Source: Law360
By Hannah Meisel
January 19, 2018
The Illinois Supreme Court found Friday that the state’s anti-hazing statute allows sorority women at an event where a Northern Illinois University fraternity pledge drank himself to death to face liability along with the frat in a suit filed by the student’s father.
The state’s high court affirmed an appellate court ruling that the Eta Nu chapter of the Pi Kappa Alpha fraternity, along with several of its members and officers, could be held liable for the death of David Bogenberger. But the panel also reversed lower court rulings excluding several sorority sisters present for the event from the suit. The court’s decision, however, did not assign liability to Pi Kappa Alpha’s national organization, keeping with the other courts’ findings.
In making their ruling, the justices said that the state’s anti-hazing statute was a more appropriate gauge of liability than laws shielding bars and social hosts from culpability that the defendants had invoked. They also said the women were active participants in the event.
Bogenberger, a freshman at the time of his death in early November of 2012, was a prospective member of Pi Kappa Alpha. As a pledge, he was required to attend an event called “Mom and Dad’s Night,” during which he and his fellow pledges were made to drink excessive amounts of vodka while traveling throughout the fraternity house and answering questions posed by members of Pi Kappa Alpha and the participating sorority, which was not named. After the booze-and-quiz portion of the evening, the pledges were taken to the basement, where they were given buckets to vomit in, pails that had been decorated by the sorority sisters for the event.
Eventually, the pledges were taken to rooms in the house to sleep off the alcohol, and were apparently monitored to make sure they did not choke on their own vomit. But at some point during the night, Bogenberger died of alcohol poisoning. A medical examination later found that his blood-alcohol level was 0.43 – more than five times the legal limit for driving.
The defendants argued they should not be held responsible for Bogenberger’s death because of the long-standing laws protecting social hosts from liability. But the justices said Friday that a hazing event is entirely distinguishable from a social host situation, which involves the gift or sale of alcohol, and wrote that the court “would be turning a blind eye” if it failed to acknowledge the difference between the two.
“Alcohol is not merely furnished to an individual; the individual is required to consume alcohol, often at a near-lethal level, to gain admission into a school organization,” Justice Charles Freeman wrote for the court. “This required consumption of alcohol is not too remote to serve as the proximate cause of intoxication and the resulting injury. Thus, we find that the rule against social host liability is inapplicable to an alcohol-related hazing event.”
Bogenberger’s father, Gary Bogenberger, had sued Pi Kappa Alpha’s Northern Illinois University chapter, its members and certain officers, the national organization and the sorority women present at the event in Cook County Circuit Court in 2014. But the court dismissed the suit in its entirety, siding with the defendants that social host shield laws protected them from liability.
On appeal, however, the First District Appellate Court found in 2016 that the fraternity chapter, along with some members and officers could, in fact, be held accountable for Bogenberger’s death. But seeking greater liability, Bogenberger’s father appealed the case again to the Illinois Supreme Court, and on Friday the court expanded liability to the sorority women.
Justice Freeman wrote that the justices’ decision over whether to hold the sorority sisters liable was a “thornier” question than the culpability of the fraternity and its members. But the court ultimately said the women’s Greek affiliation did not matter, as they were active participants in the event, despite the fact that they did not plan the night.
“Yet they willingly agreed to participate in the hazing event and actively did so by filling the pledges’ cups with vodka, asking the pledges questions, directing the pledges to drink, calling the pledges derogatory names, and decorating ‘vomit buckets,'” Justice Freeman wrote. “We see little difference between the nonmember women’s participation in the hazing event and the members’ participation.”
The court reasoned that the women conveyed the same message to the pledges as the fraternity brothers did: “Drink the vodka to become a member of the fraternity,” Justice Freeman wrote.
“The purpose of the hazing statute is to prevent hazing,” the opinion said. “We refuse to read into it such a loophole that would absolve a nonmember’s participation when the statute has no such limiting language.”
But the court could not find Pi Kappa Alpha’s national organization liable for the actions of its member chapter. The justices rejected Bogenberger’s claim that the national organization should be found vicariously liable for the Eta Nu chapter’s actions that resulted in his son’s death, citing the fraternity’s national organization’s clear rules against hazing.
The justices said that the theory of vicarious liability does not apply in the instant case, as a closer “special relationship” is necessary for an affirmative duty to be imposed. The court said Pi Kappa Alpha’s relationship to the university chapter was not close enough for the principle to apply, as vicarious liability is reserved for relationships like that of a parent and child or employer and employee.
“When we read the allegations in plaintiff’s complaint, we find that they do not plead specific facts that would come within any of the above legally recognized special relationships,” Justice Freeman wrote.
The court also pointed to the limited power Pi Kappa Alpha has over its chapters, citing the fact that the national organization can only punish fraternity chapters or members after the fact, and does not have the ability to prevent all bad actions.
“The Nationals’ power to expel or discipline local chapters or members was remedial only,” the court wrote. “The power to take remedial action ‘after the fact’ does not amount to the right to direct or control a local chapter or member’s actions.”
Although Justice Mary Jane Theis agreed with the majority in most of the opinion, she authored a separate opinion arguing that Pi Kappa Alpha’s national organization should be held accountable, as hazing is an extremely common practice among Greek life at colleges and universities, despite whatever lip service the national organization may pay to discouraging the practice through anti-hazing policies.
“The national organizations’ insistence that they garner ‘no benefit from hazing’ glosses over the fact that they do benefit from pledging,” Justice Theis wrote. “And if hazing is a foreseeable part of the pledging and initiation process, then the national organizations should carry some responsibility for protecting against it. Our duty analysis involves balancing. I would strike the balance here in favor of young people like David.”
Chief Justice Lloyd Karmeier authored a short opinion agreeing with nearly everything Justice Theis wrote, but distancing himself from her opinions regarding special relationship doctrine.
Bogenberger’s attorney, Michael Rathsack of the Law Office of Michael W. Rathsack, told Law360 on Friday that the Bogenberger’s family is pleased with the decision as the court “sent a message” that hazing will be punished in Illinois.
“I’m just happy for them,” Rathsack said of the Bogenbergers. “For the family, this was matter of principle. They don’t want this to happen again.”
Attorneys for Pi Kappa Alpha’s local chapter and national organization and members and officers of the fraternity all declined to comment on Friday. A representative for the sorority women could not be reached for comment.
The Bogenberger estate is represented by Michael Rathsack of the Law Office of Michael W. Rathsack and Peter Coladarci of Peter R. Coladarci Ltd.
Pi Kappa Alpha’s local chapter and national organization is represented by Eric Moch and Robert Elworth of HeplerBroom LLC.
Certain members and officers of Pi Kappa Alpha are represented by Michael Resis of SmithAmundsen LLC.
The president of Pi Kappa Alpha is represented by Michael Borders of Dykema.
The sorority women are represented by Daniel Nolan and Elizabeth Bartolucci of O’Hagan Meyer LLC.
The combined cases are Gary L. Bogenberger v. Pi Kappa Alpha Corporation Inc. et al, case numbers 120951, 120958 and 120986, in the Illinois Supreme Court.