              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-581

                               Filed: 19 March 2019

Guilford County, No. 15 CVS 4101

THE ESTATE OF ROBERT EUGENE TIPTON, JR., BY AND THROUGH HIS
ANCILLARY ADMINISTRATOR, DEBORAH DUNKLIN TIPTON AND DEBORAH
DUNKLIN TIPTON, INDIVIDUALLY, Plaintiff,

             v.

DELTA SIGMA PHI FRATERNITY, INC., MICHAEL QUBEIN, INDIVIDUALLY
AND AS AN AGENT FOR DELTA SIGMA PHI FRATERNITY, MARSHALL
JEFFERSON, INDIVIDUALLY AND AS AN AGENT FOR DELTA SIGMA PHI
FRATERNITY, HIGH POINT UNIVERSITY, NIDO QUBEIN, INDIVIDUALLY
AND AS PRESIDENT OF HIGH POINT UNIVERSITY, Defendants.


      Appeal by defendants from order entered 29 December 2017 by Judge Michael

D. Duncan in Guilford County Superior Court. Heard in the Court of Appeals 29

January 2019.


      Donald H. Beskind, P.A., by Donald H. Beskind, and Thomas, Ferguson &
      Mullins, LLP, by Jay H. Ferguson, for plaintiffs-appellants.

      Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, by Clint S. Morse, and
      Cokinos Young, by Jennifer A. Riso, for defendant-appellee Delta Sigma Phi
      Fraternity, Inc.


      DAVIS, Judge.


      Robert Eugene Tipton, Jr., a student at High Point University (“HPU”) and a

pledge of the local chapter of the Delta Sigma Phi fraternity, died on 26 March 2012.

At the time of his death, he was an overnight guest at the apartment of another

member of the fraternity, Marshall Jefferson. Tipton’s estate subsequently brought
              ESTATE OF TIPTON V. DELTA SIGMA PHI FRATERNITY, INC.

                                  Opinion of the Court



a lawsuit (the “Wrongful Death Action”) against various individuals and entities,

including Delta Sigma Phi Fraternity, Inc. (the “Fraternity”), in connection with

Tipton’s death. In its complaint, Tipton’s estate alleged that his death occurred as a

result of hazing and that the Fraternity had breached the duty of care it owed to

prospective members of local chapters such as Tipton to protect them from the harms

associated with hazing-related activities. The trial court granted summary judgment

in favor of the Fraternity. Because we conclude that Plaintiff has failed to offer

sufficient evidence — as opposed to mere conjecture — from which a reasonable

factfinder could determine that Tipton’s death was proximately caused by hazing, we

affirm.

                      Factual and Procedural Background

      The Fraternity was founded in 1899 and is headquartered in Indianapolis,

Indiana. It extends charters to groups of undergraduate students at colleges and

universities throughout the country. In doing so, the Fraternity “permits the local

chapter to affiliate with and use its name, and provides the chapter with access to

educational resources and leadership opportunities.” The Fraternity currently has

110 active chapters at colleges and universities with a total of approximately 6,000

undergraduate members. At all times relevant to this litigation, a chartered chapter

(the “HPU Chapter”) of the Fraternity existed at HPU.




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      The Fraternity’s Constitution and Bylaws provide it with the power to suspend

or revoke a local chapter’s charter. With regard to the role of the Fraternity in the

operations of local chapters, its Constitution states, in pertinent part, as follows:

             Neither the national Fraternity nor its officers has control
             of or responsibility for the day-to-day operations of its
             individual members, chapters, colonies or the separate
             alumni organizations. However, should it come to the
             attention of any officer of the national Fraternity that any
             policies or practices of an undergraduate chapter or
             colony . . . or any individual member are in violation of this
             Constitution, its Bylaws, or the stated policies of this
             Fraternity, then such actions as may be appropriate may
             be taken[.]

      A separate document entitled “The Fraternity Manual” that was distributed

by the Fraternity to local chapters expressly prohibited hazing.

             No chapter shall conduct hazing activities.        Hazing
             activities are defined as any act or attempt to embarrass,
             humiliate, intimidate, ridicule, shame or endanger
             physically or mentally any person, or to compel physical
             activity or do physical or emotional harm to any person, or
             to require consumption or ingestion of liquids, food, or
             other materials.

      During the spring of 2009, an allegation of hazing was made by a pledge of the

HPU chapter named Hugo Hormazabal to HPU administrators and the national

headquarters of the Fraternity. Following Hormazabal’s complaint, the executive

director of the Fraternity sent the HPU Chapter a letter on 7 April 2009 stating that

the Fraternity had “temporarily suspended” the HPU Chapter due to “allegations

that members of the new member class are being hazed.” The letter further stated


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that the Fraternity would conduct “[a]n investigation into the activities surrounding

the chapter’s new member education program.”

      As a part of this investigation, a Fraternity representative traveled to HPU

and interviewed Hormazabal.       During his interview, Hormazabal described the

hazing that had occurred as part of his pledging process:

             During one hazing incident, the Delta Sig members made
             me and the other pledges stand around a kiddie pool lined
             with a garbage bag in the basement of the fraternity house.
             The Delta Sig members then ordered us to drink warm corn
             whisky until we vomited so much we filled the kiddie pool
             with our vomit.

             During another hazing incident at the fraternity house,
             Delta Sig members put a hood over my head, told me, “This
             will break you down and build you back up,” and then hit
             me all over my body.

             As a result of this incident, I suffered an injury to my right
             shin, which in retrospect I believe may have been fractured
             by the blows I received from the Delta Sig members. The
             injury still causes me pain to this day.

      On 17 April 2009, Gail Tuttle, the Vice President for Student Life at HPU, sent

a letter to the Chapter outlining a lengthy list of sanctions that “[HPU] and [the

Fraternity] have jointly levied against [the HPU Chapter] as a result of hazing

incidents that occurred in the Spring 2009.” The letter further provided that “[i]f all

of the above stipulations are not met at the end of the 2009-2010 academic year, the

chapter will lose the privilege of its chapter house for the 2010-2011 academic year.”




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                                    Opinion of the Court



         During the 2011-2012 academic school year, Robert Tipton was enrolled as a

student at HPU. In the spring of 2012, he accepted a bid from the HPU Chapter to

begin the pledging process to become an initiated member. A student named Michael

Qubein who was an initiated member of the HPU Chapter and served as the “pledge

educator” was charged with overseeing the pledging process for Tipton’s pledge class.

Jefferson was also an initiated member of the HPU Chapter during the time period

in which Tipton was pledging. Jefferson and Tipton had become close friends during

the year before Tipton made his decision to pledge the fraternity.

         During the pledging period, Tipton sent messages via text and Facebook to

various friends describing his pledging experience. In one such text, he wrote that

he was “getting hazed bad now and need Xanax. I didn’t even sleep last night and

was shaking.” With regard to an upcoming HPU Chapter event, Tipton sent a

Facebook message to a fellow pledge reassuring him that “they’re just going to yell at

us a bunch and maybe make us work out or eat something nasty. [T]hey can’t kill

us[.]”

         George Reece, a fellow member of Tipton’s pledge class, stated in his deposition

testimony that on one occasion he was “hit with a paddle on the butt three times” by

Qubein as part of the pledging process. He also testified that on another occasion he

and other pledge class members were forced to perform physically demanding

exercises for prolonged periods at Qubein’s house as a part of “Hell Week” — the final



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week before the conclusion of the pledging period. Reece stated that he became so

exhausted from the intense exercise that he vomited.            He further testified that

although pledge class members were required at various times to clean the residences

of certain members of the HPU Chapter, he was unaware of any pledges being forced

to clean Jefferson’s apartment.

         On 25 March 2012, Jefferson invited Tipton over to his apartment to “hang

out” and have “brother-on-brother time” because he knew Tipton “was having a tough

time balancing school and fraternity and . . . life in general[.]” Tipton arrived at

Jefferson’s apartment that night around midnight. Jefferson did not observe any

head wounds or facial injuries on Tipton upon his arrival.

         According to Jefferson’s deposition testimony, he and Tipton “did some drugs”

and shared a bottle of wine during the early morning hours of 26 March 2012.

Jefferson testified that they split one pill of Oxymorphone between them and each

took one Klonopin.

         That same night, two female friends visited Jefferson and Tipton at the

apartment before subsequently departing. At some point during the pre-dawn hours

of 26 March 2012, Tipton sent the following text to the other members of his pledge

class:

               Dear bros, as of recent events I feel like a lot of u [sic] are
               mad at me for one reason or another[.] I’m very sry [sic]
               for losing yal [sic] respect so I would really appreciate [i]t
               if I could meet up w[ith] each one of u [sic] individually to


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              talk about how I could do my job as [pledge class president]
              better, thanks bros just let me know when ever [sic] we can
              talk[.]

        Jefferson testified that he and Tipton went to bed at approximately 4:00 a.m.

and that Tipton slept “on the makeshift bed that [Jefferson] made him on the floor.”

Jefferson stated that when he left the apartment to go to class at approximately 9:00

a.m. Tipton was “[s]noring loud as a bulldozer” while lying on his back. When

Jefferson returned to his apartment later that morning, he saw that Tipton was

“[p]ale, discolored,” and nonresponsive with vomit visible around his mouth and head

area.   Jefferson called 911, and Tipton was transported to High Point Regional

Hospital by EMS where he was pronounced dead at 11:09 a.m.

        An autopsy was performed by the Office of the Chief Medical Examiner (the

“OCME”). The autopsy noted that Tipton had “contusions on the right head, left face,

anterior neck, left anterior abdomen, and abrasions on the bilateral knees” as well as

bruising on his buttocks.     The OCME determined Tipton’s cause of death to be

oxymorphone poisoning and stated that Tipton’s physical injuries were “superficial

or mild in nature and did not contribute to death.” Jefferson was unable to offer any

explanation in his deposition testimony for the origin of the injuries to Tipton’s head

and face. The autopsy did not indicate the presence of alcohol in Tipton’s body.

        Cyril Wecht, a forensic pathologist hired by Tipton’s family, reached a different

determination based upon his analysis of the autopsy report. Wecht concluded that



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Tipton died from “aspiration of gastrointestinal contents, most likely precipitated by

blunt force trauma of his head that produced a concussion.” In his report, Wecht also

noted that “the levels of drugs set forth in the toxicology report were not . . . high

enough to be considered lethal or even significantly toxic.”

      On 26 March 2012, after learning of Tipton’s death Qubein went to Jefferson’s

apartment and took possession of Tipton’s cell phone. He proceeded to delete various

texts and photographs from the phone. He later testified that the messages and

images he deleted concerned activity that “the school would consider to be hazing”

and that he did so in order “to protect the fraternity.” The messages and photographs

deleted by Qubein were never recovered. In addition, following Tipton’s memorial

service at his home in Memphis, Tennessee, Qubein entered Tipton’s bedroom

without permission and deleted from his computer “[w]hatever came up that [he]

thought needed to be deleted.”

      Deborah Dunklin Tipton, individually and in her capacity as the administrator

of Tipton’s estate (“Plaintiff”), filed the Wrongful Death Action in Guilford County

Superior Court on 13 March 2015. With regard to the Fraternity, the complaint

asserted claims against it based on several different legal theories but all premised

on the proposition that the Fraternity had failed to take appropriate action to prevent

hazing at the HPU Chapter. On 19 May 2016, the trial court dismissed the claims

asserted against the Fraternity for fraud, constructive fraud, and negligent



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misrepresentation.     The Fraternity subsequently filed a motion for summary

judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure and an

amended motion on 22 May 2017 as to the remaining claims asserted against it.

         The Fraternity’s motion was heard on 18 September 2017 before the Honorable

Michael D. Duncan. On 6 October 2017, the trial court entered an order granting

summary judgment in favor of the Fraternity. Plaintiff filed a motion to amend the

summary judgment order to include language certifying the order for immediate

appeal pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure. The

trial court granted the motion and entered an amended summary judgment order on

29 December 2017. On 26 January 2018, Plaintiff filed a notice of appeal to this

Court.

                                       Analysis

I.   Appellate Jurisdiction

         As an initial matter, we must determine whether we have appellate

jurisdiction to hear this appeal. See Duval v. OM Hospitality, LLC, 186 N.C. App.

390, 392, 651 S.E.2d 261, 263 (2007) (“[W]hether an appeal is interlocutory presents

a jurisdictional issue, and this Court has an obligation to address the issue sua

sponte.” (citation, quotation marks, and brackets omitted)). “A final judgment is one

which disposes of the cause as to all the parties, leaving nothing to be judicially

determined between them in the trial court.” Id. (citation omitted). Conversely, an



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order or judgment is interlocutory if it does not settle all of the issues in the case but

rather “directs some further proceeding preliminary to the final decree.” Heavner v.

Heavner, 73 N.C. App. 331, 332, 326 S.E.2d 78, 80, disc. review denied, 313 N.C. 601,

330 S.E.2d 610 (1985).

      “Generally, there is no right of immediate appeal from interlocutory orders and

judgments.” Paradigm Consultants, Ltd. v. Builders Mut. Ins. Co., 228 N.C. App.

314, 317, 745 S.E.2d 69, 72 (2013) (citation and quotation marks omitted). The

prohibition against interlocutory appeals “prevents fragmentary, premature and

unnecessary appeals by permitting the trial court to bring the case to final judgment

before it is presented to the appellate courts.” Russell v. State Farm Ins. Co., 136

N.C. App. 798, 800, 526 S.E.2d 494, 496 (2000) (citation and brackets omitted).

             However, there are two avenues by which a party may
             immediately appeal an interlocutory order or judgment.
             First, if the order or judgment is final as to some but not
             all of the claims or parties, and the trial court certifies the
             case for appeal pursuant to N.C. Gen. Stat. § 1A-1, Rule
             54(b), an immediate appeal will lie. Second, an appeal is
             permitted under N.C. Gen. Stat. §§ 1-277(a) and 7A-
             27(d)(1) if the trial court’s decision deprives the appellant
             of a substantial right which would be lost absent
             immediate review.

N.C. Dep’t of Transp. v. Page, 119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995)

(internal citations omitted). Rule 54(b) of the North Carolina Rules of Civil Procedure

provides, in pertinent part, that “[w]hen more than one claim for relief is presented

in an action . . . the court may enter a final judgment as to one or more but fewer than


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all of the claims or parties only if there is no just reason for delay and it is so

determined in the judgment.” N.C. R. Civ. P. 54(b).

         In the present case, the trial court’s amended summary judgment order

entered on 29 December 2017 was not a final judgment because it did not dispose of

all of the claims asserted by Plaintiff against the remaining defendants. However, in

the amended order, the trial court certified its ruling for immediate appeal pursuant

to Rule 54(b). Therefore, we are satisfied that this appeal is properly before us. See

Eastover Ridge, L.L.C. v. Metric Constructors, Inc., 139 N.C. App. 360, 364, 533 S.E.2d

827, 831, disc. review denied, 353 N.C. 262, 546 S.E.2d 93 (2000) (appellate

jurisdiction existed where “trial court certified that there is no just reason for

delaying the appeal pursuant to Rule 54(b)”).

II.   Entry of Summary Judgment

         Plaintiff asserts that the trial court erred in granting summary judgment in

favor of the Fraternity because (1) the Fraternity assumed a duty of care toward

Tipton and the other pledges of the HPU Chapter by actively engaging in a course of

conduct designed to recruit new members; (2) it breached that duty by failing to

exercise reasonable care to ensure that no hazing occurred during the pledging

process of the HPU Chapter; and (3) this breach was a proximate cause of Tipton’s

death.




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      The Fraternity, conversely, contends that it did not owe Tipton a duty of care

because it lacks control over the day-to-day actions of its local chapters and their

members. In addition, the Fraternity argues that Plaintiff has failed to offer evidence

that any negligent conduct on its part was a proximate cause of Tipton’s death.

      After a careful review of the record and applicable law, we conclude that the

entry of summary judgment was proper. Even assuming, without deciding, that such

a duty of care on the part of the Fraternity existed, Plaintiff has failed to establish

the existence of a genuine issue of material fact with regard to the question of whether

Tipton’s death was proximately caused by the Fraternity’s negligence.

      “On an appeal from an order granting summary judgment, this Court reviews

the trial court’s decision de novo. Mitchell, Brewer, Richardson, Adams, Burge &

Boughman v. Brewer, __ N.C. App. __, __, 803 S.E.2d 433, 443 (2017) (citation and

quotation marks omitted), disc. review denied, 370 N.C. 693, 811 S.E.2d 161 (2018).

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that any party is entitled to a

judgment as a matter of law.” Premier, Inc. v. Peterson, 232 N.C. App. 601, 605, 755

S.E.2d 56, 59 (2014) (citation and quotation marks omitted).

      It is well established that “[t]he moving party has the burden of demonstrating

the lack of any triable issue of fact and entitlement to judgment as a matter of law.



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The evidence produced by the parties is viewed in the light most favorable to the non-

moving party.” Hardin v. KCS Int’l, Inc., 199 N.C. App. 687, 695, 682 S.E.2d 726, 733

(2009) (internal citations omitted). We have held that “[a]n issue is ‘genuine’ if it can

be proven by substantial evidence and a fact is ‘material’ if it would constitute or

irrevocably establish any material element of a claim or a defense.”               In re

Alessandrini, 239 N.C. App. 313, 315, 769 S.E.2d 214, 216 (2015) (citation omitted).

      Our Supreme Court has held that actionable negligence is the “failure to

exercise that degree of care which a reasonable and prudent person would exercise

under similar conditions. A defendant is liable for his negligence if the negligence is

the proximate cause of injury to a person to whom the defendant is under a duty to

use reasonable care.” Hart v. Ivey, 332 N.C. 299, 305, 420 S.E.2d 174, 177-78 (1992)

(citation omitted). “Proximate cause is defined as a cause which in natural and

continuous sequence, unbroken by any new and independent cause, produced the

plaintiff’s injuries, and without which the injuries would not have occurred.” Young

By and Through Young v. Fun Servs.—Carolina, Inc., 122 N.C. App. 157, 159, 468

S.E.2d 260, 262 (citation and quotation marks omitted), disc. review denied, 344 N.C.

444, 476 S.E.2d 134 (1996).

      As a general proposition, “[s]ummary judgment is seldom appropriate in a

negligence action. A trial court should only grant such a motion where the plaintiff’s

forecast of evidence fails to support an essential element of the claim.” Hamby v.



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Thurman Timber Co., LLC, __ N.C. App. __, __, 818 S.E.2d 318, 323 (2018) (citation

and quotation marks omitted). Nevertheless, “[n]egligence is not presumed from the

mere fact of injury.” Jackson v. Neill McKay Gin Co., 255 N.C. 194, 196, 120 S.E.2d

540, 542 (1961). Instead, it is well established that “a plaintiff is required to offer

legal evidence tending to establish beyond mere speculation or conjecture every

essential element of negligence, and upon failure to do so, summary judgment is

proper.” Hamby, __ N.C. App. at __, 818 S.E.2d at 323 (citation, quotation marks,

and brackets omitted).

      On a number of occasions, this Court has upheld the dismissal of negligence

claims as a matter of law at the summary judgment or directed verdict stage based

on a lack of evidence that the defendant’s conduct had proximately caused the

plaintiff’s injury. For example, in Gibson v. Ussery, 196 N.C. App. 140, 675 S.E.2d

666 (2009), the plaintiff brought a negligence action after falling down an unfinished

stairway on the defendants’ property. Id. at 141, 675 S.E.2d at 667. At trial, evidence

was presented that the plaintiff “did not appear to trip on anything.” Id. at 144, 675

S.E.2d at 668. In addition, the plaintiff “was one of several to descend the staircase,

but the only one to fall” and “none of the witnesses noticed any problems with the

condition of the staircase as they descended.” Id. Although a witness testified that

one of the stairs wobbled under her foot after she went back to inspect the staircase

following the plaintiff’s fall, “there was no testimony about which stair [the plaintiff]



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fell on and no testimony that anyone observed what caused her to fall.” Id. The trial

court granted the defendants’ motion for directed verdict, and the plaintiff appealed.

Id. at 142, 675 S.E.2d at 667.

      This Court affirmed the trial court’s entry of a directed verdict, concluding as

follows:

             In evaluating the record, we look for evidence that takes
             the element of proximate cause out of the realm of
             suspicion. All of the testimony . . . provides no more than
             mere speculation that defendants’ alleged negligence was
             the proximate cause of Cynthia’s fall and the injuries that
             may have resulted from it. Doubtless Cynthia was injured
             in some manner as a result of her fall, but there is
             insufficient evidence to support a reasonable inference that
             the injury was the result of defendants’ negligence.

Id. at 144, 675 S.E.2d 668-69.

      Elm St. Gallery, Inc. v. Williams, 191 N.C. App. 760, 663 S.E.2d 874, disc.

review denied, 362 N.C. 680, 670 S.E.2d 231 (2008), involved a building fire of

unknown origin. Id. at 766, 663 S.E.2d at 878. In that case, the plaintiffs filed a

lawsuit alleging that the owners of an adjoining building had “negligently maintained

their building in such a condition that caused or contributed to the start and spread

of the fire.” Id. at 762, 663 S.E.2d at 875. Although the fire inspector’s investigation

revealed “three generations of electrical wiring design within the building[,]” the

inspector “did not find any prevalent indications of an electrical cause of the fire.

However, with the extent of fire damage he could not determine that this fire was not



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electrical in nature.” Id. at 766, 663 S.E.2d at 878 (quotation marks and brackets

omitted). The fire inspector ultimately listed the cause of the fire as “undetermined.”

Id. The trial court granted the defendants’ motion for summary judgment. Id. at

762, 663 S.E.2d at 878.

      In affirming the trial court’s ruling, this Court stated the following with regard

to the issue of proximate cause:

             [P]roof of the burning alone is not sufficient to establish
             liability, for if nothing more appears, the presumption is
             that the fire was the result of accident or some providential
             cause. There can be no liability without satisfactory proof,
             by either direct or circumstantial evidence, not only of the
             burning of the property in question but that it was the
             proximate result of negligence and did not result from
             natural or accidental causes.

Id. at 764-65, 663 S.E.2d at 877 (citation omitted). We determined that the plaintiff’s

“assertion that the evidence points to an electrical fire . . . is a mere conjecture,

surmise and speculation as to the cause of the fire” given the fire inspector’s inability

to determine the fire’s origin. Id. at 766, 663 S.E.2d at 878 (citation, quotation marks,

and brackets omitted).

      Similarly, in Young the trial court granted summary judgment for the

defendant where the plaintiff’s evidence concerning proximate causation failed to

raise a factual dispute requiring resolution by a jury. Young, 122 N.C. App. at 161,

468 S.E.2d at 263. In that case, the plaintiff — a 12 year-old child — was injured

while jumping in a “moonwalk” operated by the defendant. Id. at 158, 468 S.E.2d at


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261. Prior to the child’s injury, the plaintiff’s mother observed the moonwalk “slid[e]

across the floor to the point that [the defendant’s employee] had to move the

moonwalk back to its original position.” Id. The plaintiff filed a lawsuit alleging that

the defendant had negligently failed to secure the moonwalk. Id.

      This Court affirmed the trial court’s grant of summary judgment for the

defendant, noting that the plaintiff’s mother “stated that she had no personal

knowledge of how [plaintiff’s] accident occurred, since she did not witness the

accident.” Id. at 161, 468 S.E.2d at 263. We concluded as follows:

              Nothing in the record demonstrates that the moonwalk
              shifted immediately before Kevin’s accident. Nothing in
              the record allows the inference that a shifting of the
              moonwalk caused Kevin’s accident. The mere fact that the
              moonwalk shifted earlier in the day, without more, is not
              enough to satisfy our Supreme Court’s definition of
              proximate cause[.]

Id.

      While Gibson, Elm St. Gallery, Inc., and Young are all factually dissimilar to

the present case, they are nevertheless instructive in providing examples of

negligence-based claims that failed as a matter of law due to the plaintiffs’ inability

to raise a genuine issue of material fact on the element of proximate cause. Moreover,

they aptly demonstrate that proximate cause cannot be established through mere

conjecture.




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       Here, no evidence was presented concerning the manner in which Tipton

sustained the head trauma that — according to Plaintiff’s expert witness — was the

cause of his death. Nor was there any evidence specifically linking Jefferson or his

apartment with hazing activity. Although Reece testified in his deposition that

hazing took place at the homes of Qubein and other members of the fraternity, he

was unable to recall any hazing at Jefferson’s residence.

       Without evidence providing some actual link between actions taken by

Jefferson (or other members of the HPU Chapter) and Tipton’s head trauma,

testimony merely showing that members of the HPU Chapter had previously hazed

Tipton (along with his fellow pledges) during the pledging period in ways that would

not logically cause injury to his head is simply not sufficient to meet Plaintiff’s burden

at the summary judgment stage.1 Rather, such testimony fails to rise above the level

of “mere speculation” that hazing was the cause of Tipton’s death. Gibson, 196 N.C.

App. at 144, 675 S.E.2d at 669. Thus, we are satisfied that the trial court did not err

in granting the Fraternity’s motion for summary judgment. See Young, 122 N.C. App.

at 161, 468 S.E.2d at 263 (entry of summary judgment for defendant was proper

where “an essential element of plaintiffs’ claim was lacking — proximate cause”).




       1  We note that none of the evidence suggests that Tipton or his fellow pledges were ever beaten
on the head during the pledging period. To the contrary, the only evidence that exists in the record of
hazing in the form of physical abuse against Tipton’s pledge class is testimony that Tipton and his
fellow pledges were each struck three times on the buttocks with a wooden paddle during “Hell Week.”

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                                   Opinion of the Court



      In arguing that a genuine issue of material fact exists as to whether Tipton’s

head injuries were the result of hazing, Plaintiff directs our attention to several pieces

of evidence, including (1) the existence of bruises on Tipton’s knees and buttocks that

Plaintiff contends are consistent with him having been paddled while in a kneeling

position; (2) the apology text message sent by Tipton to the other members of his

pledge class during the early morning hours of 26 March 2012; and (3) the fact that

hazing had previously occurred in the homes of Qubein and various other HPU

Chapter members in the form of pledges being required to perform physical exercises

and clean the residences.

      Taken together, however, this evidence still does not shed any light on the

specific cause of Tipton’s head trauma. With regard to the bruising present on

Tipton’s knees and buttocks, even if these bruises resulted from him being paddled

on those areas of his body at some point during the pledging process, the occurrence

of such paddling would provide no explanation for the presence of his head wounds

on the night of his death. Nor does the fact that Tipton sent a text apologizing to the

other pledges for perceived mistakes on his part support the inference that he was

hazed that night while in Jefferson’s apartment.

      In addition, the fact that pledges had on occasion been required to perform

strenuous exercises and clean the residences of various members of the HPU Chapter

does not — without more — allow for a rational inference that pledges such as Tipton



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                                  Opinion of the Court



were subjected to physical abuse on such occasions or that any form of hazing

occurred in Jefferson’s apartment on the night of Tipton’s death. Moreover, it is

undisputed that on the night of Tipton’s death no fraternity-related activities were

scheduled. In short, Plaintiff has failed to offer any evidence (1) as to the manner in

which Tipton suffered trauma to his head; or (2) supporting the proposition that his

head injury resulted from hazing-related activities.

      Finally, Plaintiff argues that the doctrine of spoliation applies with regard to

Qubein’s actions in deleting messages and photographs from Tipton’s cell phone and

computer after his death. This Court has held that “when the evidence indicates that

a party is aware of circumstances that are likely to give rise to future litigation and

yet destroys potentially relevant records without particularized inquiry, a factfinder

may reasonably infer that the party probably did so because the records would harm

its case.” McLain v. Taco Bell Corp., 137 N.C. App. 179, 187-88, 527 S.E.2d 712, 718

(citation and brackets omitted), disc. review denied, 352 N.C. 357, 544 S.E.2d 563

(2000).

      We are unable to agree with Plaintiff that the spoliation doctrine applies as

against the Fraternity on these facts. Although Qubein stated that he deleted items

from Tipton’s phone and computer to “protect the fraternity,” he further explained

that he deleted evidence of activity that “the school would consider to be hazing.”

Nowhere in Qubein’s testimony did he contend that he was acting on behalf of — or



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                                   Opinion of the Court



for the benefit of — the national fraternity. Indeed, the Fraternity submitted an

affidavit stating that “[a]s a policy, [the Fraternity] does not provide the authority or

consent to any of its chapters or its members to act on its behalf.” Nor has Plaintiff

cited any evidence in the record to the contrary as to this issue.

      Thus, Plaintiff has failed to offer any evidence that Qubein’s conduct was

intended to protect anyone other than the HPU Chapter or that his actions were

undertaken at the direction of the Fraternity. It is axiomatic that an inference of

spoliation cannot exist against a defendant who had no knowledge that the person

who destroyed evidence was engaging in such conduct and where no relationship

actually existed between that person and the defendant. See generally Panos v. Timco

Engine Ctr., Inc., 197 N.C. App. 510, 521, 677 S.E.2d 868, 876 (2009) (“[S]poliation of

evidence permits an inference that the destroyed evidence was unfavorable to the

party that destroyed it[.]” (emphasis added)). Thus, while an adverse inference might

exist against Qubein, it would not extend to the Fraternity.

                                          ***

      In the final analysis, even taking all of the reasonable inferences from the

evidence in the light most favorable to Plaintiff, vital links in the causation chain

remain absent in terms of connecting the alleged negligence of the Fraternity to

Tipton’s death. We wish to emphasize, however, that in no way should our holding

in this case be read as a retreat from the well-established principle that the issue of



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                                   Opinion of the Court



proximate causation is ordinarily left for the jury to decide, and that “[i]t is only in

exceptional cases, in which reasonable minds cannot differ . . . that a court should

decide proximate cause as a matter of law.” Holt v. N.C. Dep’t of Transp., 245 N.C.

App. 167, 180, 781 S.E.2d 697, 706 (citation and quotation marks omitted), aff’d per

curiam, 369 N.C. 57, 791 S.E.2d 458 (2016). We are satisfied that the present appeal

represents just such an exceptional case. Accordingly, we affirm the trial court’s

order granting summary judgment in favor of the Fraternity. See Gibson, 196 N.C.

App. at 146, 675 S.E.2d at 670 (summary judgment was appropriate in negligence

action where “there is no evidence beyond mere conjecture and speculation that

defendants’ negligence was the proximate cause of [the plaintiff’s] fall and her

injuries”).

                                     Conclusion

         For the reasons stated above, we affirm the trial court’s 29 December 2017

order.

         AFFIRMED.

         Judges BRYANT and INMAN concur.




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