Estate of Tipton by and Through Tipton v. Delta Sigma Phi Fraternity, Inc.

• Decision Date: 19 March 2019
• Docket Number: No. COA18-581,COA18-581
• Parties: 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.
• Court: North Carolina Court of Appeals

264 N.C.App. 313
826 S.E.2d 226

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.

No. COA18-581

Court of Appeals of North Carolina.

Filed: March 19, 2019

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

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

DAVIS, Judge.

264 N.C.App. 314

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 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

264 N.C.App. 315

undergraduate members. At all times relevant to this litigation, a chartered chapter (the "HPU Chapter") of the Fraternity existed at HPU.

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

826 S.E.2d 229

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 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.

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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."

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[.]"

826 S.E.2d 230

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

264 N.C.App. 317

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.

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

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