Estate of Hernandez by Hernandez-Wheeler on Behalf of Hernandez v. Arizona Bd. of Regents
| Decision Date | 29 November 1991 |
| Docket Number | HERNANDEZ-WHEELER,Nos. 2,CA-CV,s. 2 |
| Citation | 838 P.2d 1283,172 Ariz. 522 |
| Parties | , 78 Ed. Law Rep. 595 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, Plaintiff/Appellant, 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. 90-0191, 2 90-0219, 2 90-0252 and 2 90-0257. |
| Court | Arizona Court of Appeals |
This case presents the issues of the validity of A.R.S. § 4-312(B) and the potential liability of members of a University of Arizona fraternity, the local fraternity chapter, its house corporation, the national fraternity, and the Arizona Board of Regents for the serious injury and subsequent death of a motorist involved in a collision with an underage, intoxicated fraternity member who had recently driven away from a fraternity party. The trial court granted summary judgment in favor of appellees, and the personal representative of the deceased motorist's estate appeals. We affirm.
Because the case was decided on summary judgment, we view the facts in the light most favorable to the personal representative, the party opposing the motions. Gulf Insurance Co. v. Grisham, 126 Ariz. 123, 613 P.2d 283 (1980). On August 27, 1988, appellee Epsilon Epsilon Chapter of Delta Tau Delta Fraternity, Inc. (Epsilon Epsilon) at the University of Arizona held a bid party to welcome pledges who had been through "Rush Week" and had agreed as of 6:00 p.m. that evening to join Epsilon Epsilon.
Approximately 63% of the members of the fraternity that fall semester were under the age of 21, the legal drinking age in Arizona. A.R.S. § 4-101(16). The fraternity kept records of its members' birth dates. All members, regardless of age, could contribute to a fund maintained by the social fund chair. The chair, a member over 21, kept the members' contributions in a separate checking account outside the normal operation of the fraternity's treasury and used the money to purchase alcohol to be served at fraternity parties. For the fall semester 1988, each member who contributed to the fund paid $80. All members who contributed to the fund, regardless of their ages, were entitled to drink the purchased alcohol at fraternity parties; they were not permitted to take their own alcohol.
Extensive discovery was conducted in this case. The evidence was that the fraternity purchased between six and eight kegs of beer for the party on August 27. It owned the equipment to have four kegs operating at the same time. A member testified that the fraternity generally began its parties with four kegs operating and then served from two kegs at a time the rest of the evening. Several hundred people generally attended the fraternity's parties, most of them underaged females.
On August 27, John Rayner, a fraternity member, was twenty years, five and one-half months old. He attended the party and was seen drinking there. The party ended at 1:00 a.m. At 1:45 a.m., Rayner's vehicle crashed into a vehicle driven by Ruben Hernandez. Rayner was traveling at least 43 miles per hour in a 25 mile-per-hour zone. His blood alcohol level at 2:30 a.m. was .15 per cent. Hernandez was rendered blind, brain-damaged, and quadriplegic. He died in July 1990.
Hernandez sued Rayner for his injuries, and Hernandez's three adult children sued for their loss of consortium. The complaint was later amended to add as defendants each member of the fraternity who had contributed to the social fund that fall semester; Epsilon Epsilon; Epsilon Epsilon Educational Foundation, the corporation formed to lease the property on which the fraternity house is located; Delta Tau Delta Fraternity, the national fraternity organization; the Arizona Board of Regents; and Steven Hare, a university student assigned to Epsilon Epsilon pursuant to a university program aimed at reducing alcohol problems among fraternities and sororities. After Hernandez's death, his personal representative was substituted as plaintiff. Rayner settled with the estate and has been dismissed from the suit.
The complaint alleged that the individual fraternity members and Epsilon Epsilon were joint venturers who furnished or aided or abetted the furnishing of alcohol to those under the age of 21 either by contributing to the social fund or by serving alcoholic beverages at the party on August 27. Epsilon Epsilon was also alleged to be responsible under the doctrine of respondeat superior and for breach of its duty to control the activities of its members.
The national fraternity is alleged to have breached its duty to supervise the local chapter so as to assure its compliance with university rules and regulations. It is also alleged to be liable under the doctrine of respondeat superior for the negligent conduct of the local chapter adviser, who is alleged to be an agent of the national organization.
Epsilon Epsilon Educational Foundation (the house corporation) leases the fraternity house property from its owner, the Arizona Board of Regents. The house corporation was established to constitute a continuing entity for leasing the property because the Board of Regents will not lease directly to transient fraternity members. The house corporation is alleged to have breached its duty to use reasonable care in entrusting its property to the chapter because it knew or should have known that the site was regularly used for fraternity parties at which alcohol was served to those under the legal drinking age.
The Board of Regents is alleged to have been negligent in continuing to lease the premises to the house corporation when it knew that the fraternity served alcoholic beverages to persons under the legal drinking age. Steven Hare is alleged to have gratuitously undertaken the responsibility to educate the members of Epsilon Epsilon on university regulations about the consumption of alcohol, to monitor the chapter's compliance with those regulations, and to report any violations of those regulations. The complaint alleges that he failed to exercise reasonable care in carrying out that undertaking. Hare is also alleged to have acted as an agent of the Board of Regents, and the Board is alleged to be liable both under the doctrine of respondeat superior and for its negligent supervision of Hare.
The basis for appellant's allegations against Hare is the following: In January 1987 a Greek Relationship Statement was approved by the university, which recognized that the fraternity/sorority system is an integral part of the institution's entire educational program. The statement notes that the university employs a professional staff member who is responsible for the administration of university policies relating to fraternity/sorority activities. The statement also requires all chapters to comply with all "federal, state and local laws, and University of Arizona regulations, guidelines and procedures concerning student and student organizations conduct." One of the items on which local chapters are required to have educational policies is alcohol use.
In the spring of 1988, meetings were held for the purpose of creating an organization entitled "University of Arizona Greeks Advocating Mature Management of Alcohol" (GAMMA). The purposes of GAMMA were stated to be:
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