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 concurrence.
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 fraternity membership.”
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 activity.”
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 members.
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.