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Estate of Ruben A. Hernandez v. Arizona Board of Regents11/29/1991
n actions.
The members of GAMMA are fraternity and sorority members who are full-time students classified as sophomores or higher with a good grade point average. GAMMA has two co-chairs and one member for each two fraternity or sorority organizations. Each GAMMA member is assigned to a specific fraternity or sorority. Among his or her responsibilities is assisting in the planning of all alcohol-related events sponsored by the chapter, educating the chapter about university alcohol regulations and state laws on alcohol, and reporting alleged violations to GAMMA. GAMMA's bylaws expressly provide that the fraternity and sorority chapters retain sole responsibility for obtaining proof of legal drinking age at their functions.
At the beginning of rush activities in fall 1988, an assembly was held for all those participating in rush. At that assembly, at least two speakers talked about alcohol issues and the rules and laws applicable to fraternities and sororities. Steven Hare was the GAMMA member assigned to Epsilon Epsilon during fall 1988. He is not a member of Epsilon Epsilon. He stated in an affidavit that he attended the bid party on August 27, 1988 for a time and that he saw no underage fraternity members drinking while he was there.
APPLICATION OF A.R.S. § 4-312(B)
In granting summary judgment to the individual fraternity members, the trial court found that they are immune from liability pursuant to A.R.S. § 4-312(B). Appellant contends that the court erred in granting judgment, arguing that § 4-312(B) does not apply to this case and, alternatively, if it does apply, that it is unconstitutional. Section 4-312 reads as follows:
Liability limitation
A. A licensee is not liable in damages to any consumer or purchaser of spirituous liquor over the legal drinking age who is injured or whose property is damaged, or to survivors of such a person, if the injury or damage is alleged to have been caused in whole or in part by reason of the sale, furnishing or serving of spirituous liquor to that person. A licensee is not liable in damages to any other adult person who is injured or whose property is damaged, or to the survivors of such a person, who was present with the person who consumed the spirituous liquor at the time the spirituous liquor was consumed and who knew of the impaired condition of the person, if the injury or damage is alleged to have been caused in whole or in part by reason of the sale, furnishing or serving of spirituous liquor.
B. Subject to the provisions of subsection A of this section and except as provided in § 4-311, a person, firm, corporation or licensee is not liable in damages to any person who is injured, or to the survivors of any person killed, or for damage to property which is alleged to have been caused in whole or in part by reason of the sale, furnishing or serving of spirituous liquor.
The trial court found that § 4-312(B) renders a social host immune from liability to anyone injured or killed by reason of the serving of spirituous liquor to any person, regardless of age. The court also stated that it was bound by the decision of this court in Kent v. Mar-Fran Enterprises, Inc., 49 Ariz. Adv. Rep. 61 (App. December 12, 1989), that § 4-312(B) is constitutional. That case, however, held only that § 4-312(A) was constitutional; the opinion was subsequently redesignated a memorandum decision. Meanwhile, in April 1990 the supreme court ruled that § 4-312(A
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