Bogenberger v. Pi Kappa Alpha Corp.

• Decision Date: 19 January 2018
• Docket Number: 120967,120986 cons.,Docket Nos. 120951
• Citation: 2018 IL 120951,104 N.E.3d 1110
• Parties: Gary L. BOGENBERGER, Appellant, v. PI KAPPA ALPHA CORPORATION, INC., et al., Appellees.
• Court: Illinois Supreme Court

2018 IL 120951
104 N.E.3d 1110

Gary L. BOGENBERGER, Appellant,
v.
PI KAPPA ALPHA CORPORATION, INC., et al., Appellees.

Docket Nos. 120951
120967
120986 cons.

Supreme Court of Illinois.

Opinion filed January 19, 2018

104 N.E.3d 1113

Law Offices of Michael W. Rathsack, of Chicago (Michael W. Rathsack and Peter R. Coladarci, of counsel), for appellant and cross-appellee.

Eric W. Moch and Robert E. Elworth, of HeplerBroom, LLC, of Chicago, for appellees and cross-appellants Pi Kappa Alpha Corporation, Inc., and Pi Kappa Alpha International Fraternity.

Daniel J. Nolan and Elizabeth M. Bartolucci, of O’Hagan Meyer LLC, of Chicago, for appellees Alyssa Allegretti et al.

Michael C. Borders and Rosa M. Tumialán, of Dykema Gossett PLLC, of Chicago, for cross-appellant Alexander Jandick.

Robert K. Scott, of Scott Halsted & Babetch, P.C., of Chicago, for cross-appellant Steven A. Libert.

Michael Resis, of SmithAmundsen LLC, of Chicago, for cross-appellants Thomas F. Costello et al.

Thomas W. Starck and Cathleen M. Hobson, of Law Offices of Meachum, Boyle & Trafman, of Chicago, for cross-appellant Andrew W. Bouleanu.

Ray H. Rittenhouse, of Mulherin, Rehfeldt & Varchetto, P.C., of Wheaton, for cross-appellant David R. Sailer.

John B. Higgins, of Higgins & Burke P.C., of St. Charles, for cross-appellant Andres J. Jiminez Jr.

George K. Flynn and Paul V. Esposito, of Clausen Miller P.C., of Chicago, for cross-appellant Isaiah Lott.

Kevin J. Caplis, of Querrey & Harrow Ltd., of Chicago, for cross-appellant John Wallace.

Mark Le Fevour, of ML Le Fevour & Associates, Ltd., of Burr Ridge, for cross-appellant Daniel Post.

Eileen M. Letts, of Zuber Lawler & Del Duca LLP, of Chicago, for cross-appellant Michael J. Phillip Jr.

Timothy Palumbo, of Kopka, Pinkus & Dolan P.C., of Chicago, for cross-appellant Patrick W. Merrill.

Tom Cameli and Stephen M. Brandenburg, of Cameli & Hoag, P.C., of Chicago, for cross-appellant Daniel Biagini.

Douglas J. Esp and Benjamin J. Thomas, of Esp Kreuzer Cores LLP, of Wheaton, for cross-appellant Estefan A. Diaz.

Anthony Todd Schneider, of Law Offices of Capuani & Schneider, of Chicago, for cross-appellant Nicolas Sutor.

John S. Huntley and Renee Ziolkowski, of Sanchez Daniels & Hoffman LLP, of Chicago, for cross-appellant Jonathan Hutchinson.

David H. Wolfe and Patrick R. Grady, of Wolfe & Jacobson, Ltd., of Chicago, for cross-appellant Russell P. Coyner.

Mark B. Ruda, of Condon & Cook, LLC, of Chicago, for cross-appellant Omar Salameh.

Christopher P. Leritz, of Leritz, Plunkert & Bruning, PC, of St. Louis, Missouri, for cross-appellant James P. Harvey.

David Koppelman and Joseph A. Bosco, of LaRose & Bosco, Ltd., of Chicago, for cross-appellant Alexander Renn.

Michael Malatesta, of Malatesta Law Offices LLC, of Chicago, for cross-appellant Nsenzi K. Salasini.

Brian G. White, of Ripes, Nelson, Baggot & Kalobratsos, PC, of Chicago, for cross-appellant Gregory Petryka.

Colin H. Dunn, of Clifford Law Offices, P.C., of Chicago, for amicus curiae Illinois Trial Lawyers Association.

JUSTICE FREEMAN delivered the judgment of the court, with opinion.

104 N.E.3d 1114

¶ 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, 404 Ill.Dec. 438, 56 N.E.3d 1. 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

104 N.E.3d 1115

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

104 N.E.3d 1116

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...