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Appellate court reverses dismissal of Bogenberger lawsuit

DeKALB – An appellate court decision means the parents of a Northern Illinois University freshman who died after a fraternity hazing party can move forward with a lawsuit against the local chapter of the fraternity and its members.

While Monday’s ruling could still be appealed to the Illinois Supreme Court, David Bogenberger’s parents were pleased with decision, attorney Peter Coladarci said.

“They’re happy about this,” he said.

Bogenberger, a 19-year-old Palatine High School graduate and fraternity pledge, had a blood-alcohol content of 0.351 percent when he died in November 2012 at Pi Kappa Alpha fraternity, 1020 W. Hillcrest Drive.

Bogenberger and 18 other pledges attended the unsanctioned party, at which fraternity members and other guests ordered pledges to drink vodka, authorities have said.

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

In May 2015, 22 former Pi Kappa Alpha fraternity members were received sentences requiring community service and fines in connection with Bogenberger’s death in what State’s Attorney Richard Schmack said was the largest hazing prosecution in U.S. history.

Bogenberger’s family filed suit in 2013 against 22 men, 16 women, the landlord for the Pi Kappa Alpha fraternity house, the NIU chapter and the national fraternity organization. Cook County Judge Kathy Flanagan dismissed the case in 2014, finding that social host liability doesn’t exist under state law.

The reasoning behind that common law rule is that drinking alcohol – rather than selling or serving it – is the cause of intoxication and any injury that may result.

The appellate court found that circumstances of David Bogenberger’s death, as alleged in the lawsuit, weren’t a social host situation, however. In their decision, the appellate justices referred to a prior decision, Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity.

“As the appellate court found in Quinn, here ‘we are faced with a situation which consists of more than the mere furnishing of alcohol. The facts, as alleged in plaintiff’s amended complaint, describe a fraternity function where plaintiff was required to drink to intoxication in order to become a member of the fraternity,’ “ the court wrote in its decision. “We agree with Quinn that this situation is distinguishable from the social host circumstances found in ... other social host liability cases.”

However, the appellate judges affirmed the lower court’s decision to dismiss the case against Pi Kappa Alpha Corporation Inc., Pi Kappa Alpha International Fraternity, the female defendants and Pike Alum LLC, which was the landlord of the property. It ruled those people and entities couldn’t be held liable in this case.

Both sides expect the case to be appealed to the Illinois Supreme Court.

Mike Borders, who represents former fraternity president Alex M. Jandick, said that he was reviewing the appellate court decision and if he would file an appeal.

Coladarci said he would also consider appealing the appellate court regarding the other defendants, including the national fraternity.

He said it was possible a settlement could be reached in the case, but said any settlement “would have to be something that was respectful to David.”

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