Andrew Meyer v. Beta Tau House Corporation, Beta Tau of Sigma Pi, Sigma Pi Fraternity International, Inc., and Quentin Calder , 2015 Ind. App. LEXIS 356 ( 2015 )

Apr 21 2015, 9:44 am
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES
Richard C. Wolter Jonathan Halm
Merrillville, Indiana Abrahamson, Reed & Bilse
Hammond, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Andrew Meyer, April 21, 2015
Appellant-Plaintiff, Court of Appeals Case No.
64A03-1406-CT-205
v. Appeal from the Porter Superior
Court.
The Honorable Roger V. Bradford,
Beta Tau House Corporation, Judge.
Beta Tau of Sigma Pi, Sigma Pi Cause No. 64D01-1103-CT-2429
Fraternity International, Inc.,
and Quentin Calder,
Appellees-Defendants.
Baker, Judge.
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[1] 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 Act1 against Beta Tau; and defamation against
Calder and the House Corporation. The trial court granted summary judgment
in favor of the defendants on all of these claims. Meyer argues that the
summary judgment order was erroneous because there are genuine issues of
material fact related to each claim. Finding no error, we affirm.
Facts
The Parties
[2] 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
1
Ind. Code § 7.1-5-10-15.5.
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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.
[3] 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.
[4] 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.
[5] 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; Meyer did not live in either house.
Calder was an alumni member of Beta Tau and the president of the House
Corporation. He served as a volunteer.
Prologue
[6] 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
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aware of the incident, he did not make a formal report of the altercation or
request that any action be taken against Meals.
The Incident
[7] 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.
[8] 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.
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[9] 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 Aftermath
[10] 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.
[11] 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 tense situation and about Meyer’s decision to
publicly press charges against Meals and the effects that could have on Beta Tau
and House Corporation. Calder obtained input from Mark Briscoe, the
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President of Sigma Pi, and Jennifer Jones Hall, the Assistant Dean of Greek
Life at Valparaiso University.
[12] 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:
. . . Given that you don’t remember the events that took place on that
morning I am of the mindset that you are actually more interested in
settling an outstanding vandetta [sic] against a current active member
living at the house than in getting some type of justice.
The police report you filed is now being viewed by everyone, this
includes the University and other alumni as well as the city. Being
that you are aware House Corporation’s next step is to try and get a
permit to replace the foundation of the house, I consider this frivolous
attempt at retribution as a blatent [sic] disregard for the fraternity and
the House Corporation as a whole.
I cannot allow an active member to use the law and the fraternity
grounds to settle a score.
That said, since the member you have filed charges against is currently
living at the fraternity house and you are not, I would highly
recommend that you avoid the fraternity properties until further
notice.
***
Should additional actions of yours come to light that further prove
your intentions of retribution[,] the [H]ouse [C]orporation will re-
evaluate the situation at that time.
Appellant’s App. p. 463.
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[13] 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.
[14] 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.
The Litigation
[15] On March 18, 2011, Meyer filed a complaint against the Defendants. He
included the following claims: (1) assault and battery against Meals;2
(2) negligence against Sigma Pi, Beta Tau, and the House Corporation;
(3) violation of the Dram Shop Law against Beta Tau; and (4) defamation
against Calder and the House Corporation. The Defendants denied Meyer’s
claims and raised eighteen affirmative defenses. Eventually, the trial court
2
The claims against Meals are not part of this appeal and are still pending before the trial court.
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granted the Defendants’ motion that Meyer’s personal injury and negligence
claims be tried separately from his defamation claims.
[16] 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.
Discussion and Decision
I. Standard of Review
[17] Our standard of review on summary judgment is well established:
We review summary judgment de novo, applying the same standard as
the trial court: “Drawing all reasonable inferences in favor of . . . the
non-moving parties, summary judgment is appropriate ‘if the
designated evidentiary matter shows that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment
as a matter of law.’ ” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.
2009) (quoting T.R. 56(C)). “A fact is ‘material’ if its resolution would
affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact
is required to resolve the parties’ differing accounts of the truth, or if
the undisputed material facts support conflicting reasonable
inferences.” Id. (internal citations omitted).
The initial burden is on the summary-judgment movant to
“demonstrate [ ] the absence of any genuine issue of fact as to a
determinative issue,” at which point the burden shifts to the non-
movant to “come forward with contrary evidence” showing an issue
for the trier of fact. Id. at 761–62 (internal quotation marks and
substitution omitted). And “[a]lthough the non-moving party has the
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burden on appeal of persuading us that the grant of summary
judgment was erroneous, we carefully assess the trial court’s decision
to ensure that he was not improperly denied his day in
court.” McSwane v. Bloomington Hosp. & Healthcare Sys., 916 N.E.2d
906, 909–10 (Ind. 2009) (internal quotation marks omitted).
Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).
II. Negligence
[18] 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).
[19] 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.
A. Sigma Pi
1. Duty
[20] 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
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through affirmative conduct). Both parties direct our attention to two recent
Indiana Supreme Court cases on the issue of duties assumed by a national
fraternity.
a. Yost v. Wabash College
[21] 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:
 disapproving of hazing and promoting “gentlemanly behavior” in its
printed charters, bylaws, aspirational enactment, and promotional
materials;
 annually providing each local chapter with a risk guide from the national
fraternity’s insurance company that prohibits hazing; and
 requiring that each fraternity member complete an online course on
fraternity life that contains instruction on the dangers of hazing.
Id. at 520. The trial court granted summary judgment in favor of the national
fraternity, and Yost appealed.
[22] 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:
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Here, the materials designated on summary judgment provide
evidence that the national fraternity engaged in educational outreach
programs to enhance proper behavior and to discourage hazing. But
the specific undertaking did not extend to actual oversight and control
over the behavior of individual student members of the local fraternity.
Yost does not predicate his claim on alleged negligence by the national
fraternity in the formulation and dissemination of its educational
material—the specific services arguably undertaken by the national
fraternity. We find that the national fraternity did not assume any
duty upon which Yost may now claim liability for damages.
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.
b. Smith v. Delta Tau Delta
[23] 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:
 Enacting a constitution, bylaws, and membership responsibility
guidelines that disapprove of hazing and irresponsible and underage
drinking
 Providing an online alcohol education program that all pledges were
required to complete
 Recommending that local chapters have a house risk manager and
providing educational materials to house risk managers
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Id. at 162. The trial court granted summary judgment in favor of the national
fraternity, and the Smiths appealed.
[24] First, our Supreme Court noted that there was no evidence establishing that the
national fraternity “had a right to exercise direct day-to-day oversight and
control of the behavior” of the local fraternity and its members. Id. at 163. The
Court also emphasized that “[l]ike Yost, the specific duty undertaken in regards
to the policies on hazing and underage and irresponsible drinking was an
educational one without any power of preventative control.” Id. Ultimately,
our Supreme Court found that the national fraternity had not assumed a duty to
the Smiths’ decedent:
we find that the national fraternity’s involvement with the local
fraternity, while more extensive than in Yost, fails to establish any
significant difference in the nature of the specific services undertaken—
providing information to the local fraternity to discourage hazing and
alcohol abuse and disciplining chapters and members for violations.
There is no evidence that the national fraternity assumed any duty of
preventative, direct supervision and control of the behaviors of its local
chapter members. While it certainly was the commendable objective
of the national fraternity to actively engage in programs to discourage
hazing and alcohol abuse, we find that the specific services assumed by
the national fraternity did not rise to the level of assuring protection of
the freshman pledges from hazing and the dangers of excessive alcohol
consumption—the assumed duty alleged by the plaintiffs. The national
fraternity did have a duty of reasonable care in the performance of its assumed
duty of providing information and guidance. But the national fraternity’s
conduct did not demonstrate any assumption of a duty directly to
supervise and control the actions of the local fraternity and its
members. The national fraternity did not have a duty to insure the
safety of the freshman pledges at the local fraternity.
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Id. at 163 (emphasis added). The Smith Court affirmed the grant of summary
judgment in favor of the national fraternity.
c. Sigma Pi’s Duty
[25] 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:
 Enacting bylaws that regulate the use of alcohol at local fraternity
chapters and define “alcohol abuse,” appellant’s app. p. 228;
 Adopting the Fraternal Information and Programming Group’s (FIPG)
Risk Management Policy, which prohibit purchasing alcohol with
common funds, prohibit a common source of alcohol, and prohibit
underage drinking; and
 Disciplining local chapters for alcohol abuse in the past.
[26] 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.
[27] 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
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problems of alcohol abuse are not sufficient to assume a general, broad duty to
protect.
[28] 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.3
2. Breach
[29] 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.[30] 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.
3
Our discussion of the elements of breach and proximate cause should be understood as entirely
hypothetical. In other words, because we have concluded that Sigma Pi had no duty in this case, the
elements of breach and proximate cause are moot. We choose to engage in the discussion because these
issues frequently recur and we believe the discussion is warranted, but it should not be construed as support
for an argument that the duty element was met in this case.
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[31] 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.
3. Proximate Cause
[32] 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).
[33] 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.
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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.[34] We simply cannot agree. While we do not condone the practice of Sigma Pi’s
consultants, in no way can those occurrences be found to be a proximate cause
of Meyer’s injuries in this case. On the night in question, Meyer and Meals
were both intoxicated from consuming alcohol on their own time. None of the
alcohol was consumed at fraternity functions. Instead, the evidence establishes
that these two individuals had a history of interpersonal tension, that Meyer
goaded Meals into a confrontation on the night in question, and that Meals was
unable to manage his anger in an appropriate way. In short, there is absolutely
no evidence in the record remotely tending to establish that the fact that Sigma
Pi’s consultants occasionally drank alcohol with fraternity members in any way
led to the altercation at issue in this case, and it can be said as a matter of law
that any alleged breach of the duty to inform and guide did not proximately
cause Meyer’s injuries. Consequently, the trial court did not err by granting
summary judgment in Sigma Pi’s favor on this claim.
B. Beta Tau
1. Duty
[35] 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
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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.
2. Breach
[36] 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.
[37] 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
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to Meyer. The trial court properly granted summary judgment in Beta Tau’s
favor on this issue.4
C. House Corporation
[38] 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 proprietor.” Kroger Co. v. Plonski, 930 N.E.2d 1, 7 (Ind. 2010).
[39] 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
4
Because we find as a matter of law that Beta Tau’s actions did not constitute a breach of duty, we need not
consider whether the actions were a proximate cause of Meyer’s injuries.
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Corporation as a matter of law. As a result, summary judgment in favor of
House Corporation on this issue was not erroneous.
III. Dram Shop Act
[40] 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, 269 (Ind. Ct. App. 2010). We
apply a de novo standard of review to questions of statutory interpretation. Id.
at 259.
[41] The Dram Shop Act states as follows:
(a) As used in this section, “furnish” includes barter, deliver, sell,
exchange, provide, or give away.
(b) A person who furnishes an alcoholic beverage to a person is not
liable in a civil action for damages caused by the impairment or
intoxication of the person who was furnished the alcoholic
beverage unless:
(1) the person furnishing the alcoholic beverage had actual
knowledge that the person to whom the alcoholic
beverage was furnished was visibly intoxicated at the
time the alcoholic beverage was furnished; and
(2) the intoxication of the person to whom the alcoholic
beverage was furnished was a proximate cause of the
death, injury, or damage alleged in the complaint.
(c) If a person who is at least twenty-one (21) years of age suffers
injury or death proximately caused by the person's voluntary
intoxication, the:
(1) person;
(2) person’s dependents;
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(3) person’s personal representative; or
(4) person’s heirs;
may not assert a claim for damages for personal injury or death
against a person who furnished an alcoholic beverage that
contributed to the person's intoxication, unless subsections
(b)(1) and (b)(2) apply.
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.
[42] Meyer argues that there is disputed evidence in the record regarding Beta Tau’s
liability under the Dram Shop Act. Specifically, he argues that there is evidence
in the record indicating that Beta Tau was serving alcohol to partygoers in the
basement of the 805 house. He notes that Meyer saw Meals drinking alcohol,
and argues that “[t]he only inference to be drawn is that Meals was drinking
from a common source of alcohol that the fraternity had provided.”
Appellant’s Br. p. 22-23. Furthermore, Meyer argues that it could be found
from the record that “Beta Tau’s provision of alcohol was the proximate cause
of Meals’[s] assault on [Meyer].” Id. at 23.
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[43] 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.
[44] 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.
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IV. Defamation
[45] 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.
[46] 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:
. . . Given that you don’t remember the events that took place on that
morning I am of the mindset that you are actually more interested in
settling an outstanding vandetta [sic] against a current active member
living at the house than in getting some type of justice.
The police report you filed is now being viewed by everyone, this
includes the University and other alumni as well as the city. Being
that you are aware House Corporation’s next step is to try and get a
permit to replace the foundation of the house, I consider this frivolous
attempt at retribution as a blatent [sic] disregard for the fraternity and
the House Corporation as a whole.
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I cannot allow an active member to use the law and the fraternity
grounds to settle a score.
That said, since the member you have filed charges against is currently
living at the fraternity house and you are not, I would highly
recommend that you avoid the fraternity properties until further
notice.
***
Should additional actions of yours come to light that further prove
your intentions of retribution[,] the [H]ouse [C]orporation will re-
evaluate the situation at that time.
Appellant’s App. p. 463.
[47] 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.[48] 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.
[49] 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
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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).
[50] 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.
[51] 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.
[52] 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
premises. Calder did so after consulting with multiple people within the local
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and national fraternities as well as employees affiliated with the University.
Calder took these actions with care and consideration, and we find nothing in
the record tending to establish that he acted with ill will. As a result, he is
protected by the common interest privilege as a matter of law, and the trial
court properly entered summary judgment in favor of both Calder and the
House Corporation on this issue.
[53] 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.
[54] 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.
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[55] 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.
[56] The judgment of the trial court is affirmed.
Najam, J., and Friedlander, J., concur.
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