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09/30/87 Cherie Rabel, v. Wesleyan University

September 30, 1987

CHERIE RABEL, PLAINTIFF-APPELLANT

v.

ILLINOIS WESLEYAN UNIVERSITY, DEFENDANT-APPELLEE (PHI GAMMA DELTA, ALPHA DEUTERON CHAPTER, A/K/A FIJI, ET AL., DEFENDANTS). -- CHERIE RABEL, PLAINTIFF-SEPARATE APPELLEE,

v.

ILLINOIS WESLEYAN UNIVERSITY, DEFENDANT-APPELLEE AND SEPARATE APPELLANT (PHI GAMMA DELTA, ALPHA DEUTERON



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

Chapter, a/k/a Fiji, et al., Defendants-Separate Appellees)

514 N.E.2d 552, 161 Ill. App. 3d 348, 112 Ill. Dec. 889

Appeal from the Circuit Court of McLean County; the Hon. Harold J. Frobish, Judge, presiding. 1987.IL.1473

APPELLATE Judges:

PRESIDING JUSTICE SPITZ delivered the opinion of the court. GREEN and McCULLOUGH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

On April 30, 1984, plaintiff, Cherie Rabel, filed a complaint in the circuit court of McLean County against defendants Illinois Wesleyan University, Phi Gamma Delta fraternity, Alpha Deuteron Chapter, a/k/a Fiji, and Jack Wilk. The complaint alleged that on May 1, 1982, plaintiff was a student at defendant Illinois Wesleyan University (university) in Bloomington, Illinois. At that time, plaintiff resided in Pfeiffer Hall dormitory on the university's campus. Defendant Phi Gamma Delta fraternity, Alpha Deuteron Chapter, a/k/a Fiji (fraternity), was a fraternity associated with the university. Defendant Jack Wilk was also a student at the university at the time in question and was a member of the fraternity.

Plaintiff's complaint alleged that at approximately 3 p.m. on May 1, 1982, the plaintiff was in her room at the dormitory and was called by Wilk to come to the lobby of the dormitory. Plaintiff's complaint further alleged that when she arrived in the lobby, Wilk "forcibly grabbed [her] and threw her over his shoulder." Wilk "then ran, with [plaintiff] over his shoulder, out of the building onto a sidewalk leading to the street, the sidewalk being situated on the campus of Illinois Wesleyan University." Upon leaving Pfeiffer Hall with the plaintiff over his shoulder, Wilk "was to run through a gauntlet of [fraternity] members who would strike him with bones as he passed." As Wilk ran he "tripped, stumbled, lost control, slipped and otherwise fell crushing the skull, head and body of [plaintiff] on the sidewalk."

The complaint alleged that prior to arriving at Pfeiffer Hall, Wilk and other fraternity brothers had been participating in a "lengthy party" sponsored by the fraternity "at which members of the fraternity drank alcohol, painted themselves and otherwise conducted a lengthy and boisterous party." Wilk had been "drinking alcohol excessively at the fraternity and had participated in the lengthy party."

The complaint further alleged that plaintiff sustained injuries to "her head, body and limbs both externally and internally, and the bone in her head was broken, and she suffered a basilar skull fracture," and a "brain concussion." The complaint alleged that the brain injury caused "complete loss of the sense of smell [and] . . . loss of certain hearing functions." As a result of the injuries plaintiff allegedly incurred expenses for doctor bills, surgical treatments, medicine, and nursing care. Further, she alleged that her ability to work and her earning capacity were impaired.

Counts I, II, and III of plaintiff's complaint alleged negligence on the part of Wilk, the fraternity, and the university, respectively. Counts IV, V, and VI alleged wilful and wanton misconduct on the part of each

Two defendants, the fraternity and the university, both filed motions to dismiss the counts against them in plaintiff's original complaint.

Then on September 13, 1984, plaintiff filed her first-amended complaint. This complaint realleged all counts contained in her original complaint and alleged two additional counts against the university, one count alleging liability based upon a landlord-tenant relationship, and a count alleging premises liability.

Subsequently, all three defendants filed motions to dismiss the counts against them in plaintiff's first-amended complaint. Following hearings on the motions, the trial court dismissed counts I and IV against Wilk with leave to amend and the court dismissed counts II and VII against the fraternity with leave to amend. Additionally, the court dismissed the remaining counts against the university with prejudice.

On June 5, 1985, plaintiff filed her second-amended complaint. This complaint contained counts against Wilk, the fraternity, and, in addition, the complaint named the individual members of the fraternity as defendants. Plaintiff sought and was granted leave to amend counts III, IV, V and VIII of her first-amended complaint against the

Then on October 19, 1985, plaintiff filed her third-amended complaint. This complaint contained counts alleging negligence and wilful and wanton misconduct against both Wilk and the fraternity, including its individual members. In addition, the complaint contained five counts against the university. These included: count III, which alleged negligence; count IV, which alleged liability based upon a landlord-tenant relationship; count V, which alleged premises liability; and counts VIII and IX, which alleged wilful and wanton misconduct and sought punitive damages.

Thereafter, all three defendants filed motions to dismiss. After a hearing, the trial court ruled with respect to the university that the premises liability count against the university (count V) should be dismissed with leave to amend, based on a failure to allege how any defect caused the fall. The trial court dismissed the remaining counts against the university (counts III, IV, VIII, and IX) with prejudice, finding the university had no duty under the circumstances to protect the plaintiff from the alleged misconduct.

On March 6, 1986, plaintiff filed a motion pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) for a finding that there was no just reason for delaying enforcement or appeal of counts III, IV, VIII, and IX of her third-amended complaint. This motion was denied on May 30,

Subsequently, plaintiff filed her fourth-amended complaint. In addition to the negligence and wilful and wanton counts against Wilk, the fraternity and the individual fraternity members, the complaint contained one count against the university alleging premises liability (count III). This complaint did not reallege or adopt the four counts from the third-amended complaint against the university that had been dismissed with prejudice.

On December 3, 1986, the university filed a motion for summary judgment as to count III in ...


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