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04/08/87 William Quinn, v. Sigma Rho Chapter of Beta

April 8, 1987

WILLIAM QUINN, PLAINTIFF-APPELLANT

v.

SIGMA RHO CHAPTER OF BETA THETA PI FRATERNITY, DEFENDANT-APPELLEE



Before we discuss the substance of the pleading, we first comment on the drafting of the order of dismissal and the third amended complaint. We bear in mind that this appeal stems from plaintiff's attempt to expand the law of negligence and that plaintiff and defendant may have encountered difficulty with phraseology. The trial court found that the "only cause of action possibly stated in the Plaintiff's Third Amended Complaint is based on the special relationship of voluntary custodian-protectee and that all allegations of said Third Amended Complaint not directed towards that relationship should be stricken." The court then stated as follows:

APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

507 N.E.2d 1193, 155 Ill. App. 3d 231, 107 Ill. Dec. 824 1987.IL.455

Date Filed: April 8, 1987; Modified on Denial of Rehearing June 1, 1987.

Appeal from the Circuit Court of Champaign County; the Hon. Creed D. Tucker, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. SPITZ, P.J., concurs. JUSTICE GREEN, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

Plaintiff, William Quinn, appeals from an order of the circuit court of Champaign County entered July 17, 1986, which dismissed his third amended complaint on the grounds that it failed to state a cause of action.

"Therefore, the Plaintiffs' Third Amended Complaint is hereby dismissed and the Plaintiff granted leave to file a further amended complaint within 14 days of the entry of this Order; should the Plaintiff elect not to file a further amended complaint, the Court expressly finds that there is no just cause for delay of enforcement or appeal."

Plaintiff filed his notice of appeal on August 12, 1986, within 30 days of the July 17, 1986, order, and after the 14-day leave to amend period had expired. Plaintiff did not file amendments following the July 17, 1986, order. While there appears to be a conflict between the finding provision and the ordering provision of the July 17, 1986, order, we consider the order a final Disposition of the cause and hear the appeal on its merits.

We are also critical of the draftsmanship of the third amended complaint because it appears that plaintiff may be attempting to include more than one cause of action in one count of the third amended complaint. We recognize the rule that each count of a complaint should allege only one cause of action. (Ill. Rev. Stat. 1985, ch. 110, par. 2-603(b); Prado v. Evanston Hospital (1979), 72 Ill. App. 3d 622, 390 N.E.2d 1270.) As plaintiff urged at oral argument, he considers the complaint to allege a cause of action based on simple common law negligence principles and also a voluntary custodian-protectee relationship. It would have been better for plaintiff to advance these theories in separate counts. Because of our holding herein, the error, if any, becomes harmless.

According to the pleaded facts, plaintiff was a pledge of defendant's and was required to participate in the defendant's initiation ceremony, "Pledge Dad Night," in order to become a member of the fraternity. Plaintiff alleges that, on the night of the incident, he was "18 years of age and was an inexperienced drinker, which fact was known or in the exercise of ordinary care should have been known by the defendant." As part of the ceremony, each pledge was directed to drink a 40-ounce pitcher of beer without letting the pitcher leave the pledge's lips or until the pledge vomited. Plaintiff complied. The complaint then alleges that "plaintiff became intoxicated and unable to properly care for himself."

After drinking the pitchers, the pledges were brought to a local tavern. On the way to the tavern, one of the active members of the fraternity asked if plaintiff had any important classes the next morning. Plaintiff replied, "No." The active member then directed plaintiff to drink from an eight-ounce bottle of whiskey. Plaintiff again complied. The complaint does not specify how much of the bottle he drank, only that he drank from the eight-ounce bottle. At the tavern, the members of the fraternity purchased more liquor for the pledges.

The complaint alleges that, as a result of the evening of drinking, "plaintiff became extremely intoxicated and unconscious and was brought back to the defendant fraternity house by active members of the fraternity at approximately 1:00 a.m." Plaintiff was left on a hardwood floor to sleep off his intoxication. He slept until 2:30 p.m. the following afternoon, or some 13 to 14 hours. When he awoke, he was still in an intoxicated condition and could not properly use his hands or arms. He was taken to a hospital where his blood-alcohol content was measured. At 4 p.m., plaintiff had a reading of .25. Plaintiff then alleges that, at its peak, his blood-alcohol content was approximately .4 or "at near fatal levels." ...


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