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Estate of Ruben A. Hernandez v. Flavio8/10/1995
LIVERMORE, Presiding Judge.
Ruben Hernandez was seriously injured and ultimately died as a result of an automobile accident that was allegedly the fault of an underage intoxicated driver who was a member of and had been drinking at a Delta Tau Delta fraternity party at the University of Arizona. Wrongful death and survivor actions were brought against numerous entities and individuals. This appeal by plaintiffs questions summary judgments entered in favor of the national fraternity and various individual members of the local chapter.
The primary basis on which summary judgment was granted to the national fraternity is that there was neither a common law duty on the part of the national fraternity nor one assumed by it to control the conduct of local chapter members. There are cases so holding. See Campbell v. Board of Trustees, 495 N.E.2d 227 (Ind. App. 1986); Alumni Association v. Sullivan, 524 Pa. 356, 572 A.2d 1209 (Pa. 1990). We decline to follow them on the facts of this case. The national fraternity invites membership in a loosely associated group of clubs, one of the primary purposes of which is to engage in parties where liquor is served. Indeed, alcohol abuse is, as the national fraternity recognizes, a serious problem in college fraternities. As our supreme court said in an earlier appeal in this case: "We are hard pressed to find a setting where the risk of an alcohol-related injury is more likely than from underaged drinking at a university fraternity party the first week of the new college year." Estate of Hernandez v. Arizona Board of Regents, 177 Ariz. 244, 255, 866 P.2d 1330, 1341 (1994). The national fraternity, having sponsored what amounts to a group of local drinking clubs, cannot disclaim responsibility for the risks of what it has sponsored. The national fraternity exercises control over many aspects of the activities of its local chapters. That a duty exists in this circumstance was implicitly admitted by the act of the national fraternity in sending to local chapters instructions to abide by local laws and university regulations in serving alcohol at chapter functions. Whether such an admonitory letter is sufficient to discharge any duty to exercise reasonable care is, of course, for the jury to decide. See Furek v. University of Delaware, 594 A.2d 506 (Del. 1991). The argument that the national fraternity had no power to control the activities of the local chapter or its members is belied by the much stricter alcohol policy adopted by the local chapter at the request of the national after the incident in this case. Rule 407, Ariz. R. Evid., 17A A.R.S.
We affirm summary judgment for the national on other theories of liability. The members of the local chapter were not employees or servants of the national fraternity so as to impose respondeat superior liability for their torts. That the local may have been an agent of the national for purposes of collecting dues or accepting members does not create liability for all tortious activity of the agents. The national fraternity did not own or lease the fraternity house where the liquor was furnished. It is not, therefore, liable under A.R.S. ยง 4-241(H) or general nuisance law.
The theory of liability in this case for members of the local fraternity was that they were liable for furnishing alcohol to the underage driver because they contributed to a social fund for the purchase of alcoholic beverages knowing those beverages would be served to underage members and guests of the fraternity. That is a persuasive theory. Liability cannot be avoided by knowingly engaging a committee to do your lawbreaking. Summary judgment
Page 1 2 Arizona Personal Injury Attorneys
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