BAKER, Judge.
Andrew Meyer filed a complaint against Beta Tau House Corporation (House Corporation), Beta Tau of Sigma Pi (Beta Tau), Sigma Pi Fraternity International, Inc. (Sigma Pi), and Quentin Calder. At issue in this appeal are Meyer's claims for negligence against House Corporation, Beta Tau, and Sigma Pi; violation of the Dram Shop Act
Sigma Pi is a men's collegiate fraternal organization that charters local chapters of the fraternity. In 2009, Sigma Pi had over 120 local chapters in the United States and Canada. Beta Tau, which is affiliated with Valparaiso University, is one of the local chapters chartered by Sigma Pi. Beta Tau's relationship with Sigma Pi is governed by Sigma Pi's Constitution and By-Laws. Compliance with these documents is monitored from time to time by an alumni volunteer who serves as a liaison between a local chapter and Sigma Pi. The method by which local chapters implement Sigma Pi's standards are determined by each local chapter. In other words, each chapter must abide by general standards and policies but retains the independence to determine the way in which it will enforce such policies. Each local chapter has its own set of by-laws. Sigma Pi does not control, manage, or supervise the daily activities of its local chapters.
Sigma Pi discourages alcohol abuse at its local chapters, and has disciplined chapters for incidents of alcohol abuse in the past. It instructs local chapters in risk management guidelines related to alcohol abuse.
House Corporation owns two houses for Beta Tau members. The houses are located at 803 (the 803 house) and 805 (the 805 house) Brown Street in Valparaiso. House Corporation owns the real estate and leases the houses to undergraduate members of Beta Tau. All activity incident to ownership of the property, including finances and maintenance, is conducted by House Corporation. House Corporation does not control, manage, or supervise the daily activities of fraternity members who visit or live in the houses.
During the relevant period of time, Meyer and Daniel Meals were students of Valparaiso University and members of Beta Tau, and both were over the age of twenty-one. Meals lived in the 803 house;
In May 2008, Meyer poured urine on the windshield of Meals's truck. Meals then punched Meyer in the nose. Meyer did not report the incident to Sigma Pi or House Corporation, and although some of the Beta Tau members became aware of the incident, he did not make a formal report of the altercation or request that any action be taken against Meals.
On March 20, 2009, Meyer began drinking alcohol at approximately 6:00 p.m. at a local restaurant. He continued drinking in his apartment for several hours, until approximately 11:00 p.m. At that time, Meyer went to the 805 house with a group of his friends to socialize with a group of members, alumni, and pledges that had gathered there, including Meals. Meyer brought a handle of whiskey to share with the group. Meyer remembers drinking the whiskey at this gathering and does not recall drinking anything else. Meyer remembers seeing beer in the refrigerator of the 805 house, but cannot recall how much beer there was, who it belonged to, what kind of beer it was, or who purchased it. Meyer recalls seeing alcohol being served from the bar, and believes the alcohol had been brought by various members. Although Meyer claims that he saw Meals drinking alcohol that night, he does not remember what kind of alcohol it was, and does not recall if Meals was drinking the beer from the refrigerator.
At approximately 2:30 a.m., Meyer and Chris Tormos left the 805 house and went next door to the 803 house. Meyer and Tormos socialized for approximately half an hour. Meyer characterizes this gathering as a party, but the only other person present in the house was Meals's girlfriend, who was in Meals's room. Around 3:00 a.m., Meyer and Tormos began calling friends in an attempt to find a ride home. Meyer admits that he was drunk at this time.
While Meyer was leaving a voicemail for a friend, Meals walked into the house. The rest of the incident was recorded on the voicemail message. As soon as Meals walked in the door, Meyer called him an "asshole" twice and Tormos demanded of Meals, "who the fuck are you?" Appellees' App. p. 84. A heated verbal exchange followed, during which Meyer taunted and goaded Meals, shouting at him to "move the fuck on." Id. Tormos attempted to calm the situation, repeatedly telling Meyer to "shut the fuck up," while Meals's girlfriend repeatedly told Meals to "stop." Id. The exchange turned physical. While Meyer and Meals dispute who first resorted to physical violence, Meyer sustained injuries as a result of the altercation.
The day after the incident, Meyer filed a police report. That same day, Calder found out about the incident from Meals and other members. Calder eventually learned that Meyer had filed a police report.
Calder began a discussion with Karl Strasen, who was President of Beta Tau, and Matt Smith, who was Beta Tau's liaison to alumni members, about the incident. They discussed how to address the legal and personal conflict between Meyer and Meals. Smith and Strasen reported that Meyer had been visiting the houses after he filed the report, and that his visits were causing divisions within Beta Tau's membership. Calder became concerned about the visits exacerbating an already
Calder decided to make a non-binding request that Meyer stay away from the fraternity premises until further notice. On March 25, 2009, Calder sent a letter to Meyer (the Letter). The Letter was carbon copied to the four other officers of the House Corporation and to Strasen. Among other things, the Letter stated as follows:
Appellant's App. p. 463.
Thereafter, Meyer pursued Valparaiso University Campus Judiciary Board proceedings against Meals. As a result of these proceedings, Meals was suspended for one semester and prohibited from being on campus or attending off-campus University events during that time.
Calder learned that Meyer had still been visiting the fraternity houses after receiving the Letter. Consequently, on May 23, 2009, Calder sent an email to Meyer, stating, "[a]s promised in my previous communication to Mr. Meyer in relation to his continuing `vendetta' against Dan Meals, Andrew Meyer is hereby banned from the Sigma Pi properties ... indefinitely." Id. at 464. The House Corporation officers, Strasen, and Smith were carbon copied on the email.
On March 18, 2011, Meyer filed a complaint against the Defendants. He included the following claims: (1) assault and battery against Meals;
On April 10, 2013, Sigma Pi, Beta Tau, and the House Corporation moved for summary judgment on the negligence claims, and Calder and the House Corporation moved for summary judgment on the defamation claims. Following extensive briefing and a hearing, the trial court granted summary judgment in favor of the Defendants on the negligence and defamation claims on March 6, 2014. Meyer now appeals.
Our standard of review on summary judgment is well established:
Hughley v. State, 15 N.E.3d 1000, 1003 (Ind.2014).
To prove a negligence claim, a plaintiff must show that (1) the defendant owed plaintiff a duty, (2) the defendant breached that duty, and (3) plaintiff's injury was proximately caused by the breach. Winfrey v. NLMP, Inc., 963 N.E.2d 609, 612 (Ind.Ct.App.2012). Whether a defendant owes a duty of care to a plaintiff is a question of law for the court to decide. Id. To determine whether a duty exists, we must consider the relationship between the parties, the reasonable foreseeability of harm to the person injured, and public policy concerns. Yost v. Wabash College, 3 N.E.3d 509, 515 (Ind. 2014).
While summary judgment is rarely appropriate in negligence cases, it is appropriate when the undisputed material evidence negates one element of a negligence claim. Winfrey, 963 N.E.2d at 612.
Meyer argues that Sigma Pi assumed a duty to inform and guide Beta Tau on policies relating to alcohol abuse. See Ember v. BFD, Inc., 490 N.E.2d 764, 769 (Ind.Ct.App.1986) (holding that a person or entity can assume a duty of care through affirmative conduct). Both parties
In Yost v. Wabash College, a college freshman and fraternity pledge suffered injuries in a hazing incident that occurred at his fraternity house. 3 N.E.3d 509 (Ind.2014). Yost sued a number of defendants, including the national fraternity of which his local fraternity was a chapter. Yost argued that the national fraternity had assumed a duty to him by engaging in the following behavior:
Id. at 520. The trial court granted summary judgment in favor of the national fraternity, and Yost appealed.
Our Supreme Court noted that the concept of assumed duty "requires a focus upon the specific services undertaken. While an actor may be accountable for negligence in the performance of certain services actually undertaken, such liability does not extend beyond the undertaking." Id. at 521. Ultimately, the Yost Court found no assumed duty:
Id. Our Supreme Court affirmed the trial court's grant of summary judgment in favor of the national fraternity based on the absence of a duty.
Three months after Yost, our Supreme Court considered a similar scenario in Smith v. Delta Tau Delta, Inc., 9 N.E.3d 154 (Ind.2014). In Smith, a freshman college student and pledge of a fraternity died from acute alcohol ingestion. His parents sued a number of defendants for wrongful death, including the national fraternity. Smith's parents contended that the national fraternity had assumed a duty to protect freshman pledges from hazing and the dangers of excessive alcohol consumption by:
Id. at 162. The trial court granted summary judgment in favor of the national fraternity, and the Smiths appealed.
First, our Supreme Court noted that there was no evidence establishing
Id. at 163 (emphasis added). The Smith Court affirmed the grant of summary judgment in favor of the national fraternity.
Meyer attempts to distinguish Yost and Smith from the instant case. He insists that he is not arguing that Sigma Pi assumed a duty to protect him. Instead, he argues that Sigma Pi assumed the duty arguably acknowledged by the Smith Court — the duty to provide information and guidance. Meyer contends that Sigma Pi assumed this duty by engaging in the following behavior:
In Meyer's words, the bylaws and FIPG Guidelines "plainly establish that Sigma Pi voluntarily assumed a duty to inform and guide Beta Tau in this case." Appellant's Br. p. 12.
Initially, we observe the wealth of caselaw standing for the proposition that a national fraternity does not assume a general duty to protect local fraternity chapters or their members. Smith, 9 N.E.3d at 163; Yost, 3 N.E.3d at 520-21; Delta Tau Delta v. Johnson, 712 N.E.2d 968 (Ind.1999); Foster v. Purdue Univ. Chapter, 567 N.E.2d 865 (Ind.Ct.App.1991). As in those cases, the nature of Sigma Pi's involvement with its local fraternities and its efforts to combat the problems of alcohol
We question Meyer's attempt to focus on one sentence of Smith without addressing the entire context of the case. For argument's sake, however, we will entertain the possibility that Sigma Pi assumed a very specific duty to guide and inform its local chapters and their members.
Meyer next contends that there is a genuine issue of material fact regarding whether Sigma Pi breached its duty to inform and guide Beta Tau and its members. First, Meyer directs our attention to evidence that he claims establishes that Sigma Pi employees "actively participated with Beta Tau in breaking the very policies that Sigma Pi promulgated." Appellant's Br. p. 13. Meyer contends that the record shows that a Sigma Pi chapter consultant visited Beta Tau annually and would "party" with the members. Id.
Meyer also contends that Sigma Pi did nothing to educate Beta Tau on alcohol abuse in fraternity life. Instead, Sigma Pi's guidance focused on marketing rather than risk management.
We question the breadth of the so-called "duty to inform and guide." In our view, this duty would primarily extend to the veracity and accurateness of the information provided to Sigma Pi's local chapters. In this case, Beta Tau does not contend that it was misinformed by anything in the materials provided by Sigma Pi. Our instinct, therefore, is to say that, as a matter of law, there was no breach of the duty to inform and guide in this case. But given our standard of review, and giving Meyer the benefit of every doubt, we find that there is a question of fact on the issue of breach and turn next to causation.
Meyer next moves to proximate cause, noting that summary judgment is almost always inappropriate on this issue. Florio v. Tilley, 875 N.E.2d 253, 255 (Ind.Ct.App.2007). If, however, a case is plain and undisputable, and only a single inference or conclusion may be drawn from the evidence, the question of proximate cause may be determined as a matter of law. Miller v. Bernard, 957 N.E.2d 685, 697 (Ind.Ct.App.2011). The defendant's conduct is the proximate cause of a plaintiff's injury when the injury is "the natural and probable consequence of the negligent act which, in light of the attending circumstances, could have been reasonably foreseen or anticipated." Arnold v. F.J. Hab, Inc., 745 N.E.2d 912, 917 (Ind.Ct.App.2001).
Meyer again emphasizes that "the chapter consultants from Sigma Pi abused alcohol with members of the fraternity, and educated Beta Tau only in the mechanics of alcohol abuse and tactics to avoid detection." Appellant's Br. p. 18. According to Meyer, a jury could view this evidence and conclude that Sigma Pi's breach of its duty to guide and inform "created an environment for Beta Tau members to freely abuse alcohol with Sigma Pi's blessing." Id.
We simply cannot agree. While we do not condone the practice of
Next, Meyer argues that Beta Tau assumed a duty to protect him at parties. Unlike a more removed national fraternity, Meyer argues that "because a local chapter of a fraternity is in such close proximity to its members, a genuine issue of material fact exists as to whether a local chapter has a duty to protect its members when it has implemented policies to provide security for its members." Appellant's Br. p. 19. Meyer contends that Beta Tau assumed this duty by selecting members to maintain security at parties. We agree with Meyer that Beta Tau had a duty to protect its members (and their guests) by providing security at parties thrown by the fraternity.
Meyer contends that Beta Tau breached its duty to protect him by failing to provide security at the "closed party" he was attending when the altercation occurred. We disagree.
There were only three people present at the 803 house until Meals arrived, reaching a total of four people. It stretches the bounds of credibility to call this gathering a party, even a "closed" party. And there is no evidence in the record tending to show that this informal gathering was a fraternity-sanctioned or-provided event. To hold that Beta Tau had a duty to provide security at this informal gathering of three people would be to hold, essentially, that it had a duty to provide security at all times, and there is no basis in law or fact to find that such an extreme, broad duty existed. Therefore, Beta Tau's failure to provide security at this gathering was not a breach of any duty it may have had to Meyer. The trial court properly granted summary judgment in Beta Tau's favor on this issue.
House Corporation owns the real estate on which Beta Tau's houses are located. A landowner has a duty to exercise reasonable care to protect an invitee while the invitee is on the landowner's premises. Burrell v. Meads, 569 N.E.2d 637, 639-40 (Ind.1991). The duty "only extends to harm from the conduct of third persons that, under the facts of a particular case, is reasonably foreseeable to the
In this case, the record reveals that the altercation occurred at a small gathering of three to four people at three in the morning. The altercation erupted after Meyer began antagonizing Meals as soon as Meals walked through the door. Before the altercation, Meyer was not afraid or concerned that Meals would attack him, even though they had spent the previous several hours together at the other fraternity house. Meyer was unable to cite to a single, specific incident in the past that was similar to the one in question. Moreover, Meyer never officially reported the 2008 altercation to Beta Tau or the House Corporation. Given all of these undisputed facts, we conclude that the fight that erupted between Meals and Meyer was unforeseeable to House Corporation as a matter of law. As a result, summary judgment in favor of House Corporation on this issue was not erroneous.
Next, Meyer argues that there is a genuine issue of material fact related to the Dram Shop Act that should prevent summary judgment. Our primary goal in statutory construction is to ascertain and give effect to the intent of the legislature. Gray v. D & G, Inc., 938 N.E.2d 256, 259 (Ind.Ct.App.2010). We apply a de novo standard of review to questions of statutory interpretation. Id. at 259.
The Dram Shop Act states as follows:
I.C. § 7.1-5-10-15.5. The alcohol provider's knowledge of the patron's intoxication may be proved by either indirect or circumstantial evidence. Gariup Constr. Co. v. Foster, 519 N.E.2d 1224, 1230 (Ind. 1988). Factors to be considered in determining whether there was actual knowledge of intoxication include "what and how much the person was known to have consumed, the time involved, the person's behavior at the time, and the person's condition shortly after leaving." Delta Tau Delta, 712 N.E.2d at 974. When there is insufficient evidence to support actual knowledge, the issue may be resolved as a matter of law. Id.
We disagree with Meyer's assessment of the record. Instead, we agree with Beta Tau that "the undisputed evidence shows that Beta Tau did not even furnish Meals with alcohol, let alone furnish him with alcohol knowing that he was intoxicated." Appellees' Br. p. 37. As to whether Beta Tau provided Meals with alcohol, while Meyer testified that he saw beer in the refrigerator, he did not know how much beer there was, what kind of beer it was, who it belonged to, or who had purchased it. Furthermore, while he recalls seeing alcohol being served from the bar, he observed people serving each other and themselves, and testified that he believes the alcohol being served had been purchased by various fraternity members.
As to knowledge of Meals's intoxication, Meals testified that he drank two whiskey sours over the course of the night, and Meyer testified that he saw Meals drinking alcohol at the gathering in the basement. There is no evidence regarding how much alcohol Meals consumed beyond the two whiskey sours, Meals's behavior throughout the night, or his condition during or at the close of the evening. Consequently, there is no evidence in the record tending to establish that Beta Tau had actual knowledge of Meals's intoxication or that Beta Tau furnished Meals with alcohol on the night in question. Therefore, the trial court did not err by granting summary judgment in favor of Beta Tau on this issue.
Finally, Meyer argues that the record contains sufficient evidence to support his defamation claims against Calder and the House Corporation to survive summary judgment. The law of defamation was created to protect individuals from reputational attacks. Columbus Specialty Surgery Ctr. v. Se. Ind. Health Org., Inc., 22 N.E.3d 665, 669 (Ind.Ct.App.2014). A defamatory communication is one that "`tends so to harm the reputation of another as to lower him in estimation of the community or to deter a third person from associating or dealing with him.'" Doe v. Methodist Hosp., 690 N.E.2d 681, 686 (Ind. 1997) (quoting Restatement (Second) of Torts § 559 (1977)). To prevail on a claim of defamation, a plaintiff must prove four elements: (1) a communication with defamatory imputation, (2) malice, (3) publication, and (4) damages. Columbus Specialty, 22 N.E.3d at 669.
Meyer argues that the letter drafted by Calder and copied to the officers of the House Corporation was defamatory. In relevant part, the Letter states as follows:
Appellant's App. p. 463.
For a statement to be actionable, it must be clear that it contains objectively verifiable fact regarding the plaintiff. Hamilton v. Prewett, 860 N.E.2d 1234, 1243 (Ind.Ct.App.2007). If the speaker is merely expressing his subjective view, interpretation, or theory, then the statement is not actionable. Id.
Calder contends that the statements in the Letter were merely non-actionable, non-verifiable statements of opinion. Meyer points out that if a statement is susceptible to both defamatory and non-defamatory meanings, the matter of interpretation should be left to the trier of fact. Journal-Gazette Co. v. Bandido's, Inc., 712 N.E.2d 446, 457 (Ind.1999). On this issue, we agree with Meyer. A reasonable finder of fact could conclude that Calder's statements in the Letter went beyond mere statements of opinion.
Even if we were to find that there are genuine issues of material fact on the defamatory nature of the Letter, however, we must consider the common interest qualified privilege. This privilege applies to communications made in good faith on any subject matter in which the party making the communication has an interest or duty, if made to a person having a corresponding interest or duty. Schrader v. Eli Lilly & Co., 639 N.E.2d 258, 262 (Ind.1994). The privilege may be lost if it is abused. Holcomb v. Walter's Dimmick Petroleum, Inc., 858 N.E.2d 103, 106-07 (Ind.2006).
Calder contends that he made the statements in the Letter in good faith, on a subject in which he had an interest, to a limited group of people, concerning a subject in which all members of the group had a corresponding interest. Consequently, he argues that even if his statements were defamatory, he is protected by this privilege.
Meyer responds that a privilege asserted as a defense to defamation cannot be decided as a matter of law if facts giving rise to the privilege are in dispute. Chambers v. Am. Trans Air, Inc., 577 N.E.2d 612, 615 (Ind.Ct.App.1991). Meyer argues that there is an issue of material fact regarding whether Calder acted with ill will in drafting and sending the Letter. See id. at 616 (holding that the common interest privilege is lost when defamatory statements are motivated by ill will). Therefore, Meyer argues that this issue should be determined by the trier of fact.
We disagree. The undisputed evidence in the record establishes that, in fact, Calder was acting in good faith to attempt to resolve tensions at Beta Tau. First, he made a non-binding request for Meyer to stay away from the houses, and then, when Meyer refused to comply, Calder formally banned him from the
As a final aside, we note that even if the common interest privilege did not apply, the defamation claim is barred by the Volunteer Protection Act. 42 U.S.C. § 14501 et seq. This Act was enacted to "provide certain protections from liability abuses related to volunteers serving nonprofit organizations and governmental entities." 42 U.S.C. § 14501(b). A person who is protected by the Act cannot be held liable for harm caused by him in the scope of his responsibilities unless the harm is caused by "willful or criminal misconduct, gross negligence, reckless misconduct or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer." 42 U.S.C. § 14503.
Meyer concedes that the House Corporation is a nonprofit organization and Calder was a volunteer within the meaning of the Volunteer Protection Act. 42 U.S.C. § 14505(6). Furthermore, when drafting and mailing the Letter, Calder was acting in the scope of his responsibilities as President of the House Corporation.
Given our conclusion above that there is no evidence in the record establishing that Calder acted with ill will, it is a given that there is likewise a dearth of evidence remotely showing that Calder acted with gross negligence, reckless misconduct, or a flagrant indifference to Meyer's rights. Consequently, Calder's actions with respect to the Letter are protected by the Volunteer Protection Act, and summary judgment was properly entered in his favor.
The judgment of the trial court is affirmed.
NAJAM, J., and FRIEDLANDER, J., concur.
