Court Finds National Not Responsible in Hazing Day

Amy Hebbeler, Manley Burke, amy.hebbeler@manleyburke.com

Fraternities have been in the news as hazing deaths continue to grow. This has led Fraternities to reevaluate their policies and procedures with a focus specifically towards liability. When an incident occurs, the chain of blame can sometimes go all the way up to the national organization. Typically, when a fraternity is involved in any type of liability issue, the members, local chapter, and national organization are sought to be held responsible. However, in a recent case the Court found that a national organization could not be held responsible for the tragic death of a Northern Illinois University student.

At a “mandatory” pledge event, David Bogenberger, a freshman, consumed more than five times the legal limit of alcohol.¹  The event was designed so that the pledges would have to answer a series of questions posed to them by one member of the fraternity and a member of a sorority. If the pledge answered the question incorrectly, he was required to drink a certain amount of vodka. Moreover, “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.”²

Quickly, this question and answer routine morphed into the pledges being forced to drink the vodka regardless of the accuracy of their answers.³ In fact, the goal of the event was to have almost all of the pledges become unconscious, even designating areas for pledges to pass out in.⁴ Furthermore, “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.”⁵ David died during the night after losing consciousness from the amount of alcohol that he had been forced to consume from the event.⁶

A suit for negligence was brought against the national fraternity, the local chapter, the local chapter’s officers, pledge board members and active members, and sorority women who participated in the event with the fraternity members.⁷

Regarding the national organization, Plaintiff brought claims against the national organization both for vicarious liability between the national and the Chapter and direct liability of the national organization. Regarding vicarious liability, the Court rejected Plaintiff’s claims of actual agency, which was required for vicarious liability in this case. The Court found that the members were not acting as the national’s agents.⁸ First, there was no evidence presented that the national organization authorized the Chapter to act on their behalf or act as their agents. The Court rejected Plaintiff’s claim that an agency relationship existed because the national encouraged these pledge events because it was good for pledge and membership retention which would increase the revenue.⁹

Second, the Court found that the Plaintiff did not establish that the national organization had sufficient control over the chapter and the chapter members for an agency relationship to exist.¹⁰ Even though the national organization established rules and guidelines for the chapter to follow, such as the National Constitution, chapter codes, and risk assessment manuals, the chapter had discretion on how they would implement and enforce those rules. Moreover, even though national could expel or discipline members after the fact, the Court found “The power to take remedial action ‘after the fact’ does not amount to the right to direct or control a local chapter or members actions.”¹¹

Finally, the Court found that even if the first two factors were satisfied, hazing fell outside the scope of any agency relationship that possibly existed.¹² Hazing was against the national’s rules and thus the hazing conduct would fall outside any agency relationship that existed between the Chapter and national.

The Plaintiff also brought a claim of negligence under direct liability. “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.”¹³ In Illinois a duty arises in this situation only if there is a “special relationship.”¹⁴ This special relationship has arisen in a variety of different contexts including innkeeper and guest, parent-child and employer-employee. However, “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.”¹⁵ The Court concluded that no special relationship existed and thus the national organization did not have a duty. However, the Court did note that some courts in other states have held a national fraternity liable for the actions of its local chapters, but did not elaborate on that point.

Therefore, the Court dismissed the claim against the national fraternity. However, the Court refused to dismiss the case against the Chapter, its officers, Pledge Board Members, active members, and non-member sorority women.¹⁶

1 Bogenberger v. Pi Kappa Alpha Corp., 2018 IL 120951 (2018).

2 Id. at P5.

3 Matthew Walberg and William Lee, “Parents of NIU student who died in 2012 fraternity hazing can proceed with lawsuit, court rules.” Chicago Tribune (January 19, 2018) http://www.chicagotribune.com/g00/suburbs/ct-met-niu-hazing-death-supreme-court-20180119-story.html?i10c.encReferrer=&i10c.ua=1&i10c.dv=13.

4 Bogenberger v. Pi Kappa Alpha Corp., 2018 IL 120951, P5.

5 Id.

6 Id. at P7.

7 Id. at P2

8 Id. at P30.

9 Id. at P29-30.

10 Id. at P30.

11 Id.

12 Id.

13 Id. at P32.

14 Id. at P33.

15 Id. at P35.

16 Id. at P50, P54.