have so you're going to have to keep track of your fifteen and you'll have to get up and hold him down if necessary to get your part thanks to recess the morning of may please the court my name is mike rhesus and i'm here today on behalf of the fraternity members and action for injury to the intoxicated person based on the gift of alcohol and second a voluntary undertaking was not stated for joint or in concert liability without pleading that each member substantially remark that you consider this a gift of alcohol right there was no money exchanged right because charles described social host liability which is what we were talking about right and  liability rising out of the sale or gift of god but justice thomas i would say that although charles and we're cool look did involve social hosts the court was talking about legislative preemption of boat the entire field of alcohol related libeling social host liability would be part of that but social host liability is not coextensive w kohol related liability because drinking can occur in many different situations it can occur when you go into a bar kind of cook if and i didn't really even know this until i had to do the research apparently it's against the law if you're an adult and you pay for accommodations oh told a motel room to facilitate under a shrink drinking can take place in a variety of different contexts not just the social serve as the proximate cause of entry i think that if the liabilities alcohol related the fact that you know there may be conduct a violates a statute doesn't make it any less alcohol related consider charles for a moment in charles remember you've got two brothers one is eighteen the other twenty one and they get a sixteen year old girl drunk and this is before there was a statute passed that explicitly created a cause of action ok and the theory was well the drinking contributed to the delinquency of a minor in violation of the criminal statute and there was argue to show that this fit within the haven framework where you have something more going on in just drinking one of those courts to this court said that even though there was a violation of a statute and was still alcohol related liability there was legislatively preempted there is something number one for recognition of a common law action against a college student or for trying to be for supplying the alcohol you need legislation and was a gift because there was no exchange of money ok they were given the baka they were told to drink the bottle they were called names so they didn't drink a bottle but all the conduct is still alcohol related he died from point four three blood alcohol the drinking was alleged to be a requirement for membership do i understand you you now us this would be different if instead of i think what you're really saying is well if the hasan took the form of some other con than drink right and it resulted in injury he would have  well if he is going to be forced to jump off the balcony then i think that there would be conduct that wasn't exclusively alcohol  related if the drinking simply creasy if the drinking simply preceded that it might be you know and we'll call it the courts that there could have been a voluntary undertaking i suppose if you can do but i guess it is from this way if you go by the  saying is it's up to the legislature to take action i'm saying there's a preemption not an exemption that they may sound alike but they're very different and what i'm saying here is that the fifth amendment complaint alleges a clear cut because plaintiff's claim gave rise to that liability legislative preemption barres a common law action and no recovery was possible without legislation that would create a private right of action in favor of persons injured by their own intoxication plaintiffs does not argue here that the hazing act itself creates a cause of action that question is simply not before the court the legislatures failure to address civil liability is too weak a read on which to base an inference of legislative acquiescence in a common law action silence does not imply approval for over twenty years going comprehensible that a social host who is not a looker seller should be exposed to a greater liability than the profiting dram shop under the graham shop act yet that is the same result if the if this court to i think that i think it's important i think it's a pointer favor because it shows that the liabilities alcohol related if the drinking is an essential element of the cause of action you can't you can violate this claim is based on a violation of the act you can't violate the air unless the drinking was required for membership the drinking to liability not simply social host like only we respectfully submit that whether alcohol related liability should extend to college students and for trying to use is a question for the legislature under this court's own preceden the legislature is the court has recognized is better equipped to determine questions of public policy and alcohol really a liability than the courts as illustrated by the drug and alcohol impaired minor respons sure knows very well how to create alcohol related liability when i believe some public policy so requires it would violate principles of stare at the syces and judicial suffer straight to create an open ended twelve liability against college students when this court has deferred to the legislature's determination of public policy and the legislature is not seen fit to create a cause of action in favor of persons at least eighteen years of age of twenty seven for training members affirmatively took substantial steps to perform an undertaking now plaintiff was snuffed forced to plead in a vacuum he had access to thousands of pages of documents from the criminal investigations and the disciplinary proceedings of northern illinois university even so the fifth them in a complaint did not go ledge what a form of steps each member officer specifically performed to avoid the fraternity members if i can begin with tying into a comment mr reese has made said the legislature if they had wanted a case like this to go ahead would have said so would have would have acted and our answer is they have acted that's what the hazing act is all about what what the chapter in the members are asking this court to do is to take the hazing act which is an act that covers all kinds of hazing and dissect out one small type of hazing which would be hazing with alcohol hazing involving alcohol that the literature in the case is so ironically that hazing and alcohol seem to be the predominant combination so what what the what the chapter and the members are actually x asking this court to do is to take a statute that the legislature has passed which clearly wants to stop the argument here is that there is a statute but because of the lack of civil remedy and the legislature knows how to provide this we should not see this as a statute is create a private right entirely on the side of the people claiming a right of action because we know nine hundred ninety five when they when the legislature looked at the hazing act they looked at alcohol they looked at his name that they looked at all the elements that are here and again and that was the one nine hundred ninety five this is long after i've been a quinn were on the books they were supposedly aware of them that's the premise that's the presumption that the legislature is aware of exist in conflict with the legislature if it approves the right of action for his ng involving alcohol that have been quinn recognized because the legislatures were worth those cases and did nothing to cut them out of the hazing act now even as recently as twenty thirty when they went back and looked at the act again at that point that the legislature looking at the legislative history and looking at the various comments the legislatures legislators were aware of of alcohol of its importance and of civil lawsuits and they did nothing at that point to suggest or to change the law in any way to prevent or to bar a common law right of action for violating the hazing act where alcohol is involved which is this case so we don't need a private right of action we just simply happy to have the common law action that has been recognised  the amicus mentioned there's no duty on the part of homeowners to put in fire alarms but once that duty was established by the statute the courts recognize that transition to that point as to the national then the nationals primary that really almost only defense is we can't possibly be at fault because we passed a law there are other defense is that we can't possibly be responsible for what our members dead that i thought the hammer i case which things which the national did not distinguish them said it best in that case a railroad said we can't be at fault for what that will work or did because we told him not to do it and the court there said that's not good enough not when you have ignored not when you when you've done something to ignore it we've gone a step further and with your doctor saying that they ironically the maybe some terrible chance to that that's why we gave the court the various literature in the cases of talk about the fact that there's a benefit to the national apparently because i have seen a according to the literature and according to the cases like o case creates a bonding effect and what that does is boost their membership and as one court said bringing in new members is the life of the national security if they don't have members they don't have a national for turner so looking looking and looking at the conduct of the members and the national does not disagree that the members are in fact there are agents are just saying for what they did they're beyond the scope of their agency but when you if you have the national encouraging the members to do something that's a direct liability and if you have the national allowing the members to to carry out this kind of hazy activity keeping in mind that we have allege that this is been going on for years both in this house and other houses around the country for this return to the end and in other fraternities that the national heads and know what was going on here and we say that also in part because you have the consultants to come to this chapter they have a defined duty to be there to check everything out when those consultants showed up they found that this chapter and it's acknowledged by them and alleged in the complaint they found that this chapter did not have a risk awareness program and had had such a program for three years a risk of a risk awareness program as you can tell from the fraternity web site is the program that the national uses that they give to the locals that reminds the young people there that they can't do this it's against the rules they had no such program here and the very absence of a program should suggest to the national that what's been going on for years is still going on for years if i can't say that that's going to the definitely defined the outcome of this case but we are so far away from the final outcome of this case we're at the at the very pretty stage which of course would recognize that's a handicap we can only deal with what we've been allowed to to learn to date so is that your position generally  have a complaint that just wasn't pulled out of thin air i'm it is a public court noted that plaintiff's counsel provided an affidavit to the trial court saying this is where i got this information and this is why i believe the following things are true he was not going on a flight of fancy if you have a situation if you if you have a situation room have certain facts you should be able to reasonably reasonably deduce what the other facts are and looking at the history of this case looking at the history of this kind of looking at what happened here he was able to and looking at it and talking to people and seeing what little information he got he was able to deduce that somebody at the national told this local this is this is good for you it's good for us and it's good for you and that's why he's going back certainly back that's why the legislature intervened and that's just it i just kept that off the cases have stressed that this kind of behavior is behavior that although we would all shake our heads and i hope our children didn't do it when you put people into this scenario it's foreseeable it happens all the time it's called social pressure we're not talking about him circling we're back we're not talking about the pressure from being a party that everybody has a drink at the party and maybe i have a few a lot of places i don't have drink we're talking about group pressure called social dynamics where these people want to become a member they see this is an act of prestige the the local chapter is behind it the national chapter stands behind a local chapter this is not in an eight a new house a common law cause of action we we've met all the criteria for a common law cause of action we've also satisfied and i don't think i need to go through it again we've satisfied the normal duty prerequisite of the normal prerequisites the normal analysis for a duty looking at foreseeability nobody i don't think anybody contested it's not not foreseeable looking at the burden there is no burden on anyone here looking at the significance of putting the burden on the fraternity there can't be any significance to asking somebody to do what the illinois legislature from new york this is not a social situation where people are simply standing around this is a pledge and using situations where the instrument happens to be alcohol is or you basing that on the hazing actors a process of pledging in an institution a remarkably narrow  members ye benefit that we're looking to is the benefit to the national and the national benefited from the access of the nonmembers the fraternity  as to the nonmembers themselves the yes no the only answer i can give the court as to the nonmembers is that the statute itself says that any act by any person and this the hazing act does not require a benefit to anybody but here's the act just looks at what you do and why you do it why you do it and they did it as part of an act a combined act caused these people to become members of the fraternity their argument is they can't vote and that's true they can't vote but nonetheless they're part of the process  part of the process of the legislature want to stop that's what the best answer i can give that john i'm less the court has further questions as to the chapter and the members we asked th may please the court my name is dan nolan and i represent the nonmember women the fans arguing today on behalf of the nine member women defendants we have joined the briefs of the other defendants with regards to the legislative chris preemption of alcohol related liability my argument this morning focuses on the reasons the trial court and the appellate court correctly decided the duty issue in favor of these nine number of women even if this court finds that quinn versus cigna roe and haven versus andersen created an exception this survive trials versus sick fried and the  such exception does not extend to nine members of the fraternity plaintiff is asked this court to interpret the hazing act such that a non member of the fraternity has a duty to a prospective member or pledge of the fraternity not to serve him alcohol and not to use peer pressure or social pressure to encourage the excessive consumption of alcohol plaintiff is not alleged any facts to support  their woman who is not a member of a fraternity could actually require david bowden burger to drink to intoxication in order to become a member of that fraternity there is no factual al purchases well i think to answer your question is to fall first and foremost i think under the when haven and the hazing act the linchpin that clinton haven used under the hazing act was essentially that it wasn't the individual members peer pressure to consume alcohol it was the organization's requirement to do so as a portion of it in order to become a member so it's more about the the power than it is about the role that any one person played the innit there is also no factual allegation that any of the nine member women were involved in any way in the internal pleasure requirements of the fraternity judge flanagan at the trial court level and the illinois power court justices harris cunningham economists all agree that a non number of the fraternity it does not have a duty to a pledge because they don't have any authority to determine who would become members of an organization for which they do not belong source i don't think that will encourage organizations because if if the linchpin again is the requirement by the organization that pledges do something the  if it still exists there's going to fat on that organization regardless of who plays what role in that process and i think when you follow quinn in haven and the hazing act that that's really what what it's saying is you you have to have this power or control over someone in order to require them otherwise you really don't have any different situation than being in a house and someone you know using peer pressure against someone younger  you know i want to get back to what exempt them from liability i'm thinking back to justice garman's question to mr rhesus about other types of activity i can't remember exactly if it was you know they're required to run into a wall and you have a nonmember pushing them hoes as as they're running toward this wall happen to be a nonmember what it what would exempt them from liability i mean when we talked about it with mr rhesus you know he said well that's a different situation than the drinking because there's a car about for the drinking but there has to be something that would exempt them from  their actions from liability right right and that exemption would be that they do not have the power under the hazing act or under the you know their power course decisions in queen haven to require them to do anything they can tell them just like anyone else could tell someone to do something but the liability comes from the requirement that these pledges allegedly know they have to do this speak to become members so if the  different situation or than i'm a member and in my example of the wall if they say run into the wall versus as they're running they push them to help on the run into the wall i think exactly if if someone physically pushes into a wall you don't need the hazing yeah to respond to that that's in the salt course or a battery you know for the hazing act to apply unique that that nexus between the actual requirement by the organization in order to create a liability and i believe that the elf following that if there is participation by the nine members and encouragement of the activity that has been sponsored by her i mean that's what the allegations are yes allegations that these nonmember women had any role whatsoever in creating the requirements by the fraternity as to what the pledges would do or what the what the fraternity may have communicated to the pledges as to what was required they as having no revel in determining whether someone can be a member in this organisation their communications with those pledges in this context is really the difference between participation and power they have no power to compel but what they perceive  power they were well i pressuring i think that's where the line needs to be drawn if there is one is that again the the idea that we're trying to prevent this would have to stop start with the requirement that they do it and who would who determines that requirement would you put it in the context of our tradition duty analysis did these nine members have a duty to the pl understanding that these nonmembers understood what was happening here is you know i guess in order to answer your question what i have to ask is what we're trying to address here as far as under the traditional do the analysis the reasonable conduct for the benefit of the plaintiff right is the issue for reasonable conduct that of no peer pressure and no serving alcohol or is that reasonable conduct that we want to not have a requirement their pledges consume excessive amounts of alcohol as part of becoming a member of the fraternity so we talk about the magnitude of the burden of the consequences of  burden the issue is going to be that i do these nonmember women the right person to place that do the on that responsibility for pledges in an organisation that they don't belong balancing of those but beth the magnitude of the burden and the consequences of that burden would indicate that you're not going to prevent this situation by putting a duty on a non member of an organisation for this court as it respects national is actually quite simple it's a straight ahead six one five analysis it's pretty narrow it's did the fifth amended complaint alleges sufficient theory of life will be against national the circuit court and the appellate court obviously found that it did not and if this court as it should simply applies straight ahead conventional six one five analysis with a basic understanding of agency life it's going to reach the same conclusion you don't have to played any role in the planning or execution of this particular event in fact the most operative paragraphs of the fifth minute complain are paragraphs five through thirty four that's where the allegations as to how this went forward are most granular and nationals never mentioned in fact nobody's it's twenty seven presently unknown members national is never mentioned in the most operative facts within the four corners of the complaint as respects how this mom and dad's n was was planned and execute nor could quite honestly the fifth american fleet allege sufficient theory of liability because national in this case is is rather unique in the sense that my client is the only one i believe still in the case i could be wrong with the only one still in the case who's actually given a deposition there was one young man who gave a deposition and was promptly dismissed justin bach president of the national fraternity gave his definitions three hours long he  that national plays no role over the means and methods of bludgeon it did not know about this particular event taking place it played no role in the planning and execution of this particular in their house in memphis that deposition took place before the fifteen minute complaint was filed there would have been no good faith basis factually for counsel in that fifth minute complaint after that deposition to allege that national played any meaningful role core values in the form of rules and regulations and principles one of which is there prohibition as an expression of a core value against hazing and against the use of alcohol in pledging process the fifth man a complaint alleges that that guideline existed and that it was a violation of that guideline for this mom and dad thing to go forward so you have an complete absence within the four corners of any allegation of control principles and you simply apply the same straight ahead six one five analysis as the circuit court and then the appellate court you reach the same conclusion that within the four corners no sufficient cause of action is stated against national and therefore i ask you i want to go back to the first question the justice thomas asked which suggested that drinking is a form of hazing the first from social drinking and i think that's in the background to a lot of what we're talking about today even if that's true it doesn't prove anything about the viability of the plaintiff claim the issue here is not whether we were social hosts the issue is whether or the liability alleged by plaintiff and to fit them in a complaint is alcohol related opposing counsel never really tells you what it means to have liability this alcohol related it's a broader concept than social host liability all the court is saying in the past about social host in charles in the cool it is it's basically supplying alcohol you know supplying knowingly supplying alcohol to the someone else and that can happen in the home or outside the home but that's but the issue here is broader than that because  liability if you look at the allegations almost every allegation involves excessive drinking and excessive drinking was a requirement for membership in the fraternity the fact that that conduct also violates the statute does not make it any less alcohol related i already gave an example in charles where a violation of the statute contributing to the going quincey of a minor did not if it's success if it's excessive drinking i think i think of success of drinking that's the beginning in the end of it because then it becomes a matter for the legislature becomes a matter for the legislature to take and they have taken action when they believe the public policy so requires and we're not look we're not trying i'm not your kind of condone hazing because i also think that might be you know in the subtext here i'm  hazing and i'm not trying to create exceptions to he's all i'm saying is that all forms of hazing are subject to criminal prosecution under the act the act does not create any the amendments to the act only dealt with how do enhance the penalty and clarify the language to avoid a constitutional challenge on vagueness scrivens and then whether it's good public policy to fanchon a civil remedy for those who are injured by the only intoxication about the age of eighteen in addition to making the same conduct criminal under the hazing act is a matter it should be left to the legislature to conclude i think i want to say if you take nothing else from my argument today this case is not about whether fraternities are good or bad of opposing counsel gave everyone a copy of this book and i think that there is a real effort made to somehow demonize for trinity's or have us have to defend what occurred here that's not what this case is about this case is about who gets to decide the scope of alcohol related liability under a democratic form of government and for over one hundred years this court has deferred to the legislature as competent to decide matters of public policy relating to alcohol related liability and if this court follows its own precedent it will reverse the appellate court in favor of the fraternity members and a circuit court if there are no further questions thank you for your time today as to the national what the national can i do it did not do was to look at the cases that we cited that have facts and  national local organization similar to this case and distinguish them the brown case from maine and that case not a hazing case but the same flashman was what did the national have to do with the local fraternity and the court there looked at situation pretty much like this and said when you have a national they control so much of the local fraternity they do have the ability to control if they want to take that control alexand tennessee track to the same thing the canner case the later case in pennsylvania track the same thing if the court looks at those cases they will see the same kind of footprints here and those footprints all lead to finding a duty overriding all of that however remains the fact that the national has no answer for the simple allegation that they directly caused this is their fault they started up they want to do it encourage the people to do it if that's right and we're going to win that case we should win that case here and we will win that case of a trial at the very least we have a right to take that case further to see if we can prove what we allege unless the court has further questions for me this subject has been pretty well exhaust this morning and i appreciate that and i thank