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Estate of Ruben A. Hernandez v. Arizona Board of Regents11/29/1991
e of custodial liability.
The summary judgments entered in favor of all appellees are affirmed.
HATHAWAY, Judge, dissenting.
I.
The majority opinion finds no common law duty toward minors and thus no cause of action in this case. I respectfully dissent.
Although no prior Arizona case has addressed the specific issue of whether a social host may be liable for the foreseeable consequences of illegally furnishing alcohol to a minor, Brannigan v. Raybuck, 136 Ariz. 513, 667 P.2d 213 (1983), I believe contemplates such a duty.
There, the court considered the question of a licensee's liability for damages resulting from the death of an intoxicated minor and his two minor passengers in a motor vehicle accident which occurred after the licensee served alcohol to the boys. The court reasoned that it was foreseeable that a minor served alcohol would become intoxicated and injure himself or others. The characteristic immaturity of a minor gives rise to this foreseeable risk. The court held that "a supplier of liquor is under a common law duty of reasonable care in furnishing liquor to those who, by reason of immaturity . . . may lack full capacity of self-control and may therefore injure themselves, as well as others." Id. at 516, 667 P.2d 213.
Keeping in mind the special status generally accorded minors by the law, I read Brannigan to recognize a common law duty of reasonable care when furnishing alcohol to a minor, regardless of whether the individual furnishing the alcohol is a licensee or a social host. While Brannigan involved a defendant tavern owner, it does not appear that the court limited its decision to licensees; it referred generally to "supplier" in its holding. Further, much of the rationale fits the instant situation.
The Brannigan court found support for a common law duty toward minors in three areas: Case law from other jurisdictions; general tort principles; and, Arizona statutory law. The court made the point that all the cases it cites "are but an example of the general rule that one who furnishes a dangerous instrumentality to a person not competent to use it is liable when that person misuses the item furnished and injures himself or another." Id. The court then quoted the Restatement (2d) of Torts, § 390 (1965) for the rule that:
ne who supplies . . . a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others . . . is subject to liability for physical harm resulting to them.
(Emphasis added.) The general tort duty is not limited to licensees; it is all-inclusive.
The court, noting that it, like most courts, relied on statutes to find the existence of a duty on which to base a cause of action, found that A.R.S. § 4-244(9) and § 4-241(A) could serve as such a base because both constitute legislative recognition of the foreseeable danger posed by intoxicated minors. Both statutes prohibit a licensee or other person from selling or giving alcohol to an underage person, thus undergirding a duty toward minors.
II.
I agree with the appellant's contention that A.R.S. § 4-312(B) is constitutionally invalid because it abrogates a right of action in violation of Article 18, § 6 of the Arizona Constitution. In applying Article 18, § 6, this court should be g
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