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“Fraternity May Be Held Liable” by Deanna L. Litzenburg and Holly A. Rogers

Fraternity and sorority hazing has become a hot topic in the United States. The backlash against Greek life has triggered calls to eliminate fraternities altogether. Some fraternity members are facing criminal charges for causing the death of their pledge brothers. In 2017, there were four hazing deaths, all stemming from alcohol-related incidents.

The Illinois Supreme Court recently weighed in on hazing and social host liability.

In 2012, David Bogenberger was pledging the Pi Kappa Alpha fraternity at Northern Illinois University, where he was required to attend an event called “Mom and Dad’s Night.” The event designated seven rooms in the fraternity house where two or three “Greek couples” would be assigned to be “parents” to the pledges. The Greek couples would ask the pledges various questions and give them a specific amount of alcohol, regardless of the answers provided. The pledges would then rotate to the other rooms. Certain parts of the house were designated as places where the pledges could “pass out.” They would be checked periodically and positioned in such a way so they would not choke if they vomited. Officers of the fraternity kept breathalyzers to measure the pledges’ blood alcohol level.

By the end of the evening, David’s blood alcohol level would reach 0.43—more than five times the legal limit. He died during the night. David’s parents sued the fraternity’s local chapter, its officers, its members, the national organization and some non-member sorority women who acted as “moms” for the event. The defendants claimed that a rule against “social host liability” barred David’s claim. Illinois law clearly states that there is no liability for the sale or gift of alcoholic beverages. Charles v. Seigfried, 165 Ill. 2d 482, 490 (1995). In other words, in normal circumstances a person cannot be held liable for giving or selling someone alcohol. This is because the drinking of the alcohol is the cause of injury, not the sale or gift of it.

However, the rule against social host liability is in direct contradiction with Illinois hazing laws. The Illinois Criminal Code states:
1) A person commits hazing when he or she knowingly performs an act, or causes a situation, that recklessly or intentionally subjects a student or other person in a school, college, university, or other educational institution of this State, to the risk of bodily harm for the purpose of induction or admission into any group, organization, or society associated or connected with that institution, if:
(1) the act or situation is not sanctioned or authorized by that educational institution; and
(2) the act results in bodily harm to any person. 720 ILCS 5/12C-50.

In January, the Illinois Supreme Court created a hazing exception to the rule against social host liability. When a college fraternity or similar organization requires those seeking membership to engage in illegal and dangerous activities, social host liability will be imposed. The Court held that there is a significant difference between a social host situation, which involves the sale or gift of alcohol, and a hazing event. An alcohol-related hazing event involves the required consumption of alcohol in order to gain admission to a school organization.

The Illinois Supreme Court allowed the claims to proceed against the local chapter, its officers, board members, and its active members. The case was remanded back to the circuit court for additional proceedings.

This decision is the first time that the Illinois Supreme Court has held that fraternity and sorority members can potentially be held civilly liable in a hazing case.

In 2015, 22 members of the fraternity pleaded guilty to misdemeanor charges in connection with David’s death and were sentenced to each perform 100 hours of community service and pay a $1,000 fine. The civil lawsuit continues.

Hazing can lead to many ramifications including criminal charges, civil liability, and expulsion from educational institutions. If you or a loved one is facing a hazing situation, consider seeking legal representation.

Deanna L. Litzenburg is a shareholder with Mathis, Marifian & Richter (MMR) who focuses her practice in civil litigation, commercial litigation, premises liability, medical malpractice, employment law, creditors’ rights, workers’ compensation and alternative dispute resolution.

Holly A. Rogers is a third year law student at Saint Louis University School of Law. She is the current law clerk at MMR.

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