*1 time limit. See Jack- prescribed within 1042; Lee, 24,
son,
Ariz. at
detriment, any, if flowed from it. ARIZONA, agency of the STATE OF Arizona, Defendant/Appel-
the State may gov lee. trial court consider the determining conduct a factor in ernment’s No. CV-96-0004-PR. remedies, any, just if under the what “it finds 15.7, Rule Ariz.R.Crim.P. circumstances.” Supreme of Arizona. Court however, unpersuaded, by defen areWe argument should be dant’s that the state 17, Oct. 1996. automatically precluded seeking capi from because it did not establish tal sentence
“good the violation. Rule cause”
15.1(g)(3) requires showing good cause by prosecution only in relation to subsec ORDER (notice factors), (g)(2) aggravating not tion hearing argument and consider- After oral Moreover, (g)(1). (g)(4) when subsection filed, appears to pleadings it further the rejected adopted, specifically “automatic we for Review is the Petition Court preclusion” language in favor of the current Therefore, moot. Peti reference to Rule 15.7 sanctions. See 15.1(g), 15.2(g), tion to Amend Ariz.R.Crim.P. granting IT that the order IS ORDERED (R-90-0026). 26.3(c), and filed June is vacated. review hold that the court abused its discre- We IT IS FURTHER ORDERED summarily denying tion in defendant’s re- is denied. Petition for Review quest hearing. accept jurisdiction, for a We relief, grant hearing remand for a consis- October, day of DATED this 17th opinion. tent with this FELDMAN, C.J., and MOELLER JJ.,
MARTONE, concur. CORCORAN, J., par- not
ROBERT J. did matter.
ticipate in the determination! of this
and Catherine Rose Plaintiffs/Appellants, capacity,
vidual
v. FLAVIO, Leahy,
Christopher Sean Glen Miller, Manross,
Michael, John John Roberts, Reynolds, Thomas
Paul Erick
Schwarze, Douglas Sims, Scott Urban Larry Wagner, Defendants/Appel-
lees. HERNANDEZ, OF Ruben A. ESTATE
By L. HERNANDEZ- Elizabeth
WHEELER, Represen his Personal Hernandez-Wheeler,
tative, Elizabeth L. Representative of A.
as Personal Ruben
Hernandez, for and on behalf of his sur Hernandez, children,
viving R. Ruben
Elizabeth L. Hernandez-Wheeler Poli, and Ruben R. Her
Catherine Rose
nandez, Elizabeth L. Hernandez-Wheel Poli,
er, in their and Catherine Rose capacity, Plaintiffs/Appel
individual
lants, FRATERNITY,
DELTA TAU DELTA
INC., corporation, a New York
Defendant/Appellee. 94-0310, 95-0011.
Nos. CA-CV CA-CV Arizona, Appeals of
Court of 2, Department A.
Division
Aug. Granted in Part
Petitions for Review 24,1996. Sept. in Part
and Denied Wrongful death survivor
of Arizona. brought numerous enti- against actions were appeal by plain- This ties and individuals. summary judgments questions entered tiffs fraternity and various of the national favor chapter. members of the local individual *3 summary primary The basis on which granted the national frater judgment was to common nity there was neither a law is that part fraternity of national duty on the the by to control the conduct nor one assumed it There are cases chapter of local members. holding. Campbell v. Board Trust so See of ees, (Ind.App.1986); 227 N.E.2d Alumni 495 356, Sullivan, 524 Pa. 572 Association (1990). to follow them A.2d 1209 We decline by J. Risner Risner & Graham William facts of this ease. The national frater on the Graham, Tucson, K. for Plain- and Kenneth loosely nity membership in a associat invites tiffs/Appehants. clubs, pur primary group ed of one of the Westover, Anderson, O’Connor, Cavanagh, engage parties is to in where poses of which Killingsworth Akmajian by & Beshears Peter is, Indeed, liquor alcohol abuse is served. Tucson, Campbell, Defen- and James D. for recognizes, a serious fraternity the national dant/Appellee Sehwarze. college As our problem in fraternities. su in appeal in this Roberts, preme court said an earlier Berkman, Goering, Rubin & Enos, pressed setting hard find a Tucson, case: “We are to Brogna by L. for Defen- Chris injury the risk of an alcohol-related is where Leahy and dants/Appellees Miller. drinking likely underaged more than from at Peterson, by Roger Potts & Peterson university fraternity week party a the first of Phoenix, Flavio Defendants/Appellees for college year.” the new Estate Hernandez of Wagner. and 244, Regents, 177 Ariz. v. Arizona Board of O’Dowd, Lundquist by & E. Burke Robert (1994). 1330, 1341 255, The P.2d national 866 Tucson, Lundquist, Defendants/Appellees for fraternity, having sponsored amounts to what Sims, Reynolds, Michael and Urban. clubs, group drinking local cannot dis of Miller, Duffield, responsibility risks of what it Young, Alfred claim for the Adamson & Alfred, fraternity Tucson, sponsored. The national exer by D. for Defen- has Samuel many aspects of the Fraternity, over activi dani/Appellee Delta Tau Delta cises control chapters. duty That a exists Inc. ties of its local implicitly circumstance admitted in this fraternity in by of the send the act national OPINION chapters by to abide instructions to local LIVERMORE, Presiding Judge. in university regulations and serv local laws chapter injured functions. Whether seriously ing alcohol at Ruben Hernandez was admonitory letter is sufficient to ultimately as a result an automo- such an died of duty discharge any of exercise reasonable allegedly the fault to bile accident that was course, is, jury for to decide. See who was a care underage intoxicated driver Delaware, University 594 A.2d drinking Delta Furek v. of and had been at a member (Del.1991).1 University argument na- fraternity party 506 Tau at the Delta applicable fraternity general principle the national frater- is to 1. The relies on the this nity national (Second) § be induced the when it could found to have principle of Torts in Restatement applica- creating (1965) duty If it is con- risk of harm. is no control the activities that there to ble, knowing chap- with the local person special association duct absent a relation- of a third special rela- above could create ship We are from certain ter described between them. far County fraternity power no to Cruz Fair & Rodeo Associa- tíonal had control the Santa (1994). tion, chapter activities of the local or its members Ariz. P.2d 1342 by policy is belied the much stricter alcohol summary judgments respect with adopted by request chapter the local at the liability negligence liability of member the national after the incident in this case. the, fraternity In all national are reversed. 407, Ariz.R.Evid., Rule 17AA.R.S. respects, judgments are affirmed. other summary judgment
We affirm liability.
the national on other theories of DRUKE, C.J., concurs. chapter The members of the local were not FERNANDEZ, Judge, concurring part in employees or servants of the national frater dissenting part. nity impose respondeat superior so as to liability may for their torts. That the local agree precludes granting I that a fact issue *4 agent pur have been an the for of national summary judgment of as to the national fra- poses collecting accepting of dues or mem however, ternity; I believe the trial court liability bers does not create for all tortious properly granted summary judgment in favor activity agents. of the The national fraterni (pledges). of the new members ty fraternity or did not own lease the house It is uncontroverted that none of the not, liquor where the It is was furnished. pledges party as the date of the of 4-241(H) therefore, § liable under A.R.S. or accident, 17, 1988, any August paid had ever general nuisance law. fraternity, social dues to the did not contrib- theory liability in this case for any money purchase the of alco- ute toward fraternity they members of the local that was party, any way for or in other furnish hol the .furnishing were liable for the un alcohol to underage alcohol to the intoxicated member derage they driver because contributed to a (Rayner), injured who Mr. Hernandez. The purchase social fund the of alcoholic bev apparently granted summary judg- court the erages knowing beverages those would be pledges ground ment on behalf of the on the underage guests served to members and they purchase had not to the contributed fraternity. persuasive theory. the That is a party. of the alcohol for the Liability by knowingly cannot be avoided en I ruling believe the court’s was correct but gaging your lawbreaking. a committee to do based on too narrow a consideration of the Summary judgment granted to several was only. contribution factor The record shows ground they new on the had members party, that a few hours before the yet paid liquor not their on assessment pledges acceptance were informed of their night of the incident. We believe that too fraternity they into and that would be liability. constricted a view of those members’ members, pledges and later become after jury could find that each member knew dues, paying maintaining proper grade their obligated pay he to alcohol assess averages, complying require- with other ment that would be used to furnish alcohol to ments. minors; each, therefore, could found to be be issue, participant party in a scheme to furnish alcohol As to the at none of the ultimately paid pledges any say planning to All in the of the minors. this assess had they liability party ment. To limit or would attend and were not those who had who shortly paid party accepted pledges the fatal would to un as until before the before be circumstances, naturally liability party. I divide on some notion of Under all these feel particular tracing particular support dues to alcohol there is insufficient evidence to this ruling furnished to minors. No such effort is neces court’s that a fact issue exists as to sary knowing participants pledges participated all are in an in furnish- when whether (Second) illegal Rayner venture. Restatement alcohol to before the accident (1979). § Torts also Petolicchio v. this case. See 1984). imposing duty tionship of care. See Prosser & ed. (5th § Keeton on the Law of Torts at 383-85 to all other opinion in the I concur of sum- granting except as to
matters pledges, I be-
mary judgment to the which proper.
lieve was
NESTLE ICE Dairy Sys-
mally known as Nestle
tems, Inc., Plaintiff-Appellee, FULLER, Rousseff, M. Christ
Walter
Defendants-Appellants.
1No. 95-0315. CA-CV Arizona, Appeals of
Court of 1, Department
Division C.
Sept.