if Brian was still operating his Deli and only made this offer as we believe that we can redevelop the building into something that will be better for the City and City Center where both Pedcor the citizens of Carmel have a large investment. Bruce Cordingley, President, Pedcor

    3. I've been looking for news on Corner Bakery, too, but there doesn't seem to be any info out there. I prefer them over Panera and Paradise so can't wait to see where they'll be!

    4. WGN actually is two channels: 1. WGN Chicago, seen only in Chicago (and parts of Canada) - this station is one of the flagship CW affiliates. 2. WGN America - a nationwide cable channel that doesn't carry any CW programming, and doesn't have local affiliates. (In addition, as WGN is owned by Tribune, just like WTTV, WTTK, and WXIN, I can't imagine they would do anything to help WISH.) In Indianapolis, CW programming is already seen on WTTV 4 and WTTK 29, and when CBS takes over those stations' main channels, the CW will move to a sub channel, such as 4.2 or 4.3 and 29.2 or 29.3. TBS is only a cable channel these days and does not affiliate with local stations. WISH could move the MyNetwork affiliation from WNDY 23 to WISH 8, but I am beginning to think they may prefer to put together their own lineup of syndicated programming instead. While much of it would be "reruns" from broadcast or cable, that's pretty much what the MyNetwork does these days anyway. So since WISH has the choice, they may want to customize their lineup by choosing programs that they feel will garner better ratings in this market.

    5. The Pedcor debt is from the CRC paying ~$23M for the Pedcor's parking garage at City Center that is apprased at $13M. Why did we pay over the top money for a private businesses parking? What did we get out of it? Pedcor got free parking for their apartment and business tenants. Pedcor now gets another building for free that taxpayers have ~$3M tied up in. This is NOT a win win for taxpayers. It is just a win for Pedcor who contributes heavily to the Friends of Jim Brainard. The campaign reports are on the Hamilton County website. http://www2.hamiltoncounty.in.gov/publicdocs/Campaign%20Finance%20Images/defaultfiles.asp?ARG1=Campaign Finance Images&ARG2=/Brainard, Jim