An Illinois appeals court will allow a father whose son died
after drinking too much alcohol during a fraternity’s initiation ritual, to resume
his lawsuit against the Northern Illinois University fraternity, saying a Cook
County judge erred in dismissing the wrongful death action against the local
chapter and its leaders.
The Illinois First District Appellate Court took up the
appeal of Gary L. Bogenberger, administrator of the estate of his son, David,
who became drunk to the point of unconsciousness during a November 2012 event
at the Eta Nu chapter of Pi Kappa Alpha at Northern Illinois University in
DeKalb, and subsequently died.
Bogenberger’s lawsuit had originally included the international
fraternity corporation, as well as others involved in the fraternal
organization, over his son’s death.
Bogenberger appealed the ruling of Cook County Circuit Court
Judge Kathy M. Flanagan, who on Dec. 11, 2014, had dismissed the action against
all the defendants. Appellate justices said Flanagan got her decision correct
with respect to the international fraternity and related groups.
But the justices said Bogenberger should be allowed to
continue to press his case against the Eta Nu chapter and its named executive
officers, pledge board members and active chapter members.
Justice Sheldon A. Harris wrote the opinion, with Justices Joy
V. Cunningham concurring, and Justice Maureen E. Connors authoring a special
In his lawsuit, Bogenberger alleged the fraternity should be
made to pay for their role in the death of his son at an official fraternity
event, identified as “Mom & Dad’s Night” pledge event, at Eta Nu. During
the event, which Bogenberger said pledges believed to be mandatory for
initiation into the fraternity, existing fraternity members were paired with
pledges, to whom they posed questions and “no matter their responses were
required to consume vodka.” If they attempted to refuse to drink, the complaint
said they were berated until they overcame their reluctance. When they could no
longer walk, the court documents said the pledges were taken to the basement of
the fraternity house where they were laid in “positions so they would not choke”
on their own vomit. The court documents said active members and fraternity
leaders instructed members to delete photos and videos of the event from their
smartphones, and not call for medical help for the passed out pledges.
Court documents said David Bogenberger died with a blood
alcohol level of 0.43 mg/dl.
NIU did not sanction the event.
Bogenberger had alleged the fraternity’s home office
encouraged Eta Nu leadership to conduct the type of event at which David
Bogenberger died on Nov. 1, 2012.
The opinion relied heavily on the 1987 Illinois Third
District Appellate Court ruling in Quinn
v. Sigma Rho Chapter of Beta Theta Pi Fraternity, which, Harris wrote, “recognized
a cause of action in negligence for injuries sustained by pledges who were
required to participate in ‘illegal and very dangerous activities’ to obtain
The fraternity-pledge relationship introduces an aspect of
coercion largely absent from other situations in which hosts cannot be held at
fault for the actions of the one drinking it. Further, he noted, language in
the state’s Hazing Act is intended to protect people like Bogenberger “from
embarrassing or endangering themselves through thoughtless and meaningless
Harris said, when fraternity members placed unconscious
pledges in various areas of the house, and oriented them so they would not choke,
then collectively decided not to seek medical attention, they effectively took
legal responsibility for the pledges’ condition.
The chapter remains subject to litigation because its
officers and pledge board were acting in the scope of their authority within
the fraternity. Actual liability would be determined at trial.
The PKA headquarters organizations were removed from the
suit, Harris wrote, because the party explicitly violated formal hazing policy.
Certain women who had helped with the event were removed from the lawsuit
because the courts said Bogenberger failed to sufficiently allege how they
could have required the pledges to drink with the same authority as the Eta Nu
The justices also upheld the dismissal of the Eta Nu chapter’s
landlord from the lawsuit.
Connors wrote to specifically explain that the very nature
of the party, including specially-decorated buckets provided for intoxicated
pledges to use for vomit, should indicate the active fraternity members were
well aware of the consequences of the amount of alcohol they intended to
encourage pledges to consume.
Ultimately, Connors wrote, it is essential to his father’s
legal action that David Bogenbeger “was the type of person the Hazing Act was
meant to protect, and that he suffered the type of harm that the Hazing Act was
designed to prevent.”
According to Cook County court records, Bogenberger was
represented in the action by attorney Peter R. Coladarci, of Chicago.
Pi Kappa Alpha International and the Eta Nu chapter were
represented by the firm of Johnson & Bell, of Chicago.