On January 19, 2018, the Illinois Supreme Court issued its opinion in Bogenberger v. Pi Kappa Alpha Corp., et. al., 2018 IL 120951. The tragic case arose from the alcohol-related death of David Bogenberger, a Pi Kappa Alpha pledge at Northern Illinois University, who died from alcohol intoxication at a fraternity party in November 2012. The Bogenberger decision established, for the first time, a cause of action in negligence for victims of alcohol-related hazing. In so doing, the Supreme Court affirmed the dismissal of the Pi Kappa Alpha Fraternity national organization. It also affirmed the appellate court’s reversal of the trial court’s dismissal of all other defendants, including the defunct local fraternity chapter, officers and individual members of the fraternity chapter, and non-member sorority women who played a role in the fatal events that night.
This author and HeplerBroom, LLC represented the national fraternity and the local chapter in the litigation. We are pleased that the Supreme Court affirmed the trial court’s dismissal of the national fraternity. It was the correct decision.
Very recently, the remanded case settled after extensive mediation efforts. Now that the tragic case has concluded, it would be worthwhile to reflect on how David Bogenberger’s death permanently shifted Illinois law.
A Tragic Evening and a Senseless Death
In the fall of 2012, David Bogenberger was a freshman at Northern Illinois University, where he decided to pledge the Eta Nu chapter of the Pi Kappa Alpha International Fraternity. On November 1, 2012, he and other pledges attended Greek Mom & Dad’s Night at the fraternity house. The purpose of the event was to introduce David and the other pledges to their Greek mom and dad, who would serve as their pledge mentors.
Pledges were required to walk through seven designated rooms in the fraternity house in which fraternity members and non-member sorority sisters made the pledges drink shots of vodka after engaging them in conversation. Pledges were asked a series of questions in each room. They were given shots of vodka no matter how they answered the questions. At the end of the seven-room journey, each pledge’s Greek mom and dad would reveal themselves to their pledge.
The organizers of the Greek Mom & Dad’s Night were so certain that the pledges would become seriously intoxicated along the way that before the party, the fraternity members and sorority sisters designed personalized vomit buckets for the pledges and designated certain rooms where each pledge would pass out for the night. The organizers also planned ahead of time to position each unconscious pledge on their sides so they would not choke on their vomit, and they obtained breathalyzers to check their alcohol levels. After the pledges passed out, the members discussed seeking medical attention for the pledges, but ultimately decided against calling 911.
David Bogenberger died that night, as he lay unconscious in his Greek dad’s room. He never woke again. His blood alcohol level was 0.43mg/dl.
The national fraternity, which long ago enacted rigid prohibitions against hazing and especially against the use of alcohol in any social or pledge events, was unaware of the existence of the event because organizers hid their plans from the fraternity. The national fraternity suspended and ultimately revoked Eta Nu’s charter and the chapter dissolved.
Plaintiff Gary Bogenberger, as special administrator for his son’s estate, filed five complaints against the national fraternity and chapter, the fraternity officers and party planners, and the non-member sorority sisters who attended and helped plan the event. He sought to hold them liable in negligence for his son’s death under the Wrongful Death Act and Survival Act. The trial court dismissed all five complaints against all defendants, the fifth time with prejudice, and Mr. Bogenberger appealed.
Pre-Bogenberger Social Host Liability
Prior to Bogenberger, the weight of Illinois case law held that “few rules of law are as clear as that no liability for the sale or gift of alcoholic beverages exists in Illinois outside of the Dram Shop Act.” Charles v. Seigfried, 165 Ill. 2d 482 (1995); Wakulich v. Mraz, 203 Ill.2d 223 (2003). Illinois courts held, sensibly, that the proximate cause of injuries arising from alcohol consumption is the consumption itself, not the provision of the alcohol by sale or gift. There were narrow, older exceptions in the common law, but as a rule, the Supreme Court recognized that the General Assembly pre-empted the entire field of alcohol-related liability through the Dram Shop laws and statutory prohibitions against supplying alcohol to minors. Beyond these exceptions, an adult who suffered injuries from the consumption of alcohol had no cause of action against a social host who sold or gifted alcohol.
David was 19 years old when he died. The trial court, following the weight of Illinois law, dismissed Gary Bogenberger’s cause of action at the pleadings stage five times, reasoning that the lawsuit sought impermissibly to impose social host liability. The trial court also questioned the ongoing validity of Quinn v. Sigma Rho, 155 Ill.App.3d 231 (1987) and Haben v. Anderson, 232 Ill.App.3d 260 (1992), two appellate decisions which recognized narrow exceptions for causes of action in which plaintiffs are required to drink alcohol to the point of intoxication as a condition of initiation into a private club or organization.
The appellate court, without oral argument, affirmed the dismissal of the national fraternity but reversed and remanded as to all other defendants. Gary Bogenberger and all defendants whose dismissals were reversed appealed to the Supreme Court. The Court, which accepts fewer than five percent of petitions for leave to appeal each year, accepted the combined appeals.
The Supreme Court Moves against the Threat of Hazing
The parties submitted extensive briefs and eventually presented oral argument to the Court. Almost a full year after oral arguments, the Supreme Court held for the first time that victims of alcohol-related hazing may assert causes of action in negligence against individuals who haze. In so holding, the Court actually sidestepped the question of social host liability altogether and recognized a new cause of action in negligence.
Justice Freeman, writing for the Court, declared, “We would be turning a blind eye if we failed to acknowledge the difference between a social host situation and an alcohol-related hazing event. A social host situation involves the sale or gift of alcohol. An alcohol-related hazing event involves the required consumption of alcohol in order to gain admission into a school organization in violation of Illinois’ hazing statute (720 ILCS 120/5).” This reasoning also answered a secondary issue before the Court: whether the hazing statute, which is a criminal statute, permits a civil cause of action. It was far from certain that it did so prior to Bogenberger.
Though Bogenberger expanded the scope of negligence law in Illinois, it did so through a traditional analysis. The Court applied the age-old principles of duty, breach, proximate cause, and damages and reasoned that Gary Bogenberger sufficiently pled these elements against all but the national fraternity.
The subtle and at-times not so subtle undercurrent that flows throughout the majority and concurring opinions is the recognition that college hazing is an epidemic that the law needs to stop. Recent tragedies on college campuses across the country have put a spotlight on the dire threat hazing presents to undergraduates who are so eager to belong to a group that they jeopardize their own safety in exchange for a sense of belonging. The law should rise up to combat this threat. No student – and more fundamentally, no parent’s child – should pay with their lives for an opportunity to feel part of a community.