NIU frat alcohol death, lawyer fee agreements, IHSA FOIA status on IL Supreme Court March call

By Jonathan Bilyk | Mar 2, 2017

Beginning March 14, the Illinois Supreme Court will hear arguments in several cases, including: whether a NIU fraternity can be sued for a pledge's alcohol-induced death; whether lawyers must specify "joint financial responsibility" in case referral agreements; and whether the IHSA is a public body subject to FOIA.

A Northern Illinois University fraternity chapter has asked the Illinois Supreme Court to step in and deny a father the chance to sue them over the alcohol-induced death of his son at fraternal initiation event, claiming a state appeals court overstepped and contradicted existing law and precedent in allowing the father to press ahead with his action.

The state high court is expected to take up this appeal, as well as others, during its March term, which begins March 14 in Springfield.

In the case of Bogenberger v. Eta Nu Chapter of Pi Kappa Alpha International, plaintiff Gary Bogenberger had brought a wrongful death action against the Eta Nu Chapter, which operates at NIU, the chapter’s leaders, and the international fraternal organization, asserting they all bore liability for the death of his son, David, who died during a November 2012 event at the Eta Nu house in DeKalb.

Bogenberger had asserted the fraternal event, identified as “Mom and Dads Night,” required fraternity pledges to consume massive amounts of alcohol until they lost bodily control or passed out. They were then allegedly taken to the basement of the fraternity house, where they were laid in “positions so they would not choke” on their own vomit. The complaint alleged fraternity members were ordered to delete photos and videos of the event, and not call for medical help for the passed out pledges.

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The complaint asserted David Bogenberger died with a blood alcohol level of 0.43 mg/dl.

NIU did not sanction the event.

In 2014, Cook County Circuit Judge Kathy M. Flanagan had dismissed the action against all defendants, citing precedent which declared social hosts cannot be held at fault for the actions of those consuming alcohol.

However, in this case, justices for the Illinois First District Appellate Court said Illinois’ Hazing Act creates an exception, allowing Bogenberger to sue the fraternity chapter and its officers – though not the international fraternity - for “embarrassing” the younger Bogenberger into “endangering” himself “through thoughtless and meaningless activity.”

The fraternity chapter appealed that ruling, arguing the appellate decision contradicts the state Supreme Court’s long-established precedent “that ‘there is no common law cause of action against any provider of alcoholic beverages for injuries arising out of the sale or gift of such beverages.’”

In other cases on the March docket, the Illinois Supreme Court is also expected to take up the question of whether lawyers expecting to be paid under referral agreements with other lawyers need to expressly include language in their contracts that both will assume “joint financial responsibility.”

The Lake County case of Ferris, Thompson & Zweig v. Anthony Esposito will return to the state high court, two years after justices ruled circuit courts had jurisdiction to resolve disputes between attorneys bickering over fees owed for work on workers compensation cases.

In this instance, however, the parties are now at odds over whether the Ferris firm has a right to demand its share of fees from Esposito stemming from at least 10 worker compensation cases it referred to Esposito. The defendant has argued it should not need to pay because the referral agreement did not explicitly dictate the two law practices would share “joint financial responsibility.”

Lawyers for Esposito argue the Illinois Second District Appellate Court erred in finding Illinois professional conduct rules don’t require that language to make referral contracts enforceable. They argue this decision conflicts with the findings of the state’s First District Appellate Court, which should control in this situation.

And, also in the March term, the state Supreme Court is scheduled to hear arguments in Better Government Association v. Illinois High School Association over whether the IHSA – the organization would oversees the state’s high school sports -  should be considered a public organization whose records are subject to information requests filed under the Freedom of Information Act (FOIA.)

Last year, the BGA appealed the First District Appellate Court’s decision to find the IHSA should be exempted from FOIA requirements, even though its member schools receive public money from taxes.

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