Haben v. Anderson

597 N.E.2d 655, 232 Ill. App. 3d 260, 173 Ill. Dec. 681
CourtAppellate Court of Illinois
DecidedJune 26, 1992
Docket3-91-0707
StatusPublished
Cited by19 cases

This text of 597 N.E.2d 655 (Haben v. Anderson) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Haben v. Anderson, 597 N.E.2d 655, 232 Ill. App. 3d 260, 173 Ill. Dec. 681 (Ill. Ct. App. 1992).

Opinion

JUSTICE HAASE

delivered the opinion of the court:

The plaintiff, Dale E. Haben, brought this wrongful death action as special administrator of the estate of Nicholas E. Haben against the defendants, the members of the Lacrosse Club (the Club) at Western Illinois University. Nicholas Haben died on October 19, 1990, from acute alcohol intoxication. The plaintiff alleged that each of the defendants had been involved in “hazing” the decedent, pressuring him to drink, and causing his intoxication. Additionally, the plaintiff alleged that defendant Anthony F. Kolovitz negligently breached a voluntarily assumed duty to care for the decedent. The trial court granted the defendants’ motions to dismiss. The plaintiff appeals.

The plaintiffs complaint alleged that the decedent, Nicholas E. Haben, was an 18-year-old freshman at Western Illinois University in the fall of 1990. On October 18, 1990, Haben was a “rookie” in the Lacrosse Club, a recognized and sanctioned student activity at the university. The 12 defendants were all active members of the Club. Club membership was “a valued status.” On October 18, 1990, between 3 p.m. and 10:30 p.m., the defendants participated in the “initiation” of new recruits of the Club known as “rookies,” which included Haben.

It was alleged that during the initiation ceremony, the defendants caused or participated in causing various types and quantities of intoxicating beverages to be given and ingested by the rookie initiates of the Club. The rookies, including Haben, were required to engage in various strenuous physical activities and submit to acts intended to ridicule and degrade them, including smearing their bodies, faces, and hair with various food and other materials. These activities allegedly violated the Hazing Act (Ill. Rev. Stat., 1990 Supp., ch. 144, par. 220.9 et seq.) and university regulations. It was alleged that the hazing and drinking activities had been conducted by the Club members for a number of years and had become a “tradition of, and a de facto requirement for, membership in the Club,” and that the pressure to consume dangerous quantities of alcohol created a hazardous condition threatening the initiate’s physical welfare.

The plaintiffs complaint further alleged that, in violation of section 6 — 16(a) of the Liquor Control Act of 1934 (Ill. Rev. Stat. 1989, ch. 43, par. 131), the defendants caused and pressured Haben to consume excessive amounts of intoxicating liquor, and after knowing he was intoxicated, pressured and encouraged Haben to drink additional quantities of liquor.

The complaint also alleged that Haben became highly intoxicated and lost consciousness. He was carried to defendant Kolovitz’s dorm room, where, in Kolovitz’s presence, he was laid on the floor and then left alone. Kolovitz returned to the room on more than one occasion to check on Haben and heard him “gurgling.” Haben was discovered dead about 9 a.m., on October 19, 1990. He died from acute ethanol intoxication, possessing a blood-ethanol level in excess of .34.

The defendants filed motions to dismiss the plaintiff’s complaint for failure to state a cause of action. The trial court granted the defendants’ motions and dismissed the complaint, finding that a common law duty was not properly pleaded because the facts alleged did not fit the narrow exception announced in Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity (1987), 155 Ill. App. 3d 231, 507 N.E.2d 1193. The trial court found that Quinn made it incumbent upon the plaintiff to plead that Haben was required to drink to intoxication to be initiated into the Club. The trial court also found that the plaintiff failed to allege facts establishing that defendant Kolovitz had voluntarily assumed a duty.

On appeal, the plaintiff first argues that the trial court erred in dismissing his complaint. He contends that he pleaded a proper cause of action under Quinn.

In reviewing the propriety of a dismissal for failure to state a cause of action, we must determine whether the complaint, when viewed in the light most favorable to the plaintiff, alleges facts sufficient to establish a cause of action upon which relief may be granted. (Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 566 N.E.2d 1365.) A cause of action will not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover. (Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co. (1986), 114 Ill. 2d 278, 499 N.E.2d 1319.) Moreover, all well-pleaded facts must be taken as true for purposes of judging the sufficiency of the complaint. Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co. (1986), 114 Ill. 2d 278, 499 N.E.2d 1319.

The elements of a negligence cause of action are a duty to exercise care, a breach of that duty, an injury proximately resulting from the breach, and damages. (McMillen v. Carlinville Area Hospital (1983), 114 Ill. App. 3d 732, 450 N.E.2d 5.) Whether a duty exists is a question of law and depends upon whether the parties stood in such a relationship to one another that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387.) In considering whether a duty exists in a particular case, a court must weigh the foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against it and the consequences of placing that burden on the defendant. (Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 566 N.E.2d 1365; Gouge v. Central Illinois Public Service Co. (1991), 144 Ill. 2d 535, 582 N.E.2d 108.) In terms of foreseeability, the court will consider whether the risk of harm was reasonably foreseeable. Gouge v. Central Illinois Public Service Co. (1991), 144 Ill. 2d 535, 582 N.E.2d 108.

Illinois courts have repeatedly held that common law negligence liability does not exist where a social host has provided liquor to a minor guest. (See Coulter v. Swearingen (1983), 113 Ill. App. 3d 650, 447 N.E.2d 561 (social host not liable when minor guest became intoxicated, drove car, and injured third party in vehicle collision); Estate of Ritchie v. Farrell (1991), 213 Ill. App. 3d 846, 572 N.E.2d 367 (social host who provided alcohol to minor not liable for minor’s death from acute alcohol intoxication); Zamiar v. Linderman (1985), 132 Ill. App.

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Bluebook (online)
597 N.E.2d 655, 232 Ill. App. 3d 260, 173 Ill. Dec. 681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/haben-v-anderson-illappct-1992.