Estate of Hernandez v. Arizona Board of Regents

522 60(c). Berlat, appellant’s re- Rule suant to delayed appeals.

nile State v. 505, supplemental quest permission 303 It to file a 146 Ariz. 707 P.2d juvenile has under Berlat that a settled is denied as moot. brief appeal right delayed to seek a However, we are un- criminal context. CONTRERAS, J., EUBANK, P.J., and any granting basis able to find concur. juvenile delayed appeal from, a aof ac- in a civil case. We court’s order par-

knowledge of the that the severance and final relationship is a severe

ent-child However, a civil matter

step. it is still

and, such, the constitutional as without appeal. right to an Ab-

guarantee guarantee, and such constitutional sent P.2d 1283 authority allow any statutory absent Ruben A. HERNAN OF ESTATE time limits for circumscribing of the DEZ, by HERNANDEZ- Elizabeth L. find appeal, notice of filing of a WHEELER, representa personal his in excess respondent court acted that the tive, of Ruben R. for and on Behalf motion granting jurisdiction HERNANDEZ, Elizabeth L. Hernan Therefore, the delayed appeal. to file a Poli, dez-Wheeler, Rose and Catherine motion is vacated. granting the order Plaintiff/Appellant, (emphasis 799 P.2d at 29 Ariz. at

added). supreme court was by the Review sought in Don. not REGENTS, body BOARD OF ARIZONA to discuss or even The court in Don fails Fraternity, corporate, Delta Tau Delta B-9385, 674 P.2d cite Epsi corporation, Epsilon a New York in juvenile indicated that expressly Chapter Tau Delta Frater lon of Delta variety, juvenile of the “civil” case Inc., Ep corporation, nity, grant delayed jurisdiction to court had Foundation, Epsilon silon Educational Park, 60(c) and pursuant to Rule appeal Harper corporation, Brett an Arizona Id., Ariz. at Anderson, Bergamo, Bradley Reed Paul view, B-9385 849.2 In our 674 P.2d at Biondolillo, Christopher Joshua Jude therefore decline good law. We remains Bosco, Bliss, Steven Matthew James Don. follow Capu Bryan, Anthony P. Penn Charles case, B-9385, In this Carlson, to, Stephen Mi David Thomas juvenile in the to relief be entitled Catlin, Jeffrey Carpenter, David chael pur- appropriate motion if he files an court Derby, Edward Louis Albert Nathaniel 60(c) cir- and demonstrates to Rule suant IY, Edgington, Kar Earl Dietrich Clo rigorous standards meeting the cumstances Farah, Christopher Todd Fla am Elias Geyler, Gehan, Barry vio, Andrew Gerritt P.2d 78. We Park, Hare, Ginch, David Steven James concern- on this record express opinion Henshall, Rudolph Holt Markus James met in can be those standards ing whether Hopkins, David Lau by, Thomas Mark this case. Jameson, Ison, Douglas Edward rence Janis, Gregory Rex Edward Richard appellant’s appeal is dismissed. Craig Josephs, Jorgensen, Jay Adam pursuant delayed appeal request for a Landon, Leahy, Dale R. David prejudice to Sean without is denied Berlat Manross, Lemon, Christopher pur- John juvenile in the court for relief request 5(b) barring what amounts 5(b) 29(c), viewed Rule Rule Rule Like Juvenile appeal spe- of the time Appellate Procedure extensions Civil to indirect Rules of Arizona cifically 60(c). generally superior to shorten pursuant to Rule See forbids the civil cases appeal. filing a notice time for extend the P.2d 1073. Geyler, 144 Ariz. Nevertheless, evidently supreme court has Miller, Christopher J. John Conrad Morton,

Molloy, Harrison Lane Kurt Munzinger, Paige Ray Peter-

Richard Piache,

son, Lee Daniel Kenneth S.

Rasmus, Remington, Paul Scott Allen Rig-

Anthony Reynolds, Samuel James Rink,

berg, Gary Edward Erick Jon Roth,

Roberts, George Michael Daniel Roussos,

Evangelos Dana Charles Schwarze,

Sacks, McKinlay Thomas Sheoris, Douglas Todd John

William Smith,

Sims, Kristo- Lawrence Clifford Stathakis, Roger

pher Sanford James Stoss, Stinnett, Douglas An- Matthew Suriano, Joseph

thony Eric Charles Udstuen,

Szoke, Nelson James Sterlin Urban, Larry Uppendahl, Scott

Frank Wallis,

Wagner, Todd Eric Jonathan Woodard, Michael Patrick

Blakeslee

Woodward, Wyne, Jeffrey Ryan Yohe, Defendants/Appel-

David Hall

lees. 90-0191, 2 CA-CV

Nos. 2 CA-CV

90-0219, 2 90-0252 CA-CV

and 2 90-0257. CA-CV Arizona, Appeals

Court 2, Department B.

Division 29, 1991.

Nov. Issues Granted on

Review other Issues Denied on all 3, 1992.

Nov. by

Risner & Graham Kenneth K. Gra- Tucson, Risner, ham and William J. for plaintiff/appellant. Woods, Atty. by

Grant Gen. Bruce J. Coomer, Nancy Tucson, MacDonald and M. defendants/appellees for Arizona Board of Regents and Steven Hare.

Fish, Duffield, Miller, Young, Adamson Alfred, Alfred, by & P.C. Samuel D. Tuc- son, defendant/appellee Delta Tau Del- Fraternity. ta Berkman, Murphy, Goering, Roberts & by Michael F. P.C. McNamara and William Rubin, Tucson, defendants/appellees L. Epsilon Epsilon Chapter of Delta Tau Delta Fraternity, Epsilon Epsilon Educational Foundation and Certain Individuals. Ridenour, Swenson, by Cleere & Evans Swenson, Oplinger, H. Harold H. Richard Phoenix, Byrne, R. for defen- Robert Douglas dants/appellees Matthew Stoss Christopher Manross. John E. Miniat Kevin Law Offices Kevin Miniat, Tucson, defendant/appellee E. Uppendahl. James Frank OPINION FERNANDEZ, Judge. presents the issues of the valid-

This case 4r-312(B) potential ity of A.R.S. and the Ari- University of members of a fraternity, fraternity chap- the local zona ter, fra- corporation, its house the national Regents Board of ternity, and the Arizona subsequent injury and death for the serious in a collision with an of a motorist involved August 27, fraternity underage, fraternity Rayner, On intoxicated member John member, away twenty years, was five and one- recently who had driven from fra- party half months old. He attended the ternity party. granted sum- The trial court drinking party and was seen there. mary judgment appellees, favor a.m., Rayner’s ended at 1:00 a.m. At 1:45 personal representative of the deceased vehicle crashed into a vehicle driven appeals. affirm. motorist’s estate traveling Rayner Ruben Hernandez. on sum- Because the case was decided per mile-per- at least 43 miles hour a 25 mary judgment, we view the facts 2:30 hour zone. His blood alcohol level at light personal repre- most favorable to the per a.m. was .15 cent. Hernandez was sentative, party opposing the motions. blind, brain-damaged, quadri- rendered Grisham, Insurance Co. v. Gulf plegic. July He died in August On his Rayner injuries, Hernandez sued Chapter appellee Epsilon Epsilon and Hernandez’s three adult children sued Fraternity, (Epsilon Delta Tau Delta Inc. complaint The for their loss of consortium. University Epsilon) at the of Arizona held later amended to add as defendants was party pledges bid to welcome who had been fraternity each member of the who had through agreed “Rush Week” and had the social fund that fall se- contributed to p.m. evening join Epsilon of 6:00 mester; Epsilon Epsilon; Epsilon Epsilon Epsilon. Foundation, corporation Educational the Approximately of the members of 63% property on formed to lease the which the fraternity that fall semester were un- located; fraternity house is Delta Tau Del- age legal drinking age der the orga- Fraternity, fraternity ta the national 4-101(16). Arizona. A.R.S. The fraterni- nization; Regents; Arizona Board of ty kept records of its members’ birth dates. Hare, university and Steven student as- members, regardless age, All could con- signed Epsilon Epsilon pursuant to a fund maintained the social tribute university program reducing aimed at alco- chair, fund chair. The a member over among problems hol fraternities and sorori- kept sepa- contributions in a members’ death, person- ties. After Hernandez’s his checking rate account the normal outside representative plain- al was substituted operation fraternity’s treasury Rayner tiff. settled the estate and with money purchase used the alcohol to be suit. has been dismissed from the fraternity parties. at For the fall served semester each member who contrib- THE COMPLAINT ALLEGATIONS paid to the fund All uted members $80. alleged the individual complaint fund, regardless to the who contributed Epsilon Epsilon fraternity members ages, pur- were entitled to drink the their furnished or aid- joint were venturers who fraternity parties; they chased alcohol at furnishing ed or of alcohol to abetted permitted were not to take their own alco- age of 21 either contrib- those under the hol. by serving uting social fund or alco- to the party August on beverages holic at discovery Extensive was conducted in alleged Epsilon also to be re- Epsilon this case. The evidence was that the fra- respondeat sponsible under the doctrine ternity purchased eight between six and duty of its to con- superior and for breach kegs party August for the of beer its activities of members. trol the equipment kegs It to have four owned haye alleged fraternity national operating at the same time. A member supervise the local duty its fraternity generally that the be- breached testified compliance its kegs operating chapter so as to assure gan parties its with four university regulations. It is also kegs a time rules and then served from two the doctrine of alleged to be liable under evening. Several hundred the rest of negligent superior for the con- fraternity’s respondeat people generally attended the adviser, chapter the local who underaged females. duct of parties, most of them organizations agent orga- dent and student conduct.” alleged to an of the national chapters nization. of the items on local One policies is required are to have educational Epsilon Foundation Epsilon Educational alcohol use. (the fraterni- corporation) house leases the owner, Ari- property house from its ty spring meetings In were Regents. corpo- The house zona Board of creating organi- purpose held for to constitute a con- ration was established “University zation entitled tinuing entity leasing property be- Advocating Management of Mature Greeks Regents will not lease cause the Board of (GAMMA). purposes of Alcohol” fraternity directly transient members. GAMMA were stated to be: alleged to have corporation house provide A. To continuous education duty use reasonable care its breached regarding Greek social functions. chapter entrusting property be- should have known that cause it knew or planning To of social functions. B. aid regularly fraternity used for the site was regulate events where C. To Greek served to parties at which alcohol was alcohol is involved. legal drinking age. under the those D. To increase awareness and allow alleged Regents is to have The Board of responsibility system to take the Greek continuing negligent in to lease the been actions. for it’s own [sic] corporation when it premises to the house fraternity served alcoholic fraternity knew that the of GAMMA are members legal drink- beverages persons under full-time sorority members who are alleged to have ing age. Hare is Steven higher sophomores classified as or students responsibility gratuitously undertaken the average. good grade point GAMMA with a Epsilon Epsilon to educate the members for each has two co-chairs and one member regulations the con- university about on sorority organizations. fraternity two or alcohol, chap- to monitor the sumption of assigned is Each GAMMA member regulations, compliance with those ter’s sorority. Among his specific fraternity or regu- any violations of those report and to assisting is in the responsibilities her or alleges that he complaint lations. spon- events planning of all alcohol-related carry- care in to exercise reasonable failed educating chapter chapter, sored undertaking. Hare is also ing out university regulations and alcohol about agent an of the alleged to have acted as alcohol, reporting alleged on state laws alleged Regents, Board is Board of and the bylaws GAMMA’s violations GAMMA. doctrine of under the to be liable both fraternity and provide that the expressly negligent for its respondeat superior and responsibility sorority chapters retain sole of Hare. supervision legal drinking age at obtaining proof of allegations appellant’s The basis for their functions. following: January In against Hare is the in fall beginning of rush activities At the was Relationship Statement 1987 a Greek for all those assembly was held an recog- university, which approved by the assembly, At that participating rash. system is fratemity/sorority that the nized alcohol is- speakers talked about least two entire institution’s integral part of the applicable to the rales and laws sues and spirituous liquor consumed the who presumed legisla- clear or spirituous liquor the time the was con- ture would have enacted the former with- impaired sumed and who knew of the latter, if out the it had known of the inval- person, injury condition of the if the or Frohmiller, idity____’” v. Ariz. Millett 66 damage alleged to in have been caused 339, 342, 457, (1948), quoting 188 P.2d 460 sale, part by whole or in reason of the 59 C.J. Statutes § furnishing serving spirituous of li- or quor. Appellant contends that the subsec Subject provisions (B)

B. of sub- tions are not severable because refers (A), except citing section A of this section and to Industrial Commission v. C 4-311, firm, 64, person, Pipeline, D provided cor- & 125 Ariz. 607 P.2d 383 fact, however, poration (App.1979). or licensee is not in dam- The mere liable (B) (A) (B) ages any person injured, to who is or to refers to does not render killed, (A). any person dependent provision of of Nor is the the survivors or (B) damage property alleged language inextricably so which is of intertwined (A) provisions part by caused in or in with the of that it can be have been whole sale, furnishing serving legislature said confidence that reason of the or with (B) if it liquor. would not have enacted had known spirituous of (A) Benjamin invalid. v. Ari found ren- The trial court that § Revenue, Ariz. Department zona 163 of host immune from ders a social 182, (App.1989). 786 P.2d 1033 killed reason of the anyone injured or conclude, therefore, that serving spirituous liquor any person, subsection of (B) (A) and that the rul- regardless age. The court also stated severable (B). ing in by the decision of this Schwab had effect Our that it was bound (B) Enterprises, determination that is severable from v. Mar-Fran Kent however, (A), not settle the issue of Inc., Ariz.Adv.Rep. (App. December 49 61 (B) 4r-312(B) is constitutional. A determina- 12, 1989), is constitutional. whether that § 528 First, are to be requires further examina- that endeavor. statutes

tion of that issue liberally objects construed “to effect their tion. 1- promote justice.” A.R.S. 211(B). construe statute “in We must RELATIONSHIP OF provisions and in context of related 4-312(B) AND 4-301 statutory light place of its in the scheme.” part title which is Section 4-312 is Court, Superior 144 City Phoenix v. Beverages.” Chapter “Alcoholic 3 entitled 172, 176, (App. 696 P.2d 728 Liability Licen- 4 is entitled “Civil of title 1985). seemingly statutes con When two is a short sees and Other Persons.” It possible, if flict, them we must harmonize articles, chapter consisting only two legislative “in of a manifest the absence only of which contains two sections. each Mead, contrary.” intent to the Samuel & “Liability chapter Article 1 of entitled 565, 568, Dyar, v. Co. Limitation,” 4-301, which reads includes § effort to har (App.1980). That as follows: legisla requires us to find the monize them limitation; Liability social host examining “the tive intent of both or an person A other than a licensee matter, words, context, effects subject acting during the employee of a licensee reason, spirit of the consequences, working hours or in connec- employer’s v. Ari Arnold Construction Co. law.” employment is not liable tion with such 495, 498, 109 Ariz. Regents, zona Board of injured, who (1973). we de P.2d When killed, any person to the survivors of termine, however, are “in that two statutes alleged damage property, which is conflict, general rule is irreconciliable part or in have been caused whole Mead, prevails.” more recent one that the serving furnishing or by reason of the Ariz. at 622 P.2d at 515. legal spirituous liquor An of the issue of civil liabil- examination drinking age. serving ity furnishing or of alcohol- for the applies only of article The second section begins beverages the cases On- ic licensees, does the first section Borak, tiveros v. 312 is the second section article 2. Section (1983), Brannigan Raybuck, of article Prior to notes, clearly pro- 4-301 As liable for owners were not tavern if only host the immunity to a social vides serving of damages from the that resulted alcohol is over furnished or served Ontiveros, supreme liquor. In the only If the statute before that were doctrine as to that common law abolished immunity us, might that there is no we rule a tavern and adult who left intoxicated furnish or serve alcohol persons for who It did the same injured person. a third specificity of 21 because of the those under intoxicated sixteen Brannigan as to However, we can- statutory language. a tavern and seventeen-year-olds left who Thirty- same ignore the fact that the Neither case ad- crashed into wall. 4-301 Legislature enacted that seventh liability. § host social dressed the issue of very next 4-312 the in 1985 also enacted § legislature enacted April In 4-312(B) language, By express its year. § 4-301, response to those presumably § furnish- immunity who anyone provides such cases, the extension of prevent another, age, regardless of es alcohol in- The act that hosts. liability to social injury or death to subsequently causes who 4- A.R.S. amended 4-301 § cluded also § appear thus Both statutes person. a third related various acts proscribes in different same issue to address That act liquors. spirituous to the sale apparent must resolve the and we ways, emergency measure and as an adopted them. conflict between immediately. A la- week effective became ter, a social host was held that this court applicable a number of There are injured person who was to a third us not liable guide statutory construction rules Court, Superior ex rel. Purcell v. age State guest, over the by an intoxicated 224, 227, (1971). furnished alcohol the so- 107 Ariz. who had been Robles, cial host. Keckonen note, however, 146 Ariz. our conclusion (App.1985). P.2d 945 spirit consistent with the of both statutes. Although thereby 4-301 is rendered re- § ap- includes 4-312 was The act § dundant, subject it addresses is governor in proved by May encompassed nevertheless within 4-§ only ch. 329. It contains Ariz. Sess. Laws 312(B). therefore, implicit repeal, sections, 4- 4-311 and 4-312. Section two not result drastic alteration of the for provides that a licensee is liable 4-301; instead, scope merely law § personal property damage, and/or injury, expanded underage persons to include wrongful the licen- death that results from immunity. social within the host liquor obviously to an intoxi- see’s sale of purchaser cated whom is under 21 or from licensee either knows 4-312(B) VALIDITY OF § request

whom the licensee has failed to Appellant contends that if we construe proof age. 4-312(B) preclude appellees’ liability, 4-312(B) interpret If we were then the statute is unconstitutional for one licensees, apply only con- of four it reasons: violates constitution- should, render tends we we would prohibitions against abrogating right al firm, “person, corporation” words [and] damages injuries, of action to recover for it meaningless, violating thus the rules of clause, protection equal violates the it vio- Superior construction. State v. statutory clause, process lates the due or it violates Court, (1976); requirement the constitutional that an act Yates, City Phoenix v. single subject. embrace ignore P.2d 1147 We would also legislative apparent intent to address Abrogation Right Dam- Action for of both licensees and social ages single hosts section. provides The Arizona Constitution as fol- only reasonable conclusion that lows: applica can reach from a review of the No shall enacted in this law State contemporaneous statutes and the case ble damages limiting the amount of to be repealed implicitly law is that § causing injury the death or recovered rendering essentially 4-301 it redun any person. Apparently legislature, dant. on an Const, art. 31. Article basis, emergency provide intended to provides: immunity host at the same time that social right of action to recover listing it amended the statute various li abrogated, shall injuries never be quor By year, the next in a sale violations. the amount recovered shall not be sub- measure, non-emergency legislature en ject any statutory limitation. thorough enumerates acted a more bill that 4-312(B) argues Appellant that violates liability and nonli specific areas of licensee provisions of the constitution because both comprehensive im ability provides and that legislature effectively prohibited has the hosts, regardless of the munity for social bringing the of a cause of action. We the age of the served or furnished disagree. alcohol. Although there is case law indi acknowledge duty our

Although we provisions apply to cating that those can finding harmonize statutes and to avoid that created after the causes of action were implicitly a more recent statute has that v. constitution, Boswell one, adoption of the make repealed an earlier we must 9, Newspapers, P.2d “are Phoenix 730 finding the two statutes such a when denied, cert. (1986), 107 togeth- 481 U.S. they in cannot stand 186 so conflict that (1987); Humana 1954, L.Ed.2d 527 S.Ct. 95 upon any er reasonable construction.” Court, goals sought by legisla- Hospital Superior be obtained the Valley Desert v. (App.1987), ture.” 742 P.2d 1382 the supreme pronouncement most recent complaint nonli- Appellant’s basic is that provisions apply only that is the actions liability immune censees are rendered from recognized the at common law at time the while licensees remain sub- the statute adopted. Bryant constitution was v. Con- ject liability in certain instances. We Co., Conveyor Equipment tinental & complaint. no merit that Social find (1988); Ariz. see also always immuni- essentially have had hosts Sandbak, Ariz. Sandbak v. ty evidenced the fact (App.), Appel- P.2d 8 review denied in has held a no case ever that dispute fact that case lant the no Moreover, host distinctions social liable. a host Arizona has ever held that social responsibilities obligations and between injuries is liable for suffered because of the common licensees and nonlicensees are serving guest, furnishing or of alcohol a any that other areas without contention guest age 21 or whether the under the the constitution. those distinctions violate not. v. this court Keckonen As observed Robles, supra, are at least four valid there note, event, that one of the why held liable reasons licensees application determining tenets used and not social hosts: provisions is “the of the constitutional First, proprietor the commercial has legislative abroga- prohibits constitution profit motive proprietary and interest tion, legislative regulation, but not great- expected should be to exercise and Boswell, 152 Ariz. at cause action.” supervision er than the non-commercial Although we 730 P.2d at 195. conclude Second, setting. in the social 4-312(B) immunity ap- provides that § serving selling business of and alcohol loss, appellant’s thereby pellees for abro- pa- usually organized to control better action, gating a we note that cause has financial trons and wherewithal damages in recovered his suit has Third, by experience so. virtue of to do Rayner. against John proprietor is more familiar commercial 4-312(B) does not We conclude that § his customers and their habits provisions against violate the constitutional Fourth, capacities. since the ratification of a of action. abrogation cause Twenty-first of the Amendment to virtually United States ev- Constitution manufacture, Equal ery aspect Protection and Due sale Violation of beverages has distribution alcoholic Process Clauses regulated legislature____ by the been 4- next contends that Appellant 146 Ariz. at P.2d at protection 312(B) equal violates both the applied, find Regardless the test of the Arizona process due clauses Const, does not violate either art. Constitution. §§ equal process or the protection clause due appropriate test for ana Arguing clause of Arizona Constitution. protection claim is the lyzing equal right scrutiny test because strict Single Subject Requirement Violation of negligence bring pursue a cause argues that Finally, appellant right, Kenyon fundamental action it vio because statute is unconstitutional (1984), Hammer, single subject provision lates the compel there is appellant contends that fol Constitution, as which reads upon the ling interest which statute state lows: fraternity The ar upheld. be national can sub- ap one Every basis test Act shall embrace but

gues only the rational that properly connected argues ject Appellant that and matters plies here. also therewith, ex- subject shall be which process clause be violates due statute subject title; any if pressed in the but any relation to it no “substantial cause has shall embraced in Act private obtaining be an which shall a club without first a title, expressed not be in Act such The license. definitions section of title only 4-101, shall be void as to so much thereof beverages, pro- alcoholic A.R.S. § as not shall be embraced in the title. vides as follows: Const, following ‘Club’ includes of the pt. 2, art. appel- 13. As organizations spiritu- the sale notes, provision lant where designed that liquor consumption prem- ous legislators on the enable public both and the ises is made to only: members subject legislation discern the from read- ing its title. White v. Kaibab Road Im-

provement District, aerie, (b) chapter, parlor, lodge A or (1976). P.2d 80 other local unit of an American national in 4-312(B) title 4 in article which organization fraternal which has as the appears “Illegal Spiritu- is entitled Sale of owner, occupant operated lessee or an Liquor.” ous When the article was enacted purposes establishment for fraternal in in act “Liquor— bore the title An this state. American frater- national Illegal Sale Person Intoxicated or Mi- organization nal used in this subdivi- Liability nor—Civil of Licensed Seller.” operate sion actively shall in less not Appellant Ariz. Sess. Laws ch. thirty-six than or states have in been result, argues, 4-312(B) as a that cannot active continuous existence for less not apply construed to nonlicensees. We twenty years. than disagree. general rule, “As a an act’s title synopsis need not complete be a or a index (e) A social club with more than one of the provisions____ act’s It is sufficient bona hundred fide members who ac- are if it informs the subject reader of the mat- county tual residents of the it which ter of legislation the interests located, owns, maintains oper- or legislation general affect quarters, club ates and which autho- Superior Court, v. Hoyle way.” incorporated operate rized and as a 224, 230, (App.1989) (cita- 778 P.2d nonprofit club under the laws of this omitted). tion state, has continuously incorpo- been operating period rated and for a of not general subject matter of the year. less one than club shall have question act in regulation is the of alcoholic had, during period such year, one beverages. provision A act “which membership regular bona fide meet- directly indirectly subject relates to the ings month, conducted at least once each of the title and a natural connection ha[s] membership and the shall be shall properly body therewith is included in the engaged actively carrying have been Harold, State of the act.” objects out the of the club. The club’s The title membership shall consist of fide bona put here is sufficient reader on no paying paying dues members at least six matter, tice general subject of the and the per year, payable monthly, quar- dollars statute bears natural connection to that terly annually, which have been re- subject matter. find no constitutional club, secretary corded violation. the members at time of application 4-312(B) We conclude is constitu- good for a license club shall be stand- tional. ing having year paid for at least one full per At least fifty-one dues. cent of the DE FACTO LICENSEE signified shall members have their inten- Appellant argues, alternatively, tion to secure a social club license personally petition, apply signing not this law form on a event, contending board, in any prescribed by suit that the local which shall also fraternity liquor mailing is liable under Arizona include correct address illegally operated license signer. petition laws because it each shall have Therefore, lengthy signed earli- need not address the by a member at a date we been filing arguments thirty days prior parties of of all on the issue of er than to qualify liability. for petition. The club shall custodial exemption payment of state judgments summary entered fa- provision under of title income taxes appellees all vor of are affirmed. being paragraph the intent of this it granted to a shall not be that a license ROLL, P.J., concurs. been, is, primarily or has club which HATHAWAY, Judge, dissenting. a license formed or activated to obtain club, solely to a fide liquor, sell but bona I. liquor incidental to the sale of where opinion purposes majority the club. finds no common the main duty law minors and thus no cause toward observes, liquor the state As I respectfully dis- of action this case. “may” liquor a license to a club board issue sent. 4- definitions of that meets one addition, 4-205(A). pur- In 101. A.R.S. § Although prior has Arizona case ad- 4-244: suant to A.R.S. § specific dressed the issue of whether a It is may unlawful: host be liable for the foresee- social resale, illegally furnishing buy consequences able 1. For a for sell minor, Brannigan Raybuck, alcohol to a liquors in this state spirituous or deal (1983), a I believe having procured license without first duty. duly contemplates such a issued board. or deal in 2. For a sell There, question the court considered the beverage purposes for without alcohol liability result- licensee’s complying this

first with title. ing minor from the death of intoxicated receiving “soliciting or passengers “Sell” is defined and his minor in a motor two sale, for, keeping exposing or an order vehicle accident which occurred after the value, delivering directly indirectly boys. licensee served alcohol to sell and peddling, keeping with intent it court reasoned that was foreseeable 4-101(26). trafficking in.” A.R.S. become intox- a minor served alcohol would injure himself or others. The icated great not address this issue at We need gives immaturity of a minor characteristic pro- length, Appellant has not however. risk. The court rise to this foreseeable bring local sufficient to duced evidence supplier liquor under a held that “a the definitions of chapter within either of duty care in common of reasonable law Thus, find no merit quoted above. club who, furnishing by reason liquor to those the local appellant’s contention that may capacity full immaturity ... lack de facto licensee. chapter was some sort of them- injure therefore self-control and selves, Id. as others.” as well LIABILITY CUSTODIAL received requested trial special gener- mind the status parties Keeping from the memoranda additional law, I ally minors read accorded issue of the custodial recognize a common law corporation, Brannigan chapter, local the house furnishing duty care when entry of reasonable minute fraternity. The the national minor, whether regardless alcohol to as to exact basis is unclear furnishing the alcohol is appel- ruling regard those individual court’s While Branni- however, immunity social host. All, licensee included the lees. owner, it a defendant tavern gan involved for their as one of the bases of § limited its that the court appear does not We believe judgment motions. summary licensees; generally it referred 4- decision that A.R.S. our determination Further, much “supplier” holding. in its 312(B) constitutional applicable and is both situation. the instant of the rationale fits appellees. all the issues resolves

533 565, Brannigan support Ariz.App. carry court found for 405 at P.2d 814. To mandate, law in three duty apply common toward minors out this we should 6§ jurisdictions; broadly other protect general right areas: Case law from to re and, general principles; damages tort Arizona statu- cover include all actions tory point recognized The court made the that all law. at common law. v. Boswell example Inc., 9, Newspapers, it cites “are but an of cases Phoenix 152 730 Ariz. general (1986), denied, 1029, rule one that who furnishes a P.2d 186 cert. 481 U.S. 1954, instrumentality dangerous (1987). not 107 95 S.Ct. L.Ed.2d 527 competent to use is it liable when that Appellees would us have undercut person misuses the item furnished and in- by finding 6 mandate of that it not § jures himself or another.” The court Id. against protect a suit a social for civil host Torts, quoted (2d) then of Restatement by furnishing caused alcohol (1965) 390 for the rule that: § just minor such a comes because suit now supplies ... a for who chattel [o]ne Appellees before the court. admit that supplier use of another whom knows Boswell, clearly did not limit the likely has reason to know to be- be protection of 6 to actions existence § youth, inexperience, cause of his or oth- 1910 when the Arizona Constitution was

erwise, involving to use it in a manner adopted, argue Bryant but that in v. Con- physical unreasonable risk harm of Inc., Co., Conveyor Equip. tinental 156 & subject others ... is to lia- 193, himself bility (1988), the court did physical resulting harm A reading Bryant, so limit careful § them. however, specifically shows that court left added.) (Emphasis general duty law, good reiterating tort is Boswell as that Bos- licensees; limited it is protects negli- all-inclusive. well held 6 actions for § gence. supra, Bryant, 156 Ariz. at court, noting it, that like most Further, 751 P.2d 6 has been con- § courts, relied on statutes to find the exis- phrase “right strued so of action” duty tence of a which base a cause of equivalent is to the common law action action, 4-244(9) found that A.R.S. § negligence. Landgraff Wagner, v. 26 4-241(A) could serve such a base be- § Ariz.App. 49, dismissed, appeal 546 P.2d legislative recogni- cause both constitute 429 U.S. 97 S.Ct. 67 L.Ed.2d tion of danger posed by the foreseeable (1976). Because the cause action prohibit Both intoxicated minors. statutes species action, issue here negligence is a selling a licensee or other protected by regardless it is of when it § giving underage person, alcohol to an thus appears first in the Arizona courts. To undergirding a duty toward minors. guar- rule otherwise to violate the broad antee 6.§ II. agree I appellant’s with the contention III. 4-312(B) constitutionally A.R.S. § abrogates right Appellants

invalid it of ac argue correctly because that once invalidated, tion in violation of Article the A.R.S. A.R.S. § In applying dispositive Arizona Constitution. Article 4-301 becomes the issue 18, 6, face, guided by this court should this case. its 4-301 immunizes On duty protect inju- absolute constitutional social hosts from death or Co., rights. Marquez Rapid 1 ry guests. Harvest caused their sec- adult This 562, 565, Ariz.App. operates immunity 405 P.2d va also tion exclude that grounds, guests cated on in- other where the acts minor are (1965), interpretation citing P.2d 285 Bristor v. Cheat volved. I this fol- reach ham, 227, 234, lowing statutory the rule of construction expression The constitutional mandate holds of one or preserve rights is to law and cor more items class in statute common indicates supra, Marquez, 1 intent to all class relative duties tort. exclude items same County v. expressed. are not Pima Heinfeld, 134 Ariz. P.2d

(1982); Corp. v. Ari- Fargo Wells Credit Fund, Property

zona and Cas. Ins. Guar. (App.1990). P.2d

Therefore, permit I read A.R.S. 4-301 to social imposition where the minor, i.e., person

host serves alcohol drinking age. legal

not of the accepted court has

It well statutory

general obligation to construe a provi- context of related

provision light place of its in the statuto-

sions

ry Fargo, supra. scheme. Constru- Wells

ing liability with A.R.S. 4-301 to allow

regard to minors is with the consistent 4-244(9) in A.R.S.

sanctions found 4-241(A). contrary reading 4r-301 A statutory within the

creates contradiction leg- is at

framework and variance with A in the prohibitions.

islative intent shown

statutory proscribes furnish- scheme

ing public policy rea- alcohol to minors

sons, attempts to immunize then liability, act seems to have

same from civil Accordingly, appropriate it is way.

lost looking regain bearing by our

Arizona Constitution. KORZEP, Petitioner,

Roberta Ari- COURT State

SUPERIOR

zona, OF In and For COUNTY Keddie,

YUMA, Douglas the Honorable thereof, Respondent Judge, judge Arizona, rel., David ex S.

STATE Attorney,

ELLSWORTH, County Yuma Party in Interest.

Real 91-085. CA-SA Arizona, Appeals of

Court 1, Department B.

Division

Dec. Oct. Denied

Review notes program. The statement educational Steven Hare and sororities. fraternities professional university employs a that the assigned Epsi- member was the GAMMA responsible for the staff member who during 1988. He is not Epsilon fall lon relat- university policies administration He stated in Epsilon Epsilon. member fratemity/sorority activities. ing to party he attended bid an affidavit that chapters to com- requires all statement also he a time and that August 1988 for laws, “federal, state and local all ply with fraternity members drink- underage saw no regulations, University of there. concerning ing while he was stu- procedures guidelines and case, however, only 4- That held APPLICATION OF A.R.S. 312(A) constitutional; opinion was granting summary judgment In subsequently redesignated a memorandum members, fraternity the trial individual Meanwhile, April decision. 1990 the su- they court found that are immune 4-312(A) preme court ruled that is uncon- 4-312(B). liability pursuant to A.R.S. § jury it takes from the stitutional because Appellant contends that the court erred in contributory negligence questions 4- granting judgment, arguing that § assumption Matley, of risk. Schwab v. and, 312(B) apply does not to this case (1990). In alternatively, apply, if it is it does therefore, light ruling, must of that 4-312 reads as unconstitutional. Section constitutionality determine the of subsec- follows: (B). tion Liability limitation specific ruling in The court’s Schwab damages A licensee is not liable in A. (B) apply cannot to subsection because any purchaser spiritu- consumer or contributory negligence issues of either or liquor legal drinking age ous over assumption of the risk could involved in property injured who is or whose is dam- resulting injury damage suits or third aged, person, or to survivors of such a if persons. only question then is wheth- damage alleged injury have (B) er subsection is severable from subsec- part by or in been caused whole reason (A). tion sale, furnishing serving spiri- person. A liquor tuous to that licensee is not liable other adult SEVERABILITY injured property who is or whose severability The rule on is that the re- damaged, or to the survivors of such a maining part of a statute will be held valid person, present who was with the “ separate if it is ‘so and distinct that it is

Case Details

Case Name: Estate of Hernandez v. Arizona Board of Regents

Court Name: Court of Appeals of Arizona

Date Published: Nov 29, 1991

Citation: 838 P.2d 1283

Docket Number: 2 CA-CV 90-0191, 2 CA-CV 90-0219, 2 CA-CV 90-0252 and 2 CA-CV 90-0257

Court Abbreviation: Ariz. Ct. App.