Estate of Hernandez by Hernandez-Wheeler for and on Behalf of Hernandez v. Arizona Bd. of Regents
| Decision Date | 13 January 1994 |
| Docket Number | HERNANDEZ-WHEELER,No. CV-92-0079-PR,CV-92-0079-PR |
| Citation | 177 Ariz. 244,866 P.2d 1330 |
| Parties | , 89 Ed. Law Rep. 278 The ESTATE OF Ruben A. HERNANDEZ, by Elizabeth L., his personal representative, for and on behalf of Ruben R. Hernandez, Elizabeth L. Hernandez-Wheeler and Catherine Rose Poli, Plaintiffs/Appellants, v. ARIZONA BOARD OF REGENTS, a body corporate, Delta Tau Delta Fraternity, a New York corporation, Epsilon Epsilon Chapter of Delta Tau Delta Fraternity, Inc., an Arizona corporation, Epsilon Epsilon Educational Foundation, an Arizona corporation, Brett Harper Anderson, Bradley Reed Bergamo, Paul Jude Biondolillo, Joshua Christopher Bliss, Matthew James Bosco, Steven Penn Bryan, Anthony Charles P. Caputo, Thomas David Carlson, Stephen Michael Carpenter, Jeffrey David Catlin, Nathaniel Louis Derby, Albert Edward Dietrich IV, Clo Earl Edgington, Karam Elias Farah, Christopher Todd Flavio, Gerritt Andrew Gehan, Barry James Ginch, Steven Hare, David James Henshall, Markus Rudolph Holtby, Mark Thomas Hopkins, David Laurence Ison, Douglas Edward Jameson, Gregory Richard Janis, Rex Edward Jorgensen, Jay Adam Josephs, Craig Landon, Sean David Leahy, Dale R. Lemon, John Christopher Manross, John Conrad Miller, Christopher J. Molloy, Harrison Lane Morton, Kurt Richard Munzinger, Paige Ray Peterson, Kenneth S. Plache, Daniel Lee Rasmus, Scott Allen Remington, Paul Anthony Reynolds, James Samuel Rigberg, Gary Edward Rink, Erick Jon Roberts, Michael Daniel Roth, George Evangelos Roussos, Charles Dana Sacks, Thomas McKinlay Schwarze, William John Sheoris, Douglas Todd Sims, Clifford Lawrence Smith, Kristopher James Stathakis, Roger Sanford Stinnett, Douglas Matthew Stoss, Anthony Charles Suriano, Eric Joseph Szoke, Nelson Sterlin Udstuen, James Frank Uppendahl, Scott Urban, Larry Wagner, Todd Eric Wallis, Jonathan Blakeslee Woodard, Michael Patrick Woodward, Jeffrey Ryan Wyne, and David Hall Yohe, Defendants/Appellees. |
| Court | Arizona Supreme Court |
We review a court of appeals opinion affirming summary judgment for defendants. The trial court held that A.R.S. § 4-312(B) immunizes a social host from liability for serving alcohol to a minor who became intoxicated and injured an innocent third party. The court of appeals affirmed. Estate of Hernandez v. Arizona Board of Regents, 172 Ariz. 522, 838 P.2d 1283 (Ct.App.1991). It held A.R.S. § 4-312(B) severable from A.R.S. § 4-312(A), which we declared unconstitutional in Schwab v. Matley, 164 Ariz. 421, 793 P.2d 1088 (1990). The court of appeals also found that A.R.S. § 4-312(B) did not violate the anti-abrogation provisions of Ariz. Const. art. 18, § 6.
We have jurisdiction under Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24. We granted review to determine whether a non-licensee can be liable for damages for furnishing alcohol to a person under the legal drinking age who subsequently harms a third party. 1 See Ariz.R.Civ.P. 23(c)(4).
When reviewing a grant of summary judgment, we examine the facts in the light most favorable to the party opposing the motion. Gulf Ins. Co. v. Grisham, 126 Ariz. 123, 124, 613 P.2d 283, 284 (1980).
On August 27, 1988, a University of Arizona fraternity welcomed new members with a bid party. As was customary, the fraternity served alcohol. To purchase alcohol for social events, the fraternity maintained a separate fund to which all imbibing members contributed. The social fund chair, a member over the age of twenty-one, collected and held the liquor money, and ensured that non-contributing members did not drink at parties.
The fraternity's officers kept background records on all members and were aware of their ages. As of August 27, 1988, a majority of the members were under the legal drinking age of twenty-one. However, all members, regardless of age, could contribute to the fund; and contribution was the sole criterion to drink at parties. Several hundred people generally attended these functions, but the fraternity checked neither members nor non-members for proof of age.
John Rayner, a contributing fraternity member under twenty-one, drank at the bid party that night. At 1:45 a.m., Rayner's car crashed into a vehicle driven by Ruben Hernandez. Rayner was driving over forty in a twenty-five mile-per-hour zone. At 2:30 a.m., his blood alcohol level was .15, exceeding the limit set by A.R.S. § 28-692(A)(2). The crash left Hernandez blind, severely brain-damaged, and quadriplegic.
Hernandez brought an action against Rayner for personal injuries, and his three adult children joined in the action to recover loss of consortium. Hernandez later amended the complaint to add as defendants: (1) the fraternity; (2) each fraternity member who contributed to the social fund that semester; (3) the lessor of the property on which the fraternity house was located; (4) the national fraternity organization; (5) the Arizona Board of Regents; and (6) a student assigned to the fraternity through a university student education program aimed at reducing alcohol-related problems among fraternities and sororities. Hernandez died in July 1990, and his personal representative was substituted as a plaintiff. Rayner settled and was dismissed from the suit. We refer to the remaining defendants collectively as "Defendants."
At one time, Arizona arguably did not recognize civil liability for those who furnished or sold alcohol that was a contributing factor in a later accident. 2 See, e.g., Lewis v. Wolf, 122 Ariz. 567, 568, 596 P.2d 705, 706 (Ct.App.1979); Profitt v. Canez, 118 Ariz. 235, 236, 575 P.2d 1261, 1262 (Ct.App.1978). In 1983, however, we held that a licensed tavern owner could be liable to third persons injured by an intoxicated patron. See Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983). We also held that the tavern owner could be liable to a minor who was furnished alcohol and, as a result, injured himself. See Brannigan v. Raybuck, 136 Ariz. 513, 667 P.2d 213 (1983).
Following these decisions, in April 1985, the Arizona Legislature enacted A.R.S. § 4-301, dealing with "social hosts" and granting civil immunity to non-licensees who serve alcohol to a person over the legal drinking age. One obvious purpose of § 4-301 was to limit any extension of Ontiveros and Brannigan to non-licensees. The statute reads:
Liability limitation; social host
A person other than a licensee ... is not liable in damages to any person who is injured, or to the survivors of any person killed, or for damage to property, which is alleged to have been caused in whole or in part by reason of the furnishing or serving of spirituous liquor to a person of the legal drinking age.
A.R.S. § 4-301 (emphasis added).
The following year the legislature enacted 1986 Ariz.Sess. Laws ch. 329, entitled "Illegal Sale of Spirituous Liquor." This act had only two sections, designated §§ 4-311 and 4-312. In pertinent part, the first provides:
Liability for serving intoxicated person or minor; definition
A. A licensee is liable for property damage and personal injuries or is liable to a person who may bring an action for wrongful death pursuant to § 12-612 if a court or jury finds the following:
1. The licensee sold spirituous liquor either to a purchaser who was obviously intoxicated, or to a purchaser under the legal drinking age without requesting identification containing proof of age or with knowledge that the person was under the legal drinking age,....
A.R.S. § 4-311(A) (emphasis added).
The other provision, § 4-312(B), reads:
Liability limitation
Subject to the provisions of ...
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