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Jane Doe v. Psi Upsilon International

December 16, 2011

JANE DOE, PLAINTIFF-APPELLANT,
v.
PSI UPSILON INTERNATIONAL, DEFENDANT-APPELLEE
(UNIVERSITY OF CHICAGO, DEFENDANT).



Appeal from the Circuit Court of Cook County. No. 10 L 10304 Honorable Diane J. Larsen, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Robert E. Gordon

PRESIDING JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion.

Justices Garcia and Lampkin concurred in the judgment and opinion.

OPINION

¶ 1 On April 30, 2010, plaintiff Jane Doe, an 18-year-old freshman at the University of Chicago (the University), was allegedly sexually assaulted by Eric M., another student at the University. Plaintiff attended a party at the University's chapter of defendant fraternity Psi Upsilon International,*fn1 where she became heavily intoxicated, allegedly leaving her vulnerable to Eric M.'s attack later that night at his off-campus apartment. Plaintiff brought suit against defendant, alleging that it personally assisted and encouraged Eric M.'s acts of gender-related violence in violation of the Gender Violence Act (the Act) (740 ILCS 82/1 et seq. (West 2008)). Defendant filed a motion to dismiss the count against it pursuant to section 2-615 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-615 (West 2008)), arguing that it was not a "person" under the Act and that the allegations of the complaint did not demonstrate that defendant personally assisted Eric M. in his alleged assault against plaintiff. The trial court granted defendant's motion to dismiss and plaintiff appeals, arguing that (1) defendant is a "person" under the Act and (2) the complaint was factually sufficient. We affirm.

¶ 2 BACKGROUND

¶ 3 On September 8, 2010, plaintiff filed suit against the University and Eric M., and on October 27, 2010, plaintiff amended the complaint, adding defendant as a party. Count VI of the amended complaint, the sole count against defendant, alleges the following facts. At the time of the events at issue, plaintiff was a freshman at the University, while Eric M. was a senior. Eric M. resided at an off-campus apartment in Chicago with his girlfriend. On April 29, 2010, defendant held a party at its fraternity house on campus that was open to all University students and defendant served alcohol to all students in attendance, regardless of age. Plaintiff attended defendant's party, where she met Eric M.; "[p]laintiff had been drinking heavily at this party and was obviously intoxicated and vulnerable." Plaintiff did not allege that Eric M. was a member of the fraternity.

¶ 4 Eric M. and his girlfriend invited plaintiff to their off-campus apartment "to continue partying" and plaintiff accepted the invitation. After arriving at Eric M.'s residence, plaintiff agreed to spend the night and fell asleep on the couch. Several hours later, on April 30, 2010, plaintiff was awakened by Eric M., "who had pulled down plaintiff's pants, climbed on top of her and while forcibly restraining her by his weight and hands[,] forced himself inside her while she was sleeping and then and there sexually assaulted and raped her." Plaintiff alleges that Eric

M.'s actions were "done against her will, without asking her and while she was unable to prevent such sexual advances and [were] done knowingly and intentionally by him when plaintiff was still in an intoxicated state." Plaintiff further alleges that Eric M. "without cause or provocation, assaulted, battered and sexually harassed and raped the plaintiff who had gotten drunk at the defendant's party."

¶ 5 Plaintiff alleges that defendant knew or should have known that "it was reasonably foreseeable that plaintiff could be the victim of a sexual assault after becoming drunk at the fraternity party in question," but defendant failed to take any action to warn plaintiff or to take "reasonable and necessary precautions to protect her from sexual assault." Defendant had knowledge that freshmen students under the age of 21 would attend the party and that they are not legally allowed to drink alcohol. However, defendant was serving alcohol to all guests attending the party and multiple alcoholic beverages and containers were present and readily visible at the bar and common areas where the underage students were participating in the party. Defendant had also had parties previously where alcoholic beverages were served and those parties were always attended by freshmen students.

¶ 6 Plaintiff alleges that defendant "had a duty to refrain or desist from acts of assisting in the gender-related violence that took place later that evening" and violated that duty when it violated the Act "by assisting in the acts of gender-related violence by allowing the plaintiff to drink alcohol at their party and become intoxicated[,] leaving her more susceptible to said gender-related violence." As a direct and proximate result of defendant's "careless and negligent conduct by violating the Gender Violence Act," plaintiff was sexually assaulted by Eric M. and suffered injury.

¶ 7 On December 6, 2010, defendant filed a motion to dismiss count VI of plaintiff's amended complaint pursuant to section 2-615 of the Code. The motion claimed that the count against defendant should be dismissed because defendant was not a "person" under the Act and the allegations of the complaint did not demonstrate that defendant personally committed or personally assisted Eric M. in his alleged assault against plaintiff.

¶ 8 On January 20, 2011, the trial court granted defendant's motion and dismissed count VI of the complaint with prejudice.*fn2 The court also found that there was no just reason to delay enforcement or appeal.* ...

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