Bogenberger v. Pi Kappa Alpha Corporation, Inc. ( 2018 )

2018 IL 120951IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket Nos. 120951, 120967, 120986 cons.)
GARY L. BOGENBERGER, Appellant, v. PI KAPPA ALPHA
CORPORATION, INC., et al., Appellees.
Opinion filed January 19, 2018.
JUSTICE FREEMAN delivered the judgment of the court, with opinion.
Justices Thomas, Garman, and Burke concurred in the judgment and opinion.
Chief Justice Karmeier concurred in part and dissented in part, with opinion.
Justice Theis concurred in part and dissented in part, with opinion, joined by
Justice Kilbride.
OPINION
¶1 David Bogenberger attended a pledge event at the Pi Kappa Alpha fraternity
house at Northern Illinois University, where an evening of vodka-laden hazing
ensued. By the end of the night, his blood alcohol level would reach more than five
times the legal limit. David lost consciousness and died during the night.
¶2 At issue here is whether plaintiff’s complaint alleged a cause of action for
negligence against defendants, who included the fraternity’s national
organizations; the local chapter and its officers, pledge board members, and active
members; and certain nonmember sorority women. The circuit court of Cook
County dismissed the complaint in its entirety pursuant to section 2-615 of the
Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2014)). The appellate
court affirmed in part, reversed in part, and remanded for further proceedings. 2016
IL App (1st) 150128, ¶ 51. The court affirmed the dismissal of the complaint as to
the fraternity’s national organizations and the nonmember sorority women. Id.
¶¶ 11, 51. The court reversed the dismissal as to the local chapter and its officers,
pledge board members, and active members. Id.
¶3 For the following reasons, we affirm the dismissal of the fraternity’s national
organizations. We affirm the reversal of the dismissal of the local chapter and its
officers, pledge board members, and active members. We reverse the dismissal of
the nonmember sorority women. The cause is remanded to the circuit court for
further proceedings.
¶4 BACKGROUND
¶5 In the fall of 2012, David began his freshman year at Northern Illinois
University in DeKalb, Illinois. He became a prospective pledge of the Eta Nu
chapter of Pi Kappa Alpha fraternity (NIU Chapter). As a prospective pledge, he
was required to attend a pledge event called “Mom and Dad’s Night.” A day or two
prior to the event, a plan for the night was approved and adopted by certain
unknown NIU Chapter officers, pledge board members, and active members. The
plan designated seven rooms in the fraternity house to which two or three “Greek
couples” would be assigned. The members were directed to obtain vodka for the
pledges to consume during the event and to contact sorority women to serve as
“Greek Mothers.” Each member would select a pledge for whom he and a sorority
woman would serve as the pledge’s “Greek Mother and Father.” Couples were to
ask the pledges various questions and give them a specific amount of alcohol,
regardless of their answers. Pledges would be divided into groups of two or three
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and would rotate from room to room every 10 minutes. The plan called for most, if
not all, pledges to become unconscious. Certain areas of the house were designated
as places where pledges could “pass out.” Pledges would be checked periodically,
and their heads and bodies would be positioned in such a way so that if they
vomited, they would not choke. Officers kept Breathalyzers and would use them to
measure the pledges’ blood alcohol level.
¶6 Members informed the pledges of the “Mom and Dad’s Night” event, which
would be held on November 1, 2012. They also indicated that attendance was
mandatory and that the pledges would be required to drink excessive amounts of
alcohol during the event. The pledges believed that attending and participating in
the event was a required condition to gaining membership in the fraternity. The
pledge event was not registered with the university as required by the university’s
policy.
¶7 As directed, David and the other pledges arrived at the fraternity house at 7:30
p.m. for “Mom and Dad’s Night.” They were divided into groups of two or three
and given a list of rooms in the house to which they were to proceed, in a designated
order, every 10 minutes. Each pledge was given a four-ounce plastic cup to bring
with him from room to room, where it was filled with vodka by the members and
the sorority women. The pledges were asked questions by the “Greek couples” and
tried to determine whether the couples were their “Greek parents.” They were
directed and required to consume the vodka in their cups based on their answers. If
pledges were reluctant to drink, they were called derogatory names by the couples.
When a pledge asked a couple whether they were his Greek parents, he was told
they were not, even when they were, and he was required to drink another
four-ounce cup of vodka. Over the course of about an hour and a half, each pledge,
including David, had consumed three to five cups of vodka in each room. The
pledges, who could no longer walk without assistance, were taken to the basement
and told the identity of their Greek parents and were given T-shirts and pledge
paddles. They were also given “vomit buckets” that had been decorated by the
women. As pledges began to lose consciousness, they were brought to the
previously designated places in the house. David was placed in a bed in his “Greek
father’s” room by one of the members, who oriented his head and body so that he
would not choke if he vomited. At approximately 11 p.m., the NIU Chapter
president and an officer sent a text message to other officers and members telling
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them and the sorority women to delete any pictures or videos they had of a “passed
out” pledge. Throughout the night, pledges were occasionally checked and adjusted
so that they would not choke if they vomited. Members discussed whether to obtain
medical attention for the pledges but decided not to and told others not to call 911
or seek medical care for them. Sometime during the night, David died. His blood
alcohol level was 0.43 mg/dl. As a result of the pledge event, the NIU Chapter’s
charter was suspended and ultimately revoked.
¶8 Plaintiff, Gary L. Bogenberger, as special administrator of David’s estate, filed
a 12-count, fifth amended complaint for negligence against defendants on May 28,
2014. Defendants are the Pi Kappa Alpha national organizations, the NIU Chapter,
the officers and pledge board members individually and in their official capacities,
the active members, and the nonmember sorority women. 1 Plaintiff alleged that
defendants owed David a duty of reasonable care and sought damages pursuant to
the Wrongful Death Act (740 ILCS 180/1 et seq. (West 2012)) and the Survival Act
(755 ILCS 5/27-6 (West 2012)).
¶9 Plaintiff’s counsel attached an affidavit to the complaint, averring that many of
the allegations in the complaint, especially those made “upon information and
belief,” were based on counsel’s reading of “various summary reports, recorded
witness statements and media reports.” Counsel also averred that he was unable to
initiate discovery of any of the defendants, other than an officer of the Pi Kappa
Alpha national organizations, due to the pendency of criminal charges stemming
from David’s death.
¶ 10 Defendants filed motions to dismiss pursuant to section 2-615 of the Code. All
of the motions asserted that plaintiff’s complaint failed to allege a duty in light of
the case law that prohibits social host liability with regard to alcohol. They further
argued that the complaint failed to allege specific facts to impose a duty with regard
to voluntary undertaking, concerted action, or joint liability.
¶ 11 The circuit court granted defendants’ motions to dismiss with prejudice and
dismissed the complaint. The court noted the decisions in Quinn v. Sigma Rho
Chapter of the Beta Theta Pi Fraternity, 155 Ill. App. 3d 231 (1987), and Haben v.
1
The landowner of the fraternity house was also named as a defendant in counts XI and XII but
was subsequently dismissed, and plaintiff does not challenge that ruling in this court.
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Anderson, 232 Ill. App. 3d 260 (1992), which recognized a cause of action against a
fraternity and a university lacrosse club, respectively, where the plaintiffs were
required to drink alcohol to the point of intoxication to become a member of the
organization. Nevertheless, it questioned the viability of those cases after this
court’s decisions in Charles v. Seigfried, 165 Ill. 2d 482 (1995), and Wakulich v.
Mraz, 203 Ill. 2d 223 (2003), which declined to create any form of social host
liability regarding alcohol consumption. The court further found that even if Quinn
and Haben remained viable, plaintiff’s complaint was insufficient because it failed
to plead specific facts and the allegations in the complaint were conclusory.
¶ 12 The appellate court affirmed the dismissal of the complaint as to the Pi Kappa
Alpha national organizations and the nonmember sorority women. 2016 IL App
(1st) 150128, ¶¶ 11, 51. The court reversed the dismissal as to the NIU Chapter, its
officers and pledge board members, and the active members. Id. Additional
pertinent facts will be included in the analysis of the issues reviewed on appeal.
¶ 13 ANALYSIS
¶ 14 Plaintiff appeals from the appellate court’s opinion and contends that the court
erred in affirming the dismissal of the Pi Kappa Alpha national organizations and
the nonmember sorority women. Defendants, the NIU Chapter, its officers and
pledge board members, and its active members also appeal and contend that the
court erred in reversing the dismissal of the complaint as to them. We consolidated
the appeals. We also allowed the Illinois Trial Lawyers Association to file an
amicus curiae brief in support of plaintiff. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).
¶ 15 Social Host Liability
¶ 16 Initially, we address an argument made by all defendants that the rule against
social host liability bars plaintiff’s claim. Regarding social host liability, we have
said, “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 Dramshop Act.” Charles, 165 Ill. 2d at
490. This rule is based on over a century of precedent. Wakulich, 203 Ill. 2d at
229-30. The rationale behind the rule is that the drinking of the intoxicant, not the
furnishing of it, is the proximate cause of the intoxication and the resulting injury.
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Charles, 165 Ill. 2d at 486. As a matter of public policy, the furnishing of alcoholic
beverages is considered too remote to serve as the proximate cause of the injury. Id.As a result, we have declined to impose any form of social host liability for
alcohol-related injuries. Wakulich, 203 Ill. 2d at 237.
¶ 17 Whether the rule against social host liability applies to the factual situation
presented here is a matter of first impression in this court. In Wakulich, we noted
the appellate court opinions of Quinn and Haben, which held that the required
consumption of alcohol to gain admission into a fraternity and lacrosse club,
respectively, were an “exception” to the rule against social host liability. Wakulich,
203 Ill. 2d at 239. We characterized Quinn and Haben as addressing the “limited
situation in which a college fraternity, or similar college organization, requires
those seeking membership to engage in illegal and dangerous activities, in violation
of the hazing statute.” Id. at 239-40. Ultimately though, we did not address whether
the holdings in Quinn and Haben were compatible with our rule against social host
liability because the plaintiff in Wakulich was not involved in a hazing event. Id. at
240. We are now confronted with such a factual scenario.
¶ 18 We would be turning a blind eye if we failed to acknowledge the differences
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’s hazing statute (720 ILCS 120/5 (West
2010)). 2 We cannot fairly characterize such hazing events as involving the sale or
gift of alcohol. This type of hazing does not fit within the social host situation.
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. This required consumption of alcohol is not too remote to serve as the
2
The hazing statute provides, “[a] person commits hazing when he or she knowingly requires
the performance of any act by a student or other person in a school, college, university, or other
educational institution of this State, for the purpose of induction or admission into any group,
organization, or society associated or connected with that institution, if: (a) the act is not sanctioned
or authorized by that educational institution; and (b) the act results in bodily harm to any person.”
720 ILCS 120/5 (West 2010). The legislature has recodified this provision since the events at issue
but left the substance unchanged. See Pub. Act 97-110 (eff. Jan. 1, 2013) (recodifying 720 ILCS
120/5, 10 as 720 ILCS 5/12C-50).
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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. We
caution, though, that our determination here is quite narrow. To reiterate our words
from Wakulich, our above finding only applies in the limited situation in which the
consumption of alcohol is required to gain admission into a school organization in
violation of the hazing statute. Nothing more is intended.
¶ 19 Having determined that plaintiff’s claim is not barred by the rule against social
host liability, we now turn to the general principles of negligence to determine
whether plaintiff’s complaint alleges a cause of action for negligence.
¶ 20 Negligence
¶ 21 Where the plaintiff seeks recovery based on the defendant’s alleged negligence,
the plaintiff must plead and prove the existence of a duty owed by the defendant, a
breach of that duty, and injury proximately resulting from that breach. Bruns v. City
of Centralia, 2014 IL 116998, ¶ 12. Defendants’ contentions are limited to the
question of duty; therefore, our analysis focuses on that element. Whether a duty
exists is a question of law for the court to decide. Forsythe v. Clark USA, Inc., 224
Ill. 2d 274, 280 (2007).
¶ 22 We have long recognized that “ ‘every person owes a duty of ordinary care to
all others to guard against injuries which naturally flow as a reasonably probable
and foreseeable consequence of an act, and such a duty does not depend upon
contract, privity of interest or the proximity of relationship, but extends to remote
and unknown persons.’ ” Simpkins v. CSX Transportation, Inc., 2012 IL 110662,
¶ 19 (quoting Widlowski v. Durkee Foods, 138 Ill. 2d 369, 373 (1990) (collecting
cases)). Thus, where an individual’s course of action creates a foreseeable risk of
injury, the individual has a duty to protect others from such injury. Id. The duty
inquiry focuses on whether the plaintiff and the defendant stood in such a
relationship to one another that the law imposed upon the defendant an obligation
of reasonable conduct for the benefit of the plaintiff. Ward v. K mart Corp., 136 Ill.
2d 132, 140 (1990). Whether a duty exists is also an inquiry shaped by public
policy. LaFever v. Kemlite Co., 185 Ill. 2d 380, 388 (1998). There are four
traditional duty factors that guide our analysis: (1) the reasonable foreseeability of
the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of
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guarding against the injury, and (4) the consequences of placing that burden on the
defendant. Simpkins, 2012 IL 110662, ¶ 18.
¶ 23 The question presented by a motion to dismiss a complaint pursuant to section
2-615 of the Code is whether the complaint alleges sufficient facts that, if proved,
would entitle the plaintiff to relief. Charles, 165 Ill. 2d at 485-86. Such a motion
challenges only the legal sufficiency of the complaint. Wakulich, 203 Ill. 2d at 228.
The critical inquiry is whether the allegations of the complaint, when construed in a
light most favorable to the plaintiff, are sufficient to state a cause of action upon
which relief may be granted. Id. In making this determination, all well-pleaded
facts in the complaint must be taken as true. Id. We review an order granting a
section 2-615 motion to dismiss de novo. Id.¶ 24 We now consider whether plaintiff’s complaint alleged sufficient facts to
support his negligence claim. Addressing the counts in the order they appear in the
complaint, we first turn to counts I and II, which were directed at the Pi Kappa
Alpha national organizations. 3
¶ 25 Counts I and II—The Pi Kappa Alpha National Organizations
¶ 26 Plaintiff contends that the Pi Kappa Alpha national organizations (Nationals)
are vicariously liable for the misconduct of the NIU Chapter and its members
because the NIU Chapter and the members were their agents. Plaintiff also
contends that the Nationals are directly liable since they owe a duty to the pledges
to refrain from encouraging and directing local chapters to engage in hazing.
¶ 27 The Nationals contend that they are not vicariously liable for the NIU Chapter’s
hazing activities because no agency relationship exists. They also argue that even if
this court were to find that an agency relationship exists, the hazing acts of the NIU
Chapter and its members were outside the scope of the agency, which defeats a
finding of liability. The Nationals further maintain that they are not directly liable
and have no duty of care to the pledges of local chapters since they have no
day-to-day control over local chapters.
3
The Pi Kappa Alpha national organizations are Pi Kappa Alpha International Fraternity and Pi
Kappa Alpha Corporation, Inc.
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¶ 28 Turning to plaintiff’s agency or respondeat superior theory of liability, in order
to prove that the Nationals are liable for the alleged negligent actions and omissions
of the NIU Chapter and its members, plaintiff must prove that the NIU Chapter and
the members were their agents. Wilson v. Edward Hospital, 2012 IL 112898, ¶ 18.
A complaint relying on an agency relationship must plead facts that, if proved,
could establish the existence of an agency relationship. Connick v. Suzuki Motor
Co., 174 Ill. 2d 482, 498 (1996). A mere allegation of agency is insufficient to
establish actual agency. Id. Proof of actual agency requires a showing that (1) a
principal/agent relationship existed, (2) the principal controlled or had the right to
control the conduct of the agent, and (3) the alleged conduct of the agent fell within
the scope of the agency. Wilson, 2012 IL 112898, ¶ 18.
¶ 29 Counts I and II of plaintiff’s complaint are substantively identical, though count
I is brought pursuant to the Wrongful Death Act and count II is brought pursuant to
the Survival Act. The counts alleged that the Nationals “[t]hrough [their] agents
and employees[,] encouraged local chapters, including Eta Nu, to hold events
similar to ‘Mom and Dad’s Night’ because they were good for member and pledge
retention, therefore increasing revenue and income to the defendants through dues
and fees.” The complaint also alleged the following. The Nationals were “engaged
in the business of organizing, promoting, and recruiting membership” in local
chapters and “as further part of their business, supervised, advised, required and
controlled the activities and conduct” of their local chapters. The local chapters
were required to adhere to the Nationals’ fraternity constitution; chapter codes; risk
assessment manual; its quarterly publication, The Shield and Diamond; and The
Garnet and Gold pledge manual. These documents included and referenced a
hazing policy that prohibited any hazing action as well as hazing that utilized
alcohol. The Nationals had the right and the power to “expel, suspend or place
restrictive remedial conditions on continued operations of local chapters;” to “assist
local chapters in the conduct of rush or pledging activities or require alcohol or
hazing education;” to “expel, suspend or place individual members of local
chapters on ‘alumni status;’ ” and to “ban and prohibit pledging activities outright
at local chapters.” The Nationals obtained knowledge about the conduct and
operations of local chapters through the reports from chapter consultants who
conducted on-site, weeklong assessments of the chapters. The consultants analyzed
each chapter’s recruitment performance, continuing risk awareness education,
alumni relations, finances, housing, management, athletics, scholarship, campus
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involvement, community service, and public relations. The Nationals knew,
through their consultants’ reports, that for at least three years prior to David’s
death, the NIU Chapter did not provide continuing risk education to members, did
not have a risk awareness program, had no written crisis management plan, had no
functioning risk management committee, and had a reputation as a fraternity of
“meatheads.” The Nationals were supported by fees collected by local chapters and
derived at least 75% of their gross income from undergraduate dues and fees and
were dependent on continued and increasing such dues and fees, which included
fees from pledges.
¶ 30 As to the first factor, we find no support for a principal/agent relationship.
Plaintiff’s complaint did not allege facts that the Nationals authorized the NIU
Chapter to act on their behalf or that the Nationals held out the NIU Chapter as their
agent. See Connick, 174 Ill. 2d at 498-99 (a complaint relying on an agency
relationship must contain allegations that the principal expressly or impliedly gave
authority to the agent to act on the principal’s behalf or that the principal held out
the individual as his agent). As to the second factor, plaintiff’s complaint alleged
that the Nationals “controlled the activities and conduct” of their local chapters;
could “assist local chapters in the conduct of rush or pledging activities or require
alcohol or hazing education;” and had “the right and the power to expel, suspend or
place restrictive remedial conditions on local chapters.” However, the above
allegations fall short of establishing “control.” The Nationals have promulgated
rules that the local chapters are to follow, yet the complaint does not allege that the
Nationals dictate how the local chapters implement these rules. The complaint did
not allege that the Nationals had any control over which pledging events chapters
actually held or that the Nationals could control how chapters planned or carried
out the events. It only alleged that the Nationals “encouraged” pledging events
“similar” to “Mom and Dad’s Night.” Also, the Nationals’ power to expel or
discipline local chapters or members was remedial only. 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. As to the third factor, the NIU Chapter’s hazing
conduct fell outside the scope of any alleged agency relationship. The NIU Chapter
could plan and hold pledging events, but it was against the Nationals’ rules to
include hazing within those pledging events. Pledging and hazing are not
synonymous. We find the allegations in plaintiff’s complaint insufficient to allege
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an agency relationship and, accordingly, insufficient to hold the Nationals
vicariously liable for the conduct of the NIU Chapter and its members.
¶ 31 Regarding plaintiff’s direct theory of liability, plaintiff’s complaint alleged that
the Nationals owed a duty to David to “prevent the foreseeable consequences of
required excessive consumption of alcohol during [an] initiation ritual.” The
complaint further alleged that the Nationals permitted dangerous pledge events to
occur, failed to warn local chapters about the dangers and risks of “required alcohol
related pledge events,” failed to adopt policies for the local chapters to follow to
prevent dangerous pledge events, failed to take reasonable steps to insure its local
chapters followed the Nationals’ policies regarding pledge events, failed to take
reasonable steps to learn whether its local chapters were following the Nationals’
policies, failed to ban pledging events outright at all of its local chapters when they
knew pledge events were likely to result in bodily harm and death to pledges, failed
to insure that the NIU Chapter had a continuing risk education policy and
functioning risk awareness committee although they knew through their chapter
consultant’s reports that it had not had a program or committee for at least three
years before David’s death, and were otherwise careless and negligent.
¶ 32 Here, plaintiff seeks to hold the Nationals directly liable, through their acts or
omissions, for the criminal conduct of the NIU Chapter, its members, and the
nonmember sorority women. Essentially, what plaintiff’s complaint alleges is that
the Nationals should have taken certain affirmative action to protect the pledges
from hazing and to control the criminal conduct of those who participated in the
hazing.
¶ 33 In Illinois, an affirmative duty to aid or protect another against an unreasonable
risk of physical harm or to control the conduct of another arises only within the
context of a legally recognized “special relationship.” Doe-3 v. McLean County
Unit District No. 5 Board of Directors, 2012 IL 112479, ¶ 24; Hills v. Bridgeview
Little League Ass’n, 195 Ill. 2d 210, 234 (2000); see also Restatement (Second) of
Torts §§ 314, 314A, 315 (1965). We have recognized the following four
relationships that give rise to an affirmative duty to aid or protect another against an
unreasonable risk of physical harm: common carrier and passenger, innkeeper and
guest, custodian and ward, and possessor of land who holds it open to the public
and member of the public who enters in response to the possessor’s invitation.
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Simpkins, 2012 IL 110662, ¶ 20. We have also recognized a duty to a third party to
control the individual who is the source of the harm when a defendant has a special
relationship with that person, such as a parent-child relationship and a
master-servant or employer-employee relationship. Id. Absent a special
relationship, there can be no affirmative duty imposed on one for the benefit of
another to warn or protect against the criminal conduct of a third party. Iseberg v.
Gross, 227 Ill. 2d 78, 101 (2007); Hills, 195 Ill. 2d at 228 (one has no affirmative
duty to control the conduct of another to prevent a criminal attack on a third party in
the absence of a special relationship).
¶ 34 The appellate court found that the Nationals did not owe a duty to the pledges of
the local chapters because imposing such a duty would present an “unrealistic
burden.” 2016 IL App (1st) 150128, ¶ 47. The court did not consider, and the
parties did not raise, the “no-affirmative-duty” rule and the special relationship
doctrine. Similarly here, the parties’ contentions on appeal omit mention of the rule
and doctrine and instead argue the issue of duty pursuant to the traditional four duty
factors.
¶ 35 Nevertheless, since plaintiff’s complaint alleges direct liability on behalf of the
Nationals for the criminal conduct of the NIU Chapter, its members, and the
nonmember sorority women, we must first consider whether a legally recognized
special relationship exists between the parties. If no special relationship exists that
would impose an affirmative duty upon the Nationals to protect the pledges or to
control the conduct of those who hazed the pledges, then the Nationals owe no
affirmative duty to the pledges. Since Illinois is a fact-pleading jurisdiction,
plaintiff’s complaint must allege facts, not mere conclusions, that establish a viable
cause of action. Iseberg, 227 Ill. 2d at 86. 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. The complaint
does not sufficiently plead any of the special relationships of common carrier and
passenger, innkeeper and guest, custodian and ward, or possessor of land and
public invitee, nor does it adequately plead a parent-child relationship or
master-servant or employer-employee relationship. Accordingly, absent a special
relationship, there can be no affirmative duty imposed on the Nationals for the
benefit of the pledges.
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¶ 36 Our finding is consistent with this court’s precedent. For example, in Hills, the
plaintiff was coaching a Little League baseball team when he was attacked by the
manager and assistant coaches for the opposing team. The plaintiff filed suit against
his attackers, as well as the opposing team’s sponsor and the host of the baseball
tournament. We determined that the sponsor of the opposing team had no
affirmative duty to control the attackers and the host had no affirmative duty to
protect the plaintiff from the attackers because no special relationship existed
between the parties. Hills, 195 Ill. 2d at 242, 252.
¶ 37 In Iseberg, the plaintiff was shot and paralyzed by a former business investor
who suffered financial losses. The plaintiff filed suit against the investor, as well as
other business partners for failing to warn him that the investor had made threats
against the plaintiff’s life. We ultimately found that there was no special
relationship between the business partners and the plaintiff and therefore no
affirmative duty to warn or protect. Iseberg, 227 Ill. 2d at 101. Of particular
relevance, here, is what we said in response to one of the plaintiff’s arguments. The
plaintiff had also advanced an argument that in situations where “some type of
relationship” exists between the parties, whether an affirmative duty may be
imposed should be decided based upon consideration of the four traditional duty
factors. Id. at 89. We took the opportunity to reiterate this court’s long history of
adherence to the no-affirmative-duty rule and the special relationship doctrine
before rejecting the plaintiff’s argument and reaffirming that the rule and doctrine
“stand as the law of this state.” Id. at 101.
¶ 38 Additionally, our appellate court has rejected attempts to hold universities
liable for harm perpetrated by one student upon another in the absence of a special
relationship. See Rabel v. Illinois Wesleyan University, 161 Ill. App. 3d 348,
361-63 (1987) (university neither had a duty to protect student, who was injured as
a result of a fraternity prank, in its capacity as landlord, nor had it voluntarily
assumed or placed itself in a custodial relationship with its students); Leonardi v.
Bradley University, 253 Ill. App. 3d 685, 690-91 (1993) (university had no duty to
protect student from sexual assault that occurred at a fraternity house since the
student did not qualify as a business invitee of the university).
¶ 39 Regarding cases that specifically address a national fraternity’s liability, we
note Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840 (Ky.
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2005). In Carneyhan, the Supreme Court of Kentucky explained that the “key” to
imposing a duty based on a special relationship is that the defendant’s relationship
with either the tortfeasor or the plaintiff “places the defendant in the best position to
protect against the risk of harm.” Id. at 850. It further explained that the defendant’s
ability to control the person who caused the harm “must be real and not fictional
and, if exercised, would meaningfully reduce the risk of the harm that actually
occurred.” Id. at 851. In declining to hold the national fraternity liable for the
actions of the local chapter in serving the underage plaintiff alcohol, which resulted
in the plaintiff’s death when she crashed her automobile into a utility pole, the court
relied on the national organizations’ inability to affirmatively monitor their local
chapters. Id. at 854. The court reasoned that national organizations do not have
sufficient resources to monitor the activities of their local chapters
contemporaneously with each chapter’s events and can only discipline a chapter
“after the fact.” (Internal quotation marks omitted.) Id.; see also Shaheen v. Yonts,
394 Fed. App’x 224, 229-30 (6th Cir. 2010) (national fraternity not liable for
fraternity member who drove away from local fraternity house party while
intoxicated and struck and killed pedestrian); Garofalo v. Lambda Chi Alpha
Fraternity, 616 N.W.2d 647, 654 (Iowa 2000) (national fraternity had no duty to
protect pledge from his excessive drinking that occurred after a big brother/little
brother ceremony since the national fraternity neither furnished the alcohol nor
forced him to consume any alcohol); Walker v. Phi Beta Sigma Fraternity,
96-2345, pp. 8-9 (La. App. 1 Cir. 12/29/97); 706 So. 2d 525, 529-30 (national
fraternity had no duty to prevent local chapter’s hazing of pledge by physical abuse
since the national fraternity was unable to control the day-to-day actions of the
local chapter, which was located several states away from the national fraternity);
Millard v. Osborne, 611 A.2d 715, 719-20 (Pa. Super. Ct. 1992) (national fraternity
had no duty to control the actions of its local chapter’s members, who furnished
alcohol at the fraternity house to a student who was killed shortly thereafter in a
motorcycle accident).
¶ 40 We also acknowledge, however, that some courts have held that a national
fraternity may be liable for the actions of its local chapters. See Grenier v.
Commissioner of Transportation, 51 A.3d 367, 389 (Conn. 2012) (the extent of the
national fraternity’s control over its local chapter’s actions raised a question of
material fact sufficient to preclude summary judgment); Brown v. Delta Tau Delta,
2015 ME 75, ¶ 10, 118 A.3d 789, 792 (national fraternity owed a duty based on a
- 14 ­
theory of premises liability to student who was sexually assaulted during fraternity
party); Morrison v. Kappa Alpha Psi Fraternity, 31,805, p. 16 (La. App. 2 Cir.
5/7/99); 738 So. 2d 1105, 1118-19 (national fraternity was liable to a pledge for the
actions of its local chapter because it had voluntarily assumed a duty to prevent
hazing but had acted negligently in performing its duty).
¶ 41 Notwithstanding the varied nuances of other jurisdictions’ determinations of a
national fraternity’s liability for the actions of a local chapter, Illinois jurisprudence
regarding an affirmative duty is clear. We find no basis to impose an affirmative
duty upon the Nationals absent a special relationship. Moreover, in Iseberg, we
stated that this court has never recognized an affirmative duty to protect or control
based upon consideration of the traditional four duty factors in the absence of a
special relationship. Iseberg, 227 Ill. 2d at 98.
¶ 42 Since we conclude that the Nationals did not owe a duty to the pledges, plaintiff
cannot establish a claim for negligence against them. See Bell v. Hutsell, 2011 IL
110724, ¶ 11 (unless a duty is owed, there can be no recovery in tort for
negligence). We affirm the appellate court’s dismissal of counts I and II of the
complaint.
¶ 43 Counts III through VIII—The NIU Chapter, Its Officers
and Pledge Board Members, and Active Members
¶ 44 We next turn to counts III through VIII of plaintiff’s complaint, which name the
NIU Chapter, its officers and pledge board members, and its active members.
Counts III and IV are directed at the NIU Chapter and its officers and pledge board
members (collectively officers) in their official capacities. Counts V and VI are
directed at the officers individually. Counts VII and VIII are directed at the active
members. 4 Defendants contend that they did not owe a duty to the pledges,
including David, either directly or based on a theory of voluntary undertaking.
4
The named officers are Alexander M. Jandick, James P. Harvey, Omar Salameh, Patrick
Merrill, Stephen A. Libert, John Hutchinson, and Daniel Biagini. The named active members are
Michael J. Phillip Jr., Thomas F. Costello, David R. Sailer, Alexander D. Renn, Michael A.
Marroquin, Estafan A. Diaz, Hazel A. Vergaralope, Michael D. Pfest, Andres Jimenez Jr., Isiah
- 15 ­
¶ 45 Plaintiff alleged in counts III and IV of his complaint that the NIU Chapter and
officers required pledges, including David, to participate in the “Mom and Dad’s
Night” pledge event as a condition of membership in the NIU Chapter and further
required the consumption of excessive and dangerous amounts of alcohol in
violation of the hazing statute. The counts also alleged that the officers failed to call
911 or seek medical attention for David, dissuaded others from obtaining medical
attention for him, and instead placed him on a bed in a room where he would not be
observed by others. Further, it was alleged that the officers failed to implement a
continuing risk education program, failed to create a continuing risk education
committee, and were otherwise careless and negligent.
¶ 46 To determine whether the NIU Chapter and officers owed a duty to the pledges,
we look to the reasonable foreseeability of the injury, the likelihood of the injury,
the magnitude of the burden of guarding against the injury, and the consequences of
placing that burden on the defendant. In deciding reasonable foreseeability, an
injury is not reasonably foreseeable where it results from “freakish, bizarre, or
fantastic circumstances.” Doe-3, 2012 IL 112479 ¶ 31. Regarding the first two
factors, we cannot say that, as a matter of law, an injury resulting from hazing is
freakish, bizarre, or occurs under fantastic circumstances. The existence of hazing
statutes across the country, including the Nationals’ written policy against hazing
as well as Illinois’s hazing statute, indicates that injury due to hazing is reasonably
foreseeable. We also find that injuries resulting from hazing events, especially
those involving the consumption of large amounts of alcohol, are likely to occur.
When pledges are required to consume large quantities of alcohol in short periods
of time, their risk of injury is great—not only physical injury due to their inebriated
condition but injury or death resulting from alcohol poisoning. Regarding the last
two factors, we find that the magnitude of the burden of guarding against injury is
small and the consequences of placing that burden on the NIU Chapter and officers
are reasonable. To require the NIU Chapter and officers to guard against hazing
injuries is infinitesimal. Hazing is not only against the law in Illinois, it is against
the university’s rules as well as the Pi Kappa Alpha fraternity’s rules. There can be
no real burden to require the NIU Chapter and officers to comply with the law and
Lott, Andrew W. Bouleanu, Nicholas A. Sutor, Nelson A. Irizarry, John Wallace, Daniel S. Post,
Nsenzi K. Salasini, Russell P. Coyner, Gregory Petryka, Kevin Rosetti, and Thomas Bralis.
- 16 ­
the university’s and fraternity’s rules. And it seems quite reasonable to place that
burden on the very people who are in charge of planning and carrying out the
pledge event. We find that the NIU Chapter and the officers owed a duty to the
pledges, including David, and plaintiff has sufficiently alleged a claim for
negligence against them. Since we conclude that a duty exists, we need not
determine whether a duty arose based on the theory of voluntary undertaking. We
affirm the appellate court’s reversal of the dismissal of counts III and IV.
¶ 47 Plaintiff alleged in counts V and VI of his complaint that the officers
individually “knowingly and willingly approved, organized, planned, promoted,
required and participated” in the “Mom and Dad’s Night” pledge event where
pledges would be required to consume dangerous and excessive amounts of alcohol
“to a point of insensate intoxication” as a condition to membership in the NIU
Chapter. The counts also alleged that the officers designated certain rooms and
areas in the fraternity house in which to place pledges, including David, who
became dangerously intoxicated and unconscious, failed to seek necessary medical
attention for the pledges, and were otherwise careless and negligent.
¶ 48 When we consider the four duty factors, we again find that the first two factors
weigh in favor of a duty because a hazing injury is reasonably foreseeable and is
likely to occur. Similarly, we find that the magnitude of the burden of guarding
against injury is small and the consequences of placing that burden on the officers
are reasonable. As stated above, requiring the officers to comply with the law and
the university’s and fraternity’s rules against hazing is an infinitesimal burden.
Placing that burden on the officers who are alleged to have planned, promoted, and
participated in the hazing event is reasonable. We find that the officers individually
owed a duty to the pledges, including David, and plaintiff has sufficiently alleged a
claim for negligence against them. Again, since we conclude that a duty exists, we
need not determine whether a duty arose based on the theory of voluntary
undertaking. We affirm the appellate court’s reversal of the dismissal of counts V
and VI.
¶ 49 Plaintiff alleged in counts VII and VIII of his complaint that the active members
“knowingly and willingly agreed” to participate in the “Mom and Dad’s Night”
pledge event that required pledges to consume dangerous and potentially fatal
amounts of alcohol as a condition of being accepted for membership in the NIU
- 17 ­
Chapter. The complaint further alleged that the members failed to seek medical
attention for David after he became dangerously intoxicated and unconscious,
placed him in a room where he would not be seen by others, and were otherwise
careless and negligent.
¶ 50 Considering the duty factors, as stated above, the first two factors weigh in
favor of a duty because a hazing injury is reasonably foreseeable and is likely to
occur. Also, as stated above, the magnitude of the burden of guarding against injury
is small, and the consequences of placing that burden on the members are
reasonable. Placing the burden on those members who are alleged to have
knowingly and willingly agreed to participate in the hazing event is reasonable. We
find that the members owed a duty to the pledges, including David, and plaintiff has
sufficiently alleged a claim for negligence against them. Since a duty exists, we
need not consider whether a duty arose based on voluntary undertaking. We affirm
the appellate court’s reversal of the dismissal of counts VII and VIII.
¶ 51 Counts IX and X—The Nonmember Sorority Women
¶ 52 Plaintiff alleged in counts IX and X of his complaint that the nonmember
sorority women participated in the “Mom and Dad’s Night” hazing event by filling
the pledges’ cups with vodka, asking the pledges questions, directing the pledges to
drink vodka based on the pledges’ answers, calling the pledges derogatory names,
and decorating “vomit buckets” for the pledges. 5 The complaint further alleged that
the nonmember women “encouraged” and “required” the pledges, including David,
to consume dangerous amounts of alcohol in violation of the hazing statute, gave
David excessive and dangerous amounts of alcohol after he had become obviously
and dangerously intoxicated, failed to seek medical attention for David, and were
otherwise careless and negligent.
5
The named nonmember sorority women are Alyssa Allegretti, Jessica Anders, Kelly Burback,
Christina Carrisa, Raquel Chavez, Lindsey Frank, Danielle Glennon, Kristina Kunz, Janet Luna,
Nichole Minnick, Courtney Odenthal, Logan Redfield, Katherine Reporto, Tiffany Scheinfurth,
Adrianna Sotelo, Prudence Willret, Karissa Azarela, Megan Ledone, Nicole Manfredini, Jillian
Merril, and Monica Skowron.
- 18 ­
¶ 53 The nonmember women argue they owe no duty to the pledges because the
hazing statute cannot apply to nonmembers of the organization into which
admission is sought since nonmembers cannot “require” prospective members to
perform any act. Further, they adopt the Nationals’ arguments that they do not owe
the pledges a duty because they have no control over the NIU Chapter’s activities.
¶ 54 As we have already determined above, a hazing injury is reasonably foreseeable
and is likely to occur. We also find that the magnitude of the burden of guarding
against the injury is minor for the aforementioned reasons. Yet whether the
consequences of placing this burden on nonmembers are reasonable is a much
thornier determination. On the one hand, the nonmember women were not alleged
to have had any part in planning the event, and they could not vote as to which
pledges would be admitted into the NIU Chapter. 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.” We see little difference
between the nonmember women’s participation in the hazing event and the
members’ participation. As we noted in our analysis regarding the members, it
seems quite reasonable to impose a duty on those individuals who actively
participated in the hazing event. The appellate court found that the nonmember
women did not have a duty because they could not have “required” David to drink
as provided in the hazing statute. However, the hazing statute does not include
language limiting its application to members of the organization in which a person
is seeking to join. The statute provides that “[a] person commits hazing when he or
she knowingly requires the performance of any act *** for the purpose of induction
*** into any group.” 720 ILCS 5/12C-50 (West 2012). Here, the message conveyed
to the pledges, whether by the members or the nonmember women, was the same:
Drink the vodka to become a member of the fraternity. The purpose of the hazing
statute is to prevent hazing. We refuse to read into it such a loophole that would
absolve a nonmember’s participation when the statute has no such limiting
language. The women were more than mere guests encouraging the pledges to
drink. They were an integral part of the event and, for purposes of that event,
occupied a similar position of influence over the pledges as the members did.
Further, we believe that public policy dictates imposing a duty. Hazing is illegal,
and those individuals who choose to participate in such acts should bear the
consequences of their actions. Under the circumstances alleged here, we find that
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the nonmember women owed a duty to the pledges, including David, and plaintiff
has sufficiently alleged a claim for negligence against them. We reverse the
appellate court’s dismissal of counts IX and X.
¶ 55 CONCLUSION
¶ 56 In summary, the complaint is dismissed as to the Pi Kappa Alpha national
organizations. The complaint may proceed against the NIU Chapter, its officers and
members, and the nonmember sorority women.
¶ 57 Accordingly, we affirm the appellate court’s dismissal of counts I and II of the
complaint. We affirm the appellate court’s reversal of the dismissal of counts III
through VIII of the complaint. We reverse the appellate court’s dismissal of counts
IX and X of the complaint. We remand the cause to the circuit court for further
proceedings consistent with this opinion.
¶ 58 Appellate court judgment affirmed in part and reversed in part.
¶ 59 Circuit court judgment affirmed in part and reversed in part.
¶ 60 Cause remanded.
¶ 61 CHIEF JUSTICE KARMEIER, concurring in part and dissenting in part:
¶ 62 Like Justice Theis, I join the majority’s opinion, except as to counts I and II of
the plaintiff’s fifth amended complaint. I agree with Justice Theis that those counts
should not have been dismissed. Reversal of the dismissal of those counts is
mandated by our decision in Simpkins, 2012 IL 110662, and the four traditional
duty factors. However, unlike Justice Theis, I would refrain from addressing the
special relationship doctrine. Therefore, I do not join the views expressed under the
headings “1. Special Relationships Between Defendants and Tortfeasors” and
“2. Special Relationships Between Defendants and Plaintiffs” of her partial
concurrence and partial dissent. See infra ¶¶ 79-100.
- 20 ­
¶ 63 JUSTICE THEIS, concurring in part and dissenting in part:
¶ 64 I join the majority’s opinion, except as to counts I and II of the plaintiff’s fifth
amended complaint. In my view, the plaintiff has sufficiently alleged a negligence
claim against the national organizations, Pi Kappa Alpha Corporation and Pi Kappa
Alpha International Fraternity.
¶ 65 This case comes before us on appeal from the trial court’s decision to grant the
national organizations’ motion to dismiss the plaintiff’s complaint under section
2-615 of the Code of Civil Procedure. 735 ILCS 5/2-615 (West 2014). Our review
of such a decision is de novo. Better Government Ass’n v. Illinois High School
Ass’n, 2017 IL 121124, ¶ 57. We must determine whether the allegations of the
plaintiff’s complaint and any reasonable inferences that arise from those
allegations, when viewed in the light most favorable to the plaintiff, are sufficient
to state a claim. Kanerva v. Weems, 2014 IL 115811, ¶ 33. We must accept as true
all well-pleaded facts, and we can affirm a section 2-615 dismissal only if it is
clearly apparent that no set of facts entitles the plaintiff to recover. Cowper v.
Nyberg, 2015 IL 117811, ¶ 12.
¶ 66 The majority begins its analysis of the plaintiff’s complaint by addressing the
two counts directed at the national organizations. According to the majority, the
plaintiff contends that the national organizations are vicariously liable for the
negligence of Northern Illinois University’s Pi Kappa Alpha chapter (NIU Chapter)
and its members and that the national organizations are also directly liable for their
own negligence. As the majority notes, both counts are substantively identical.
Count I is brought under the Wrongful Death Act (740 ILCS 180/1 et seq. (West
2016)), and count II is brought under the Survival Act (755 ILCS 5/27-6 (West
2016)). Neither count contains allegations of an agency relationship that would
support a vicarious liability claim. Despite the plaintiff’s argument to the contrary,
he did not offer sufficient facts to show that members of the NIU Chapter were
agents of the national organizations. The plaintiff maintained only that the
organizations “conducted their business of organizing, promoting[,] and recruiting
membership in Pi Kappa Alpha fraternities and organization through, among
others, [the NIU Chapter].” That statement is simply not enough to survive a
motion to dismiss.
- 21 ­
¶ 67 As the plaintiff reminds us, however, he faced a serious obstacle before the trial
court. The plaintiff conducted some initial discovery to learn the identities of the
NIU Chapter members and the nonmember women who were involved in the
events leading to David’s death, adding those individuals as defendants. Further
discovery was halted when the trial court granted the individual defendants’ motion
to stay discovery due to the pending criminal cases against them and the
accompanying fifth amendment concerns. The plaintiff later filed a motion for
leave to take discovery, stating that the criminal cases were nearing dispositions,
which would remove any such concerns. At a hearing on August 20, 2014, the trial
judge stated that she wanted “to get a good handle on what’s going on in DeKalb
after the criminal proceedings” before ruling on the plaintiff’s motion. On October
16, 2014, the trial court denied the plaintiff’s motion without comment about those
proceedings. On December 11, 2014, the trial court dismissed the plaintiff’s
complaint with prejudice, foreclosing any further fact development. Now that the
criminal charges against the individual defendants have been resolved, this court
should vacate the trial court’s order dismissing the plaintiff’s complaint with
prejudice and lift the trial court’s bar on discovery. The national organizations
acknowledge in their brief that active members of the NIU Chapter “were arguably
‘employed’ to secure new members for the ongoing stability of the national
Fraternity.” Allowing the plaintiff to depose the NIU Chapter members may
provide details about their interactions with the national organizations that could
establish an agency relationship and, therefore, vicarious liability. 6 See Kenner v.
6
Some courts have taken that route in determining that national organizations may be liable for
the conduct of local chapters and their members. See Ballou v. Sigma Nu General Fraternity, 352
S.E.2d 488, 496 (S.C. Ct. App. 1986) (holding that a national organization “was bound by the acts of
its local chapter *** since they were performed within the apparent scope of its authority”);
Marshall v. University of Delaware, 1986 WL 11566, *7 (Del. Super. Ct. Oct. 8, 1986) (holding that
“one might reasonably conclude” a local chapter’s “alleged failure to control its members was
within the scope of its alleged agency” with the national organization); Edwards v. Kappa Alpha Psi
Fraternity, Inc., No. 98 C 1755, 1999 WL 1069100, *6 (N.D. Ill. Nov. 18, 1999) (denying a national
organization’s summary judgment motion on a plaintiff’s vicarious liability claim because the
organization “may have possessed some control over its local members and their houses”); see also
Butler v. Gamma Nu Chapter of Sigma Chi, 445 S.E.2d 468, 482 (S.C. Ct. App. 1994); Supreme
Lodge of World, Loyal Order of Moose v. Kenny, 73 So. 519 (Ala. 1916); Thompson v. Supreme
Tent of Knights of Maccabees of the World, 82 N.E. 141 (N.Y. 1907); Mitchell v. Leech, 48 S.E. 290(S.C. 1904).
- 22 ­
Kappa Alpha Psi Fraternity, Inc., 2002 PA Super 269, ¶ 15 (stating that the trial
court erred in failing to “consider the full scope of the relationship as established by
the parties’ deposition testimony”).
¶ 68 The plaintiff’s chief allegations concern the direct liability of the national
organizations. To state a claim for negligence, a plaintiff must allege facts that
show the defendant owed a duty of reasonable care to the plaintiff, the defendant
breached that duty, and that breach was the proximate cause of the plaintiff’s
damages. See Simpkins v. CSX Transportation, Inc., 2012 IL 110662, ¶ 14. The
crux of this case is the duty element. 7 The plaintiff must convince us that the
national organizations owed David a duty because “[u]nless a duty is owed, there is
no negligence.” American National Bank & Trust Co. v. National Advertising Co.,
149 Ill. 2d 14, 26 (1992). The existence of a duty is a matter of law. Choate v.
Indiana Harbor Belt R.R. Co., 2012 IL 112948, ¶ 22.
¶ 69 The threshold inquiry in this case is whether the national organizations, by their
own acts or omissions, contributed to a risk of harm to David. See Simpkins, 2012
IL 110662, ¶ 21; see generally Restatement (Second) of Torts § 302B (1965) (“An
act or an omission may be negligent if the actor realizes or should realize that it
involves an unreasonable risk of harm to another through the conduct of the other
or a third person which is intended to cause harm, even though such conduct is
criminal.”); Restatement (Third) of Torts, Liability for Physical and Emotional
Harm § 37, cmt. d (2012) (“The Restatement Second of Torts § 302B, Comment e,
provides for a duty of care when ‘the actor’s own affirmative act has created or
exposed the other to a recognizable high degree of risk of harm through such
[third-party] misconduct.’ ”). If the answer to that question is yes, the analysis is
familiar. The court must weigh public policy considerations to determine whether
the national organizations owed David a duty of reasonable care. Simpkins, 2012 IL
Notably, the same attorney represented both the national organizations and the NIU Chapter
before the trial court, and new attorneys represent both the national organizations and the NIU
Chapter before this court. The relationship between those defendants may be closer than the national
organizations are willing to admit. See generally Cassandra Coolidge, Fraternizing With
Franchises: A Franchise Approach to Fraternities, 66 Emory L.J. 917 (2017).
7
Neither the national organizations nor the majority address or even dispute that the plaintiff’s
allegations of breach, causation, and damages are sufficient. I believe that they are, so I confine my
discussion to the sufficiency of the plaintiff’s allegations as they concern duty.
- 23 ­
110662, ¶ 21. Traditionally, we have reduced those considerations to four factors:
(1) the foreseeability of the plaintiff’s injury, (2) the likelihood of that injury,
(3) the magnitude of the burden to guard against that injury, and (4) the
consequences of placing that burden on the defendant. Id. ¶ 18. Generally, we
balance the foreseeability and likelihood of harm against the burdens and
consequences of imposing a duty on the defendant for the benefit of the plaintiff
(Hutchings v. Bauer, 149 Ill. 2d 568, 571 (1992)), and the weight accorded to those
factors depends upon the details of the case (Bruns v. City of Centralia, 2014 IL
116998, ¶ 14). However, if the answer to the threshold question is no, the analysis
shifts. The court must look for a so-called “special relationship” that establishes a
duty. Simpkins, 2012 IL 110662, ¶ 21.
¶ 70 The majority ignores the threshold question and rushes to the conclusion that
the plaintiff seeks to hold the national organizations liable for “the criminal conduct
of the NIU Chapter, its members, and the nonmember sorority women.” Supra
¶ 32. The majority recharacterizes the plaintiff’s allegations: “Essentially, what
[the] plaintiff’s complaint alleges is that the [national organizations] should have
taken certain affirmative action to protect the pledges from hazing and to control
the criminal conduct of those who participated in the hazing.” Supra ¶ 32. The
majority then states that an affirmative duty to aid or protect arises only when there
is a special relationship between the defendant and the plaintiff or between the
defendant and the third party who injured the plaintiff. Supra ¶ 33. The majority
concludes that the national organizations did not owe a duty to David because this
case does not involve such a relationship. Supra ¶ 35.
¶ 71 The majority’s casual logic is troubling for two reasons. First, the majority
abandons the principle of party presentation, and second, the majority compounds
that error by oversimplifying the unbriefed issues that it chooses to address
sua sponte.
¶ 72 Our precedent counsels adherence to the principle of judicial restraint. See
People v. White, 2011 IL 109689, ¶ 153 (“courts of review *** are not free rangers
riding about the legal landscape looking for law to make”). Undoubtedly, a
reviewing court has the power to decide issues that the parties have not raised (see
Ill. S. Ct. R. 366(a)(5) (eff. Feb. 1, 1994)) but should refrain from doing so when it
would transform the court from arbiter to advocate. As this court has stressed, we
- 24 ­
follow the principle of party presentation, relying on the parties to frame the issues
for decision. People v. Givens, 237 Ill. 2d 311, 323 (2010). Our adversary system
works best when the parties themselves advance their best arguments (Greenlaw v.
United States, 554 U.S. 237, 244 (2008)) and we hear from both sides pursuant to
our motto, audi alteram partem. When we address unbriefed issues, we are “forced
to speculate as to the arguments that the parties might have presented had these
issues been properly raised before this court. To engage in such speculation would
only cause further injustice ***.” People v. Rodriguez, 336 Ill. App. 3d 1, 14
(2002); see People v. Boeckmann, 238 Ill. 2d 1, 13 (2010) (“it is not appropriate to
address the issue in this case where the parties have not raised or argued it”); accord
Roberts v. Northland Insurance Co., 185 Ill. 2d 262, 270 (1998).
¶ 73 As the majority recognizes, the parties here focused on only the four traditional
duty factors and did not raise the so-called “no-affirmative-duty” rule and the
special relationship doctrine in either the appellate court or this court. Supra ¶ 34.
The majority acknowledges that shortcoming but proceeds with a “nevertheless”
shrug to discuss those issues anyway (supra ¶ 35), ultimately holding in a case of
first impression that national fraternal organizations have no special relationship
either with their local chapters and members or with their pledges and,
consequently, owe no duty to pledges who die during membership or initiation
events purportedly encouraged and sanctioned by the organizations.
¶ 74 The Special Relationship Doctrine
¶ 75 The majority presents the relevant blackletter law superficially. This court has
stated that a defendant has no affirmative duty to protect a plaintiff from a
third-party tortfeasor, absent a special relationship between either the defendant
and the plaintiff or the defendant and the tortfeasor. See Simpkins, 2012 IL 110662,
¶ 20. That is a paraphrase of section 315 of the Second Restatement of Torts:
“There is no duty so to control the conduct of a third person as to prevent
him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which
imposes a duty upon the actor to control the third person’s conduct, or
- 25 ­
(b) a special relation exists between the actor and the other which gives
to the other a right to protection.” Restatement (Second) of Torts § 315
(1965).
Section 37 of the Third Restatement similarly provides, “An actor whose conduct
has not created a risk of physical or emotional harm to another has no duty of care
to the other unless” one of the affirmative duties listed in sections 38 to 44 applies.
Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 37
(2012).
¶ 76 This court has recognized four special relationships between defendants and
plaintiffs that may give rise to duties: common carrier/passenger, innkeeper/guest,
possessor of land/invitee, and custodian/ward. See Simpkins, 2012 IL 110662, ¶ 20
(citing Marshall v. Burger King Corp., 222 Ill. 2d 422, 438 (2006)); Iseberg v.
Gross, 227 Ill. 2d 78, 88 (2007) (“The existence of one of these four ‘special
relationships’ has typically been the basis for imposing an affirmative duty to act
where one would not ordinarily exist.”); see generally Restatement (Second) of
Torts § 314A (1965); Restatement (Third) of Torts: Liability for Physical and
Emotional Harm § 40(b) (2012). This court also has recognized several special
relationships between defendants and tortfeasors—parent/child and master/servant
or employer/employee—that also may give rise to duties. Simpkins, 2012 IL
110662, ¶ 20; see Norskog v. Pfiel, 197 Ill. 2d 60, 84 (2001) (parent/child); Hills v.
Bridgeview Little League Ass’n, 195 Ill. 2d 210, 234 (2000) (master/servant); see
generally Restatement (Second) of Torts §§ 316, 317 (1965); Restatement (Third)
of Torts, Liability for Physical and Emotional Harm § 41 (2012).
¶ 77 The majority states that “this court has never recognized an affirmative duty to
protect or control based upon consideration of the traditional four duty factors in
the absence of a special relationship.” Supra ¶ 41 (citing Iseberg, 227 Ill. 2d at 98).
The majority forgets that special relationships between defendants and tortfeasors
or between defendants and plaintiffs are not a closed set. Comment g to section 37
of the Third Restatement instructs, “The Sections recognizing certain relationships
as imposing an affirmative duty are stated nonexclusively, leaving to the courts
whether to recognize additional relationships as sufficient to impose an affirmative
duty.” Restatement (Third) of Torts: Liability for Physical and Emotional Harm
§ 37, cmt. g (2012); see Iseberg, 227 Ill. 2d at 88 n.4 (noting that section 40 of the
- 26 ­
2005 final draft of the Third Restatement added new special relationships); see
generally Prosser and Keeton on the Law of Torts § 53, at 359 (W. Page Keeton
et al. eds., 5th ed. 1984) (“Changing social conditions lead constantly to the
recognition of new duties.”).
¶ 78 The Restatement plainly establishes that what the majority terms the special
relationship doctrine continues to evolve, as courts and commentators across the
country grapple with its scope and its application in new contexts. The issues
presented by the doctrine involve arguments over public policy, but the parties in
this case have been robbed of an opportunity to make those arguments by the
majority, which has abandoned our typical search for a careful and deliberate
decision via the adversarial system for a simple, result-oriented answer by fiat.
Because the majority has chosen that ill-advised route, and offered a truncated
special-relationship argument on behalf of the national organizations that they
never imagined, I will offer some more comprehensive points that the plaintiff
might have raised. I will address in turn both the defendant/tortfeasor and the
defendant/plaintiff aspects of the special relationship doctrine.
¶ 79 1. Special Relationships Between Defendants and Tortfeasors
¶ 80 Regarding a special relationship between a defendant and a tortfeasor that may
give rise to a duty in favor of a plaintiff, the majority concludes that the plaintiff’s
complaint does not “adequately plead a parent-child relationship or master-servant
or employer-employee relationship.” Supra ¶ 35. That conclusion seems to be
based upon Simpkins, where the court offered the aforementioned exceptions to the
general rule of no affirmative duty. See Simpkins, 2012 IL 110662, ¶ 20 (citing
Restatement (Second) of Torts §§ 316, 317 (1965)). Of course, there is no way that
the plaintiff could plead that the national organizations and the NIU Chapter
members stood in a parent-child or employer-employee relationship, so the
majority’s reference to those exceptions is specious. Further, as I have noted, the
plaintiff has not sufficiently pleaded a master-servant relationship between the
national organizations and the local members, though facts establishing such a
relationship could become known through discovery.
- 27 ­
¶ 81 The primary weakness of the majority’s opinion is its incompleteness. The
Second Restatement, cited so prominently in Simpkins, also contains section 319,
which provides:
“One who takes charge of a third person whom he knows or should know to
be likely to cause bodily harm to others if not controlled is under a duty to
exercise reasonable care to control the third person to prevent him from doing
such harm.” Restatement (Second) of Torts § 319 (1965).
Section 41 of the Third Restatement has replaced sections 316, 317, and 319 of the
Second Restatement and states:
“(a) An actor in a special relationship with another owes a duty of
reasonable care to third parties with regard to risks posed by the other that arise
within the scope of the relationship.
(b) Special relationships giving rise to the duty provided in Subsection (a)
include:
(1) a parent with dependent children,
(2) a custodian with those in its custody,
(3) an employer with employees when the employment facilitates the
employee’s causing harm to third parties, and
(4) a mental-health professional with patients.” Restatement (Third) of
Torts: Liability for Physical and Emotional Harm § 41 (2012).
Notably, comment i to that section instructs, “the list of special relationships *** is
not exclusive,” so “[c]ourts may decide that additional relationships justify
exceptions to the no-duty rule.” Id. § 41, cmt. i.
¶ 82 Both section 319 of the Second Restatement and section 41 of the Third
Restatement intimate that when the relationship between the defendant and the
tortfeasor involves a measure of control, a duty may exist for the benefit of a
plaintiff. See Marshall, 1986 WL 11566, *4 (“By using the language ‘take charge’,
the [Second] Restatement finds the duty to control the conduct of another primarily
in the extent to which one has the power or ability to control another.”);
- 28 ­
Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 41, cmt.
c (“the relationships identified in this Section are ones in which the actor has some
degree of control over the other person”); Byron L. Leflore, Jr., Alcohol and Hazing
Risks in College Fraternities: Re-Evaluating Vicarious and Custodial Liability of
National Fraternities, 7 Rev. Litig. 191, 224 (1988) (counseling national
organizations to “sever ties to whatever extent is necessary to counterbalance the
implication of control”).
¶ 83 The majority discusses a sole out-of-state case, Grand Aerie Fraternal Order of
Eagles v. Carneyhan, 169 S.W.3d 840 (Ky. 2005), involving a national fraternal
organization. In Carneyhan, the Kentucky Supreme Court held that a national
organization owed no duty to a young woman who drank alcohol at a local chapter
and later died when the automobile that she was driving collided with a traffic pole.
The court stated that, in evaluating negligence claims involving “less well-settled
special relationships,” the key has been “an ability to control in a manner that
would be meaningful in the prevention of the harm that actually occurred.” Id. at
852. That is, “ ‘in order for a special relation to exist between the defendant and the
third person, the defendant must have the ability to control the third person’s
conduct.’ ” Id. at 853 (quoting Estates of Morgan v. Fairfield Family Counseling
Center, 673 N.E.2d 1311, 1322 (Ohio 1997)). The court clarified that “the ability of
control is not the fictitious control which provides the basis for vicarious liability”
but, rather, control “in a very real sense” that “includes some sort of leverage” that
could prevent “the harm caused by the person under control.” (Internal quotation
marks omitted.) Id. The court determined that the national organization’s sole
means of control over the local chapter was the ability to revoke its charter and
concluded that that ex post facto sanction was not actual control that would support
imposition of a duty on the national organization. Id. at 853-54.
¶ 84 The result in Carneyhan is fact specific, but its holding that “less-settled”
special relationships—i.e., special relationships beyond those mentioned in the
Restatements—may be established by showing that the defendant somehow
exercised control over the tortfeasor is important. That point is echoed in the other
cases cited by the majority. See Garofalo v. Lambda Chi Alpha Fraternity, 616
N.W.2d 647, 654 (Iowa 2000); Walker v. Phi Beta Sigma Fraternity, 96-2345, pp.
8-9 (La. App. 1 Cir. 12/29/97); 706 So. 2d 525, 529; Shaheen v. Yonts, 394 Fed.
App’x 224 (6th Cir. 2010); Millard v. Osborne, 611 A.2d 715, 719 (Pa. Super. Ct.
- 29 ­
1992). It is further echoed in cases that the majority fails to cite. See Smith v. Delta
Tau Delta, Inc., 9 N.E.3d 154, 163 (Ind. 2014); Yost v. Wabash College, 3 N.E.3d
509, 521 (Ind. 2014); Foster v. Purdue University Chapter, The Beta Mu of Beta
Theta Pi, 567 N.E.2d 865, 872 (Ind. Ct. App. 1991); Colangelo v. Tau Kappa
Epsilon Fraternity, 517 N.W.2d 289, 292 (Mich. Ct. App. 1994); Alumni Ass’n v.
Sullivan, 572 A.2d 1209, 1213 (Pa. 1990). The courts in those cases all agree that
national organizations lack control over local chapters and their members, but their
reasoning is underdeveloped. Essentially, the courts mention distance and the
logistical impediments that it poses to control.
¶ 85 Courts in several additional states have looked more closely at the relationship
between national organizations and local chapters and found that national
organizations may exercise some measure of control over local chapters and their
members. See Grenier v. Commissioner of Transportation, 51 A.3d 367, 389
(Conn. 2012) (“plaintiff presented evidence sufficient to create a genuine issue of
material fact that [the national organization] was sufficiently involved with the
activities of [the local chapter] to owe [the plaintiff’s decedent] a duty of care”);
Marshall, 1986 WL 11566, *8 (holding that the national organization “has a duty to
take reasonable steps to control the conduct” of the local chapter and its members);
Brown, 2015 ME 75, ¶ 23 (“In short, the national fraternity does more than simply
suggest that its members conform to certain norms; it enforces its rules, regulations,
and codes of conduct through constant monitoring, oversight, and intervention.”);
Kenner, 2002 PA Super 269, ¶ 15 (“The consequences of imposing this duty on
[the fraternity] is minimal as it has taken steps to protect initiates by banning hazing
and instituting new intake procedures.”); Mann v. Alpha Tau Omega Fraternity,
Inc., No. W2012-00972-COA-R3-CV, 2013 WL 1188954, at *7 (Tenn. Ct. App.
Mar. 22, 2013) (“that [the national organization] undisputedly does not supervise
the day-to-day operations of its local chapters does not equate to a finding that it
could not exercise such supervision if it desired to do so or that it should not
exercise such supervision based upon public policy considerations” (emphases in
original)); Alexander v. Kappa Alpha Psi Fraternity, Inc., 464 F. Supp. 2d 751, 756
(M.D. Tenn. 2006) (denying the national organization’s motion for summary
judgment, stating “a reasonable jury could conclude that [the organization] was on
notice that hazing may have been occurring at [the local chapter],” so the
organization “had a duty to prevent hazing-related injuries from taking place
there”).
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¶ 86 The reasoning in those cases is significantly more robust than the cases cited by
the majority. Together, the latter set of cases stands for the proposition that control
depends upon more than distance. Control depends upon facts, including the
national organization’s constitution and bylaws; the national organization’s
financial ties to local chapters; the national organization’s rules and guidelines
regarding risk and crisis management; the national organization’s ability to dictate
to local chapters specific procedures regarding recruitment and initiation; the
national organization’s ability to censure and punish local chapters and their
members; the national organization’s oversight via its own personnel to ensure
compliance with fraternity and university policies, as well as local laws; and the
national organization’s knowledge that its policies are not being followed or that
the local chapter is engaging in inappropriate behavior. Those facts have allowed
those courts to establish that national organizations owe a duty of reasonable care.
¶ 87 Here, the national organizations discuss control in the context of the four
traditional duty factors, but their arguments are relevant to whether there is a
special relationship between the organizations and the NIU Chapter that could
support a duty. The national organizations contend that they suffer from a “basic
inability to reasonably control the day-to-day operations of hundreds of chapters
across the country” and insist that they are “simply unable to prevent local
members from hazing activities without the imposition of essentially impossible
burdens.” The national organizations, however, do not describe or quantify those
burdens, other than to imagine daily telephone calls from their Memphis,
Tennessee, headquarters to local chapters across the country for assurances that no
alcohol consumption or hazing is taking place in each chapter house. The national
organizations further posit “the need to station a monitor in each chapter house.”
According to the national organizations, both scenarios would be “astronomically
expensive—and at a cost that could only be passed on to the members of the
fraternity.”
¶ 88 The plaintiff’s complaint forcefully counters the national organizations’ feeble
insistence that they lacked control over the NIU Chapter. The plaintiff alleged that
the pledge event at which David died, a “Mom and Dad’s Night” or “Greek Family
Night,” is “a common fraternity pledging activity practiced in the same or similar
forms by chapters of *** Pi Kappa Alpha *** and other fraternities and sororities
- 31 ­
throughout the country.” 8 The plaintiff then alleged that representatives of the
national organizations told local chapter officers and members that such events
were “good for pledge and member retention” and encouraged the officers and
members to hold a “Greek Family Night” event as part of the NIU Chapter’s
pledging process. The officers and members supposedly took that coaxing to heart,
feeling that a family night “would improve the fraternity’s retention of pledges as
active members, thereby benefitting the entire Pi Kappa Alpha organization
through increased income from member dues.”
¶ 89 The plaintiff’s description of the national organizations’ advice dovetailed into
his description of their business. According to the plaintiff, the national
organizations were “engaged in the business of organizing, promoting, and
recruiting membership” in local chapters. The plaintiff alleged that the national
organizations, “as further part of their business, supervised, advised[,] required[,]
and controlled the activities and conduct” of local chapters and specifically the NIU
Chapter. That control included “specifically binding, mandatory[,] and required
adherence to the fraternity Constitution [and] Risk Assessment Manual[,] Chapter
Codes[,] and its quarterly publication The Shield and Diamond and The Garnet and
Gold pledge manual.” The plaintiff claimed that collectively those items
established an antihazing policy and “directed local chapters to employ certain
recruiting techniques.”
¶ 90 The plaintiff continued by alleging that the national organizations’ documents
and publications gave them powers over the local chapters and their members:
“Through the fraternity Constitution, Chapter Codes, Risk Assessment
Manual[,] and publications such The Garnet and Gold and The Shield and
Diamond[,] [the national organizations] had the right and the power to expel,
suspend[,] or place restrictive remedial conditions on continued operations of
local chapters without notice or proof of a violation of any standard, law[,] or
rule, and particularly reserved the right and power to assist local chapters in the
conduct of rush or pledging activities or require alcohol or hazing education;
and further, through the same sources, had the right and power to expel,
8
Indeed, a similar event—“Pledge Dad Night”—led to the plaintiff’s injury in Quinn v. Sigma
Rho Chapter of Beta Theta Pi Fraternity, 155 Ill. App. 231, 233-34 (1987).
- 32 ­
suspend[,] or place individual members of local chapters on ‘alumni status’
without notice of proof of a violation of any standard, law[,] or rule; further [the
national organizations] had the right[,] power[,] and authority to ban and
prohibit pledging activities outright at local chapters, including [the NIU
Chapter].”
¶ 91 Those allegations create an inference that some of the national organizations’
publications and documents, particularly those related to risk assessment and
management, provided rules for local chapters and their members to follow,
violations of which could subject local chapters and their members to removal from
the fraternity. 9
9
That inference is more than borne out by the specifics of the national organizations’ risk
management manual, to which the plaintiff refers.
Pi Kappa Alpha is a member of the Fraternity Executives Association (FEA). See Fraternity
Members, Fraternity Executives Ass’n, http://fea-inc.org/fraternity-members.html (last visited Jan.
16, 2018). The FEA created the Fraternal Information & Programming Group (FIPG), whose risk
management manual labels it “[a] risk management association of men’s and women’s national and
international fraternities and sororities.” FIPG Risk Management Manual, FIPG, Inc. (Jan. 2013),
http://0104 nccdn.net/1_5/161/330/2d3/FIPG_MANUAL.pdf. At the time of David’s death in 2012,
the 2007 version of the manual was in effect. That manual, in turn, contained an appendix with a
crisis management plan. See Caitlyn Flanagan, The Dark Power of Fraternities, The Atlantic (Mar.
2014), https://www.theatlantic.com/magazine/archive/2014/03/the-dark-power-of-fraternities/
357580/ (“[T]he Fraternal Information and Programming Group’s chillingly comprehensive
crisis-management plan was included in its [risk management] manual for many years. But in 2013,
the plan suddenly disappeared from its pages.”). Both documents are widely available online
through college and university websites, as well as fraternity and sorority websites. See, e.g., FIPG
Training and Resource Manual (Sara Hillis ed., Spring 2009), https://
www.lycoming.edu/StudentPrograms/pdfs/FIPGManual.pdf; see also FIPG Risk Management
Manual, FIPG, Inc. (Dec. 2003), http://deanofstudents.utexas.edu/sfl/downloads/fipg.pdf (2003
version of the FIPG Risk Management Manual).
The 2007 crisis management plan offered step-by-step “procedures to be followed” by chapter
presidents in the event of “a situation, emergency or tragedy.” Those procedures are very specific.
Chapter presidents were given a script entitled “Ask these questions” for an “emergency planning
session” with other officers and at least one alumnus. Those questions involved developing a list of
seven worst-case scenarios because “[n]o one enjoys discussing a tragic fire or the death of a
member, but those occur.” Chapter presidents were instructed to inquire of their colleagues how to
prepare for each listed situation and to make a “Who to call” list of police and fire departments,
regional and local fraternity volunteers, and even college or university administrators. The plan
cautioned, however, “Be certain to check with your Headquarters staff as to contacting
- 33 ­
¶ 92 The national organizations allegedly engaged in some level of supervision over
the local chapters that gave them specific and alarming information about the NIU
Chapter. The plaintiff asserted:
“Through annual Chapter Consultant on site week long assessments of each
local operations sought and obtained detailed, granular knowledge about the
conduct and operations of local chapters, preparing detailed Chapter Consultant
Reports analyzing each chapters’ recruitment performance, continuing risk
awareness education, alumni relations, finances, housing, management,
athletics, scholarship, campus involvement, community service, [and] public
relations; in particular, [the national organizations] knew through its Chapter
Consultant’s reports that [the NIU Chapter] for at least three years before and
on November 1, 2012[,] that [the NIU Chapter] did not provide continuing risk
education to members, did not have a risk awareness program, had no written
crisis management plan and, upon information and belief, had no functioning
risk management committee; and further [the national organizations] knew,
administrators—in some cases, someone from the national organization may wish to make that
call.” In bold letters, the plan reiterated:
“Regardless of the situation, circumstances or day or time….it is always better to call your
national headquarters or a volunteer. Let them ‘make the call’ as to whether a situation is an
emergency or less significant. Someone will be available. They would much rather hear about a
situation from you at 3:27 a.m. than receive an 8:01 a m. telephone call from a reporter asking
for a comment about, ‘The situation involving your chapter at ___.”
The plan then provided more directions for chapter presidents once a situation has occurred.
Chapter presidents were told to “[o]btain the facts” (emphasis in original) and relay them to persons
on the call list, then call a meeting of local chapter members and pledges at which the president
exhibits control over the situation. Chapter presidents should inform the members and pledges about
what occurred and about the need for confidentiality. Chapter presidents are “the primary or key
contact person” and will represent the chapter at any meetings or hearings. Chapter presidents,
however, may defer any spokesperson duties to the national headquarters staff. The plan, again in
bold letters, emphasizes the role of the national organizations: “Your national organization may
have a different procedure to follow and that will be your guide.”
The penultimate item in the plan concerned a special situation: “IF A MEMBER IS INJURED,
BECOMES SERIOUSLY ILL, OR DIES.” On that topic, the plan directed:
“Do not notify parents or other family members. Leave notification of the parents to the
professionals—law enforcement, medical staff, university administrators.
These situations do require immediate notification of the appropriate national headquarters
staff member and/or volunteers. They can advise you as to the appropriate response to a
situation.”
- 34 ­
through their Consultant Reports that [the NIU Chapter] had a reputation,
stigma[,] and image on the Northern Illinois University campus as a fraternity
of ‘meatheads’ and recommended diversifying their activities on campus to
develop a more positive image.”
¶ 93 Then the plaintiff continued by addressing why the national organizations were
“present in and engaged in” recruitment of new members. According to the
plaintiff, the national organizations are “supported by fees collected by local
fraternity chapters, including [the NIU Chapter], from fraternity members and
prospective members or pledges.” The plaintiff further stated that the national
organizations “derived at least 75% of [their] gross income from undergraduate
dues and fees and were therefore acutely dependent on continued and increasing
such dues and fees.” Thus, the officers and members of the NIU Chapter knew that
staying in the good graces of the national organizations required a steady cash flow
from such dues and fees. The national organizations “specifically authorized,
directed, required[,] and empowered [their] local fraternity chapters, including [the
NIU Chapter,] to collect initiation and other fees from fraternity pledges and to
initiate pledges” into the fraternity.
¶ 94 Reading the complaint in the light most favorable to the plaintiff, the national
organizations exercised “some degree of control” over the NIU Chapter and its
members. Restatement (Third) of Torts: Liability for Physical and Emotional Harm
§ 41, cmt. c (2012). The national organizations’ documents and publications,
including their risk assessment manual, established rules to govern the conduct of
local chapters and their members; violations of those rules, even without notice of
proof, could subject chapters and members to expulsion or suspension. The
national organizations were concerned with member recruitment and retention, and
they maintained the power to assist rush or pledging activities at local chapters or to
ban such activities altogether. Additionally, there were financial ties between the
national organizations and local chapters. Not only do the national organizations
rely heavily upon dues and fees generated and collected by local chapters, they also
review the finances of local chapters on an annual basis. 10 Finally, the national
10
The national organizations concede many of those points in their brief, where they state that
“a national fraternity has the right to suspend or revoke a chapter’s charter after a violation occurs;
provide advice; issue rules and standards; and receive dues from the chapter.”
- 35 ­
organizations, through its chapter consultants, exercised oversight of local
chapters. And the chapter consultant responsible for the NIU Chapter had specific
knowledge that that chapter had had no risk management program or crisis
management plan for three years before David died.
¶ 95 If the plaintiff had made this argument, I may well have concluded that the
national organizations exercised sufficient control over the NIU Chapter and its
members to find a special relationship that justifies imposing a duty on the national
organizations. That conclusion remains conditional because I do not know how the
national organizations would have responded.
¶ 96 2. Special Relationships Between Defendants and Plaintiffs
¶ 97 Regarding a special relationship between a defendant and a plaintiff that may
give rise to a duty, the majority concludes that the plaintiff’s complaint does not
“plead specific facts that would come within any of the [four] legally recognized
special relationships”—common carrier/passenger, innkeeper/guest, possessor of
land/invitee, and custodian/ward. Supra ¶ 35. That conclusion is correct but
deficient.
¶ 98 Section 314A of the Second Restatement catalogs those four special
relationships (Restatement (Second) of Torts § 314A (1965)), and section 40(b) of
the Third Restatement adds three more—employer/employee, school/student, and
landlord/tenant (Restatement (Third) of Torts: Liability for Physical and Emotional
Harm § 40(b) (2012)). Comment o to section 40 of the Third Restatement reiterates
that that list of relationships is not exclusive (Id. § 40, cmt. o), and comment h
offers a rationale for this branch of the special relationship doctrine and explains
when it may be appropriate to expand it:
“The term ‘special relationship’ has no independent significance. It merely
signifies that courts recognize an affirmative duty arising out of the relationship
where no duty would exist pursuant to § 37. Whether a relationship is deemed
special is a conclusion based on reasons of principle or policy.
*** No algorithm exists to provide clear guidance about which policies in
which proportions justify the imposition of an affirmative duty based on a
- 36 ­
relationship. The special relationships established by this Section are justified
in part because the reasons for the no-duty rule in § 37 are obviated by the
existence of the relationship. *** In addition, some relationships necessarily
compromise a person’s ability to self-protect, while leaving the actor in a
superior position to protect that person. Many of the relationships also benefit
the actor.” Id. § 40, cmt. h.
See also id. § 40, Reporter’s Note, cmt. h (“Courts frequently rely on the
differential capacity for protection resulting from the relationship as a justification
for finding the relationship to be special. *** That a defendant derives a
commercial advantage from the relationship has also been influential in the
identification of special relationships.”).
¶ 99 The relationship between the national organizations and pledges like David
appears to check both boxes. Though the relationship between national
organizations and their pledges has been termed “fraternal” and “a fellowship of
equals” (Sullivan, 572 A.2d at 1213), the reality is quite different; it is coercive and
financial. As the plaintiff has alleged, the national organizations were engaged in
the business of recruiting new members and derived most of their income from fees
paid by members and pledges. See Kenner, 2002 PA Super 269, ¶ 15 (stating that
the relationship between a national fraternity and prospective member “is, at a
minimum, contractual in nature, requiring performance by both parties”). The
national organizations also dictated the contents of the pledgeship and initiation
process, encouraging events such as “Mom & Dad’s Night” because they served
the dual goals of recruitment and retention. To pledges like David, that event was
mandatory, a prerequisite for membership. Seeking the prestige of what being a Pi
Kappa Alpha meant, as well as housing for the following school year, pledges put
themselves at the mercy of the fraternity. And in doing so, they became unable to
protect themselves. See Krueger v. Fraternity of Phi Gamma Delta, Inc., No.
004292G, 2001 WL 1334996, at *3 (Mass. Super. Ct. 2001) (accepting the
plaintiff’s argument that the national organization “had a strong interest in
recruiting new pledges to bolster its ranks and that this, combined with [the
plaintiff’s decedent’s] need for university housing and desire to become a fraternity
brother, created a situation where he was pressured or coerced into performing the
fraternity rituals” that killed him); Oja v. Grand Chapter of Theta Chi Fraternity
Inc., 667 N.Y.S.2d 650, 652 (Sup. Ct. 1997) (stating that no moral “revulsion seems
- 37 ­
justified” against imposing liability “in relation to the injuries and deaths sustained
by adolescents who, however unwisely, trade their insecurities and free will for the
promise of acceptance, and prestige, that fraternity membership appears to
confer”); Thomas v. Lamar University-Beaumont, 830 S.W.2d 217, 219 (Tex. Ct.
App. 1992) (reversing the trial court’s summary judgment order in favor of the
national organization, stating that the organization “clothed its members with the
indicia of a fraternal organization and a mystique powerful enough to entice adult
university students to run around a building carrying cups or brand Greek letters on
their bodies”); see also Ballou, 352 S.E.2d at 496 (concluding that the plaintiff
“placed himself at the local chapter’s disposal on hell night only because he wanted
to become an active brother” of the national organization). “[T]he more prestigious
the fraternity, the greater the pressure applied to the pledge seeking admission, and
the more culpable the national fraternity in donating its good name to be used to
convince pledges to submit themselves to the very activities that caused them
injury—implicating the national directly.” Jared S. Sunshine, A Lazarus Taxon in
South Carolina: A Natural History of National Fraternities’ Respondeat Superior
Liability for Hazing, 5 Charlotte L. Rev. 79, 127 (2014); cf. Haben v. Anderson,
232 Ill. App. 3d 260, 266 (1992) (stating that when club membership is a “much
valued status” and “great pressure” is applied to comply with de facto membership
qualifications, a college student may be “blinded to the dangers he was facing”);
Quinn, 155 Ill. App. 3d at 237 (highlighting the “high esteem” in which a fraternal
organization is held).
¶ 100 Thus, if the plaintiff had made that argument, I may well have concluded that
the relationship between the national organizations and pledges like David was
akin to other special relationships so as to justify imposing a duty on the national
organizations. Again, that conclusion remains conditional because I do not know
how the national organizations would have responded. To reiterate: The parties did
not brief any issues surrounding the special relationship doctrine. Our analytical
attention would be better spent elsewhere.
¶ 101 Simpkins and the Four Traditional Duty Factors
¶ 102 Any speculation as to arguments that the parties may have made under the
special relationship doctrine is not only unwise (Sunshine, supra, at 130 (“the
- 38 ­
‘special relationship’ approach *** creates powerfully perverse incentives for the
national [organization] to be derelict in its duties”)) but also unnecessary.
¶ 103 Comment e to section 302B of the Second Restatement teaches:
“There are *** situations in which the actor, as a reasonable man, is required to
anticipate and guard against the intentional, or even criminal, misconduct of
others. In general, these situations arise where the actor is under a special
responsibility toward the one who suffers the harm, which includes the duty to
protect him against such intentional misconduct; or where the actor’s own
affirmative act has created or exposed the other to a recognizable high degree
of risk of harm through such misconduct, which a reasonable man would take
into account.” (Emphasis added.) Restatement (Second) of Torts § 302B cmt. e
(1965).
See id. § 302B, cmt. e, illus. D (“Where the actor has brought into contact or
association with the other a person whom the actor knows or should know to be
peculiarly likely to commit intentional misconduct, under circumstances which
afford a peculiar opportunity or temptation for misconduct.”).
¶ 104 A fair reading of counts I and II of the plaintiff’s complaint reveals that he
alleges the national organizations, through their own affirmative acts or omissions,
contributed to the risk of harm that ultimately killed David. Specifically, the
plaintiff alleges that the national organizations “[p]ermitted and allowed dangerous
pledge events being undertaken by local *** chapters, including [the NIU Chapter],
which required excessive and dangerous consumption of alcohol to the point of
insensate intoxication in violation of the [Hazing Act];” “[f]ailed to warn local ***
chapters, including [the NIU Chapter,] about the dangers and risks of required
alcohol related pledge events, although it knew, or should have known such rituals
are often fatal;” “[f]ailed to adopt reasonable and effective policies to be followed
by its local fraternity chapters, including [the NIU Chapter], to prevent dangerous
pledge events and activities involving excessive required and dangerous
consumption of alcohol to the point of insensate intoxication;” “[f]ailed to take
reasonable steps to [ensure] its local chapters, including [the NIU Chapter],
followed policies and procedures it claimed to have adopted regarding required
pledge events and activities;” “[f]ailed to take reasonable steps to learn whether its
local chapters, including [the NIU Chapter] were following policies and procedures
- 39 ­
limiting required initiations it claimed to have adopted;” “encouraged local
chapters, including [the NIU Chapter,] to hold events similar to ‘Mom and Dad’s
Night’ because they were good for member and pledge retention, therefore
increasing revenue and income to the defendants through due and fees;” “[f]ailed to
ban pledging events and activities outright at all of its local chapters[,] although
they knew pledge events and activities were likely to result in bodily harm and
death to fraternity pledges;” and “[f]ailed to take necessary and appropriate steps
within [their] rights and powers to [ensure] [the NIU Chapter] implemented a
continuing risk education policy and functioning risk awareness committee,”
despite their knowledge through annual inspections and audits by their chapter
consultants that the NIU Chapter had not had such a committee or a risk awareness
program for at least three years before David’s death.
¶ 105 In short, the plaintiff’s allegations against the national organizations are all
aimed at risk, and the risk to which they purportedly contributed—bodily injury or
death following the forced consumption of alcohol at membership activities
encouraged and perhaps required by the organizations—was one that ultimately
took a college freshman’s life. In sum, the plaintiff asserted that the national
organizations, by their own acts or omissions, contributed to a risk of harm to
David. The answer to Simpkins’s threshold question is yes, and the proper analysis
vis-à-vis the national organizations involves not special relationships but the four
traditional duty factors. That is how the parties presented this case to us, and it is
how the majority should have analyzed it. I suspect the majority’s inexplicable
refusal to engage the parties’ arguments in this regard stems from a recognition that
they lead unavoidably to one result: The plaintiff has sufficiently pleaded that the
national organizations owed a duty to David.
¶ 106 The majority concedes that the first two factors—the foreseeability and the
likelihood of the plaintiff’s injury—are present in this case. According to the
majority, the existence of hazing statutes across the country, including our own, as
well as the national organizations’ written policy against hazing, “indicates that
injury due to hazing is reasonably foreseeable.” Supra ¶ 46. And such injuries,
particularly when the hazing involves forced consumption of alcohol, “are likely to
occur.” Supra ¶ 46. The majority continues, “When pledges are required to
consume large quantities of alcohol in short periods of time, their risk of injury is
- 40 ­
great—not only physical injury due to their inebriated condition but injury or death
resulting from alcohol poisoning.” Supra ¶ 46.
¶ 107 The second two factors—the magnitude of the burden to guard against the
plaintiff’s injury and the consequences of placing that burden on the
defendant—also weigh in favor of finding that the national organizations owed a
duty of care. To some extent, the national organizations have already shouldered a
large part of the burden to protect pledges like David via their antihazing policies,
risk management education initiatives, and chapter monitoring programs that the
plaintiff outlined in the complaint. Thus, the burden of shouldering a duty of
reasonable care for the benefit of pledges like David is not unreasonable. See
Edwards, 1999 WL 1069100, *7 (“It does not seem unduly burdensome to impose
some duty on the national organization of a fraternity to guard, to some extent,
against hazing based violence.”).
¶ 108 The consequence of placing the burden of a duty on the national organizations
cuts both ways. Of course, one consequence would be the expense incurred by the
national organizations. Another consequence would be a decrease in hazing and
accompanying injuries and deaths. The prevalence of Greek-letter organizations on
college campuses actually makes the latter consequence more important.
¶ 109 “There is a Grand Canyon-size chasm between the official risk-management
policies of the fraternities and the way life is actually lived in countless dangerous
chapters.” Flanagan, supra. National organizations across the country portray
themselves as mildly interested onlookers, extolling certain virtues and establishing
certain standards to guide their members. Pi Kappa Alpha, like many national
organizations, has adopted a strongly worded antihazing policy. See Position on the
Pi Kappa Alpha Fraternity Standards, The Pi Kappa Alpha International
Fraternity, Inc. (2010), https://www.pikes.org/~/media/pikes_org/images%20
and%20documents/about%20pike/6-1%20values%20position%20and%20relation
ship%20statements/resolution%20on%20hazing.ashx; The Pi Kappa Alpha
International Fraternity Standards, https://www.pikes.org/~/media/pikes_org/
images%20and%20documents/about%20pike/6-1%20values%20position%20and
%20relationship%20statements/standards%202016.ashx?la=en (last visited Jan.
16, 2018). That policy indicates that the national organizations have recognized the
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problem of hazing and have taken concrete steps to address it. 11 Through their
chapter consultants, the organizations can even gauge whether local chapters and
their members are observing the antihazing policy and following the risk
management manual. Yet, as shown by the tragedy in this case, the national
organizations’ enforcement of their own rules has been lax. Perhaps that is by
design. See Coolidge, supra n.6, at 921 (“[T]he public generally does not realize
the extent to which national organizations go to prevent liability. National
organizations have learned what subjects them to liability and have evolved in
response.”).
¶ 110 Universities in the Midwest—Indiana University, the University of Iowa, the
University of Michigan, the Ohio State University, and the University of
Iowa—and beyond—Florida State University, Louisiana State University, Penn
State University, and Texas State University—recently have taken matters into
their own hands, suspending or highly regulating Greek activities on campuses
across the country. Anemona Hartocollis, No Wild Parties, No Pledging as
Universities Crack Down on Fraternity Excesses, N.Y. Times, Dec. 15, 2017,
https://www.nytimes.com/2017/12/15/us/fraternities-deaths-crackdown.html.
Such initiatives are welcome but misplace responsibility for fixing a Greek system
spinning wildly out of control due to surging membership and anemic oversight
from headquarters. 12
11
The national organizations, in their “FRATERNITY STANDARDS,” try to have the best of
both worlds. They state that each chapter shall abide by certain rules “as a condition of its charter as
a chapter in good standing with the Fraternity” and that each member also shall abide by those rules
“as a condition to maintain his membership in good standing with the chapter.” The Pi Kappa Alpha
International Fraternity Standards, https://www.pikes.org/~/media/pikes_org/images%20and%20
documents/resources/general/ standards%20with%20acknowledgment.ashx?la=en (last visited Jan.
16, 2018). The standards later provide, “It should be understood that the Fraternity DOES NOT and
CANNOT oversee, monitor, supervise[,] or direct the daily or any other activity of hundreds of
chapters and thousands of members located throughout the United States and Canada.” Id.; see also
The Pi Kappa Alpha International Fraternity Standards, https://www.pikes.org/~/media/pikes_org/
images%20and%20documents/resources/general/standards%20with%20acknowledgment.ashx?la
=en (last visited Jan. 16, 2018) (defining the relationship between the national organizations and
local chapters).
12
Notably, a criminal court in Pennsylvania earlier this month convicted a national organization
of eight felonies in connection with a hazing death in 2014. See Commonwealth v. Pi Delta Psi, No.
CP-45-CR-2578-2015 (Ct. Com. Pl. Monroe County, Pa.) (docket summary available at
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¶ 111 The national organizations suggest that “[t]here is nothing absurd about
compelling each of those hundreds of chapters to manage its own affairs, and
members.” There is also nothing absurd about compelling the national
organizations, whose very existence flows from the influx of new members, to
exercise reasonable care on their behalf. The plaintiff’s complaint asserts that the
national organizations owed David “a duty to prevent the foreseeable consequences
of required excessive consumption of alcohol during [an] initiation ritual.”
Imposing such a duty on the national organizations to exercise reasonable care with
respect to pledge events would “meaningfully reduce the risk” of deaths or injuries
from hazing by forced consumption of alcohol. Such a duty would not require the
national organizations to maintain continuous contact with local chapters or to
become a central planning and policing authority. Such a duty also would not
require the national organizations to control the day-to-day operations of local
chapters. That duty would simply require them to enforce their own rules for a few
membership and initiation activities per school year—activities where hazing (a
violation of state law) and the consumption of alcohol by minors (also a violation of
state law) are probable and the dangers that arise when the two mix are well
known. 13
¶ 112 Hazing is not going away on its own. The lessons that should have been learned
from generations of deaths have been largely ignored, except by the families of the
victims. See Coolidge, supra, at 923 (“National organizations have the resources
and ability to reform their local chapters, but incidents continue and the
consequences often fall on their local chapters and individual members.”). In fact,
https://ujsportal.pacourts.us/DocketSheets/CourtSummaryReport.ashx?docketNumber=CP-45-CR­
0002578-2015 (last visited Jan. 16, 2018)). That organization was fined more than $110,000 and
barred from operating in the state as a condition of its probation. Rick Rojas, Fraternity Is Banned
F r o m P en n s yl va n ia Af te r S tu d en t’ s Ha z in g Dea th , N .Y . T i me s , J a n. 8 , 2 0 1 8 ,
https://www.nytimes.com/2018/01/08/nyregion/fraternity-pennsylvania-hazing-death-baruch­
college html.
13
Pi Kappa Alpha’s Wikipedia page contains a list of misconduct allegations, each with a
citation to a news source, many of which involve hazing, alcohol abuse, or both. See Pi Kappa
Alpha, Wikipedia, https://en.wikipedia.org/wiki/Pi_Kappa_Alpha#Misconduct_allegations (last
visited Jan. 16, 2018). David’s death is on the list. Id. (citing Barbara Vitello, Father of NIU Frat
Hazing Victim Tells 22 Convicted, ‘You Left Him Alone to Die,’ Daily Herald, May 8, 2015,
http://www.dailyherald.com/article/20150508/news/150508898/).
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one study has documented at least one college hazing death every year since 1961.
See Hank Nuwer, Hazing Deaths, Hank Nuwer’s Hazing Clearinghouse (last
updated Jan. 14, 2018), http://www.hanknuwer.com/hazing-deaths/.
Unfortunately, David was one of three fraternity hazing deaths in 2012. See List of
Hazing Deaths in the United States, Wikipedia, https://en.wikipedia.org/wiki/
List_of_hazing_deaths_in_the_United_States#2010s (last visited Jan. 18, 2018).
There have been more, including four in 2017. See Sheryl Gay Stolberg, 18 Penn
State Students Charged in Fraternity Death, N.Y. Times, May 5, 2017,
https://www.nytimes.com/2017/05/05/us/penn-state-fraternity-death-timothy
-piazza.html; Travis M. Andrews, LSU Freshman Dies After “Potential Hazing
In ci dent” at Frat erni t y, Poli ce Say, Was h . Post , S ept . 15, 2017,
https://www.washingtonpost.com/news/morning-mix/wp/2017/09/15/lsu­
freshman-dies-after-potential-hazing-incident-at-fraternity-police-say/; Sarah
Larimer, Florida State Suspends Fraternities, Sororities in Wake of Pledge’s
Death, Wash. Post, Nov. 6, 2017, https://www.washingtonpost.com/
news/grade-point/wp/2017/11/06/florida-state-suspends-fraternities-sororities-in­
wake-of-pledges-death/; Maggie Astor, Texas State Halts Greek Activities After
Fraternity Pledge Dies, N.Y. Times, Nov. 14, 2017, https://
www.nytimes.com/2017/11/14/us/texas-state-greek-life.html. And the facts of
those cases are eerily familiar: death from forced consumption of alcohol at pledge
events, or what the national organizations in their brief blithely call “physical
discomfort through the use of alcohol.”
¶ 113 The national organizations’ insistence that they garner “no benefit from hazing”
glosses over the fact that they do benefit from pledging. 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. In my view, the foreseeability and likelihood of the injury here
outweigh the burden and consequence of placing a duty of reasonable care on the
national organizations for the benefit of pledges. I would reverse the trial court’s
decision to dismiss the plaintiff’s claims against the national organizations and
remand for further proceedings.
¶ 114 For the reasons that I have stated, I concur in part and respectfully dissent in
part.
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¶ 115 JUSTICE KILBRIDE joins in this partial concurrence and partial dissent.
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