Haben v. Anderson

• Citation: 232 Ill.App.3d 260,173 Ill.Dec. 681,597 N.E.2d 655
• Decision Date: 26 June 1992
• Docket Number: No. 3-91-0707,3-91-0707
• Parties: , 173 Ill.Dec. 681, 76 Ed. Law Rep. 484 Dale E. HABEN, Special Administrator of the Estate of Nicholas E. Haben, Deceased, Plaintiff-Appellant, v. Marc R. ANDERSON, John W. Bilenko, James A. Boyer, David J. Carey, Brian D. Donchez, Raymond A. Drew, Steve C. Kadlec, Anthony F. Kolovitz, Chris (C.K.) McCracken, Mark T. Molzer, Scott A. Rokita, and Rian P. Sanders, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 655

597 N.E.2d 655

232 Ill.App.3d 260, 173 Ill.Dec. 681,

76 Ed. Law Rep. 484

Dale E. HABEN, Special Administrator of the Estate of Nicholas E. Haben, Deceased, Plaintiff-Appellant, v. Marc R. ANDERSON, John W. Bilenko, James A. Boyer, David J.

Carey, Brian D. Donchez, Raymond A. Drew, Steve C. Kadlec,

Anthony F. Kolovitz, Chris (C.K.) McCracken, Mark T. Molzer,

Scott A. Rokita, and Rian P. Sanders, Defendants-Appellees.

No. 3-91-0707.

Appellate Court of Illinois,

Third District.

June 26, 1992.

Rehearing Denied Sept. 3, 1992.

Robert C. Strodel, argued, Strodel, Kingery & Durree, Assoc., Peoria, for Dale E. Haben.

Marc Anderson, pro se.

Kent R. Schnack, Schnack, Schnack & Cashman, Quincy, for John W. Bilenko.

David B. Mueller, argued, Cassidy & Mueller, Peoria, for James A. Boyer.

James L. Hafele, Cathy A. Stephens, Hafele, Thiemann & Carter, Peoria, for David J. Carey.

Robert D. Jackson, Steven L. Pierson, Westervelt, Johnson, Nicoll & Keller, Peoria, for Brian D. Donchez.

Robert H. Jennetten, Jeanne H. Wysocki, Quinn, Johnston, Henderson & Pretorius, Peoria, for Raymond A. Drew.

Cornelius Thomas Ducey, Jr., Ducey, Feder & Ducey, Ltd., Belleville, for Steve C. Kadlec.

John C. Mulgrew, Jr., argued, Bradley S. McMillan, Heyl, Royster, Voelker & Allen, Peoria, for Anthony F. Kolovitz.

James Patrick Murphy, Flack, McRaven & Stephens, Macomb, for Chris McCracken.

Robert C. Stoerzbach, Barash, Stoerzbach & Henson, Galesburg, for Scott A. Rokita.

Gary J. Bazydlo, Hinshaw & Culbertson, Chicago, David E. Jones, Peoria, Joshua G. Vincent, Hinshaw & Culbertson, Chicago, for Rian P. Sanders.

Jonathan H. Barnard, Schmiedeskamp, Robertson, Neu & Mitchell, Quincy, for Mark T. Molzer.

Bruce L. Carmen, Chicago.

Justice HAASE delivered the opinion of the Court.

The plaintiff, Dale E. Haben, brought this wrongful death action as special administrator of the estate of Nicholas E. Haben against the defendants, the members of the Lacrosse Club (the Club) at Western Illinois University. Nicholas Haben died on October 19, 1990, from acute alcohol intoxication. The plaintiff alleged that each of the defendants had been involved in "hazing" the decedent, pressuring him to drink, and causing his intoxication. Additionally, the plaintiff alleged that defendant Anthony F. Kolovitz negligently breached a voluntarily assumed duty to care for the decedent. The trial court granted the defendants' motions to dismiss. The plaintiff appeals.

The plaintiff's complaint alleged that the decedent, Nicholas E. Haben, was an 18-year-old freshman at Western Illinois University in the fall of 1990. On October 18, 1990, Haben was a "rookie" in the Lacrosse Club, a recognized and sanctioned student activity at the University. The twelve defendants were all active members of the Club. Club membership was "a valued status". On October 18, 1990, between 3:00 p.m. and 10:30 p.m., the defendants participated in the "initiation" of new recruits of the Club known as "rookies", which included Haben.

It was alleged that during the initiation ceremony, the defendants caused or participated in causing various types and quantities of intoxicating beverages to be given and ingested by the rookie initiates of the Club. The rookies, including Haben, were required to engage in various strenuous physical activities, and submit to acts intended to ridicule and degrade them, including smearing their bodies, faces, and hair with various food and other materials. These activities allegedly violated the Hazing Act (Ill.Rev.Stat., 1990 Supp., ch. 144, par. 220.9 et seq.) and University regulations. It was alleged that the hazing and drinking activities had been conducted by the Club members for a number of years and had become a "tradition of, and a de facto requirement for, membership in the Club", and that the pressure to consume dangerous quantities of alcohol created a hazardous condition threatening the initiate's physical welfare.

The plaintiff's complaint further alleged that, in violation of section 6-16(a) of the Liquor Control Act of 1934 (Ill.Rev.Stat.1989, ch. 43, par. 131(a)), the defendants caused and pressured Haben to consume excessive amounts of intoxicating liquor, and after knowing he was intoxicated, pressured and encouraged Haben to drink additional quantities of liquor.

The complaint also alleged that Haben became highly intoxicated and lost consciousness. He was carried to defendant Kolovitz's dorm room, where, in Kolovitz's presence, he was laid on the floor and then left alone. Kolovitz returned to the room on more than one occasion to check on Haben and heard him "gurgling". Haben was discovered dead about 9:00 a.m., on October 19, 1990. He died from acute ethanol intoxication, possessing a blood ethanol level in excess of .34.

The defendants filed motions to dismiss the plaintiff's complaint for failure to state a cause of action. The trial court granted the defendants' motions and dismissed the complaint, finding that a common law duty was not properly pleaded because the facts alleged did not fit the narrow exception announced in Quinn v. Sigma Rho Chapter (1987), 155 Ill.App.3d 231, 107 Ill.Dec. 824, 507 N.E.2d 1193. The trial court found that Quinn made it incumbent upon the plaintiff to plead that Haben was required to drink to intoxication to be initiated into the Club. The trial court also found that the plaintiff failed to allege facts establishing that defendant Kolovitz had voluntarily assumed a duty.

On appeal, the plaintiff first argues that the trial court erred in dismissing his complaint. He contends that he pleaded a proper cause of action under Quinn.

In reviewing the propriety of a dismissal for failure to state a cause of action, we must determine whether the complaint, when viewed in the light most favorable to the plaintiff, alleges facts sufficient to establish a cause of action upon which relief may be granted. (Ziemba v. Mierzwa (1991), 142 Ill.2d 42, 153 Ill.Dec. 259, 566 N.E.2d 1365.) A cause of action will not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover. Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co. (1986), 114 Ill.2d 278, 102 Ill.Dec. 306, 499 N.E.2d 1319. Moreover, all well-pleaded facts must be taken as true for purposes of judging the sufficiency of the complaint. Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co. (1986), 114 Ill.2d 278, 102 Ill.Dec. 306, 499 N.E.2d 1319.

The elements of a negligence cause of action are a duty to exercise care, a breach of that duty, an injury proximately resulting from the breach, and damages. (McMillen v. Carlinville Area Hospital (1983), 114 Ill.App.3d 732, 70 Ill.Dec. 792, 450 N.E.2d 5.) Whether a duty exists is a question of law, and depends upon whether the parties stood in such a relationship to one another that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff. (Kirk v. Michael Reese Hospital and Medical Center (1987), 117 Ill.2d 507, 111 Ill.Dec. 944, 513 N.E.2d 387.) In considering whether a duty exists in a particular case, a court must weigh the foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against it and the consequences of placing that burden on the defendant. (Ziemba v. Mierzwa (1991), 142 Ill.2d 42, 153 Ill.Dec. 259, 566 N.E.2d 1365; Gouge v. Central Illinois Public Service Co. (1991), 144 Ill.2d 535, 163 Ill.Dec. 842, 582 N.E.2d 108.) In terms of foreseeability, the court will consider whether the risk of harm was reasonably foreseeable. Gouge v. Central Illinois Public Service Co. (1991), 144 Ill.2d 535, 163 Ill.Dec. 842, 582 N.E.2d 108. (Emphasis in original.) Illinois courts have repeatedly held that common law negligence liability does not exist where a social host has provided liquor to a minor guest. (See Coulter v. Swearingen (1983), 113 Ill.App.3d 650, 69 Ill.Dec. 344, 447 N.E.2d 561 (social host not liable when minor guest became intoxicated, drove car, and injured third party in vehicle collision); Estate of Ritchie v. Farrell (1991), 213 Ill.App.3d 846, 157 Ill.Dec. 298, 572 N.E.2d 367 (social host who provided alcohol to minor not liable for minor's death from acute alcohol intoxication); Zamiar v. Linderman (1985), 132 Ill.App.3d 886, 88 Ill.Dec. 219, 478 N.E.2d 534 (social host who provided alcohol to minor not liable when intoxicated minor slipped on rug and injured himself).) With the exception of Cravens v. Inman (1991), 223 Ill.App.3d 1059, 166 Ill.Dec. 409, 586 N.E.2d 367, the appellate court has concluded that any change in Illinois law should be undertaken by the legislature. (See, e.g., Estate of Ritchie v. Farrell (1991), 213 Ill.App.3d 846, 157 Ill.Dec. 298, 572 N.E.2d 367; Zamiar v. Linderman (1985), 132 Ill.App.3d 886, 88 Ill.Dec. 219, 478 N.E.2d 534.) In carving an exception to the common law rule, the Cravens court carefully limited its holding to apply only where: (1) a social host has knowingly served alcohol and permitted the liquor to be served to youths under 18 years of age at the social host's residence; (2) the social host permits the minors' consumption to continue to the point of intoxication; and (3) the social host allows the inebriated minors to depart from the residence in a motor vehicle.

In Quinn v. Sigma Rho Chapter (1987), 155 Ill.App.3d 231, 107 Ill.Dec. 824, 507 N.E.2d 1193, the court was faced with the issue of whether a duty existed under circumstances similar to the case at bar. There, the plaintiff was a pledge of the defendant fraternity and was required to participate in the defendant's initiation ceremony in order to become a member of the fraternity. At the time, the 18-year-old plaintiff was an inexperienced drinker. As part of the ceremony, the plaintiff was directed to drink a 40-ounce pitcher of beer without letting it leave his lips or...