THE ESTATE OF ROBERT EUGENE TIPTON, JR., BY AND THROUGH HIS ANCILLARY ADMINISTRATOR, DEBORAH DUNKLIN TIPTON AND DEBORAH DUNKLIN TIPTON, INDIVIDUALLY, Plaintiff,
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.
in the Court of Appeals 29 January 2019.
by defendants from order entered 29 December 2017 by Judge
Michael D. Duncan in Guilford County No. 15 CVS 4101 Superior
H. Beskind, P.A., by Donald H. Beskind, and Thomas, Ferguson
& Mullins, LLP, by Jay H. Ferguson, for
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.
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 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.
and Procedural Background
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.
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[.]
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
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 that the
Fraternity would conduct "[a]n investigation into the
activities surrounding the chapter's new member education
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
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.
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."
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.
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[.]"
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 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.
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 ...