The state Court of Appeals last October upheld a trial court's decision that Yost's 2009 lawsuit didn't merit a trial. The appellate ruled 2-1 that Yost hadn't proved that the events of Sept. 24, 2007 constituted hazing or that the college and fraternity bore any duty to keep him safe from them.
Another fraternity at the private college in Crawfordsville was suspended in 2010 after an 18-year-old member died from alcohol poisoning, and a member of another fraternity who was killed when he fell off a campus roof in 2007 also had been drinking.
Nicolas Terry, a professor at the Indiana School of Law in Indianapolis, said Wednesday that colleges might find themselves with more responsibility for protecting fraternity members if Yost wins his case. But that isn't a surprise because that's the legal trend elsewhere, he said.
"The Supreme Court could overrule —and arguably should in my opinion— and that ruling would have the effect of some increase in liability for universities," Terry said.
But, he added, "The case before the Supreme Court right now is whether to let this go to a trial."
Yost said he was injured when other fraternity members dropped him as he struggled when they tried to force him into a shower. The "showering" was instigated by another student in retaliation after Yost tried to have him dunked in a creek. Yost and other fraternity members already had dunked one student and unsuccessfully attempted to dunk another, court records say.
Yost said in court records that he initially saw being stuck in the shower as a "fun event" and tried to "demonstrate his ferocity" by resisting.
The Court of Appeals said neither the "creeking" nor the "showering" rose to the level of hazing because they weren't organized fraternity events. Judge Terry Crone wrote that the college couldn't foresee every act by "animal houses" short of placing monitors on every floor of each frat house.
"We agree that a college cannot simply turn a blind eye to inherently dangerous activities on its campus; neither can a fraternity ignore such activities within its walls," Crone wrote. "Nevertheless, we reiterate that such institutions/organizations are not guarantors or insurers of their adult student members' safety, and we reject the notion that all fraternities should be impugned based on the activities of a few."
Judge Nancy Vaidik, however, said that both forms of dunking were described in Phi Kappa Psi's pledge handbook and the house was owned by the school. She said a jury should decide whether the events were truly hazing and whether the school or the fraternity bore any responsibility.
Attorneys for Wabash College and Phi Kappa Psi declined comment. Yost's attorney didn't immediately return a phone call from The Associated Press seeking comment Wednesday.