*1 OF CHAPTER RHO SIGMA Plaintiff-Appellant, v. QUINN, WILLIAM FRATERNITY, Defendant-Appellee. PI BETA THETA No. 4 — 86—0538 District Fourth 1, 1987. rehearing June 8, 1987. on denial April filed Opinion Modified *2 GREEN, J., specially concurring. Bramfeld, Phebus, Tummelson, Knox,
John E Urbana, Bryan & for appellant. Dobbins, Dobbins, Fraker, Tennant,
D. Cameron Perlstein, & Joy Champaign, for appellee.
JUSTICE LUND delivered the of the court: opinion Plaintiff, Quinn, William appeals an order of the circuit court of Champaign County 17, 1986, entered July which dismissed his third amended complaint grounds that it failed state a cause of action.
Before we discuss the substance of the pleading, we first com- ment on the drafting of the order of dismissal and the third amended complaint. We bear in mind that stems from appeal plaintiff’s at- tempt expand law of and that plaintiff and defend- ant may have encountered difficulty The trial court phraseology. found that the “only cause of action possibly stated in the Plaintiff’s Third Amended Complaint on the special relationship based of vol- untary and custodian-protectee allegations all of said Third Complaint Amended not directed towards that should relationship be stricken.” The court then stated as follows: Complaint Amended Third
“Therefore, the Plaintiffs’ file a fur- leave granted the Plaintiff hereby dismissed of this Or- entry of the days within complaint ther amended amended a further to file elect not der; the Plaintiff should just is no that there finds expressly the Court complaint, appeal.” enforcement or for delay within August on of appeal filed his notice Plaintiff leave 14-day 17, 1986, order, and after July days following not file amendments Plaintiff did had period expired. amend between to be a conflict there appears order. While July of the July ordering provision finding provision hear of the cause disposition a final order, consider the order we on its merits. appeal the third amended draftsmanship are also critical of We in attempting plaintiff may it appears because the third in one count of than one cause of action clude more a com that each count of recognize rule complaint. amended We 1985, ch. (Ill. of action. allege only should one cause Rev. plaint Hospital (1979), Prado v. Evanston par. 603(b); 2— he con argument, at oral plaintiff urged As com simple of action based allege siders the a cause custodian-protec a voluntary mon law and also negligence principles *3 for to advance plaintiff tee It would have been better relationship. herein, the holding Because of our separate these theories counts. error, if harmless. any, becomes facts, a of defend- plaintiff pledge to the
According pleaded in the initiation cer- to defendant’s participate ant’s and was to a of the fra- in order become member emony, “Pledge Night,” Dad “18 incident, he was that, night on the of the ternity. alleges Plaintiff known drinker, which fact was inexperienced of and was an years age the by known in the exercise of care should have been ordinary or the each was directed ceremony, pledge defendant.” As of part the leave letting pitcher of the pitcher drink a 40-ounce beer without The com- complied. or the vomited. Plaintiff pledge until pledge’s lips unable to intoxicated and alleges “plaintiff then that became plaint for himself.” properly care to a local brought were
After the the drinking pitchers, pledges the of tavern, the active members the one of way tavern. On morn- classes the next if important asked had fraternity plaintiff then directed Plaintiff “No.” The active member ing. replied, com- again Plaintiff whiskey. from an of eight-ounce drink bottle he much of the bottle does not how specify The plied. drank, only tavern, that he drank from the eight-ounce bottle. At the the members the fraternity of more for the purchased liquor pledges.
The that, a of complaint alleges as result the of evening drinking, “plaintiff became extremely intoxicated and unconscious and was brought back to the defendant house fraternity by active members of the at fraternity 1:00 approximately a.m.” Plaintiff was left on a hardwood floor to off sleep his intoxication. He until slept p.m. 2:30 the following afternoon, awoke, or some 13 to 14 hours. heWhen he was still in an intoxicated condition and use properly could his or hands He arms. was taken to a his hospital where blood-alcohol content was At 4 p.m., plaintiff measured. had a Plain- reading .25. tiff that, then its alleges peak, at his was ap- blood-alcohol content or proximately .4 “at near fatal levels.” Plaintiff he “suf- states that neurological fered damage necessitating his arms and hands doctor, attention of a hospital, physical therapist causing par- tial disability.”
As is evident from the allegations, this cause arises from Quinn the fact that so William became intoxicated that he no longer could provide for his own The of the com- allegations welfare. plaint sufficient to allege intoxicating of the beverages fraternity’s allega- of the part ceremony. initiation tions also question establish excessive use the intoxicants. The presented on to us is whether the owed appeal a respect very dangerous commission of acts, intoxicants, including highly excessive consumption of as part words, initiation In other ceremony. there a part partici- fraternities and sororities to refrain from requiring pation acts, then third amended a cause complaint states of action.
Plaintiff that the argues complaint alleges cause of action grounded “simple common negligence law principles.” deciding dismiss, a motion to the court must view all factual allegations true and consider the only questions presented law plead ings. (Martin v. Palazzolo Produce Co. The elements of a common law simple
action are: charged “the existence part person protect complaining a failure to party injury, perform breach duty, consequent so connected with the injury *4 failure to the in perform that such failure is the cause of proximate (28 2, (1957) (Illinois Ill. L. & Prac. sec. at 8 Law jury.” Negligence 158, 2d Practice); County (1983), and see also v. 98 Ill. Curtis Cook 116; 1048, 112 Ill. 3d 445 Ogle (1983), App. 456 N.E.2d v. Fuiten
235
In
the
case,
N.E.2d
this
circuit court dismissed the
1344.)
what
determining
because of the
defendant owed
difficulty
is a matter of
decided
plaintiff.
The existence of a
law to be
v.
204,
(Smith Rengel (1981),
422 N.E.2d
App.
court.
97 Ill.
3d
1146.) The
is not
alone
dependent
foreseeability
existence
but on
magnitude
other factors such as
likelihood
injury,
it,
guarding
placing
burden of
and the
against
consequences
on the defendant. Lance v.
516,
burden
Senior
(1967),
36
2d
224
Ill.
see also Reed Danville
Co.
v.
Concrete Products.
231;
(1981),
N.E.2d
205,
102 Ill.
3d
In us to acknowledge a cause of action in asking negligence, plain tiff perilously asks us to draw close to the law prohibit extensive case ing common law causes negligently of action for alcohol. Our selling has supreme court “that common recognized provided law no mere remedy man, for the sale of alcoholic ei ordinary liquor ther on the that it a theory wrong was direct or on the that it ground v. was negligence.” (Cunningham Brown 23, 29-30, 22 (1961), Ill. 2d 153, 174 The Cunningham 157.) N.E.2d pointed court out “the reason for the generally given drinking, rule that the selling, not the is the proximate cause Ill. (22 23, 30, intoxication.” 2d 174 N.E.2d 153, 157.) Cunningham, it was “that argued where sale is a made to one who is intoxicated or insane of the con incapacity sumer to vendor, known, choose known to the should then the sale merged and in become the act of the reality seller proximate and the 23, 30, 2d (22 intoxication.” Ill. 174 157.) supreme N.E.2d The court stated that the “argument has some merit” but denied cause of action because no common law right (22 23, 30, existed. Ill. 2d 157.) legislature N.E.2d provided by statute, right the court was not create another Our remedy. courts have consistently followed the rule that there is no common negligent law for the liquor sale of in Illi v. Wimmer Koenigseder (1985), 108 Ill. 2d nois. 435, 442, 484 N.E.2d 1088, 1092.
The law in appears Illinois settled legislative well action in adopting Act Rev. Dramshop (Ill. ch. pars. through 195) has the field of preempted liability relating alcohol. (Coulter Swearingen v. (1983), 113 Ill. 3d App.
N.E.2d It is also clear that preemption extends to social hosts provide who might intoxicating beverages: adult, adult to adult to minor, and minor to minor. “The courts have been rigid denying Coulter v. recovery of common theory negligence.” law Swearingen 564.
As the cases involving indicate, alcohol there have many been ar- guments asking the courts to judicially abolish the common law immu- nities from liability, but such changes have been left for legislative action.
Plaintiff is careful to state that he does not argue a cause of action based on the Act or Dramshop any common law dramshop action. He to attempts distinguish instant factual situation from the social host-guest relationship. Plaintiff emphasizes that defendant did more than simply furnish alcohol to him. In order to be initiated into the fraternity, defendant drink required him to to intoxication.
In arguing that the complaint states a cause of action based on negligence, plaintiff refers to statutory provisions. The practice of is a hazing Class B misdemeanor. (Ill. Rev. Stat. ch. par. 221.) Hazing is defined as “any pastime amusement, engaged in by students or schools, other people academies, colleges, universities, or other educational state, institutions of this or by people connected with public institutions of state, whereby such pastime or amusement is had for the purpose holding student, up any scholar or individual to ridicule for the pastime (Ill. of others.” Rev. Stat. ch. par. 222.) addition, although cited directly by plaintiff, the giving alcoholic liquor to persons years under age and consumption of alcoholic liquor by persons under 21 years prohibited sections 6—16 and 6—20 of the Act. Ill. Dramshop Rev. 131,134a. ch. pars.
Plaintiff further points to the of Illinois University regulations prohibiting the beverages alcoholic by persons under of 21 age on University controlled The defendant property. frater- had certain nity internal guidelines prohibiting hazing-type activities, one of which definition included in its of hazing “chug-a-lugging” and *** *** or required consumption of beverages.” alcoholic “[f]orced On the basis of the statutes, above regulations, rules and plaintiff would find defendant owed a plaintiff to conduct an initiation cere- free from mony unreasonable risk of harm.
In response, defendant primarily argues defense based on intoxi- cation and the social host-guest relationship. Defendant rephrases plaintiff’s complaint into simply alleging prevent plaintiff’s intoxication. Using the fact that the entire incident is on plain- based intoxication, tiff’s urges defendant the court to reject any broader duty pertaining fraternity functions.
Defendant it argues had no prevent plaintiff’s intoxica- tion. Defendant construes the relationship between defendant to be a social host-guest relationship, and directs us to the furnishing against of cases social hosts for denying liability multitude intoxicating beverages. the case agree holding
We with authorities that the furnish ing intoxicating beverages underage persons, plaintiff, feel, however, does not create a We that we are faced legal duty. furnishing a situation which consists more than the mere of alcohol. facts, as a fra alleged complaint, amended describe plaintiff’s function ternity where drink to intoxication worse, according to become of the fraternity. order a member Even content in “at or complaint, body alcohol plaintiff’s near fatal levels.” cannot close our to the fact that the abuse eyes We in the case in the termination present illustrated could have resulted of life and that plaintiff being was coerced into his own executioner. *6 Therefore, we hold legal duty that a was created and the states cause of negligence. a action in
It is true that could have avoided situation walk- by ing away fraternity. In that in respect, plaintiff’s actions in ceremony Yet, were al- participating as the voluntary. leges, membership the defendant was a valued “much It can status.” be assumed that great pressure social was applied comply fraternity’s membership “qualifications,” perhaps extent of blinding plaintiff any dangers might he face. To the extent that plaintiff willingly, acted can be trans- ferred to him under of principles comparative negligence. do not of
We allow a cause action here without careful consider ation of nature of duty. Using the factors found in Lance v. (1967), 516, 231, Senior 36 Ill. 224 2d N.E.2d we believe burden of such is on defendant. When to con rightly placed required alcohol, sume such of large amounts it is likely foreseeable and will occur. injuries Even the here It is a injury alleged is foreseeable. small to guard against burden The injuries. activity clearly was an hazing illegal activity discouraged defendant’s parent own organization. Finally, we can think of no bur party better to bear the den plaintiff’s than the injuries required one that him to sustain The them. result is then A predictable. organization, fraternal held in esteem, high is to be for injuries liable sustained when those seeking membership engage illegal activi very dangerous ties.
In order we action narrowly construe hold a cause of duty, First, exists in the instant following case based on the two factors. the fact that plaintiff was to drink to intoxication. suffi- This distinguishes the instant case from social sitúa- ciently host-guest 238
tion. The social pressure that exists once a college or university stu- dent has pledged into a fraternal organization great is so that compli- ance with initiation requirements places him or her in a position acting a coerced manner.
Second, the legislature has enacted a statute against hazing. This indicates to us a social policy against embarrassing or endanger our ing youth through thoughtless and meaningless activity. Although a legal normally established through rules and regulations university internal guidelines of a voluntary, unincorporated association, such as the defendant, violation of a statute or ordinance may create a cause of action for negligence. The court supreme has “ stated: violation of a statute or designed ‘[T]he ordinance for the protection of human life or property prima evidence of negli facie ” gence.’ (First National Bank v. City (1978), 1, Aurora 71 Ill. 2d 1330; N.E.2d see also Davis v. Marathon (1976), Oil Co. 64 Ill. 2d 93; 356 N.E.2d Dini v. Naiditch (1960), 20 Ill. 2d 881.) N.E.2d In order to sustain such action, a cause of two con ditions must “first, be met: the plaintiff must be within the class of persons the ordinance was designed to protect; second, the plain tiff must have suffered the type harm the ordinance designed to prevent.” (Casteel v. Smith (1982), 109 Ill. 3d App.
N.E.2d 862; see also Powell v. Village Mt. Zion case, instant we find the plaintiff was in the class of persons statute was designed to The protect. allegations in the complaint allege sufficient facts to establish that he suffered a type of harm the statute designed to prevent. allegations in the complaint, true, prime example what the legislature and educational institutions have tried to avoid. It would appear ruling other would fraterni- giving *7 ties and sororities a freedom from civil when the requiring highly consumption ceremonies, excessive of in intoxicants initiation even to the extent of causing deaths.
Because action, above-described, we hold that a cause of as stated in the third amended complaint, we are not to decide whether a cause of action was stated on a theory voluntary custo- dian-protectee remand, On relationship. will have the plaintiff oppor- desired, if tunity, to file an additional count based on that theory. We recognize a voluntary custodian-protectee relationship count must al- lege facts establishing a time when the If began. the rela- relationship tionship began after the ended, involvement then other fraternity party defendants would be required. reasons,
For the foregoing the order of the circuit court of Cham- re- third amended is County dismissing plaintiff’s paign versed, and the is for further consistent proceedings cause remanded with this opinion.
Reversed and remanded.
SPITZ, P.J., concurs. GREEN, concurring:
JUSTICE specially I concur in the majority judgment the decision of the to reverse dismissing the third amended The heart complaint. my disagree- my ment with them is belief that cause of action stated there does the Rather, in negligence. “negli- sound I treat the reference to would in gence” the as that the surplusage outrageous hold conduct described sets forth a of action wilful and upon based the acting wanton misconduct defendant its part through agents, authorized its authority give active who had to or- members ders to the pledges who were to be initiated into the fraternity. court,
As did the trial
the
concludes that
the
majority correctly
crucial issue
what
is as to
defendant
to
duty,
any,
owed
plaintiff under the
alleged.
circumstances
seems to indi
majority
cate that
the gross conduct
of defendant
toward
created
duty
plaintiff.
owed
In making
determination,
the
fol
majority
lows
v.
accepted
doctrine of Lance
Senior
36 Ill. 2d
As have I deem the conduct attributed defendant to wilful ap- and wanton. This is the conduct to which majority plied test of is the type only Lance. Avoidance of of conduct I place upon regard would defendant to its of re- imposition quirements placed pledges certain acts as condition upon perform of initiation. test im- Application Lance mere such posing requirements does not indicate that imposition appropriate. Ordinary negligence making requirements *8 particularly likely to a but injury pledge, guarding against from the injury arising pledge acts of the would difficult. be Although, as stated by majority, great pressure encourages social seeking acts, those initiation to perform required the acts performed are, nevertheless, I do not think it voluntary. is advisable extend tort require organizations fraternal bear burden for such injuries when the directions it gave merely negligent. were
“An Act defining hazing, making misdemeanor, the same a fixing thereof,” punishment referred to states in full: by majority,
“Sec. 1. Whoever shall in the in engage practice hazing state, one an whereby any injury person sustains his therefrom, shall be B guilty Class misdemeanor.” Ill. Rev. ch. 221. par.
“Sec. 2. The term in ‘hazing’ this act shall construed to mean amusement, or any pastime engaged in students or schools, academies, other people colleges, universities, or other educational state, institutions of this con by people state, nected with of the public whereby institutions of this pastime or amusement holding is had for the purpose student, up any scholar or individual to ridicule for the pastime of others.” Ill. Rev. Stat. ch. 222. par.
An violation of the alleged foregoing legislation is involved here. However, such a violation is significant negligence is only ordinary Then, stated, the basis of the action. is prima as violation facie negligence. evidence of No authority has been cited to indicate that a prima statutory violation is evidence of wilful and mis wanton facie conduct. The statute does tort, not make a violation a for the statute is insufficient to create a It does not the citi public policy. “[affect] zens of the State collectively” to create public policy. (Em phasis added.) Palmateer v. International Harvester Co. 878.
Thus, because I would treat in the complaint references negligence as I surplusage, agree that states a cause of action. To the extent the majority opinion holds that a may be liable for mere cer- performance of initiation, tain acts as a condition I by pledges disagreement am opinion. with that