Supreme court OKs wrongful death suit against former NIU fraternity, sorority members

January 19, 2018 GMT

The family of a Northern Illinois University fraternity pledge who died from excessive drinking at an initiation ceremony in 2012 can proceed with their lawsuit against all of the people who were there that night, the Illinois Supreme Court held Friday.

“In its historic opinion today, the Illinois Supreme Court holds that hazing is a scourge and that young men who plan and participate in it, and young women who agree and join in it will be held civilly liable to the victims and their families to the fullest extent of the law,” Peter Coladarci, the Bogenberger family’s lawyer, said during a news conference Friday.

The court upheld the finding of lower courts that the family of David R. Bogenberger, 19, cannot file a wrongful death suit against the national chapter of Pi Kappa Alpha but can sue the local chapter, its local members and the local sorority women who were present that night.

“Although the national organization has been dismissed by the Supreme Court in this case, the fact that individual members may be held liable for significant damages to the victims means that national fraternities and sororities need to take action to stop hazing in their name,” Coladarci said.

Bogenberger, one of three triplets from Palatine, was pledging NIU’s Eta Nu chapter of the national Pi Kappa Alpha fraternity in November 2012. He and 18 other pledges attended an unsanctioned party, at which fraternity members and other guests ordered pledges to drink vodka out of four-ounce cups, authorities have said.

The pledges drank alcohol for about two hours while playing a game in which they were assigned “moms” and “dads” whose identities they were supposed to guess.

Bogenberger was found dead with a blood-alcohol content of 0.351 percent the morning after the event. Coladarci said his BAC reached 0.43 during the night. He had consumed about 27 ounces of alcohol in 75 minutes.

“We’re encouraged by the ruling,” Ruth Bogenberger, David’s mother, said. “It’s been my husband’s and my goal from the beginning to shed a light on hazing, its dangers and to protect future pledges. In our opinion, it’s a step in the right direction.”

Bogenberger’s family filed suit in 2013 against 22 men, 16 women, the landlord for the Pi Kappa Alpha fraternity house, the NIU chapter and the national fraternity organization. Cook County Judge Kathy Flanagan dismissed the case in 2014, finding that a person providing or serving alcohol bears no responsibility for consequences to the person who drinks it. This is known as “social host liability.”

But the majority opinion of the court found that this was a case of hazing, rather than a simple party.

“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,” read the majority opinion, which was written by Justice Charles Freeman. “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.” 

Initially, five fraternity members faced felony hazing charges in connection with Bogenberger’s death, but no one was ever convicted of hazing in connection with the incident. However, in May 2015, 22 former Pi Kappa Alpha fraternity members received sentences requiring community service and fines in what DeKalb County State’s Attorney Richard Schmack said was the largest hazing prosecution in U.S. history.

However, Bogenberger’s parents, Gary and Ruth Bogenberger, said they saw nothing to suggest any regret from the men their son once hoped to call brothers.

“I saw no contrition,” Gary Bogenberger said after the fraternity members’ 2015 sentencing. “I’ve seen no acts of remorse.”

Coladarci said his likely next step will be to ask for punitive damages; although, he did not specify an amount Friday. He hopes to go to trial in a year and a half but first needs to gather depositions from 45 defendants and 6 family members.

The decision is legally binding in the state of Illinois and will be persuasive across the country, Coladarci said.

“In light of all of the other highly-publicized hazing cases, it just seems like – to us – the tide is shifting here, and officials are starting to stand up and say this can’t go on anymore,” Ruth Bogenberger said.

Michael Borders, who represented former Pi Kappa Alpha President Alex M. Jandick, initially declined to comment over the phone Friday afternoon, and representatives from NIU could not immediately be reached.

“The ultimate goal is to have some good come out of the loss of our son, to heighten public awareness about this problem and not just sort of sweep it under the rug as it’s been done in the past,” Ruth Bogenberger said.