Parents of NIU student who died in 2012 fraternity hazing can proceed with lawsuit, court rules

By Matthew Walberg, William Lee, Chicago Tribune

The parents of a Northern Illinois University student who died after a night of heavy drinking at a fraternity where he was a pledge cannot hold the fraternity’s national organization responsible, but they can sue the local chapter, its members and sorority women who took part in the night of forced drinking, the state’s highest court ruled Friday.

A lawyer representing the family of the victim, David Bogenberger of Palatine, called the court ruling historic, saying it was the first time the Illinois Supreme Court held that fraternity and

Gary and Ruth Bogenberger, parents of David Bogenberger, seen May 8, 2015, at the DeKalb County Courthouse in Sycamore. David died after a Pi Kappa Alpha fraternity party at Northern Illinois University in in 2012. (Abel Uribe / Chicago Tribune)

sorority members can be held civilly liable in a hazing case.

“The court has given the victims and their families here in Illinois and Pennsylvania and Florida and all over the nation a powerful hammer against those who haze their children,” attorney Peter Coladarci said at a news conference after the opinion was made public.

Gary and Ruth Bogenberger said they were pleased with the court’s opinion, though they were disappointed that they will not be able to sue the fraternity’s national organization. Still, they hope that the tide will eventually turn and bring increased accountability for hazing.

”I think that, in the future, some of these national (fraternity) organizations may be held accountable,” Gary Bogenberger said when reached by telephone. “I don’t know how much has changed and that is the problem. There are continually news articles about deaths attributed to alcohol and hazing activities. … And that is very unsettling, because at some point people have to recognize the tremendous liability they are creating for their universities, their organizations — or for their sons and daughters.”

David Bogenberger, 19, was a freshman at NIU in DeKalb pledging at the off-campus fraternity Pi Kappa Alpha.

On Nov. 1, 2012, the fraternity held a “Mom and Dad’s Night,” at which pledges were given a cup and directed to go from room to room, where members of the fraternity and sorority women would pose as “Greek Mother and Father.” Pledges were directed to ask the pair a series of questions — after which they were required to drink a set amount of vodka poured by the fraternity and sorority members regardless of what answer was given.

The opinion noted that Pi Kappa Alpha’s members expected most, if not all, of the pledges to pass out from drinking too much and had plans in place to monitor them as they slept to prevent them from choking if they vomited while unconscious.

Bogenberger died sometime overnight after he became unconscious, and an autopsy later determined his blood alcohol content was 0.43 — more than five times the legal limit set for drivers.

Bogenberger’s family sued the NIU chapter and members, Pi Kappa Alpha’s national organization and the sorority members who took part in “Mom and Dad’s Night,” but a trial court dismissed the suit. The court found that while there is case law against other college fraternities and clubs that required members to drink, a pair of decisions by the Illinois Supreme Court suggested Pi Kappa Alpha and the other defendants were protected by the long-standing “social host liability” law, which absolved hosts who provide alcohol to another person from liability if that person later causes harm to himself or another while intoxicated.

An appellate court later upheld the dismissal of the national organization and the sorority women, prompting the Bogenbergers to appeal to the Illinois Supreme Court.

In their opinion, the justices said the fact that Pi Kappa Alpha pledges were required to drink that night as part of their efforts to become members — and were berated if they did not drink — voids the protections of the social host liability law.

“This type of hazing does not fit within the social host situation,” the justices wrote. “Alcohol is not merely furnished to an individual; the individual is required to consume alcohol, often at a near-lethal level, to gain admission to a school organization.”

But the court did find that the lower courts were correct to dismiss complaints of negligence against the national organization, despite allegations from the family that its leaders knew that the NIU chapter had poor risk-management training and policies and had a reputation as a fraternity of “meatheads.” The Bogenberger family offered no evidence that the national Pi Kappa Alpha organization had any relationship with the victim that would make it liable for his well-being.

The fraternity’s NIU chapter and its officers, however, could be held liable given that hazing is illegal and the event was planned and carried out by them — even though they knew Bogenberger and other pledges would likely drink enough alcohol to incapacitate themselves, the court said, reversing the lower courts’ rulings.

Likewise, the justices reversed the lower courts’ dismissal of the complaint against the sorority women — who allegedly decorated vomit buckets for the pledges and filled their cups with vodka — finding that the women may be held liable even though they are not Pi Kappa Alpha members. No specific sororities were named in the opinion.

“The women were more than mere guests encouraging the pledges to drink,” the court wrote. “They were an integral part of the event and, for purposes of that event, occupied a similar position of influence as the (fraternity) members did.”

Though the case carries legal implications only in Illinois hazing cases, Coladarci said he was hopeful the Illinois case would have an impact on hazing at fraternity organizations throughout the nation and could be used as a persuasive argument in similar civil cases elsewhere.

“Courts in other states often look to other states who grapple with the same situations,” he said.

Michael Borders, an attorney for former chapter president Alexander Jandick, declined to comment on Friday.

In 2015, 22 members of the fraternity chapter at NIU pleaded guilty to misdemeanor charges in connection with Bogenberger’s death and were sentenced to each perform 100 hours of community service and pay a $1,000 fine.

Coladarci said he expected the discovery process in the case, along with deposing the various witnesses who were in the fraternity house that night, would take at least a year before heading to trial.

lhttp://www.chicagotribune.com/suburbs/ct-met-niu-hazing-death-supreme-court-20180119-story.html

Editor’s note: My fraternity Phi Kappa Theta has a chapter at Northern Illinois University

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