Bogenberger v. Pi Kappa Alpha Corporation, Inc.

2018 IL 120951

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket Nos. 120951, 120967, 120986 cons.)

GARY L. BOGENBERGER, Appellant, v. PI KAPPA ALPHA

CORPORATION, INC., et al., Appellees.

Opinion filed January 19, 2018.

JUSTICE FREEMAN delivered the judgment of the court, with opinion.

Justices Thomas, Garman, and Burke concurred in the judgment and opinion.

Chief Justice Karmeier concurred in part and dissented in part, with opinion.

Justice Theis concurred in part and dissented in part, with opinion, joined by

Justice Kilbride.

OPINION

¶1 David Bogenberger attended a pledge event at the Pi Kappa Alpha fraternity

house at Northern Illinois University, where an evening of vodka-laden hazing

ensued. By the end of the night, his blood alcohol level would reach more than five

times the legal limit. David lost consciousness and died during the night.

¶2 At issue here is whether plaintiff’s complaint alleged a cause of action for

negligence against defendants, who included the fraternity’s national

organizations; the local chapter and its officers, pledge board members, and active

members; and certain nonmember sorority women. The circuit court of Cook

County dismissed the complaint in its entirety pursuant to section 2-615 of the

Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2014)). The appellate

court affirmed in part, reversed in part, and remanded for further proceedings. 2016

IL App (1st) 150128, ¶ 51. The court affirmed the dismissal of the complaint as to

the fraternity’s national organizations and the nonmember sorority women. Id.

¶¶ 11, 51. The court reversed the dismissal as to the local chapter and its officers,

pledge board members, and active members. Id.

¶3 For the following reasons, we affirm the dismissal of the fraternity’s national

organizations. We affirm the reversal of the dismissal of the local chapter and its

officers, pledge board members, and active members. We reverse the dismissal of

the nonmember sorority women. The cause is remanded to the circuit court for

further proceedings.

¶4 BACKGROUND

¶5 In the fall of 2012, David began his freshman year at Northern Illinois

University in DeKalb, Illinois. He became a prospective pledge of the Eta Nu

chapter of Pi Kappa Alpha fraternity (NIU Chapter). As a prospective pledge, he

was required to attend a pledge event called “Mom and Dad’s Night.” 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. The

plan designated seven rooms in the fraternity house to which two or three “Greek

couples” would be assigned. The members were directed to obtain vodka for the

pledges to consume during the event and to contact sorority women to serve as

“Greek Mothers.” Each member would select a pledge for whom he and a sorority

woman would serve as the pledge’s “Greek Mother and Father.” Couples were to

ask the pledges various questions and give them a specific amount of alcohol,

regardless of their answers. Pledges would be divided into groups of two or three

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and would rotate from room to room every 10 minutes. The plan called for most, if

not all, pledges to become unconscious. Certain areas of the house were designated

as places where pledges could “pass out.” 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.

¶6 Members informed the pledges of the “Mom and Dad’s Night” event, which

would be held on November 1, 2012. They also indicated that attendance was

mandatory and that the pledges would be required to drink excessive amounts of

alcohol during the event. The pledges believed that attending and participating in

the event was a required condition to gaining membership in the fraternity. The

pledge event was not registered with the university as required by the university’s

policy.

¶7 As directed, David and the other pledges arrived at the fraternity house at 7:30

p.m. for “Mom and Dad’s Night.” They were divided into groups of two or three

and given a list of rooms in the house to which they were to proceed, in a designated

order, every 10 minutes. Each pledge was given a four-ounce plastic cup to bring

with him from room to room, where it was filled with vodka by the members and

the sorority women. The pledges were asked questions by the “Greek couples” and

tried to determine whether the couples were their “Greek parents.” They were

directed and required to consume the vodka in their cups based on their answers. If

pledges were reluctant to drink, they were called derogatory names by the couples.

When a pledge asked a couple whether they were his Greek parents, he was told

they were not, even when they were, and he was required to drink another

four-ounce cup of vodka. Over the course of about an hour and a half, each pledge,

including David, had consumed three to five cups of vodka in each room. The

pledges, who could no longer walk without assistance, were taken to the basement

and told the identity of their Greek parents and were given T-shirts and pledge

paddles. They were also given “vomit buckets” that had been decorated by the

women. As pledges began to lose consciousness, they were brought to the

previously designated places in the house. David was placed in a bed in his “Greek

father’s” room by one of the members, who oriented his head and body so that he

would not choke if he vomited. At approximately 11 p.m., the NIU Chapter

president and an officer sent a text message to other officers and members telling

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them and the sorority women to delete any pictures or videos they had of a “passed

out” pledge. Throughout the night, pledges were occasionally checked and adjusted

so that they would not choke if they vomited. Members discussed whether to obtain

medical attention for the pledges but decided not to and told others not to call 911

or seek medical care for them. Sometime during the night, David died. His blood

alcohol level was 0.43 mg/dl. As a result of the pledge event, the NIU Chapter’s

charter was suspended and ultimately revoked.

¶8 Plaintiff, Gary L. Bogenberger, as special administrator of David’s estate, filed

a 12-count, fifth amended complaint for negligence against defendants on May 28,

2014. Defendants are the Pi Kappa Alpha national organizations, the NIU Chapter,

the officers and pledge board members individually and in their official capacities,

the active members, and the nonmember sorority women. 1 Plaintiff alleged that

defendants owed David a duty of reasonable care and sought damages pursuant to

the Wrongful Death Act (740 ILCS 180/1 et seq. (West 2012)) and the Survival Act

(755 ILCS 5/27-6 (West 2012)).

¶9 Plaintiff’s counsel attached an affidavit to the complaint, averring that many of

the allegations in the complaint, especially those made “upon information and

belief,” were based on counsel’s reading of “various summary reports, recorded

witness statements and media reports.” Counsel also averred that he was unable to

initiate discovery of any of the defendants, other than an officer of the Pi Kappa

Alpha national organizations, due to the pendency of criminal charges stemming

from David’s death.

¶ 10 Defendants filed motions to dismiss pursuant to section 2-615 of the Code. All

of the motions asserted that plaintiff’s complaint failed to allege a duty in light of

the case law that prohibits social host liability with regard to alcohol. They further

argued that the complaint failed to allege specific facts to impose a duty with regard

to voluntary undertaking, concerted action, or joint liability.

¶ 11 The circuit court granted defendants’ motions to dismiss with prejudice and

dismissed the complaint. The court noted the decisions in Quinn v. Sigma Rho

Chapter of the Beta Theta Pi Fraternity, 155 Ill. App. 3d 231 (1987), and Haben v.

1

The landowner of the fraternity house was also named as a defendant in counts XI and XII but

was subsequently dismissed, and plaintiff does not challenge that ruling in this court.

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Anderson, 232 Ill. App. 3d 260 (1992), which recognized a cause of action against a

fraternity and a university lacrosse club, respectively, where the plaintiffs were

required to drink alcohol to the point of intoxication to become a member of the

organization. Nevertheless, it questioned the viability of those cases after this

court’s decisions in Charles v. Seigfried, 165 Ill. 2d 482 (1995), and Wakulich v.

Mraz, 203 Ill. 2d 223 (2003), which declined to create any form of social host

liability regarding alcohol consumption. The court further found that even if Quinn

and Haben remained viable, plaintiff’s complaint was insufficient because it failed

to plead specific facts and the allegations in the complaint were conclusory.

¶ 12 The appellate court affirmed the dismissal of the complaint as to the Pi Kappa

Alpha national organizations and the nonmember sorority women. 2016 IL App

(1st) 150128, ¶¶ 11, 51. The court reversed the dismissal as to the NIU Chapter, its

officers and pledge board members, and the active members. Id. Additional

pertinent facts will be included in the analysis of the issues reviewed on appeal.

¶ 13 ANALYSIS

¶ 14 Plaintiff appeals from the appellate court’s opinion and contends that the court

erred in affirming the dismissal of the Pi Kappa Alpha national organizations and

the nonmember sorority women. Defendants, the NIU Chapter, its officers and

pledge board members, and its active members also appeal and contend that the

court erred in reversing the dismissal of the complaint as to them. We consolidated

the appeals. We also allowed the Illinois Trial Lawyers Association to file an

amicus curiae brief in support of plaintiff. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).

¶ 15 Social Host Liability

¶ 16 Initially, we address an argument made by all defendants that the rule against

social host liability bars plaintiff’s claim. Regarding social host liability, we have

said, “few rules of law are as clear as that no liability for the sale or gift of alcoholic

beverages exists in Illinois outside of the Dramshop Act.” Charles, 165 Ill. 2d at

490. This rule is based on over a century of precedent. Wakulich, 203 Ill. 2d at

229-30. The rationale behind the rule is that the drinking of the intoxicant, not the

furnishing of it, is the proximate cause of the intoxication and the resulting injury.

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Charles, 165 Ill. 2d at 486. As a matter of public policy, the furnishing of alcoholic

beverages is considered too remote to serve as the proximate cause of the injury. Id.

As a result, we have declined to impose any form of social host liability for

alcohol-related injuries. Wakulich, 203 Ill. 2d at 237.

¶ 17 Whether the rule against social host liability applies to the factual situation

presented here is a matter of first impression in this court. In Wakulich, we noted

the appellate court opinions of Quinn and Haben, which held that the required

consumption of alcohol to gain admission into a fraternity and lacrosse club,

respectively, were an “exception” to the rule against social host liability. Wakulich,

203 Ill. 2d at 239. We characterized Quinn and Haben as addressing the “limited

situation in which a college fraternity, or similar college organization, requires

those seeking membership to engage in illegal and dangerous activities, in violation

of the hazing statute.” Id. at 239-40. Ultimately though, we did not address whether

the holdings in Quinn and Haben were compatible with our rule against social host

liability because the plaintiff in Wakulich was not involved in a hazing event. Id. at

240. We are now confronted with such a factual scenario.

¶ 18 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. 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 (720 ILCS 120/5 (West

2010)). 2 We cannot fairly characterize such hazing events as involving the sale or

gift of alcohol. This type of hazing does not fit within the social host situation.

Alcohol is not merely furnished to an individual; the individual is required to

consume alcohol, often at a near-lethal level, to gain admission into a school

organization. This required consumption of alcohol is not too remote to serve as the

2

The hazing statute provides, “[a] person commits hazing when he or she knowingly requires

the performance of any act by a student or other person in a school, college, university, or other

educational institution of this State, for the purpose of induction or admission into any group,

organization, or society associated or connected with that institution, if: (a) the act is not sanctioned

or authorized by that educational institution; and (b) the act results in bodily harm to any person.”

720 ILCS 120/5 (West 2010). The legislature has recodified this provision since the events at issue

but left the substance unchanged. See Pub. Act 97-110 (eff. Jan. 1, 2013) (recodifying 720 ILCS

120/5, 10 as 720 ILCS 5/12C-50).

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proximate cause of intoxication and the resulting injury. Thus, we find that the rule

against social host liability is inapplicable to an alcohol-related hazing event. We

caution, though, that our determination here is quite narrow. To reiterate our words

from Wakulich, our above finding only applies in the limited situation in which the

consumption of alcohol is required to gain admission into a school organization in

violation of the hazing statute. Nothing more is intended.

¶ 19 Having determined that plaintiff’s claim is not barred by the rule against social

host liability, we now turn to the general principles of negligence to determine

whether plaintiff’s complaint alleges a cause of action for negligence.

¶ 20 Negligence

¶ 21 Where the plaintiff seeks recovery based on the defendant’s alleged negligence,

the plaintiff must plead and prove the existence of a duty owed by the defendant, a

breach of that duty, and injury proximately resulting from that breach. Bruns v. City

of Centralia, 2014 IL 116998, ¶ 12. Defendants’ contentions are limited to the

question of duty; therefore, our analysis focuses on that element. Whether a duty

exists is a question of law for the court to decide. Forsythe v. Clark USA, Inc., 224

Ill. 2d 274, 280 (2007).

¶ 22 We have long recognized that “ ‘every person owes a duty of ordinary care to

all others to guard against injuries which naturally flow as a reasonably probable

and foreseeable consequence of an act, and such a duty does not depend upon

contract, privity of interest or the proximity of relationship, but extends to remote

and unknown persons.’ ” Simpkins v. CSX Transportation, Inc., 2012 IL 110662,

¶ 19 (quoting Widlowski v. Durkee Foods, 138 Ill. 2d 369, 373 (1990) (collecting

cases)). Thus, where an individual’s course of action creates a foreseeable risk of

injury, the individual has a duty to protect others from such injury. Id. The duty

inquiry focuses on whether the plaintiff and the defendant stood in such a

relationship to one another that the law imposed upon the defendant an obligation

of reasonable conduct for the benefit of the plaintiff. Ward v. K mart Corp., 136 Ill.

2d 132, 140 (1990). Whether a duty exists is also an inquiry shaped by public

policy. LaFever v. Kemlite Co., 185 Ill. 2d 380, 388 (1998). There are four

traditional duty factors that guide our analysis: (1) the reasonable foreseeability of

the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of

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guarding against the injury, and (4) the consequences of placing that burden on the

defendant. Simpkins, 2012 IL 110662, ¶ 18.

¶ 23 The question presented by a motion to dismiss a complaint pursuant to section

2-615 of the Code is whether the complaint alleges sufficient facts that, if proved,

would entitle the plaintiff to relief. Charles, 165 Ill. 2d at 485-86. Such a motion

challenges only the legal sufficiency of the complaint. Wakulich, 203 Ill. 2d at 228.

The critical inquiry is whether the allegations of the complaint, when construed in a

light most favorable to the plaintiff, are sufficient to state a cause of action upon

which relief may be granted. Id. In making this determination, all well-pleaded

facts in the complaint must be taken as true. Id. We review an order granting a

section 2-615 motion to dismiss de novo. Id.

¶ 24 We now consider whether plaintiff’s complaint alleged sufficient facts to

support his negligence claim. Addressing the counts in the order they appear in the

complaint, we first turn to counts I and II, which were directed at the Pi Kappa

Alpha national organizations. 3

¶ 25 Counts I and II—The Pi Kappa Alpha National Organizations

¶ 26 Plaintiff contends that the Pi Kappa Alpha national organizations (Nationals)

are vicariously liable for the misconduct of the NIU Chapter and its members

because the NIU Chapter and the members were their agents. Plaintiff also

contends that the Nationals are directly liable since they owe a duty to the pledges

to refrain from encouraging and directing local chapters to engage in hazing.

¶ 27 The Nationals contend that they are not vicariously liable for the NIU Chapter’s

hazing activities because no agency relationship exists. They also argue that even if

this court were to find that an agency relationship exists, the hazing acts of the NIU

Chapter and its members were outside the scope of the agency, which defeats a

finding of liability. The Nationals further maintain that they are not directly liable

and have no duty of care to the pledges of local chapters since they have no

day-to-day control over local chapters.

3

The Pi Kappa Alpha national organizations are Pi Kappa Alpha International Fraternity and Pi

Kappa Alpha Corporation, Inc.

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¶ 28 Turning to plaintiff’s agency or respondeat superior theory of liability, in order

to prove that the Nationals are liable for the alleged negligent actions and omissions

of the NIU Chapter and its members, plaintiff must prove that the NIU Chapter and

the members were their agents. Wilson v. Edward Hospital, 2012 IL 112898, ¶ 18.

A complaint relying on an agency relationship must plead facts that, if proved,

could establish the existence of an agency relationship. Connick v. Suzuki Motor

Co., 174 Ill. 2d 482, 498 (1996). A mere allegation of agency is insufficient to

establish actual agency. Id. Proof of actual agency requires a showing that (1) a

principal/agent relationship existed, (2) the principal controlled or had the right to

control the conduct of the agent, and (3) the alleged conduct of the agent fell within

the scope of the agency. Wilson, 2012 IL 112898, ¶ 18.

¶ 29 Counts I and II of plaintiff’s complaint are substantively identical, though count

I is brought pursuant to the Wrongful Death Act and count II is brought pursuant to

the Survival Act. The counts alleged that the Nationals “[t]hrough [their] agents

and employees[,] encouraged local chapters, including Eta Nu, to hold events

similar to ‘Mom and Dad’s Night’ because they were good for member and pledge

retention, therefore increasing revenue and income to the defendants through dues

and fees.” The complaint also alleged the following. The Nationals were “engaged

in the business of organizing, promoting, and recruiting membership” in local

chapters and “as further part of their business, supervised, advised, required and

controlled the activities and conduct” of their local chapters. The local chapters

were required to adhere to the Nationals’ fraternity constitution; chapter codes; risk

assessment manual; its quarterly publication, The Shield and Diamond; and The

Garnet and Gold pledge manual. These documents included and referenced a

hazing policy that prohibited any hazing action as well as hazing that utilized

alcohol. The Nationals had the right and the power to “expel, suspend or place

restrictive remedial conditions on continued operations of local chapters;” to “assist

local chapters in the conduct of rush or pledging activities or require alcohol or

hazing education;” to “expel, suspend or place individual members of local

chapters on ‘alumni status;’ ” and to “ban and prohibit pledging activities outright

at local chapters.” The Nationals obtained knowledge about the conduct and

operations of local chapters through the reports from chapter consultants who

conducted on-site, weeklong assessments of the chapters. The consultants analyzed

each chapter’s recruitment performance, continuing risk awareness education,

alumni relations, finances, housing, management, athletics, scholarship, campus

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involvement, community service, and public relations. The Nationals knew,

through their consultants’ reports, that for at least three years prior to David’s

death, the NIU Chapter did not provide continuing risk education to members, did

not have a risk awareness program, had no written crisis management plan, had no

functioning risk management committee, and had a reputation as a fraternity of

“meatheads.” The Nationals were supported by fees collected by local chapters and

derived at least 75% of their gross income from undergraduate dues and fees and

were dependent on continued and increasing such dues and fees, which included

fees from pledges.

¶ 30 As to the first factor, we find no support for a principal/agent relationship.

Plaintiff’s complaint did not allege facts that the Nationals authorized the NIU

Chapter to act on their behalf or that the Nationals held out the NIU Chapter as their

agent. See Connick, 174 Ill. 2d at 498-99 (a complaint relying on an agency

relationship must contain allegations that the principal expressly or impliedly gave

authority to the agent to act on the principal’s behalf or that the principal held out

the individual as his agent). As to the second factor, plaintiff’s complaint alleged

that the Nationals “controlled the activities and conduct” of their local chapters;

could “assist local chapters in the conduct of rush or pledging activities or require

alcohol or hazing education;” and had “the right and the power to expel, suspend or

place restrictive remedial conditions on local chapters.” However, the above

allegations fall short of establishing “control.” The Nationals have promulgated

rules that the local chapters are to follow, yet the complaint does not allege that the

Nationals dictate how the local chapters implement these rules. The complaint did

not allege that the Nationals had any control over which pledging events chapters

actually held or that the Nationals could control how chapters planned or carried

out the events. It only alleged that the Nationals “encouraged” pledging events

“similar” to “Mom and Dad’s Night.” Also, the Nationals’ power to expel or

discipline local chapters or members was remedial only. The power to take

remedial action “after the fact” does not amount to the right to direct or control a

local chapter or member’s actions. As to the third factor, the NIU Chapter’s hazing

conduct fell outside the scope of any alleged agency relationship. The NIU Chapter

could plan and hold pledging events, but it was against the Nationals’ rules to

include hazing within those pledging events. Pledging and hazing are not

synonymous. We find the allegations in plaintiff’s complaint insufficient to allege

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an agency relationship and, accordingly, insufficient to hold the Nationals

vicariously liable for the conduct of the NIU Chapter and its members.

¶ 31 Regarding plaintiff’s direct theory of liability, plaintiff’s complaint alleged that

the Nationals owed a duty to David to “prevent the foreseeable consequences of

required excessive consumption of alcohol during [an] initiation ritual.” The

complaint further alleged that the Nationals permitted dangerous pledge events to

occur, failed to warn local chapters about the dangers and risks of “required alcohol

related pledge events,” failed to adopt policies for the local chapters to follow to

prevent dangerous pledge events, failed to take reasonable steps to insure its local

chapters followed the Nationals’ policies regarding pledge events, failed to take

reasonable steps to learn whether its local chapters were following the Nationals’

policies, failed to ban pledging events outright at all of its local chapters when they

knew pledge events were likely to result in bodily harm and death to pledges, failed

to insure that the NIU Chapter had a continuing risk education policy and

functioning risk awareness committee although they knew through their chapter

consultant’s reports that it had not had a program or committee for at least three

years before David’s death, and were otherwise careless and negligent.

¶ 32 Here, plaintiff seeks to hold the Nationals directly liable, through their acts or

omissions, for the criminal conduct of the NIU Chapter, its members, and the

nonmember sorority women. 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.

¶ 33 In Illinois, an affirmative duty to aid or protect another against an unreasonable

risk of physical harm or to control the conduct of another arises only within the

context of a legally recognized “special relationship.” Doe-3 v. McLean County

Unit District No. 5 Board of Directors, 2012 IL 112479, ¶ 24; Hills v. Bridgeview

Little League Ass’n, 195 Ill. 2d 210, 234 (2000); see also Restatement (Second) of

Torts §§ 314, 314A, 315 (1965). We have recognized the following four

relationships that give rise to an affirmative duty to aid or protect another against an

unreasonable risk of physical harm: common carrier and passenger, innkeeper and

guest, custodian and ward, and possessor of land who holds it open to the public

and member of the public who enters in response to the possessor’s invitation.

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Simpkins, 2012 IL 110662, ¶ 20. We have also recognized a duty to a third party to

control the individual who is the source of the harm when a defendant has a special

relationship with that person, such as a parent-child relationship and a

master-servant or employer-employee relationship. Id. Absent a special

relationship, there can be no affirmative duty imposed on one for the benefit of

another to warn or protect against the criminal conduct of a third party. Iseberg v.

Gross, 227 Ill. 2d 78, 101 (2007); Hills, 195 Ill. 2d at 228 (one has no affirmative

duty to control the conduct of another to prevent a criminal attack on a third party in

the absence of a special relationship).

¶ 34 The appellate court found that the Nationals did not owe a duty to the pledges of

the local chapters because imposing such a duty would present an “unrealistic

burden.” 2016 IL App (1st) 150128, ¶ 47. The court did not consider, and the

parties did not raise, the “no-affirmative-duty” rule and the special relationship

doctrine. Similarly here, the parties’ contentions on appeal omit mention of the rule

and doctrine and instead argue the issue of duty pursuant to the traditional four duty

factors.

¶ 35 Nevertheless, since plaintiff’s complaint alleges direct liability on behalf of the

Nationals for the criminal conduct of the NIU Chapter, its members, and the

nonmember sorority women, we must first consider whether a legally recognized

special relationship exists between the parties. 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. Since Illinois is a fact-pleading jurisdiction,

plaintiff’s complaint must allege facts, not mere conclusions, that establish a viable

cause of action. Iseberg, 227 Ill. 2d at 86. When we read the allegations in

plaintiff’s complaint, we find that they do not plead specific facts that would come

within any of the above legally recognized special relationships. The complaint

does not sufficiently plead any of the special relationships of common carrier and

passenger, innkeeper and guest, custodian and ward, or possessor of land and

public invitee, nor does it adequately plead a parent-child relationship or

master-servant or employer-employee relationship. Accordingly, absent a special

relationship, there can be no affirmative duty imposed on the Nationals for the

benefit of the pledges.

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¶ 36 Our finding is consistent with this court’s precedent. For example, in Hills, the

plaintiff was coaching a Little League baseball team when he was attacked by the

manager and assistant coaches for the opposing team. The plaintiff filed suit against

his attackers, as well as the opposing team’s sponsor and the host of the baseball

tournament. We determined that the sponsor of the opposing team had no

affirmative duty to control the attackers and the host had no affirmative duty to

protect the plaintiff from the attackers because no special relationship existed

between the parties. Hills, 195 Ill. 2d at 242, 252.

¶ 37 In Iseberg, the plaintiff was shot and paralyzed by a former business investor

who suffered financial losses. The plaintiff filed suit against the investor, as well as

other business partners for failing to warn him that the investor had made threats

against the plaintiff’s life. We ultimately found that there was no special

relationship between the business partners and the plaintiff and therefore no

affirmative duty to warn or protect. Iseberg, 227 Ill. 2d at 101. Of particular

relevance, here, is what we said in response to one of the plaintiff’s arguments. The

plaintiff had also advanced an argument that in situations where “some type of

relationship” exists between the parties, whether an affirmative duty may be

imposed should be decided based upon consideration of the four traditional duty

factors. Id. at 89. We took the opportunity to reiterate this court’s long history of

adherence to the no-affirmative-duty rule and the special relationship doctrine

before rejecting the plaintiff’s argument and reaffirming that the rule and doctrine

“stand as the law of this state.” Id. at 101.

¶ 38 Additionally, our appellate court has rejected attempts to hold universities

liable for harm perpetrated by one student upon another in the absence of a special

relationship. See Rabel v. Illinois Wesleyan University, 161 Ill. App. 3d 348,

361-63 (1987) (university neither had a duty to protect student, who was injured as

a result of a fraternity prank, in its capacity as landlord, nor had it voluntarily

assumed or placed itself in a custodial relationship with its students); Leonardi v.

Bradley University, 253 Ill. App. 3d 685, 690-91 (1993) (university had no duty to

protect student from sexual assault that occurred at a fraternity house since the

student did not qualify as a business invitee of the university).

¶ 39 Regarding cases that specifically address a national fraternity’s liability, we

note Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840 (Ky.

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2005). In Carneyhan, the Supreme Court of Kentucky explained that the “key” to

imposing a duty based on a special relationship is that the defendant’s relationship

with either the tortfeasor or the plaintiff “places the defendant in the best position to

protect against the risk of harm.” Id. at 850. It further explained that the defendant’s

ability to control the person who caused the harm “must be real and not fictional

and, if exercised, would meaningfully reduce the risk of the harm that actually

occurred.” Id. at 851. In declining to hold the national fraternity liable for the

actions of the local chapter in serving the underage plaintiff alcohol, which resulted

in the plaintiff’s death when she crashed her automobile into a utility pole, the court

relied on the national organizations’ inability to affirmatively monitor their local

chapters. Id. at 854. The court reasoned that national organizations do not have

sufficient resources to monitor the activities of their local chapters

contemporaneously with each chapter’s events and can only discipline a chapter

“after the fact.” (Internal quotation marks omitted.) Id.; see also Shaheen v. Yonts,

394 Fed. App’x 224, 229-30 (6th Cir. 2010) (national fraternity not liable for

fraternity member who drove away from local fraternity house party while

intoxicated and struck and killed pedestrian); Garofalo v. Lambda Chi Alpha

Fraternity, 616 N.W.2d 647, 654 (Iowa 2000) (national fraternity had no duty to

protect pledge from his excessive drinking that occurred after a big brother/little

brother ceremony since the national fraternity neither furnished the alcohol nor

forced him to consume any alcohol); Walker v. Phi Beta Sigma Fraternity,

96-2345, pp. 8-9 (La. App. 1 Cir. 12/29/97); 706 So. 2d 525, 529-30 (national

fraternity had no duty to prevent local chapter’s hazing of pledge by physical abuse

since the national fraternity was unable to control the day-to-day actions of the

local chapter, which was located several states away from the national fraternity);

Millard v. Osborne, 611 A.2d 715, 719-20 (Pa. Super. Ct. 1992) (national fraternity

had no duty to control the actions of its local chapter’s members, who furnished

alcohol at the fraternity house to a student who was killed shortly thereafter in a

motorcycle accident).

¶ 40 We also acknowledge, however, that some courts have held that a national

fraternity may be liable for the actions of its local chapters. See Grenier v.

Commissioner of Transportation, 51 A.3d 367, 389 (Conn. 2012) (the extent of the

national fraternity’s control over its local chapter’s actions raised a question of

material fact sufficient to preclude summary judgment); Brown v. Delta Tau Delta,

2015 ME 75, ¶ 10, 118 A.3d 789, 792 (national fraternity owed a duty based on a

- 14 ­

theory of premises liability to student who was sexually assaulted during fraternity

party); Morrison v. Kappa Alpha Psi Fraternity, 31,805, p. 16 (La. App. 2 Cir.

5/7/99); 738 So. 2d 1105, 1118-19 (national fraternity was liable to a pledge for the

actions of its local chapter because it had voluntarily assumed a duty to prevent

hazing but had acted negligently in performing its duty).

¶ 41 Notwithstanding the varied nuances of other jurisdictions’ determinations of a

national fraternity’s liability for the actions of a local chapter, Illinois jurisprudence

regarding an affirmative duty is clear. We find no basis to impose an affirmative

duty upon the Nationals absent a special relationship. Moreover, in Iseberg, we

stated that this court has never recognized an affirmative duty to protect or control

based upon consideration of the traditional four duty factors in the absence of a

special relationship. Iseberg, 227 Ill. 2d at 98.

¶ 42 Since we conclude that the Nationals did not owe a duty to the pledges, plaintiff

cannot establish a claim for negligence against them. See Bell v. Hutsell, 2011 IL

110724, ¶ 11 (unless a duty is owed, there can be no recovery in tort for

negligence). We affirm the appellate court’s dismissal of counts I and II of the

complaint.

¶ 43 Counts III through VIII—The NIU Chapter, Its Officers

and Pledge Board Members, and Active Members

¶ 44 We next turn to counts III through VIII of plaintiff’s complaint, which name the

NIU Chapter, its officers and pledge board members, and its active members.

Counts III and IV are directed at the NIU Chapter and its officers and pledge board

members (collectively officers) in their official capacities. Counts V and VI are

directed at the officers individually. Counts VII and VIII are directed at the active

members. 4 Defendants contend that they did not owe a duty to the pledges,

including David, either directly or based on a theory of voluntary undertaking.

4

The named officers are Alexander M. Jandick, James P. Harvey, Omar Salameh, Patrick

Merrill, Stephen A. Libert, John Hutchinson, and Daniel Biagini. The named active members are

Michael J. Phillip Jr., Thomas F. Costello, David R. Sailer, Alexander D. Renn, Michael A.

Marroquin, Estafan A. Diaz, Hazel A. Vergaralope, Michael D. Pfest, Andres Jimenez Jr., Isiah

- 15 ­

¶ 45 Plaintiff alleged in counts III and IV of his complaint that the NIU Chapter and

officers required pledges, including David, to participate in the “Mom and Dad’s

Night” pledge event as a condition of membership in the NIU Chapter and further

required the consumption of excessive and dangerous amounts of alcohol in

violation of the hazing statute. The counts also alleged that the officers failed to call

911 or seek medical attention for David, dissuaded others from obtaining medical

attention for him, and instead placed him on a bed in a room where he would not be

observed by others. Further, it was alleged that the officers failed to implement a

continuing risk education program, failed to create a continuing risk education

committee, and were otherwise careless and negligent.

¶ 46 To determine whether the NIU Chapter and officers owed a duty to the pledges,

we look to the reasonable foreseeability of the injury, the likelihood of the injury,

the magnitude of the burden of guarding against the injury, and the consequences of

placing that burden on the defendant. In deciding reasonable foreseeability, an

injury is not reasonably foreseeable where it results from “freakish, bizarre, or

fantastic circumstances.” Doe-3, 2012 IL 112479 ¶ 31. Regarding the first two

factors, we cannot say that, as a matter of law, an injury resulting from hazing is

freakish, bizarre, or occurs under fantastic circumstances. The existence of hazing

statutes across the country, including the Nationals’ written policy against hazing

as well as Illinois’s hazing statute, indicates that injury due to hazing is reasonably

foreseeable. We also find that injuries resulting from hazing events, especially

those involving the consumption of large amounts of alcohol, are likely to occur.

When pledges are required to consume large quantities of alcohol in short periods

of time, their risk of injury is great—not only physical injury due to their inebriated

condition but injury or death resulting from alcohol poisoning. Regarding the last

two factors, we find that the magnitude of the burden of guarding against injury is

small and the consequences of placing that burden on the NIU Chapter and officers

are reasonable. To require the NIU Chapter and officers to guard against hazing

injuries is infinitesimal. Hazing is not only against the law in Illinois, it is against

the university’s rules as well as the Pi Kappa Alpha fraternity’s rules. There can be

no real burden to require the NIU Chapter and officers to comply with the law and

Lott, Andrew W. Bouleanu, Nicholas A. Sutor, Nelson A. Irizarry, John Wallace, Daniel S. Post,

Nsenzi K. Salasini, Russell P. Coyner, Gregory Petryka, Kevin Rosetti, and Thomas Bralis.

- 16 ­

the university’s and fraternity’s rules. And it seems quite reasonable to place that

burden on the very people who are in charge of planning and carrying out the

pledge event. We find that the NIU Chapter and the officers owed a duty to the

pledges, including David, and plaintiff has sufficiently alleged a claim for

negligence against them. Since we conclude that a duty exists, we need not

determine whether a duty arose based on the theory of voluntary undertaking. We

affirm the appellate court’s reversal of the dismissal of counts III and IV.

¶ 47 Plaintiff alleged in counts V and VI of his complaint that the officers

individually “knowingly and willingly approved, organized, planned, promoted,

required and participated” in the “Mom and Dad’s Night” pledge event where

pledges would be required to consume dangerous and excessive amounts of alcohol

“to a point of insensate intoxication” as a condition to membership in the NIU

Chapter. The counts also alleged that the officers designated certain rooms and

areas in the fraternity house in which to place pledges, including David, who

became dangerously intoxicated and unconscious, failed to seek necessary medical

attention for the pledges, and were otherwise careless and negligent.

¶ 48 When we consider the four duty factors, we again find that the first two factors

weigh in favor of a duty because a hazing injury is reasonably foreseeable and is

likely to occur. Similarly, we find that the magnitude of the burden of guarding

against injury is small and the consequences of placing that burden on the officers

are reasonable. As stated above, requiring the officers to comply with the law and

the university’s and fraternity’s rules against hazing is an infinitesimal burden.

Placing that burden on the officers who are alleged to have planned, promoted, and

participated in the hazing event is reasonable. We find that the officers individually

owed a duty to the pledges, including David, and plaintiff has sufficiently alleged a

claim for negligence against them. Again, since we conclude that a duty exists, we

need not determine whether a duty arose based on the theory of voluntary

undertaking. We affirm the appellate court’s reversal of the dismissal of counts V

and VI.

¶ 49 Plaintiff alleged in counts VII and VIII of his complaint that the active members

“knowingly and willingly agreed” to participate in the “Mom and Dad’s Night”

pledge event that required pledges to consume dangerous and potentially fatal

amounts of alcohol as a condition of being accepted for membership in the NIU

- 17 ­

Chapter. The complaint further alleged that the members failed to seek medical

attention for David after he became dangerously intoxicated and unconscious,

placed him in a room where he would not be seen by others, and were otherwise

careless and negligent.

¶ 50 Considering the duty factors, as stated above, the first two factors weigh in

favor of a duty because a hazing injury is reasonably foreseeable and is likely to

occur. Also, as stated above, the magnitude of the burden of guarding against injury

is small, and the consequences of placing that burden on the members are

reasonable. Placing the burden on those members who are alleged to have

knowingly and willingly agreed to participate in the hazing event is reasonable. We

find that the members owed a duty to the pledges, including David, and plaintiff has

sufficiently alleged a claim for negligence against them. Since a duty exists, we

need not consider whether a duty arose based on voluntary undertaking. We affirm

the appellate court’s reversal of the dismissal of counts VII and VIII.

¶ 51 Counts IX and X—The Nonmember Sorority Women

¶ 52 Plaintiff alleged in counts IX and X of his complaint that the nonmember

sorority women participated in the “Mom and Dad’s Night” hazing event by filling

the pledges’ cups with vodka, asking the pledges questions, directing the pledges to

drink vodka based on the pledges’ answers, calling the pledges derogatory names,

and decorating “vomit buckets” for the pledges. 5 The complaint further alleged that

the nonmember women “encouraged” and “required” the pledges, including David,

to consume dangerous amounts of alcohol in violation of the hazing statute, gave

David excessive and dangerous amounts of alcohol after he had become obviously

and dangerously intoxicated, failed to seek medical attention for David, and were

otherwise careless and negligent.

5

The named nonmember sorority women are Alyssa Allegretti, Jessica Anders, Kelly Burback,

Christina Carrisa, Raquel Chavez, Lindsey Frank, Danielle Glennon, Kristina Kunz, Janet Luna,

Nichole Minnick, Courtney Odenthal, Logan Redfield, Katherine Reporto, Tiffany Scheinfurth,

Adrianna Sotelo, Prudence Willret, Karissa Azarela, Megan Ledone, Nicole Manfredini, Jillian

Merril, and Monica Skowron.

- 18 ­

¶ 53 The nonmember women argue they owe no duty to the pledges because the

hazing statute cannot apply to nonmembers of the organization into which

admission is sought since nonmembers cannot “require” prospective members to

perform any act. Further, they adopt the Nationals’ arguments that they do not owe

the pledges a duty because they have no control over the NIU Chapter’s activities.

¶ 54 As we have already determined above, a hazing injury is reasonably foreseeable

and is likely to occur. We also find that the magnitude of the burden of guarding

against the injury is minor for the aforementioned reasons. Yet whether the

consequences of placing this burden on nonmembers are reasonable is a much

thornier determination. On the one hand, the nonmember women were not alleged

to have had any part in planning the event, and they could not vote as to which

pledges would be admitted into the NIU Chapter. Yet they willingly agreed to

participate in the hazing event and actively did so by filling the pledges’ cups with

vodka, asking the pledges questions, directing the pledges to drink, calling the

pledges derogatory names, and decorating “vomit buckets.” We see little difference

between the nonmember women’s participation in the hazing event and the

members’ participation. As we noted in our analysis regarding the members, it

seems quite reasonable to impose a duty on those individuals who actively

participated in the hazing event. The appellate court found that the nonmember

women did not have a duty because they could not have “required” David to drink

as provided in the hazing statute. However, the hazing statute does not include

language limiting its application to members of the organization in which a person

is seeking to join. The statute provides that “[a] person commits hazing when he or

she knowingly requires the performance of any act *** for the purpose of induction

*** into any group.” 720 ILCS 5/12C-50 (West 2012). Here, the message conveyed

to the pledges, whether by the members or the nonmember women, was the same:

Drink the vodka to become a member of the fraternity. The purpose of the hazing

statute is to prevent hazing. We refuse to read into it such a loophole that would

absolve a nonmember’s participation when the statute has no such limiting

language. The women were more than mere guests encouraging the pledges to

drink. They were an integral part of the event and, for purposes of that event,

occupied a similar position of influence over the pledges as the members did.

Further, we believe that public policy dictates imposing a duty. Hazing is illegal,

and those individuals who choose to participate in such acts should bear the

consequences of their actions. Under the circumstances alleged here, we find that

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the nonmember women owed a duty to the pledges, including David, and plaintiff

has sufficiently alleged a claim for negligence against them. We reverse the

appellate court’s dismissal of counts IX and X.

¶ 55 CONCLUSION

¶ 56 In summary, the complaint is dismissed as to the Pi Kappa Alpha national

organizations. The complaint may proceed against the NIU Chapter, its officers and

members, and the nonmember sorority women.

¶ 57 Accordingly, we affirm the appellate court’s dismissal of counts I and II of the

complaint. We affirm the appellate court’s reversal of the dismissal of counts III

through VIII of the complaint. We reverse the appellate court’s dismissal of counts

IX and X of the complaint. We remand the cause to the circuit court for further

proceedings consistent with this opinion.

¶ 58 Appellate court judgment affirmed in part and reversed in part.

¶ 59 Circuit court judgment affirmed in part and reversed in part.

¶ 60 Cause remanded.

¶ 61 CHIEF JUSTICE KARMEIER, concurring in part and dissenting in part:

¶ 62 Like Justice Theis, I join the majority’s opinion, except as to counts I and II of

the plaintiff’s fifth amended complaint. I agree with Justice Theis that those counts

should not have been dismissed. Reversal of the dismissal of those counts is

mandated by our decision in Simpkins, 2012 IL 110662, and the four traditional

duty factors. However, unlike Justice Theis, I would refrain from addressing the

special relationship doctrine. Therefore, I do not join the views expressed under the

headings “1. Special Relationships Between Defendants and Tortfeasors” and

“2. Special Relationships Between Defendants and Plaintiffs” of her partial

concurrence and partial dissent. See infra ¶¶ 79-100.

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¶ 63 JUSTICE THEIS, concurring in part and dissenting in part:

¶ 64 I join the majority’s opinion, except as to counts I and II of the plaintiff’s fifth

amended complaint. In my view, the plaintiff has sufficiently alleged a negligence

claim against the national organizations, Pi Kappa Alpha Corporation and Pi Kappa

Alpha International Fraternity.

¶ 65 This case comes before us on appeal from the trial court’s decision to grant the

national organizations’ motion to dismiss the plaintiff’s complaint under section

2-615 of the Code of Civil Procedure. 735 ILCS 5/2-615 (West 2014). Our review

of such a decision is de novo. Better Government Ass’n v. Illinois High School

Ass’n, 2017 IL 121124, ¶ 57. We must determine whether the allegations of the

plaintiff’s complaint and any reasonable inferences that arise from those

allegations, when viewed in the light most favorable to the plaintiff, are sufficient

to state a claim. Kanerva v. Weems, 2014 IL 115811, ¶ 33. We must accept as true

all well-pleaded facts, and we can affirm a section 2-615 dismissal only if it is

clearly apparent that no set of facts entitles the plaintiff to recover. Cowper v.

Nyberg, 2015 IL 117811, ¶ 12.

¶ 66 The majority begins its analysis of the plaintiff’s complaint by addressing the

two counts directed at the national organizations. According to the majority, the

plaintiff contends that the national organizations are vicariously liable for the

negligence of Northern Illinois University’s Pi Kappa Alpha chapter (NIU Chapter)

and its members and that the national organizations are also directly liable for their

own negligence. As the majority notes, both counts are substantively identical.

Count I is brought under the Wrongful Death Act (740 ILCS 180/1 et seq. (West

2016)), and count II is brought under the Survival Act (755 ILCS 5/27-6 (West

2016)). Neither count contains allegations of an agency relationship that would

support a vicarious liability claim. Despite the plaintiff’s argument to the contrary,

he did not offer sufficient facts to show that members of the NIU Chapter were

agents of the national organizations. The plaintiff maintained only that the

organizations “conducted their business of organizing, promoting[,] and recruiting

membership in Pi Kappa Alpha fraternities and organization through, among

others, [the NIU Chapter].” That statement is simply not enough to survive a

motion to dismiss.

- 21 ­

¶ 67 As the plaintiff reminds us, however, he faced a serious obstacle before the trial

court. The plaintiff conducted some initial discovery to learn the identities of the

NIU Chapter members and the nonmember women who were involved in the

events leading to David’s death, adding those individuals as defendants. Further

discovery was halted when the trial court granted the individual defendants’ motion

to stay discovery due to the pending criminal cases against them and the

accompanying fifth amendment concerns. The plaintiff later filed a motion for

leave to take discovery, stating that the criminal cases were nearing dispositions,

which would remove any such concerns. At a hearing on August 20, 2014, the trial

judge stated that she wanted “to get a good handle on what’s going on in DeKalb

after the criminal proceedings” before ruling on the plaintiff’s motion. On October

16, 2014, the trial court denied the plaintiff’s motion without comment about those

proceedings. On December 11, 2014, the trial court dismissed the plaintiff’s

complaint with prejudice, foreclosing any further fact development. Now that the

criminal charges against the individual defendants have been resolved, this court

should vacate the trial court’s order dismissing the plaintiff’s complaint with

prejudice and lift the trial court’s bar on discovery. The national organizations

acknowledge in their brief that active members of the NIU Chapter “were arguably

‘employed’ to secure new members for the ongoing stability of the national

Fraternity.” Allowing the plaintiff to depose the NIU Chapter members may

provide details about their interactions with the national organizations that could

establish an agency relationship and, therefore, vicarious liability. 6 See Kenner v.

6

Some courts have taken that route in determining that national organizations may be liable for

the conduct of local chapters and their members. See Ballou v. Sigma Nu General Fraternity, 352

S.E.2d 488, 496 (S.C. Ct. App. 1986) (holding that a national organization “was bound by the acts of

its local chapter *** since they were performed within the apparent scope of its authority”);

Marshall v. University of Delaware, 1986 WL 11566, *7 (Del. Super. Ct. Oct. 8, 1986) (holding that

“one might reasonably conclude” a local chapter’s “alleged failure to control its members was

within the scope of its alleged agency” with the national organization); Edwards v. Kappa Alpha Psi

Fraternity, Inc., No. 98 C 1755, 1999 WL 1069100, *6 (N.D. Ill. Nov. 18, 1999) (denying a national

organization’s summary judgment motion on a plaintiff’s vicarious liability claim because the

organization “may have possessed some control over its local members and their houses”); see also

Butler v. Gamma Nu Chapter of Sigma Chi, 445 S.E.2d 468, 482 (S.C. Ct. App. 1994); Supreme

Lodge of World, Loyal Order of Moose v. Kenny, 73 So. 519 (Ala. 1916); Thompson v. Supreme

Tent of Knights of Maccabees of the World, 82 N.E. 141 (N.Y. 1907); Mitchell v. Leech, 48 S.E. 290

(S.C. 1904).

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Kappa Alpha Psi Fraternity, Inc., 2002 PA Super 269, ¶ 15 (stating that the trial

court erred in failing to “consider the full scope of the relationship as established by

the parties’ deposition testimony”).

¶ 68 The plaintiff’s chief allegations concern the direct liability of the national

organizations. To state a claim for negligence, a plaintiff must allege facts that

show the defendant owed a duty of reasonable care to the plaintiff, the defendant

breached that duty, and that breach was the proximate cause of the plaintiff’s

damages. See Simpkins v. CSX Transportation, Inc., 2012 IL 110662, ¶ 14. The

crux of this case is the duty element. 7 The plaintiff must convince us that the

national organizations owed David a duty because “[u]nless a duty is owed, there is

no negligence.” American National Bank & Trust Co. v. National Advertising Co.,

149 Ill. 2d 14, 26 (1992). The existence of a duty is a matter of law. Choate v.

Indiana Harbor Belt R.R. Co., 2012 IL 112948, ¶ 22.

¶ 69 The threshold inquiry in this case is whether the national organizations, by their

own acts or omissions, contributed to a risk of harm to David. See Simpkins, 2012

IL 110662, ¶ 21; see generally Restatement (Second) of Torts § 302B (1965) (“An

act or an omission may be negligent if the actor realizes or should realize that it

involves an unreasonable risk of harm to another through the conduct of the other

or a third person which is intended to cause harm, even though such conduct is

criminal.”); Restatement (Third) of Torts, Liability for Physical and Emotional

Harm § 37, cmt. d (2012) (“The Restatement Second of Torts § 302B, Comment e,

provides for a duty of care when ‘the actor’s own affirmative act has created or

exposed the other to a recognizable high degree of risk of harm through such

[third-party] misconduct.’ ”). If the answer to that question is yes, the analysis is

familiar. The court must weigh public policy considerations to determine whether

the national organizations owed David a duty of reasonable care. Simpkins, 2012 IL

Notably, the same attorney represented both the national organizations and the NIU Chapter

before the trial court, and new attorneys represent both the national organizations and the NIU

Chapter before this court. The relationship between those defendants may be closer than the national

organizations are willing to admit. See generally Cassandra Coolidge, Fraternizing With

Franchises: A Franchise Approach to Fraternities, 66 Emory L.J. 917 (2017).

7

Neither the national organizations nor the majority address or even dispute that the plaintiff’s

allegations of breach, causation, and damages are sufficient. I believe that they are, so I confine my

discussion to the sufficiency of the plaintiff’s allegations as they concern duty.

- 23 ­

110662, ¶ 21. Traditionally, we have reduced those considerations to four factors:

(1) the foreseeability of the plaintiff’s injury, (2) the likelihood of that injury,

(3) the magnitude of the burden to guard against that injury, and (4) the

consequences of placing that burden on the defendant. Id. ¶ 18. Generally, we

balance the foreseeability and likelihood of harm against the burdens and

consequences of imposing a duty on the defendant for the benefit of the plaintiff

(Hutchings v. Bauer, 149 Ill. 2d 568, 571 (1992)), and the weight accorded to those

factors depends upon the details of the case (Bruns v. City of Centralia, 2014 IL

116998, ¶ 14). However, if the answer to the threshold question is no, the analysis

shifts. The court must look for a so-called “special relationship” that establishes a

duty. Simpkins, 2012 IL 110662, ¶ 21.

¶ 70 The majority ignores the threshold question and rushes to the conclusion that

the plaintiff seeks to hold the national organizations liable for “the criminal conduct

of the NIU Chapter, its members, and the nonmember sorority women.” Supra

¶ 32. The majority recharacterizes the plaintiff’s allegations: “Essentially, what

[the] plaintiff’s complaint alleges is that the [national organizations] 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.” Supra ¶ 32. The

majority then states that an affirmative duty to aid or protect arises only when there

is a special relationship between the defendant and the plaintiff or between the

defendant and the third party who injured the plaintiff. Supra ¶ 33. The majority

concludes that the national organizations did not owe a duty to David because this

case does not involve such a relationship. Supra ¶ 35.

¶ 71 The majority’s casual logic is troubling for two reasons. First, the majority

abandons the principle of party presentation, and second, the majority compounds

that error by oversimplifying the unbriefed issues that it chooses to address

sua sponte.

¶ 72 Our precedent counsels adherence to the principle of judicial restraint. See

People v. White, 2011 IL 109689, ¶ 153 (“courts of review *** are not free rangers

riding about the legal landscape looking for law to make”). Undoubtedly, a

reviewing court has the power to decide issues that the parties have not raised (see

Ill. S. Ct. R. 366(a)(5) (eff. Feb. 1, 1994)) but should refrain from doing so when it

would transform the court from arbiter to advocate. As this court has stressed, we

- 24 ­

follow the principle of party presentation, relying on the parties to frame the issues

for decision. People v. Givens, 237 Ill. 2d 311, 323 (2010). Our adversary system

works best when the parties themselves advance their best arguments (Greenlaw v.

United States, 554 U.S. 237, 244 (2008)) and we hear from both sides pursuant to

our motto, audi alteram partem. When we address unbriefed issues, we are “forced

to speculate as to the arguments that the parties might have presented had these

issues been properly raised before this court. To engage in such speculation would

only cause further injustice ***.” People v. Rodriguez, 336 Ill. App. 3d 1, 14

(2002); see People v. Boeckmann, 238 Ill. 2d 1, 13 (2010) (“it is not appropriate to

address the issue in this case where the parties have not raised or argued it”); accord

Roberts v. Northland Insurance Co., 185 Ill. 2d 262, 270 (1998).

¶ 73 As the majority recognizes, the parties here focused on only the four traditional

duty factors and did not raise the so-called “no-affirmative-duty” rule and the

special relationship doctrine in either the appellate court or this court. Supra ¶ 34.

The majority acknowledges that shortcoming but proceeds with a “nevertheless”

shrug to discuss those issues anyway (supra ¶ 35), ultimately holding in a case of

first impression that national fraternal organizations have no special relationship

either with their local chapters and members or with their pledges and,

consequently, owe no duty to pledges who die during membership or initiation

events purportedly encouraged and sanctioned by the organizations.

¶ 74 The Special Relationship Doctrine

¶ 75 The majority presents the relevant blackletter law superficially. This court has

stated that a defendant has no affirmative duty to protect a plaintiff from a

third-party tortfeasor, absent a special relationship between either the defendant

and the plaintiff or the defendant and the tortfeasor. See Simpkins, 2012 IL 110662,

¶ 20. That is a paraphrase of section 315 of the Second Restatement of Torts:

“There is no duty so to control the conduct of a third person as to prevent

him from causing physical harm to another unless

(a) a special relation exists between the actor and the third person which

imposes a duty upon the actor to control the third person’s conduct, or

- 25 ­

(b) a special relation exists between the actor and the other which gives

to the other a right to protection.” Restatement (Second) of Torts § 315

(1965).

Section 37 of the Third Restatement similarly provides, “An actor whose conduct

has not created a risk of physical or emotional harm to another has no duty of care

to the other unless” one of the affirmative duties listed in sections 38 to 44 applies.

Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 37

(2012).

¶ 76 This court has recognized four special relationships between defendants and

plaintiffs that may give rise to duties: common carrier/passenger, innkeeper/guest,

possessor of land/invitee, and custodian/ward. See Simpkins, 2012 IL 110662, ¶ 20

(citing Marshall v. Burger King Corp., 222 Ill. 2d 422, 438 (2006)); Iseberg v.

Gross, 227 Ill. 2d 78, 88 (2007) (“The existence of one of these four ‘special

relationships’ has typically been the basis for imposing an affirmative duty to act

where one would not ordinarily exist.”); see generally Restatement (Second) of

Torts § 314A (1965); Restatement (Third) of Torts: Liability for Physical and

Emotional Harm § 40(b) (2012). This court also has recognized several special

relationships between defendants and tortfeasors—parent/child and master/servant

or employer/employee—that also may give rise to duties. Simpkins, 2012 IL

110662, ¶ 20; see Norskog v. Pfiel, 197 Ill. 2d 60, 84 (2001) (parent/child); Hills v.

Bridgeview Little League Ass’n, 195 Ill. 2d 210, 234 (2000) (master/servant); see

generally Restatement (Second) of Torts §§ 316, 317 (1965); Restatement (Third)

of Torts, Liability for Physical and Emotional Harm § 41 (2012).

¶ 77 The majority states that “this court has never recognized an affirmative duty to

protect or control based upon consideration of the traditional four duty factors in

the absence of a special relationship.” Supra ¶ 41 (citing Iseberg, 227 Ill. 2d at 98).

The majority forgets that special relationships between defendants and tortfeasors

or between defendants and plaintiffs are not a closed set. Comment g to section 37

of the Third Restatement instructs, “The Sections recognizing certain relationships

as imposing an affirmative duty are stated nonexclusively, leaving to the courts

whether to recognize additional relationships as sufficient to impose an affirmative

duty.” Restatement (Third) of Torts: Liability for Physical and Emotional Harm

§ 37, cmt. g (2012); see Iseberg, 227 Ill. 2d at 88 n.4 (noting that section 40 of the

- 26 ­

2005 final draft of the Third Restatement added new special relationships); see

generally Prosser and Keeton on the Law of Torts § 53, at 359 (W. Page Keeton

et al. eds., 5th ed. 1984) (“Changing social conditions lead constantly to the

recognition of new duties.”).

¶ 78 The Restatement plainly establishes that what the majority terms the special

relationship doctrine continues to evolve, as courts and commentators across the

country grapple with its scope and its application in new contexts. The issues

presented by the doctrine involve arguments over public policy, but the parties in

this case have been robbed of an opportunity to make those arguments by the

majority, which has abandoned our typical search for a careful and deliberate

decision via the adversarial system for a simple, result-oriented answer by fiat.

Because the majority has chosen that ill-advised route, and offered a truncated

special-relationship argument on behalf of the national organizations that they

never imagined, I will offer some more comprehensive points that the plaintiff

might have raised. I will address in turn both the defendant/tortfeasor and the

defendant/plaintiff aspects of the special relationship doctrine.

¶ 79 1. Special Relationships Between Defendants and Tortfeasors

¶ 80 Regarding a special relationship between a defendant and a tortfeasor that may

give rise to a duty in favor of a plaintiff, the majority concludes that the plaintiff’s

complaint does not “adequately plead a parent-child relationship or master-servant

or employer-employee relationship.” Supra ¶ 35. That conclusion seems to be

based upon Simpkins, where the court offered the aforementioned exceptions to the

general rule of no affirmative duty. See Simpkins, 2012 IL 110662, ¶ 20 (citing

Restatement (Second) of Torts §§ 316, 317 (1965)). Of course, there is no way that

the plaintiff could plead that the national organizations and the NIU Chapter

members stood in a parent-child or employer-employee relationship, so the

majority’s reference to those exceptions is specious. Further, as I have noted, the

plaintiff has not sufficiently pleaded a master-servant relationship between the

national organizations and the local members, though facts establishing such a

relationship could become known through discovery.

- 27 ­

¶ 81 The primary weakness of the majority’s opinion is its incompleteness. The

Second Restatement, cited so prominently in Simpkins, also contains section 319,

which provides:

“One who takes charge of a third person whom he knows or should know to

be likely to cause bodily harm to others if not controlled is under a duty to

exercise reasonable care to control the third person to prevent him from doing

such harm.” Restatement (Second) of Torts § 319 (1965).

Section 41 of the Third Restatement has replaced sections 316, 317, and 319 of the

Second Restatement and states:

“(a) An actor in a special relationship with another owes a duty of

reasonable care to third parties with regard to risks posed by the other that arise

within the scope of the relationship.

(b) Special relationships giving rise to the duty provided in Subsection (a)

include:

(1) a parent with dependent children,

(2) a custodian with those in its custody,

(3) an employer with employees when the employment facilitates the

employee’s causing harm to third parties, and

(4) a mental-health professional with patients.” Restatement (Third) of

Torts: Liability for Physical and Emotional Harm § 41 (2012).

Notably, comment i to that section instructs, “the list of special relationships *** is

not exclusive,” so “[c]ourts may decide that additional relationships justify

exceptions to the no-duty rule.” Id. § 41, cmt. i.

¶ 82 Both section 319 of the Second Restatement and section 41 of the Third

Restatement intimate that when the relationship between the defendant and the

tortfeasor involves a measure of control, a duty may exist for the benefit of a

plaintiff. See Marshall, 1986 WL 11566, *4 (“By using the language ‘take charge’,

the [Second] Restatement finds the duty to control the conduct of another primarily

in the extent to which one has the power or ability to control another.”);

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Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 41, cmt.

c (“the relationships identified in this Section are ones in which the actor has some

degree of control over the other person”); Byron L. Leflore, Jr., Alcohol and Hazing

Risks in College Fraternities: Re-Evaluating Vicarious and Custodial Liability of

National Fraternities, 7 Rev. Litig. 191, 224 (1988) (counseling national

organizations to “sever ties to whatever extent is necessary to counterbalance the

implication of control”).

¶ 83 The majority discusses a sole out-of-state case, Grand Aerie Fraternal Order of

Eagles v. Carneyhan, 169 S.W.3d 840 (Ky. 2005), involving a national fraternal

organization. In Carneyhan, the Kentucky Supreme Court held that a national

organization owed no duty to a young woman who drank alcohol at a local chapter

and later died when the automobile that she was driving collided with a traffic pole.

The court stated that, in evaluating negligence claims involving “less well-settled

special relationships,” the key has been “an ability to control in a manner that

would be meaningful in the prevention of the harm that actually occurred.” Id. at

852. That is, “ ‘in order for a special relation to exist between the defendant and the

third person, the defendant must have the ability to control the third person’s

conduct.’ ” Id. at 853 (quoting Estates of Morgan v. Fairfield Family Counseling

Center, 673 N.E.2d 1311, 1322 (Ohio 1997)). The court clarified that “the ability of

control is not the fictitious control which provides the basis for vicarious liability”

but, rather, control “in a very real sense” that “includes some sort of leverage” that

could prevent “the harm caused by the person under control.” (Internal quotation

marks omitted.) Id. The court determined that the national organization’s sole

means of control over the local chapter was the ability to revoke its charter and

concluded that that ex post facto sanction was not actual control that would support

imposition of a duty on the national organization. Id. at 853-54.

¶ 84 The result in Carneyhan is fact specific, but its holding that “less-settled”

special relationships—i.e., special relationships beyond those mentioned in the

Restatements—may be established by showing that the defendant somehow

exercised control over the tortfeasor is important. That point is echoed in the other

cases cited by the majority. See Garofalo v. Lambda Chi Alpha Fraternity, 616

N.W.2d 647, 654 (Iowa 2000); Walker v. Phi Beta Sigma Fraternity, 96-2345, pp.

8-9 (La. App. 1 Cir. 12/29/97); 706 So. 2d 525, 529; Shaheen v. Yonts, 394 Fed.

App’x 224 (6th Cir. 2010); Millard v. Osborne, 611 A.2d 715, 719 (Pa. Super. Ct.

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1992). It is further echoed in cases that the majority fails to cite. See Smith v. Delta

Tau Delta, Inc., 9 N.E.3d 154, 163 (Ind. 2014); Yost v. Wabash College, 3 N.E.3d

509, 521 (Ind. 2014); Foster v. Purdue University Chapter, The Beta Mu of Beta

Theta Pi, 567 N.E.2d 865, 872 (Ind. Ct. App. 1991); Colangelo v. Tau Kappa

Epsilon Fraternity, 517 N.W.2d 289, 292 (Mich. Ct. App. 1994); Alumni Ass’n v.

Sullivan, 572 A.2d 1209, 1213 (Pa. 1990). The courts in those cases all agree that

national organizations lack control over local chapters and their members, but their

reasoning is underdeveloped. Essentially, the courts mention distance and the

logistical impediments that it poses to control.

¶ 85 Courts in several additional states have looked more closely at the relationship

between national organizations and local chapters and found that national

organizations may exercise some measure of control over local chapters and their

members. See Grenier v. Commissioner of Transportation, 51 A.3d 367, 389

(Conn. 2012) (“plaintiff presented evidence sufficient to create a genuine issue of

material fact that [the national organization] was sufficiently involved with the

activities of [the local chapter] to owe [the plaintiff’s decedent] a duty of care”);

Marshall, 1986 WL 11566, *8 (holding that the national organization “has a duty to

take reasonable steps to control the conduct” of the local chapter and its members);

Brown, 2015 ME 75, ¶ 23 (“In short, the national fraternity does more than simply

suggest that its members conform to certain norms; it enforces its rules, regulations,

and codes of conduct through constant monitoring, oversight, and intervention.”);

Kenner, 2002 PA Super 269, ¶ 15 (“The consequences of imposing this duty on

[the fraternity] is minimal as it has taken steps to protect initiates by banning hazing

and instituting new intake procedures.”); Mann v. Alpha Tau Omega Fraternity,

Inc., No. W2012-00972-COA-R3-CV, 2013 WL 1188954, at *7 (Tenn. Ct. App.

Mar. 22, 2013) (“that [the national organization] undisputedly does not supervise

the day-to-day operations of its local chapters does not equate to a finding that it

could not exercise such supervision if it desired to do so or that it should not

exercise such supervision based upon public policy considerations” (emphases in

original)); Alexander v. Kappa Alpha Psi Fraternity, Inc., 464 F. Supp. 2d 751, 756

(M.D. Tenn. 2006) (denying the national organization’s motion for summary

judgment, stating “a reasonable jury could conclude that [the organization] was on

notice that hazing may have been occurring at [the local chapter],” so the

organization “had a duty to prevent hazing-related injuries from taking place

there”).

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¶ 86 The reasoning in those cases is significantly more robust than the cases cited by

the majority. Together, the latter set of cases stands for the proposition that control

depends upon more than distance. Control depends upon facts, including the

national organization’s constitution and bylaws; the national organization’s

financial ties to local chapters; the national organization’s rules and guidelines

regarding risk and crisis management; the national organization’s ability to dictate

to local chapters specific procedures regarding recruitment and initiation; the

national organization’s ability to censure and punish local chapters and their

members; the national organization’s oversight via its own personnel to ensure

compliance with fraternity and university policies, as well as local laws; and the

national organization’s knowledge that its policies are not being followed or that

the local chapter is engaging in inappropriate behavior. Those facts have allowed

those courts to establish that national organizations owe a duty of reasonable care.

¶ 87 Here, the national organizations discuss control in the context of the four

traditional duty factors, but their arguments are relevant to whether there is a

special relationship between the organizations and the NIU Chapter that could

support a duty. The national organizations contend that they suffer from a “basic

inability to reasonably control the day-to-day operations of hundreds of chapters

across the country” and insist that they are “simply unable to prevent local

members from hazing activities without the imposition of essentially impossible

burdens.” The national organizations, however, do not describe or quantify those

burdens, other than to imagine daily telephone calls from their Memphis,

Tennessee, headquarters to local chapters across the country for assurances that no

alcohol consumption or hazing is taking place in each chapter house. The national

organizations further posit “the need to station a monitor in each chapter house.”

According to the national organizations, both scenarios would be “astronomically

expensive—and at a cost that could only be passed on to the members of the

fraternity.”

¶ 88 The plaintiff’s complaint forcefully counters the national organizations’ feeble

insistence that they lacked control over the NIU Chapter. The plaintiff alleged that

the pledge event at which David died, a “Mom and Dad’s Night” or “Greek Family

Night,” is “a common fraternity pledging activity practiced in the same or similar

forms by chapters of *** Pi Kappa Alpha *** and other fraternities and sororities

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throughout the country.” 8 The plaintiff then alleged that representatives of the

national organizations told local chapter officers and members that such events

were “good for pledge and member retention” and encouraged the officers and

members to hold a “Greek Family Night” event as part of the NIU Chapter’s

pledging process. The officers and members supposedly took that coaxing to heart,

feeling that a family night “would improve the fraternity’s retention of pledges as

active members, thereby benefitting the entire Pi Kappa Alpha organization

through increased income from member dues.”

¶ 89 The plaintiff’s description of the national organizations’ advice dovetailed into

his description of their business. According to the plaintiff, the national

organizations were “engaged in the business of organizing, promoting, and

recruiting membership” in local chapters. The plaintiff alleged that the national

organizations, “as further part of their business, supervised, advised[,] required[,]

and controlled the activities and conduct” of local chapters and specifically the NIU

Chapter. That control included “specifically binding, mandatory[,] and required

adherence to the fraternity Constitution [and] Risk Assessment Manual[,] Chapter

Codes[,] and its quarterly publication The Shield and Diamond and The Garnet and

Gold pledge manual.” The plaintiff claimed that collectively those items

established an antihazing policy and “directed local chapters to employ certain

recruiting techniques.”

¶ 90 The plaintiff continued by alleging that the national organizations’ documents

and publications gave them powers over the local chapters and their members:

“Through the fraternity Constitution, Chapter Codes, Risk Assessment

Manual[,] and publications such The Garnet and Gold and The Shield and

Diamond[,] [the national organizations] had the right and the power to expel,

suspend[,] or place restrictive remedial conditions on continued operations of

local chapters without notice or proof of a violation of any standard, law[,] or

rule, and particularly reserved the right and power to assist local chapters in the

conduct of rush or pledging activities or require alcohol or hazing education;

and further, through the same sources, had the right and power to expel,

8

Indeed, a similar event—“Pledge Dad Night”—led to the plaintiff’s injury in Quinn v. Sigma

Rho Chapter of Beta Theta Pi Fraternity, 155 Ill. App. 231, 233-34 (1987).

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suspend[,] or place individual members of local chapters on ‘alumni status’

without notice of proof of a violation of any standard, law[,] or rule; further [the

national organizations] had the right[,] power[,] and authority to ban and

prohibit pledging activities outright at local chapters, including [the NIU

Chapter].”

¶ 91 Those allegations create an inference that some of the national organizations’

publications and documents, particularly those related to risk assessment and

management, provided rules for local chapters and their members to follow,

violations of which could subject local chapters and their members to removal from

the fraternity. 9

9

That inference is more than borne out by the specifics of the national organizations’ risk

management manual, to which the plaintiff refers.

Pi Kappa Alpha is a member of the Fraternity Executives Association (FEA). See Fraternity

Members, Fraternity Executives Ass’n, http://fea-inc.org/fraternity-members.html (last visited Jan.

16, 2018). The FEA created the Fraternal Information & Programming Group (FIPG), whose risk

management manual labels it “[a] risk management association of men’s and women’s national and

international fraternities and sororities.” FIPG Risk Management Manual, FIPG, Inc. (Jan. 2013),

http://0104 nccdn.net/1_5/161/330/2d3/FIPG_MANUAL.pdf. At the time of David’s death in 2012,

the 2007 version of the manual was in effect. That manual, in turn, contained an appendix with a

crisis management plan. See Caitlyn Flanagan, The Dark Power of Fraternities, The Atlantic (Mar.

2014), https://www.theatlantic.com/magazine/archive/2014/03/the-dark-power-of-fraternities/

357580/ (“[T]he Fraternal Information and Programming Group’s chillingly comprehensive

crisis-management plan was included in its [risk management] manual for many years. But in 2013,

the plan suddenly disappeared from its pages.”). Both documents are widely available online

through college and university websites, as well as fraternity and sorority websites. See, e.g., FIPG

Training and Resource Manual (Sara Hillis ed., Spring 2009), https://

www.lycoming.edu/StudentPrograms/pdfs/FIPGManual.pdf; see also FIPG Risk Management

Manual, FIPG, Inc. (Dec. 2003), http://deanofstudents.utexas.edu/sfl/downloads/fipg.pdf (2003

version of the FIPG Risk Management Manual).

The 2007 crisis management plan offered step-by-step “procedures to be followed” by chapter

presidents in the event of “a situation, emergency or tragedy.” Those procedures are very specific.

Chapter presidents were given a script entitled “Ask these questions” for an “emergency planning

session” with other officers and at least one alumnus. Those questions involved developing a list of

seven worst-case scenarios because “[n]o one enjoys discussing a tragic fire or the death of a

member, but those occur.” Chapter presidents were instructed to inquire of their colleagues how to

prepare for each listed situation and to make a “Who to call” list of police and fire departments,

regional and local fraternity volunteers, and even college or university administrators. The plan

cautioned, however, “Be certain to check with your Headquarters staff as to contacting

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¶ 92 The national organizations allegedly engaged in some level of supervision over

the local chapters that gave them specific and alarming information about the NIU

Chapter. The plaintiff asserted:

“Through annual Chapter Consultant on site week long assessments of each

local operations sought and obtained detailed, granular knowledge about the

conduct and operations of local chapters, preparing detailed Chapter Consultant

Reports analyzing each chapters’ recruitment performance, continuing risk

awareness education, alumni relations, finances, housing, management,

athletics, scholarship, campus involvement, community service, [and] public

relations; in particular, [the national organizations] knew through its Chapter

Consultant’s reports that [the NIU Chapter] for at least three years before and

on November 1, 2012[,] that [the NIU Chapter] did not provide continuing risk

education to members, did not have a risk awareness program, had no written

crisis management plan and, upon information and belief, had no functioning

risk management committee; and further [the national organizations] knew,

administrators—in some cases, someone from the national organization may wish to make that

call.” In bold letters, the plan reiterated:

“Regardless of the situation, circumstances or day or time….it is always better to call your

national headquarters or a volunteer. Let them ‘make the call’ as to whether a situation is an

emergency or less significant. Someone will be available. They would much rather hear about a

situation from you at 3:27 a.m. than receive an 8:01 a m. telephone call from a reporter asking

for a comment about, ‘The situation involving your chapter at ___.”

The plan then provided more directions for chapter presidents once a situation has occurred.

Chapter presidents were told to “[o]btain the facts” (emphasis in original) and relay them to persons

on the call list, then call a meeting of local chapter members and pledges at which the president

exhibits control over the situation. Chapter presidents should inform the members and pledges about

what occurred and about the need for confidentiality. Chapter presidents are “the primary or key

contact person” and will represent the chapter at any meetings or hearings. Chapter presidents,

however, may defer any spokesperson duties to the national headquarters staff. The plan, again in

bold letters, emphasizes the role of the national organizations: “Your national organization may

have a different procedure to follow and that will be your guide.”

The penultimate item in the plan concerned a special situation: “IF A MEMBER IS INJURED,

BECOMES SERIOUSLY ILL, OR DIES.” On that topic, the plan directed:

“Do not notify parents or other family members. Leave notification of the parents to the

professionals—law enforcement, medical staff, university administrators.

These situations do require immediate notification of the appropriate national headquarters

staff member and/or volunteers. They can advise you as to the appropriate response to a

situation.”

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through their Consultant Reports that [the NIU Chapter] had a reputation,

stigma[,] and image on the Northern Illinois University campus as a fraternity

of ‘meatheads’ and recommended diversifying their activities on campus to

develop a more positive image.”

¶ 93 Then the plaintiff continued by addressing why the national organizations were

“present in and engaged in” recruitment of new members. According to the

plaintiff, the national organizations are “supported by fees collected by local

fraternity chapters, including [the NIU Chapter], from fraternity members and

prospective members or pledges.” The plaintiff further stated that the national

organizations “derived at least 75% of [their] gross income from undergraduate

dues and fees and were therefore acutely dependent on continued and increasing

such dues and fees.” Thus, the officers and members of the NIU Chapter knew that

staying in the good graces of the national organizations required a steady cash flow

from such dues and fees. The national organizations “specifically authorized,

directed, required[,] and empowered [their] local fraternity chapters, including [the

NIU Chapter,] to collect initiation and other fees from fraternity pledges and to

initiate pledges” into the fraternity.

¶ 94 Reading the complaint in the light most favorable to the plaintiff, the national

organizations exercised “some degree of control” over the NIU Chapter and its

members. Restatement (Third) of Torts: Liability for Physical and Emotional Harm

§ 41, cmt. c (2012). The national organizations’ documents and publications,

including their risk assessment manual, established rules to govern the conduct of

local chapters and their members; violations of those rules, even without notice of

proof, could subject chapters and members to expulsion or suspension. The

national organizations were concerned with member recruitment and retention, and

they maintained the power to assist rush or pledging activities at local chapters or to

ban such activities altogether. Additionally, there were financial ties between the

national organizations and local chapters. Not only do the national organizations

rely heavily upon dues and fees generated and collected by local chapters, they also

review the finances of local chapters on an annual basis. 10 Finally, the national

10

The national organizations concede many of those points in their brief, where they state that

“a national fraternity has the right to suspend or revoke a chapter’s charter after a violation occurs;

provide advice; issue rules and standards; and receive dues from the chapter.”

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organizations, through its chapter consultants, exercised oversight of local

chapters. And the chapter consultant responsible for the NIU Chapter had specific

knowledge that that chapter had had no risk management program or crisis

management plan for three years before David died.

¶ 95 If the plaintiff had made this argument, I may well have concluded that the

national organizations exercised sufficient control over the NIU Chapter and its

members to find a special relationship that justifies imposing a duty on the national

organizations. That conclusion remains conditional because I do not know how the

national organizations would have responded.

¶ 96 2. Special Relationships Between Defendants and Plaintiffs

¶ 97 Regarding a special relationship between a defendant and a plaintiff that may

give rise to a duty, the majority concludes that the plaintiff’s complaint does not

“plead specific facts that would come within any of the [four] legally recognized

special relationships”—common carrier/passenger, innkeeper/guest, possessor of

land/invitee, and custodian/ward. Supra ¶ 35. That conclusion is correct but

deficient.

¶ 98 Section 314A of the Second Restatement catalogs those four special

relationships (Restatement (Second) of Torts § 314A (1965)), and section 40(b) of

the Third Restatement adds three more—employer/employee, school/student, and

landlord/tenant (Restatement (Third) of Torts: Liability for Physical and Emotional

Harm § 40(b) (2012)). Comment o to section 40 of the Third Restatement reiterates

that that list of relationships is not exclusive (Id. § 40, cmt. o), and comment h

offers a rationale for this branch of the special relationship doctrine and explains

when it may be appropriate to expand it:

“The term ‘special relationship’ has no independent significance. It merely

signifies that courts recognize an affirmative duty arising out of the relationship

where no duty would exist pursuant to § 37. Whether a relationship is deemed

special is a conclusion based on reasons of principle or policy.

*** No algorithm exists to provide clear guidance about which policies in

which proportions justify the imposition of an affirmative duty based on a

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relationship. The special relationships established by this Section are justified

in part because the reasons for the no-duty rule in § 37 are obviated by the

existence of the relationship. *** In addition, some relationships necessarily

compromise a person’s ability to self-protect, while leaving the actor in a

superior position to protect that person. Many of the relationships also benefit

the actor.” Id. § 40, cmt. h.

See also id. § 40, Reporter’s Note, cmt. h (“Courts frequently rely on the

differential capacity for protection resulting from the relationship as a justification

for finding the relationship to be special. *** That a defendant derives a

commercial advantage from the relationship has also been influential in the

identification of special relationships.”).

¶ 99 The relationship between the national organizations and pledges like David

appears to check both boxes. Though the relationship between national

organizations and their pledges has been termed “fraternal” and “a fellowship of

equals” (Sullivan, 572 A.2d at 1213), the reality is quite different; it is coercive and

financial. As the plaintiff has alleged, the national organizations were engaged in

the business of recruiting new members and derived most of their income from fees

paid by members and pledges. See Kenner, 2002 PA Super 269, ¶ 15 (stating that

the relationship between a national fraternity and prospective member “is, at a

minimum, contractual in nature, requiring performance by both parties”). The

national organizations also dictated the contents of the pledgeship and initiation

process, encouraging events such as “Mom & Dad’s Night” because they served

the dual goals of recruitment and retention. To pledges like David, that event was

mandatory, a prerequisite for membership. Seeking the prestige of what being a Pi

Kappa Alpha meant, as well as housing for the following school year, pledges put

themselves at the mercy of the fraternity. And in doing so, they became unable to

protect themselves. See Krueger v. Fraternity of Phi Gamma Delta, Inc., No.

004292G, 2001 WL 1334996, at *3 (Mass. Super. Ct. 2001) (accepting the

plaintiff’s argument that the national organization “had a strong interest in

recruiting new pledges to bolster its ranks and that this, combined with [the

plaintiff’s decedent’s] need for university housing and desire to become a fraternity

brother, created a situation where he was pressured or coerced into performing the

fraternity rituals” that killed him); Oja v. Grand Chapter of Theta Chi Fraternity

Inc., 667 N.Y.S.2d 650, 652 (Sup. Ct. 1997) (stating that no moral “revulsion seems

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justified” against imposing liability “in relation to the injuries and deaths sustained

by adolescents who, however unwisely, trade their insecurities and free will for the

promise of acceptance, and prestige, that fraternity membership appears to

confer”); Thomas v. Lamar University-Beaumont, 830 S.W.2d 217, 219 (Tex. Ct.

App. 1992) (reversing the trial court’s summary judgment order in favor of the

national organization, stating that the organization “clothed its members with the

indicia of a fraternal organization and a mystique powerful enough to entice adult

university students to run around a building carrying cups or brand Greek letters on

their bodies”); see also Ballou, 352 S.E.2d at 496 (concluding that the plaintiff

“placed himself at the local chapter’s disposal on hell night only because he wanted

to become an active brother” of the national organization). “[T]he more prestigious

the fraternity, the greater the pressure applied to the pledge seeking admission, and

the more culpable the national fraternity in donating its good name to be used to

convince pledges to submit themselves to the very activities that caused them

injury—implicating the national directly.” Jared S. Sunshine, A Lazarus Taxon in

South Carolina: A Natural History of National Fraternities’ Respondeat Superior

Liability for Hazing, 5 Charlotte L. Rev. 79, 127 (2014); cf. Haben v. Anderson,

232 Ill. App. 3d 260, 266 (1992) (stating that when club membership is a “much

valued status” and “great pressure” is applied to comply with de facto membership

qualifications, a college student may be “blinded to the dangers he was facing”);

Quinn, 155 Ill. App. 3d at 237 (highlighting the “high esteem” in which a fraternal

organization is held).

¶ 100 Thus, if the plaintiff had made that argument, I may well have concluded that

the relationship between the national organizations and pledges like David was

akin to other special relationships so as to justify imposing a duty on the national

organizations. Again, that conclusion remains conditional because I do not know

how the national organizations would have responded. To reiterate: The parties did

not brief any issues surrounding the special relationship doctrine. Our analytical

attention would be better spent elsewhere.

¶ 101 Simpkins and the Four Traditional Duty Factors

¶ 102 Any speculation as to arguments that the parties may have made under the

special relationship doctrine is not only unwise (Sunshine, supra, at 130 (“the

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‘special relationship’ approach *** creates powerfully perverse incentives for the

national [organization] to be derelict in its duties”)) but also unnecessary.

¶ 103 Comment e to section 302B of the Second Restatement teaches:

“There are *** situations in which the actor, as a reasonable man, is required to

anticipate and guard against the intentional, or even criminal, misconduct of

others. In general, these situations arise where the actor is under a special

responsibility toward the one who suffers the harm, which includes the duty to

protect him against such intentional misconduct; or where the actor’s own

affirmative act has created or exposed the other to a recognizable high degree

of risk of harm through such misconduct, which a reasonable man would take

into account.” (Emphasis added.) Restatement (Second) of Torts § 302B cmt. e

(1965).

See id. § 302B, cmt. e, illus. D (“Where the actor has brought into contact or

association with the other a person whom the actor knows or should know to be

peculiarly likely to commit intentional misconduct, under circumstances which

afford a peculiar opportunity or temptation for misconduct.”).

¶ 104 A fair reading of counts I and II of the plaintiff’s complaint reveals that he

alleges the national organizations, through their own affirmative acts or omissions,

contributed to the risk of harm that ultimately killed David. Specifically, the

plaintiff alleges that the national organizations “[p]ermitted and allowed dangerous

pledge events being undertaken by local *** chapters, including [the NIU Chapter],

which required excessive and dangerous consumption of alcohol to the point of

insensate intoxication in violation of the [Hazing Act];” “[f]ailed to warn local ***

chapters, including [the NIU Chapter,] about the dangers and risks of required

alcohol related pledge events, although it knew, or should have known such rituals

are often fatal;” “[f]ailed to adopt reasonable and effective policies to be followed

by its local fraternity chapters, including [the NIU Chapter], to prevent dangerous

pledge events and activities involving excessive required and dangerous

consumption of alcohol to the point of insensate intoxication;” “[f]ailed to take

reasonable steps to [ensure] its local chapters, including [the NIU Chapter],

followed policies and procedures it claimed to have adopted regarding required

pledge events and activities;” “[f]ailed to take reasonable steps to learn whether its

local chapters, including [the NIU Chapter] were following policies and procedures

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limiting required initiations it claimed to have adopted;” “encouraged local

chapters, including [the NIU Chapter,] to hold events similar to ‘Mom and Dad’s

Night’ because they were good for member and pledge retention, therefore

increasing revenue and income to the defendants through due and fees;” “[f]ailed to

ban pledging events and activities outright at all of its local chapters[,] although

they knew pledge events and activities were likely to result in bodily harm and

death to fraternity pledges;” and “[f]ailed to take necessary and appropriate steps

within [their] rights and powers to [ensure] [the NIU Chapter] implemented a

continuing risk education policy and functioning risk awareness committee,”

despite their knowledge through annual inspections and audits by their chapter

consultants that the NIU Chapter had not had such a committee or a risk awareness

program for at least three years before David’s death.

¶ 105 In short, the plaintiff’s allegations against the national organizations are all

aimed at risk, and the risk to which they purportedly contributed—bodily injury or

death following the forced consumption of alcohol at membership activities

encouraged and perhaps required by the organizations—was one that ultimately

took a college freshman’s life. In sum, the plaintiff asserted that the national

organizations, by their own acts or omissions, contributed to a risk of harm to

David. The answer to Simpkins’s threshold question is yes, and the proper analysis

vis-à-vis the national organizations involves not special relationships but the four

traditional duty factors. That is how the parties presented this case to us, and it is

how the majority should have analyzed it. I suspect the majority’s inexplicable

refusal to engage the parties’ arguments in this regard stems from a recognition that

they lead unavoidably to one result: The plaintiff has sufficiently pleaded that the

national organizations owed a duty to David.

¶ 106 The majority concedes that the first two factors—the foreseeability and the

likelihood of the plaintiff’s injury—are present in this case. According to the

majority, the existence of hazing statutes across the country, including our own, as

well as the national organizations’ written policy against hazing, “indicates that

injury due to hazing is reasonably foreseeable.” Supra ¶ 46. And such injuries,

particularly when the hazing involves forced consumption of alcohol, “are likely to

occur.” Supra ¶ 46. The majority continues, “When pledges are required to

consume large quantities of alcohol in short periods of time, their risk of injury is

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great—not only physical injury due to their inebriated condition but injury or death

resulting from alcohol poisoning.” Supra ¶ 46.

¶ 107 The second two factors—the magnitude of the burden to guard against the

plaintiff’s injury and the consequences of placing that burden on the

defendant—also weigh in favor of finding that the national organizations owed a

duty of care. To some extent, the national organizations have already shouldered a

large part of the burden to protect pledges like David via their antihazing policies,

risk management education initiatives, and chapter monitoring programs that the

plaintiff outlined in the complaint. Thus, the burden of shouldering a duty of

reasonable care for the benefit of pledges like David is not unreasonable. See

Edwards, 1999 WL 1069100, *7 (“It does not seem unduly burdensome to impose

some duty on the national organization of a fraternity to guard, to some extent,

against hazing based violence.”).

¶ 108 The consequence of placing the burden of a duty on the national organizations

cuts both ways. Of course, one consequence would be the expense incurred by the

national organizations. Another consequence would be a decrease in hazing and

accompanying injuries and deaths. The prevalence of Greek-letter organizations on

college campuses actually makes the latter consequence more important.

¶ 109 “There is a Grand Canyon-size chasm between the official risk-management

policies of the fraternities and the way life is actually lived in countless dangerous

chapters.” Flanagan, supra. National organizations across the country portray

themselves as mildly interested onlookers, extolling certain virtues and establishing

certain standards to guide their members. Pi Kappa Alpha, like many national

organizations, has adopted a strongly worded antihazing policy. See Position on the

Pi Kappa Alpha Fraternity Standards, The Pi Kappa Alpha International

Fraternity, Inc. (2010), https://www.pikes.org/~/media/pikes_org/images%20

and%20documents/about%20pike/6-1%20values%20position%20and%20relation

ship%20statements/resolution%20on%20hazing.ashx; The Pi Kappa Alpha

International Fraternity Standards, https://www.pikes.org/~/media/pikes_org/

images%20and%20documents/about%20pike/6-1%20values%20position%20and

%20relationship%20statements/standards%202016.ashx?la=en (last visited Jan.

16, 2018). That policy indicates that the national organizations have recognized the

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problem of hazing and have taken concrete steps to address it. 11 Through their

chapter consultants, the organizations can even gauge whether local chapters and

their members are observing the antihazing policy and following the risk

management manual. Yet, as shown by the tragedy in this case, the national

organizations’ enforcement of their own rules has been lax. Perhaps that is by

design. See Coolidge, supra n.6, at 921 (“[T]he public generally does not realize

the extent to which national organizations go to prevent liability. National

organizations have learned what subjects them to liability and have evolved in

response.”).

¶ 110 Universities in the Midwest—Indiana University, the University of Iowa, the

University of Michigan, the Ohio State University, and the University of

Iowa—and beyond—Florida State University, Louisiana State University, Penn

State University, and Texas State University—recently have taken matters into

their own hands, suspending or highly regulating Greek activities on campuses

across the country. Anemona Hartocollis, No Wild Parties, No Pledging as

Universities Crack Down on Fraternity Excesses, N.Y. Times, Dec. 15, 2017,

https://www.nytimes.com/2017/12/15/us/fraternities-deaths-crackdown.html.

Such initiatives are welcome but misplace responsibility for fixing a Greek system

spinning wildly out of control due to surging membership and anemic oversight

from headquarters. 12

11

The national organizations, in their “FRATERNITY STANDARDS,” try to have the best of

both worlds. They state that each chapter shall abide by certain rules “as a condition of its charter as

a chapter in good standing with the Fraternity” and that each member also shall abide by those rules

“as a condition to maintain his membership in good standing with the chapter.” The Pi Kappa Alpha

International Fraternity Standards, https://www.pikes.org/~/media/pikes_org/images%20and%20

documents/resources/general/ standards%20with%20acknowledgment.ashx?la=en (last visited Jan.

16, 2018). The standards later provide, “It should be understood that the Fraternity DOES NOT and

CANNOT oversee, monitor, supervise[,] or direct the daily or any other activity of hundreds of

chapters and thousands of members located throughout the United States and Canada.” Id.; see also

The Pi Kappa Alpha International Fraternity Standards, https://www.pikes.org/~/media/pikes_org/

images%20and%20documents/resources/general/standards%20with%20acknowledgment.ashx?la

=en (last visited Jan. 16, 2018) (defining the relationship between the national organizations and

local chapters).

12

Notably, a criminal court in Pennsylvania earlier this month convicted a national organization

of eight felonies in connection with a hazing death in 2014. See Commonwealth v. Pi Delta Psi, No.

CP-45-CR-2578-2015 (Ct. Com. Pl. Monroe County, Pa.) (docket summary available at

- 42 ­

¶ 111 The national organizations suggest that “[t]here is nothing absurd about

compelling each of those hundreds of chapters to manage its own affairs, and

members.” There is also nothing absurd about compelling the national

organizations, whose very existence flows from the influx of new members, to

exercise reasonable care on their behalf. The plaintiff’s complaint asserts that the

national organizations owed David “a duty to prevent the foreseeable consequences

of required excessive consumption of alcohol during [an] initiation ritual.”

Imposing such a duty on the national organizations to exercise reasonable care with

respect to pledge events would “meaningfully reduce the risk” of deaths or injuries

from hazing by forced consumption of alcohol. Such a duty would not require the

national organizations to maintain continuous contact with local chapters or to

become a central planning and policing authority. Such a duty also would not

require the national organizations to control the day-to-day operations of local

chapters. That duty would simply require them to enforce their own rules for a few

membership and initiation activities per school year—activities where hazing (a

violation of state law) and the consumption of alcohol by minors (also a violation of

state law) are probable and the dangers that arise when the two mix are well

known. 13

¶ 112 Hazing is not going away on its own. The lessons that should have been learned

from generations of deaths have been largely ignored, except by the families of the

victims. See Coolidge, supra, at 923 (“National organizations have the resources

and ability to reform their local chapters, but incidents continue and the

consequences often fall on their local chapters and individual members.”). In fact,

https://ujsportal.pacourts.us/DocketSheets/CourtSummaryReport.ashx?docketNumber=CP-45-CR­

0002578-2015 (last visited Jan. 16, 2018)). That organization was fined more than $110,000 and

barred from operating in the state as a condition of its probation. Rick Rojas, Fraternity Is Banned

F r o m P en n s yl va n ia Af te r S tu d en t’ s Ha z in g Dea th , N .Y . T i me s , J a n. 8 , 2 0 1 8 ,

https://www.nytimes.com/2018/01/08/nyregion/fraternity-pennsylvania-hazing-death-baruch­

college html.

13

Pi Kappa Alpha’s Wikipedia page contains a list of misconduct allegations, each with a

citation to a news source, many of which involve hazing, alcohol abuse, or both. See Pi Kappa

Alpha, Wikipedia, https://en.wikipedia.org/wiki/Pi_Kappa_Alpha#Misconduct_allegations (last

visited Jan. 16, 2018). David’s death is on the list. Id. (citing Barbara Vitello, Father of NIU Frat

Hazing Victim Tells 22 Convicted, ‘You Left Him Alone to Die,’ Daily Herald, May 8, 2015,

http://www.dailyherald.com/article/20150508/news/150508898/).

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one study has documented at least one college hazing death every year since 1961.

See Hank Nuwer, Hazing Deaths, Hank Nuwer’s Hazing Clearinghouse (last

updated Jan. 14, 2018), http://www.hanknuwer.com/hazing-deaths/.

Unfortunately, David was one of three fraternity hazing deaths in 2012. See List of

Hazing Deaths in the United States, Wikipedia, https://en.wikipedia.org/wiki/

List_of_hazing_deaths_in_the_United_States#2010s (last visited Jan. 18, 2018).

There have been more, including four in 2017. See Sheryl Gay Stolberg, 18 Penn

State Students Charged in Fraternity Death, N.Y. Times, May 5, 2017,

https://www.nytimes.com/2017/05/05/us/penn-state-fraternity-death-timothy

-piazza.html; Travis M. Andrews, LSU Freshman Dies After “Potential Hazing

In ci dent” at Frat erni t y, Poli ce Say, Was h . Post , S ept . 15, 2017,

https://www.washingtonpost.com/news/morning-mix/wp/2017/09/15/lsu­

freshman-dies-after-potential-hazing-incident-at-fraternity-police-say/; Sarah

Larimer, Florida State Suspends Fraternities, Sororities in Wake of Pledge’s

Death, Wash. Post, Nov. 6, 2017, https://www.washingtonpost.com/

news/grade-point/wp/2017/11/06/florida-state-suspends-fraternities-sororities-in­

wake-of-pledges-death/; Maggie Astor, Texas State Halts Greek Activities After

Fraternity Pledge Dies, N.Y. Times, Nov. 14, 2017, https://

www.nytimes.com/2017/11/14/us/texas-state-greek-life.html. And the facts of

those cases are eerily familiar: death from forced consumption of alcohol at pledge

events, or what the national organizations in their brief blithely call “physical

discomfort through the use of alcohol.”

¶ 113 The national organizations’ insistence that they garner “no benefit from hazing”

glosses over the fact that they do benefit from pledging. And if hazing is a

foreseeable part of the pledging and initiation process, then the national

organizations should carry some responsibility for protecting against it. Our duty

analysis involves balancing. I would strike the balance here in favor of young

people like David. In my view, the foreseeability and likelihood of the injury here

outweigh the burden and consequence of placing a duty of reasonable care on the

national organizations for the benefit of pledges. I would reverse the trial court’s

decision to dismiss the plaintiff’s claims against the national organizations and

remand for further proceedings.

¶ 114 For the reasons that I have stated, I concur in part and respectfully dissent in

part.

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¶ 115 JUSTICE KILBRIDE joins in this partial concurrence and partial dissent.

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