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

ATTORNEY FOR APPELLANT

Richard C. Wolter

Merrillville, Indiana

ATTORNEY FOR APPELLEES

Jonathan Halm

Abrahamson, Reed & Bilse

Hammond, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Andrew Meyer,

Appellant-Plaintiff,

v.

Beta Tau House Corporation, 

Beta Tau of Sigma Pi, Sigma Pi 

Fraternity International, Inc., 

and Quentin Calder,

Appellees-Defendants.

April 21, 2015

Court of Appeals Case No.

64A03-1406-CT-205

Appeal from the Porter Superior 

Court.

The Honorable Roger V. Bradford, 

Judge.

Cause No. 64D01-1103-CT-2429

Baker, Judge.
Court of Appeals of Indiana | Opinion 64A03-1406-CT-205 | April 21, 2015 Page 2 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.
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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 
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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.
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[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 
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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 reevaluate the situation at that time.

Appellant’s App. p. 463.
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[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.
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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 nonmovant 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 
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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 
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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:
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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
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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.
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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 
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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.
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[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. 
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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 
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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 
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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. 
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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;
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(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 21 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 22 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 23 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 reevaluate 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 24 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 25 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 26 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.