CHICAGO (CN) — The father of a college student who died at a fraternity hazing event can sue fraternity members for not seeking medical attention for the unconscious pledge, an Illinois appeals court ruled.
David Bogenberger and 18 other pledges attended "Mom and Dad's Night," a mandatory pledge event for the Pi Kappa Alpha Eta Nu chapter of Northern Illinois University on Nov. 1, 2012.
The pledges were given a list of seven rooms in the fraternity house to enter in a designated order, where they were asked questions, and no matter what they answered, they were required to drink the vodka given to them, according to court records.
If they showed reluctance to drink, the pledges were called "pussies" and "bitches" until they drank.
Each pledge consumed three to five glasses of vodka in each room within an hour and a half. They were then taken to the basement, and given shirts and buckets decorated by sorority members to vomit in.
After they passed out, fraternity officers allegedly placed the unconscious pledges in positions so they would not choke on their own vomit, but instructed members not to seek medical care for them.
Bogenberger, 18, was found dead the next day with a blood alcohol level of 0.43.
Twenty-two Pi Kappa Alpha fraternity members were convicted of misdemeanor reckless conduct related to Bogenberger's death in the largest hazing prosecution in U.S. history. They were each ordered to pay a $1,000 fine and perform 100 hours of community service.
Bogenberger's father, Gary Bogenberger, then sued the fraternity and fraternity members present at the event for negligence and wrongful death.
The father's complaint was initially dismissed, but the Illinois Appellate Court's First Division revived his claims Monday, finding that the fraternity brothers assumed a duty to care for Bogenberger once he passed out.
"Although it may be true as a general proposition that a host who merely allows an intoxicated guest to 'sleep it off' on the floor does not assume an open-ended duty of care, plaintiff's complaint alleged more than merely allowing pledges to 'sleep it off,'" Justice Sheldon Harris wrote for a three-judge panel.
Bogenberger's father's allegations claim that "defendants effectively took complete charge of the pledges, including David, after they become unconscious. Liberally construed and taken as true, these allegations sufficiently plead a cause of action based on a voluntary undertaking theory," the 32-page ruling states.
At a minimum, if Bogenberger was only poured one ounce of vodka per cup, he drank 21 ounces of vodka in an hour and a half, which clearly could result in harm, the panel found, which is why the fraternity provided them with buckets.
"If defendant pledge board members could not foresee that vomit-inducing intoxication levels were likely to result from their conduct of forced alcohol ingestion, then it begs the question - for what other purpose were the decorated buckets provided?" Justice Maureen Connors said in her special concurrence.
Connors continued, "Requiring teenagers...or anyone for that matter, to ingest alcohol to the point of, at a minimum, vomiting on themselves does not further any public policy interest, thus I see no reason to protect such behavior in this case."
However, the panel affirmed the dismissal of the Pi Kappa Alpha International fraternity, because it did not have enough control over pledging activities at local chapters to have a duty to protect Bogenberger.
For the same reason, the named sorority women who participated in Mom and Dad's Night had no authority over pledging activities for an organization to which they did not belong, the appeals court ruled.
After Bogenberger's death, the university removed the fraternity as a recognized student organization, and the international fraternity suspended the chapter's charter.
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