Quick Takes on Illinois Supreme Court Opinions Issued Jan. 19
The Illinois Supreme Court handed down four opinions on Friday, Jan. 19, including the highly-anticipated Bogenberger v. Pi Kappa Alpha Corp., in which the court considered who can be held liable for a fraternity pledge's alcohol-related death during an initiation ritual. The court also addressed the deadline to timely file a motion to quash service in a residential mortgage foreclosure action in Bank of New York Mellon v. Laskowski, reversed and remanded the appellate court's decision to overturn a defendant's first degree murder conviction in People v. Carey, and determined whether the one-act, one-crime rule prohibits multiple convictions arising out of the defendant's single act of gun possession in People v. Coats. Leading appellate attorneys review these cases below.
Bogenberger v. Pi Kappa Alpha Corporation, Inc.
By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC
Here the Illinois Supreme Court addressed the civil liability ramifications of excessive alcohol consumption at a fraternity pledging event. The court addressed whether the national organizations of a fraternity, a local chapter of the fraternity, its officers, pledge board members and active members, along with non-member sorority women, owed a legal duty to a prospective pledge who died from alcohol poisoning during a pledge event. The court ruled that all but the national entities owed a duty on the allegations of the complaint.
The court described the wrongful death of the 18-year-old college freshman as the result of an evening of “vodka-laden hazing.” The blood alcohol level of the student, David Bogenberger, reached .43, more than five times the legal limit. He lost consciousness and died the night of the event.
Plaintiff, the student’s father, alleged that the fraternity, a Pi Alpha Kappa chapter at Northern Illinois University, required prospective pledges in the fall of 2012 to attend an event called “Mom and Dad’s Night.” Pre-planned by certain of the fraternity members, including its officers, the event revolved around a theme of each pledge traveling from room to room in the house to learn the identity of his “Greek Mother and Father.” In each of the seven rooms, a fraternity member, coupled with a sorority woman, questioned each pledge and directed him to drink quantities of vodka within a ten-minute span.
Plaintiff alleged that the plan for the event – mandatory for a pledge wanting to join the fraternity – was for the pledges ultimately to pass out after consuming several four-ounce cups of vodka in each of the seven rooms. After the one and one-half hour binge, the pledges could not walk unassisted. The pledges who began to lose consciousness were placed in designated beds and periodically checked to make sure they were not positioned so they would choke if they vomited. Members considered but decided not to seek medical care for the pledges. Members instructed others not to call 911.
Finding the complaint contained conclusory allegations, the trial court dismissed the action. The trial court also cited supreme court precedent declining to create social host liability for alcohol consumption. The appellate court reversed as to the NIU chapter of the fraternity and its officers, pledge board members and active members, but upheld the dismissal of the fraternity’s national organizations (the “Nationals”) and the non-members.
Writing for the supreme court majority, Justice Charles Freeman – joined by Justices Robert Thomas, Rita Garman and Anne Burke – began the duty analysis by dispensing with the rule against social host liability in the context of an alcohol-related hazing event. Citing Illinois’ hazing statute, now codified as 720 ILCS 5/12C-50, the court contrasted the sale or gift of alcohol with the required consumption of alcohol.
The court then focused on whether the wrongful death and survival act counts against the Nationals sufficiently alleged an agency relationship giving rise to vicarious liability for the actions of the NIU chapter and its members. After considering plaintiff’s allegations concerning the Nationals’ encouragement of the local chapters to hold such events to increase revenue, the court found no support for plaintiff’s conclusion that the Nationals authorized the chapter to act on behalf of the Nationals or that they held the chapter out as their agent. The court also considered plaintiff’s allegations that the Nationals could assist local chapters in pledge activities and could discipline local chapters. In the court’s view, these allegations did not establish the requisite degree of control. Moreover, the court determined that the hazing conduct violated the Nationals’ rules and thus fell outside the scope of any agency relationship.
Characterizing the plaintiff’s theory against the Nationals as seeking to hold them responsible for the criminal conduct of the chapter and the individual defendants, the court also found deficient plaintiff’s direct liability allegations. The court determined that the Nationals did not have a duty arising within the four recognized “special relationships” that give rise to an affirmative duty to protect another against an unreasonable risk of physical harm. Similarly, the court found no special relationship imposing on the Nationals a duty to control the individuals who caused the harm, such as in the context of an employer-employee relationship. The court cited Illinois appellate decisions rejecting attempts to hold universities liable for harm imposed on a student by another student. The court also noted decisions of other jurisdictions addressing the liability of national fraternity organizations, in particular, a decision of the Supreme Court of Kentucky, Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W. 3d 840 (Ky. 2005), in which the court determined such organizations do not have sufficient resources to monitor and control their local chapters’ activities.
Applying a traditional duty analysis to the counts asserted against the local NIU chapter, its officers, pledge board members, active members and the sorority women who participated in Mom and Dad’s Night, the supreme court found that these defendants owed a duty to the pledges. For each of these categories of defendants, the court held that the injury was reasonably foreseeable and that injuries are likely to occur from hazing events involving the consumption of large amounts of alcohol. Again citing the hazing statute and citing fraternity and university rules, the court also characterized the magnitude of the burden as small and the consequences of placing the burden on the NIU chapter and its officers reasonable.
With respect to the active fraternity members, the court emphasized their allegedly willing participation in the event and inaction after the decedent became unconscious. Although finding the issue “thornier” as to the sorority non-members, the court noted their active participation in the event in violation of the hazing statute and reached the same conclusion.
Justice Mary Jane Theis separately joined the majority’s opinion and dissented from the majority’s decision to uphold the dismissal of the two Nationals. Although agreeing that plaintiff did not allege sufficient facts of an agency relationship, Justice Theis observed that the trial court dismissed the action with prejudice before plaintiff could conduct discovery foreclosed by pending criminal cases against certain individual defendants. Justice Theis, therefore, would remand to allow plaintiff to explore the fraternity members’ interactions with the Nationals that could establish an agency relationship and, therefore, vicarious liability.
Turning to the direct liability allegations, Justice Theis criticized the majority for not adhering to the principles of party presentation and judicial restraint. Justice Theis explained that the parties focused on the four traditional duty factors and did not brief the “no affirmative duty” rule and special relationship doctrine. Given the parties’ framing of the issues, Justice Theis cited case law for the proposition that the majority inappropriately speculated as to the parties’ arguments.
Justice Theis found the majority’s presentation on these topics superficial and proceeded with an analysis of the special relationship doctrine, in two parts. First, she addressed Illinois law regarding a special relationship between a defendant and a tortfeasor, including a close look at the decisions of other states containing a “robust” treatment of national fraternity organizations’ control over local chapters. Within that framework, Justice Theis found that, in the complaint, plaintiff forcefully countered the Nationals’ position that they did not control the NIU chapter. Second, Justice Theis found deficient the majority’s analysis of whether a special relationship existed between the Nationals and the pledges that called for recognition of an affirmative duty arising out of that relationship. In this aspect of Justice Theis’ partial dissent, she cited relevant provisions of the Restatement of Torts and public policy concerns.
Ultimately, however, Justice Theis deemed speculation concerning the parties’ arguments under the special relationship doctrine both unwise and unnecessary. Again citing the Restatement, and analyzing the four factors of the traditional duty analysis, Justice Theis reached the conclusion that national fraternity organizations should carry some responsibility for protecting students from hazing in the pledging and initiation process. Accordingly, Judge Theis would reverse that aspect of the lower courts’ order.
Justice Thomas Kilbride joined Justice Theis, as did Chief Justice Lloyd Karmeier, except that Justice Karmeier would not have addressed the special relationship doctrine.
The Bank of New York Mellon v. Laskowski
By Joanne R. Driscoll, Forde Law Offices LLP
In a residential mortgage foreclosure action, the deadline to file a motion to quash service of process is 60 days after the earlier of the date the moving party filed an appearance or the date the moving party participated in a hearing without filing an appearance. 735 ILCS 5/15-1505.6(a) (West 2012). The issue here was whether the 60-day period following the filing of the appearance was tolled during the time period when the foreclosure action had been dismissed for want prosecution and reinstated. The circuit court and appellate court held that it was not tolled.
In a unanimous opinion written by Justice Thomas, the court reversed. Like two tort immunity decisions filed late last year, the court again applied well-established rules of statutory construction. Examining the plain language of section 15-1505.6(a), the court looked to the phrase “[i]n any residential foreclosure action” as defining the setting in which the 60-day period was to be measured, concluding that no time could pass if no action was pending It found solid support for this reasoning in Case v. Galesburg Cottage Hospital, 227 Ill. 2d 207 (2007), which, in the context of defining reasonable diligence to obtain service of process, held that time does not elapse during the period between dismissal of the plaintiff’s complaint and its refiling.
The second rule of statutory construction applied by the court was the principle that, in construing a statute, courts will presume that the legislature did not intend absurd, inconvenient, or unjust results. According to the court, it would be absurd to hold that the 60-day filing period was not only running but expired while the underlying case is DWP. Similarly, it held that an inconvenient and unjust result would occur if a party was required to file a motion to quash while a case was DWP, which was legally impossible to do.
By Kerry Bryson, Office of the State Appellate Defender
Robert Carey was charged with felony murder predicated on attempt armed robbery with a firearm. He was also charged with attempt armed robbery with a firearm and unlawful use of weapon by a felon. The charges arose out of an incident where Carey and his brother ambushed two armored truck guards, resulting in injuries to Carey and the death of Carey’s brother.
At a pretrial motion hearing, the state informed the court and defense counsel that possession of a firearm was an element of the predicate offense of the felony murder charge and that they intended to prove Carey was armed with an automatic handgun which fit the definition of “firearm” under the FOID Act. Carey contended that the gun was inoperable.
The State sought to nolle prosequi the attempt armed robbery and UUWF charges immediately prior to trial. Evidence at trial tended to establish that Carey and his brother approached an armored truck guard as he exited a store with a deposit bag of cash. Carey’s brother pointed an object that appeared to be a sawed-off shotgun at the guard, and Carey had a handgun in his possession. Carey and his brother were shot in the ensuing altercation.
The item Carey’s brother had been holding turned out to be a homemade wood and metal item resembling a shotgun, while the handgun Carey had was an unloaded .22 caliber derringer which the State’s expert determined to be inoperable.
The prosecution sought a firearm sentencing enhancement instruction, and defense counsel objected (unsuccessfully) arguing lack of notice. The jury found Carey guilty of first degree murder and separately found the firearm enhancement.
Carey appealed, arguing inter alia that he was prejudiced in preparing his defense because the indictment for felony murder failed to specify the predicate offense. The appellate court agreed, reasoning that the indictment did not identify whether the basis was attempt armed robbery “with a firearm” or “with a dangerous weapon other than a firearm.” The appellate court declined to look to the other counts of the original indictment because they had been nolled prior to trial.
The Illinois Supreme Court reversed, concluding that the indictment as a whole provided the missing elements where Carey originally had been charged with attempt armed robbery with a firearm. The court rejected the argument that the entry of the nolle prosequi affected the outcome. The court also pointed to the pretrial statements by the State that it intended to prove Carey’s possession of a firearm. Given that the indictment was challenged for the first time on appeal, and given that Carey could not show prejudice in his ability to prepare a defense or to plead conviction as a bar to double jeopardy.
The court remanded to the appellate court for consideration of other issues which Carey had raised but that the appellate court had not addressed in light of its decision on the issue of the sufficiency of the indictment.
By Kerry Bryson, Office of the State Appellate Defender
At issue in Coats was whether an individual could be convicted of two separate offenses – armed habitual criminal and armed violence – arising out of the possession of a single gun. The Illinois Supreme Court upheld both the convictions and the consecutive sentences of 7 years and 15 years, respectively.
The convictions arose out of the execution of a search warrant at an apartment. During the search, police encountered Leshawn Coats who was holding a handgun in one hand and two plastic bags containing crack cocaine and heroin in the other. Additional narcotics, cash, ammunition, and narcotics packaging materials were discovered in the room where Coats was located. It was stipulated that Coats had prior convictions for robbery and aggravated robbery.
At the outset, the Illinois Supreme Court reaffirmed that one-act, one-crime violations fall squarely within the second prong of the plain error doctrine. Thus, Coats’s claim could be reviewed despite its procedural forfeiture in the trial court.
On the merits, however, the court concluded that the convictions were not based on the same physical act. Specifically, the court found that while both offenses shared possession of the handgun as an act, the armed violence conviction involved the separate act of possessing drugs. The court rejected Coats’s argument that possession of the handgun was the “crux” of both offenses and thus multiple offenses could not stand.