1. What factors did the court use to determine that the Local Fraternity may have assumed a duty here? Do you agree? Why or why not?

2. Why did the court find that Wabash College had no liability for this incident?

3. One of Yost’s unsuccessful arguments against Wabash centered on a doctrine called in loco parent is (i.e., in place of the parent). The doctrine has largely disappeared from higher education since 1961. Yost claimed that the college had a duty to protect him and should have had a system in place to prevent fraternity pranks from becoming dangerous. Do you agree? Should an 18-year-old college student have full responsibility for his own safety while in a college-owned facility? Should colleges and universities have in loco parentis liability? 

Brian Yost (Yost) was an 18-year-old first-year student at Wabash College (Wabash) and a pledge at the local Phi Kappa Psi fraternity (Local Fraternity). Part of the Local Fra-ternity’s traditions involve “creeking,” meaning that a fraternity brother is thrown into a nearby creek. In September 2007, Yost and his pledge brothers confronted some of the Local Fraternity’s member brothers in an attempt to toss one of these members, Yost’s Pledge Father, into a nearby creek. Later that night, several Local Fraternity brothers retaliated by attempting to forcibly place Yost in the shower. This action was also a tradition of the Local Fraternity, and one in which Yost and his pledge brothers had previously participated two other times the eve-ning of his injury. During this attempt, several Local Fraternity member brothers were carrying Yost to the shower when one of the fraternity members put him into a headlock that rendered Yost unconscious. The other member brothers panicked and dropped Yost to the ground.

Yost suffered significant physical and psychological injuries from the incident that caused him to withdraw from college. Yost filed suit alleging his injuries were a result of negligence and seeking dam-ages from, among others: (1) Wabash College (the owner and landlord of the fraternity house), contending that a special relationship existed, and (2) the Local Fraternity on an assumption of duty theory. The trial court granted summary judgment to both Wabash and the Local Fraternity and Yost appealed.

The Indiana Supreme Court affirmed the summary judgment for Wabash but reversed the summary judgment for the Local Fraternity. In the case of Wabash, the court reasoned that a landlord has no liability to tenants or others for injuries on the property when the tenant is in full control of the leased premises. In the case of the Local Fraternity, the court held that there was sufficient evidence to reasonably conclude that Yost may be able to show that the Local Fraternity assumed a duty and that the actions of its members increased the risk of harm to him. This was especially true as the activity which led to the incident was a fraternity tradition.

“Within the contours of this duty, we have held that landowners have a duty to take reasonable precautions to prevent foreseeable criminal acts against invitees. However, when the landowner is a lessor and the lessee is in operational control of the premises, such duty rarely exists . . . In the absence of statute, covenant, fraud or concealment, a landlord who gives a tenant full control and possession of the leased property will not be liable for personal injuries sustained by the tenant or other persons lawfully upon the leased property.”

“Here, Yost’s argument is not that a conventionally recognized duty (such as a landowner’s duty to an invitee or common carrier’s duty to a passenger) existed, but rather that the local fraternity assumed a duty requiring the local fraternity to act with reasonable care. As the above facts show, Yost was living at the local fraternity, subject to the mentorship of a Pledge Father from the local fraternity, participating in traditions maintained at the local fraternity, was involved in the pledgeship program being run by local fraternity members, and, therefore, at least partially under the control and direction of the local fraternity . . . The undisputed designated evidence does not preclude the possibility that Yost may show at trial that the local fraternity undertook to render supervisory services intended to reduce the risk of harm to members like Yost, that upon which supervision Yost relied, and further that by failing to exercise reasonable care the local fraternity increased the risk of harm to Yost.”