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Wednesday, May 28, 2014

Ind. Decisions - Supreme Court decides two, made available late today

In Stacy Smith and Robert Smith, Individually and as Co-Personal Representatives of the Estate of Johnny Dupree Smith, Deceased v. Delta Tau Dalta, Inc. and Beta Psi Chapter of Delta Tau Delta, et al., a 13-page, 5-0 opinion, Chief Justice Dickson writes:

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 per-mitting 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 pre-sents three theories of liability. Count I claims negligence per se for engaging in hazing in viola-tion of Indiana Code section 35-42-2-2. Count II alleges negligence in furnishing alcoholic bev-erages 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."

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' dece-dent 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 correctly granted the national fraternity's motion for summary judgment. We affirm the judgment of the trial court.

See this May 8 ILB post mentioning this case, plus this summary of the Feb.13th Supreme Court opinion in Yost. Also related, last week Doug Masson sent me this link to a Feb. 19 feature article in The Atlantic, titled "The Dark Power of Fraternities: A yearlong investigation of Greek houses reveals their endemic, lurid, and sometimes tragic problems—and a sophisticated system for shifting the blame," written by Caitlin Flanagan.

In Larry Robert David, II, as Special Administrator of the Estate of Lisa Marie David, Deceased v. William Kleckner, M.D., a 9-page opinion, Chief Justice Dickson writes:

This appeal challenges a summary judgment in a wrongful death medical malpractice case brought by the deceased patient's husband as administrator of her estate. The defendant physician sought summary judgment on grounds that the plaintiff's complaint was barred by the applicable statute of limitations. The trial court granted the motion and, finding no reason for delay, entered final judgment against the plaintiff. The Court of Appeals affirmed in a memo-randum decision. David v. Kleckner, No. 49A02-1301-MI-13, 989 N.E.2d 843 (Ind. Ct. App. June 14, 2013) (table). We now grant transfer and reverse the trial court. * * *

We find that the holding in Manley applies equally here. In Manley, we found the defendants were not entitled to summary judgment because "there remain[ed] a genuine issue of material fact as to both the trigger date and, if within the two-year limitation period, whether the plaintiffs filed their complaint within a reasonable time." 992 N.E.2d at 675. The designated materials in the present case show that Larry promptly consulted an attorney after his suspicions arose, obtained medical information release forms, used those forms to obtain Lisa's medical records, and then returned the medical records to his attorney for evaluation by medical experts. We find that it was not necessarily an unreasonable delay for this action to be commenced on July 1, 2011, and that the plaintiff may be found to have filed within a reasonable time if the trigger date occurred within the statutory window. The plaintiff has thus established "an issue of fact material to a theory that avoids the defense." Manley, 992 N.E.2d at 674; Herron, 897 N.E.2d at 448; Overton, 896 N.E.2d at 502 (all three cases quoting Boggs, 730 N.E.2d at 695). The defendant is not entitled to summary judgment on his defense asserting the medical malpractice statute of limitations.

Posted by Marcia Oddi on May 28, 2014 04:27 PM
Posted to Ind. Sup.Ct. Decisions