Bogenberger v. PI Kappa Alpha Corporation, Inc., 011918 ILSC, 120951

Docket Nº:120951, 120967, 120986
Opinion Judge:FREEMAN JUSTICE
Party Name:GARY L. BOGENBERGER, Appellant, v. PI KAPPA ALPHA CORPORATION, INC., et al., Appellees.
Judge Panel:JUSTICE FREEMAN delivered the judgment of the court, with opinion.Justices Thomas, Garman, and Burke concurred in the judgment and opinion. CHIEF JUSTICE KARMEIER, concurring in part and dissenting in part: JUSTICE THEIS, concurring in part and dissenting in part: JUSTICE KILBRIDE joins in this p...
Case Date:January 19, 2018
Court:Supreme Court of Illinois

2018 IL 120951

GARY L. BOGENBERGER, Appellant,

v.

PI KAPPA ALPHA CORPORATION, INC., et al., Appellees.

Nos. 120951, 120967, 120986

Supreme Court of Illinois

January 19, 2018

JUSTICE FREEMAN delivered the judgment of the court, with opinion.Justices Thomas, Garman, and Burke concurred in the judgment and opinion.

OPINION

FREEMAN JUSTICE

¶ 1 David Bogenberger attended a pledge event at the Pi Kappa Alpha fraternity house at Northern Illinois University, where an evening of vodka-laden hazing ensued. By the end of the night, his blood alcohol level would reach more than five times the legal limit. David lost consciousness and died during the night.

¶ 2 At issue here is whether plaintiff's complaint alleged a cause of action for negligence against defendants, who included the fraternity's national organizations; the local chapter and its officers, pledge board members, and active members; and certain nonmember sorority women. The circuit court of Cook County dismissed the complaint in its entirety pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2014)). The appellate court affirmed in part, reversed in part, and remanded for further proceedings. 2016 IL App (1st) 150128, ¶ 51. The court affirmed the dismissal of the complaint as to the fraternity's national organizations and the nonmember sorority women. Id. ¶¶ 11, 51. The court reversed the dismissal as to the local chapter and its officers, pledge board members, and active members. Id.

¶ 3 For the following reasons, we affirm the dismissal of the fraternity's national organizations. We affirm the reversal of the dismissal of the local chapter and its officers, pledge board members, and active members. We reverse the dismissal of the nonmember sorority women. The cause is remanded to the circuit court for further proceedings.

¶ 4 BACKGROUND

¶ 5 In the fall of 2012, David began his freshman year at Northern Illinois University in DeKalb, Illinois. He became a prospective pledge of the Eta Nu chapter of Pi Kappa Alpha fraternity (NIU Chapter). As a prospective pledge, he was required to attend a pledge event called "Mom and Dad's Night." A day or two prior to the event, a plan for the night was approved and adopted by certain unknown NIU Chapter officers, pledge board members, and active members. The plan designated seven rooms in the fraternity house to which two or three "Greek couples" would be assigned. The members were directed to obtain vodka for the pledges to consume during the event and to contact sorority women to serve as "Greek Mothers." Each member would select a pledge for whom he and a sorority woman would serve as the pledge's "Greek Mother and Father." Couples were to ask the pledges various questions and give them a specific amount of alcohol, regardless of their answers. Pledges would be divided into groups of two or three and would rotate from room to room every 10 minutes. The plan called for most, if not all, pledges to become unconscious. Certain areas of the house were designated as places where pledges could "pass out." Pledges would be checked periodically, and their heads and bodies would be positioned in such a way so that if they vomited, they would not choke. Officers kept Breathalyzers and would use them to measure the pledges' blood alcohol level.

¶ 6 Members informed the pledges of the "Mom and Dad's Night" event, which would be held on November 1, 2012. They also indicated that attendance was mandatory and that the pledges would be required to drink excessive amounts of alcohol during the event. The pledges believed that attending and participating in the event was a required condition to gaining membership in the fraternity. The pledge event was not registered with the university as required by the university's policy.

¶ 7 As directed, David and the other pledges arrived at the fraternity house at 7:30 p.m. for "Mom and Dad's Night." They were divided into groups of two or three and given a list of rooms in the house to which they were to proceed, in a designated order, every 10 minutes. Each pledge was given a four-ounce plastic cup to bring with him from room to room, where it was filled with vodka by the members and the sorority women. The pledges were asked questions by the "Greek couples" and tried to determine whether the couples were their "Greek parents." They were directed and required to consume the vodka in their cups based on their answers. If pledges were reluctant to drink, they were called derogatory names by the couples. When a pledge asked a couple whether they were his Greek parents, he was told they were not, even when they were, and he was required to drink another four-ounce cup of vodka. Over the course of about an hour and a half, each pledge, including David, had consumed three to five cups of vodka in each room. The pledges, who could no longer walk without assistance, were taken to the basement and told the identity of their Greek parents and were given T-shirts and pledge paddles. They were also given "vomit buckets" that had been decorated by the women. As pledges began to lose consciousness, they were brought to the previously designated places in the house. David was placed in a bed in his "Greek father's" room by one of the members, who oriented his head and body so that he would not choke if he vomited. At approximately 11 p.m., the NIU Chapter president and an officer sent a text message to other officers and members telling them and the sorority women to delete any pictures or videos they had of a "passed out" pledge. Throughout the night, pledges were occasionally checked and adjusted so that they would not choke if they vomited. Members discussed whether to obtain medical attention for the pledges but decided not to and told others not to call 911 or seek medical care for them. Sometime during the night, David died. His blood alcohol level was 0.43 mg/dl. As a result of the pledge event, the NIU Chapter's charter was suspended and ultimately revoked.

¶ 8 Plaintiff, Gary L. Bogenberger, as special administrator of David's estate, filed a 12-count, fifth amended complaint for negligence against defendants on May 28, 2014. Defendants are the Pi Kappa Alpha national organizations, the NIU Chapter, the officers and pledge board members individually and in their official capacities, the active members, and the nonmember sorority women.1 Plaintiff alleged that defendants owed David a duty of reasonable care and sought damages pursuant to the Wrongful Death Act (740 ILCS 180/1 et seq. (West 2012)) and the Survival Act (755 ILCS 5/27-6 (West 2012)).

¶ 9 Plaintiff's counsel attached an affidavit to the complaint, averring that many of the allegations in the complaint, especially those made "upon information and belief, " were based on counsel's reading of "various summary reports, recorded witness statements and media reports." Counsel also averred that he was unable to initiate discovery of any of the defendants, other than an officer of the Pi Kappa Alpha national organizations, due to the pendency of criminal charges stemming from David's death.

¶ 10 Defendants filed motions to dismiss pursuant to section 2-615 of the Code. All of the motions asserted that plaintiff's complaint failed to allege a duty in light of the case law that prohibits social host liability with regard to alcohol. They further argued that the complaint failed to allege specific facts to impose a duty with regard to voluntary undertaking, concerted action, or joint liability.

¶ 11 The circuit court granted defendants' motions to dismiss with prejudice and dismissed the complaint. The court noted the decisions in Quinn v. Sigma Rho Chapter of the Beta Theta Pi Fraternity, 155 Ill.App.3d 231 (1987), and Haben v. Anderson, 232 Ill.App.3d 260 (1992), which recognized a cause of action against a fraternity and a university lacrosse club, respectively, where the plaintiffs were required to drink alcohol to the point of intoxication to become a member of the organization. Nevertheless, it questioned the viability of those cases after this court's decisions in Charles v. Seigfried, 165 Ill.2d 482 (1995), and Wakulich v. Mraz, 203 Ill.2d 223 (2003), which declined to create any form of social host liability regarding alcohol consumption. The court further found that even if Quinn and Haben remained viable, plaintiff's complaint was insufficient because it failed to plead specific facts and the allegations in the complaint were conclusory.

¶ 12 The appellate court affirmed the dismissal of the complaint as to the Pi Kappa Alpha national organizations and the nonmember sorority women. 2016 IL App (1st) 150128, ¶¶ 11, 51. The court reversed the dismissal as to the NIU Chapter, its officers and pledge board members, and the active members. Id. Additional pertinent facts will be included in the analysis of the issues reviewed on appeal.

¶ 13 ANALYSIS

¶ 14 Plaintiff appeals from the appellate court's opinion and contends that the court erred in affirming the dismissal of the Pi Kappa Alpha national organizations and the nonmember sorority women. Defendants, the NIU Chapter, its officers and pledge board members, and its active members also appeal and contend that the court erred in reversing the dismissal of the complaint as to them. We consolidated the appeals. We also allowed the Illinois Trial Lawyers Association to file an amicus curiae brief in support of plaintiff. Ill. S.Ct. R. 345 (eff. Sept. 20, 2010).

¶ 15 Social Host Liability

¶ 16 Initially, we address an argument made by all defendants that the rule against social host liability bars plaintiff's claim. Regarding social host liability, we have said, "few rules of law are as clear as that no liability...

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