                                                                           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.




Court of Appeals of Indiana | Opinion 64A03-1406-CT-205 | April 21, 2015                          Page 1 of 26
[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.


      Court of Appeals of Indiana | Opinion 64A03-1406-CT-205 | April 21, 2015   Page 2 of 26
      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
      Court of Appeals of Indiana | Opinion 64A03-1406-CT-205 | April 21, 2015   Page 3 of 26
      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.


      Court of Appeals of Indiana | Opinion 64A03-1406-CT-205 | April 21, 2015   Page 4 of 26
[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
       Court of Appeals of Indiana | Opinion 64A03-1406-CT-205 | April 21, 2015   Page 5 of 26
       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.




       Court of Appeals of Indiana | Opinion 64A03-1406-CT-205 | April 21, 2015             Page 6 of 26
[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.


       Court of Appeals of Indiana | Opinion 64A03-1406-CT-205 | April 21, 2015                                 Page 7 of 26
       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

       Court of Appeals of Indiana | Opinion 64A03-1406-CT-205 | April 21, 2015          Page 8 of 26
               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

       Court of Appeals of Indiana | Opinion 64A03-1406-CT-205 | April 21, 2015         Page 9 of 26
       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:

       Court of Appeals of Indiana | Opinion 64A03-1406-CT-205 | April 21, 2015   Page 10 of 26
               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




       Court of Appeals of Indiana | Opinion 64A03-1406-CT-205 | April 21, 2015      Page 11 of 26
       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.




       Court of Appeals of Indiana | Opinion 64A03-1406-CT-205 | April 21, 2015            Page 12 of 26
       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

       Court of Appeals of Indiana | Opinion 64A03-1406-CT-205 | April 21, 2015   Page 13 of 26
       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.

       Court of Appeals of Indiana | Opinion 64A03-1406-CT-205 | April 21, 2015                         Page 14 of 26
[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.


       Court of Appeals of Indiana | Opinion 64A03-1406-CT-205 | April 21, 2015   Page 15 of 26
       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

       Court of Appeals of Indiana | Opinion 64A03-1406-CT-205 | April 21, 2015   Page 16 of 26
       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




       Court of Appeals of Indiana | Opinion 64A03-1406-CT-205 | April 21, 2015   Page 17 of 26
       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.

       Court of Appeals of Indiana | Opinion 64A03-1406-CT-205 | April 21, 2015                        Page 18 of 26
       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;

       Court of Appeals of Indiana | Opinion 64A03-1406-CT-205 | April 21, 2015              Page 19 of 26
                        (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.



       Court of Appeals of Indiana | Opinion 64A03-1406-CT-205 | April 21, 2015      Page 20 of 26
[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.




       Court of Appeals of Indiana | Opinion 64A03-1406-CT-205 | April 21, 2015   Page 21 of 26
                                             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.

       Court of Appeals of Indiana | Opinion 64A03-1406-CT-205 | April 21, 2015         Page 22 of 26
               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
       Court of Appeals of Indiana | Opinion 64A03-1406-CT-205 | April 21, 2015       Page 23 of 26
       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


       Court of Appeals of Indiana | Opinion 64A03-1406-CT-205 | April 21, 2015   Page 24 of 26
       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.




       Court of Appeals of Indiana | Opinion 64A03-1406-CT-205 | April 21, 2015   Page 25 of 26
[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.




       Court of Appeals of Indiana | Opinion 64A03-1406-CT-205 | April 21, 2015    Page 26 of 26
