Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity

• Decision Date: 08 April 1987
• Docket Number: No. 4-86-0538,4-86-0538
• Citation: 107 Ill.Dec. 824,155 Ill.App.3d 231,507 N.E.2d 1193
• Parties: , 107 Ill.Dec. 824, 68 A.L.R.4th 215, 39 Ed. Law Rep. 726 William QUINN, Plaintiff-Appellant, v. SIGMA RHO CHAPTER OF BETA THETA PI FRATERNITY, a voluntary unincorporated association, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1193

507 N.E.2d 1193

155 Ill.App.3d 231, 107 Ill.Dec. 824,

68 A.L.R.4th 215,

39 Ed. Law Rep. 726

William QUINN, Plaintiff-Appellant, v. SIGMA RHO CHAPTER OF BETA THETA PI FRATERNITY, a voluntary unincorporated association, Defendant-Appellee.

No. 4-86-0538.

Appellate Court of Illinois Fourth District.

April 8, 1987.

As Modified on Denial of Rehearing June 1, 1987.

John F. Bramfeld, Phebus, Tummelson, Bryan & Knox, Urbana, for plaintiff-appellant.

D. Cameron Dobbins, Dobbins, Fraker, Tennant, Joy & Perlstein, Champaign, for defendant-appellee.

Opinion Modified on Denial of Petition for Rehearing

Justice LUND delivered the opinion of the court:

Plaintiff, William Quinn, appeals from an order of the circuit court of Champaign County entered July 17, 1986, which dismissed his third amended complaint on the grounds that it failed to state a cause of action.

Before we discuss the substance of the pleading, we first comment on the drafting of the order of dismissal and the third amended complaint. We bear in mind that this appeal stems from plaintiff's attempt to expand the law of negligence and that plaintiff and defendant may have encountered difficulty with phraseology. The trial court found that the "only cause of action possibly stated in the Plaintiff's Third Amended Complaint is based on the special relationship of voluntary custodian-protectee and that all allegations of said Third Amended Complaint not directed towards that relationship should be stricken." The court then stated as follows:

"Therefore, the Plaintiffs' Third Amended Complaint is hereby dismissed and the Plaintiff granted leave to file a further amended complaint within 14 days of the entry of this Order; should the Plaintiff elect not to file a further amended complaint, the Court expressly finds that there is no just cause for delay of enforcement or appeal."

Plaintiff filed his notice of appeal on August 12, 1986, within 30 days of the July 17, 1986, order, and after the 14-day leave to amend period had expired. Plaintiff did not file amendments following the July 17, 1986, order. While there appears to be a conflict between the finding provision and the ordering provision of the July 17, 1986 order, we consider the order a final disposition of the cause and hear the appeal on its merits.

We are also critical of the draftsmanship of the third amended complaint because it appears that plaintiff may be attempting to include more than one cause of action in one count of the third amended complaint. We recognize the rule that each count of a complaint should allege only one cause of action. (Ill.Rev.Stat.1985, ch. 110, par. 2-603(b); Prado v. Evanston Hospital (1979), 72 Ill.App.3d 622, 28 Ill.Dec. 680, 390 N.E.2d 1270.) As plaintiff urged at oral argument, he considers the complaint to allege a cause of action based on simple common law negligence principles and also a voluntary custodian-protectee relationship. It would have been better for plaintiff to advance these theories in separate counts. Because of our holding herein, the error, if any, becomes harmless.

According to the pleaded facts, plaintiff was a pledge of defendant and was required to participate in the defendant's initiation ceremony, "Pledge Dad Night," in order to become a member of the fraternity. Plaintiff alleges that, on the night of the incident, he was "18 years of age and was an inexperienced drinker, which fact was known or in the exercise of ordinary care should have been known by the defendant." As part of the ceremony, each pledge was directed to drink a 40-ounce pitcher of beer without letting the pitcher leave the pledge's lips or until the pledge vomited. Plaintiff complied. The complaint then alleges that "plaintiff became intoxicated and unable to properly care for himself."

After drinking the pitchers, the pledges were brought to a local tavern. On the way to the tavern, one of the active members of the fraternity asked if plaintiff had any important classes the next morning. Plaintiff replied, "No." The active member then directed plaintiff to drink from an 8-ounce bottle of whiskey. Plaintiff again complied. The complaint does not specify how much of the bottle he drank, only that he drank from the 8-ounce bottle. At the tavern, the members of the fraternity purchased more liquor for the pledges.

The complaint alleges that, as a result of the evening of drinking, "plaintiff became extremely intoxicated and unconscious and was brought back to the defendant fraternity house by active members of the fraternity at approximately 1:00 a.m." Plaintiff was left on a hardwood floor to sleep off his intoxication. He slept until 2:30 p.m. the following afternoon, or some 13 to 14 hours. When he awoke, he was still in an intoxicated condition and could not properly use his hands or arms. He was taken to a hospital where his blood-alcohol content was measured. At 4:00 p.m., plaintiff had a reading of .25. Plaintiff then alleges that, at its peak, his blood-alcohol content was approximately .4 or "at near fatal levels." Plaintiff states that he "suffered neurological damage to his arms and hands necessitating the attention of a hospital, doctor, and physical therapist and causing partial disability."

As is evident from the complaint allegations, this cause arises from the fact that William Quinn became so intoxicated that he no longer could provide for his own welfare. The allegations of the complaint are sufficient to allege that the consumption of the intoxicating beverages was part of the fraternity's initiation ceremony. The allegations also establish the excessive use of the intoxicants. The question presented to us on appeal is whether the fraternity owed a duty to plaintiff with respect to requiring the commission of very dangerous acts, including the highly excessive consumption of intoxicants, as part of the initiation ceremony. In other words, if there is a duty on the part of fraternities and sororities to refrain from requiring participation in such acts, then the third amended complaint states a cause of action.

Plaintiff argues that the complaint alleges a cause of action grounded in "simple common law negligence principles." In deciding a motion to dismiss, the court must view all the factual allegations as true and only consider the questions of law presented by the pleadings. (Martin v. Palazzolo Produce Co., Inc. (1986), 146 Ill.App.3d 1084, 100 Ill.Dec. 703, 497 N.E.2d 881.) The elements of a simple common law negligence action are: "the existence of a duty on the part of the person charged to protect the complaining party from injury, a failure to perform or breach of that duty, and a consequent injury so connected with the failure to perform that such failure is the proximate cause of the injury." (28 Ill.L. & Prac. Negligence sec. 2, at 8 (1957) (Illinois Law and Practice); see also Curtis v. County of Cook (1983), 98 Ill.2d 158, 74 Ill.Dec. 614, 456 N.E.2d 116; Ogle v. Fuiten (1983), 112 Ill.App.3d 1048, 68 Ill.Dec. 491, 445 N.E.2d 1344.) In this case, the circuit court dismissed the complaint because of the difficulty in determining what duty defendant owed plaintiff. The existence of a duty is a matter of law to be decided by the court. (Smith v. Rengel (1981), 97 Ill.App.3d 204, 52 Ill.Dec. 937, 422 N.E.2d 1146.) The existence of a duty is not dependent on foreseeability alone but on other factors such as the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing the burden on the defendant. Lance v. Senior (1967), 36 Ill.2d 516, 224 N.E.2d 231; see also Reed v. Danville Concrete Products Co. (1981), 102 Ill.App.3d 205, 57 Ill.Dec. 707, 429 N.E.2d 605.

In asking us to acknowledge a cause of action in negligence, plaintiff asks us to draw perilously close to the extensive case law prohibiting common law causes of action for negligently selling alcohol. Our supreme court has recognized "that the common law provided no remedy for the mere sale of alcoholic liquor to the ordinary man, either on the theory that it was a direct wrong or on the ground that it was negligence, * * *." (Cunningham v. Brown (1961), 22 Ill.2d 23, 29-30, 174 N.E.2d 153, 157.) The Cunningham court pointed out "the reason generally given for the rule is that the drinking, not the selling, is the proximate cause of the intoxication." (22 Ill.2d 23, 30, 174 N.E.2d 153, 157.) In Cunningham, it was argued "that where a sale is made to one who is intoxicated or insane and the incapacity of the consumer to choose is known to the vendor, or should be known, then the sale and consumption are merged and in reality become the act of the seller and the proximate cause of the intoxication." (22 Ill.2d 23, 30, 174 N.E.2d 153, 157.) The supreme court stated that the "argument has some merit" but denied a cause of action because no common law right existed. (22 Ill.2d 23, 30, 174 N.E.2d 153, 157.) The legislature provided a right by statute, and the court was not required to create another remedy. Our courts have consistently followed the rule that there is no common law liability for the negligent sale of liquor in Illinois. Wimmer v. Koenigseder (1985), 108 Ill.2d 435, 442, 92 Ill.Dec. 233, 237, 484 N.E.2d 1088, 1092.

The law in Illinois appears well settled that the legislative action in adopting the Dramshop Act (Ill.Rev.Stat.1985, ch. 43, pars. 94 through 195) has preempted the field of liability relating to alcohol. (Coulter v. Swearingen (1983), 113 Ill.App.3d 650, 69 Ill.Dec. 344, 347, 447 N.E.2d 561.) It is also clear that this preemption extends to social hosts who might provide intoxicating beverages: adult to adult, adult to minor, and minor to minor. "The courts have been rigid in denying recovery on the theory of common law negligence." Coulter v. Swearingen (1983), 113 Ill.App.3d 650, 654, 69 Ill.Dec. 344, 447 N.E.2d 561, 564.

As the cases involving alcohol indicate, there have been...