THE SAGA CONTINUES…

Timothy M. Burke, Manley & Burke

On August 27, 1988, Rueben A. Hernandez was critically injured when his car was hit by a car driven by an individual who had just left a Delta Tau Delta pledge party at the University of Arizona. The driver, a minor, estimated he had “no more than ten” beers that evening. Almost two years after the accident, Hernandez died from his injuries.

During the almost decade-long litigation, the courts have rewritten the law as it relates to fraternity liability in Arizona.

First, in 1994, the Arizona Supreme Court held that fraternities were not entitled to social host immunity from liquor liability when they furnished alcoholic beverages to minors. (See March 1994,Fraternal Law #48.) In 1995, the Arizona Court of Appeals specifically held that national fraternities can be liable for the conduct of their chapters even where the chapters violate national policy. That opinion was particularly stinging in referring to fraternity chapters as “a group of local drinking clubs.” (See September 1995, Fraternal Law #53.) Whether or not Delta Tau Delta will actually be held liable will depend on the specific facts presented at trial.

During the course of litigation, the plaintiffs, the Estate of Mr. Hernandez and his surviving children, settled with the driver, the local chapter and the individual fraternity members who contributed to a “Social Fund” to buy alcohol. By the time the case reached the Arizona Supreme Court for the second time, the only defendants left in the case were  the pledges whose pledgeships were being celebrated on the night of August 27, 1988, and the national fraternity. Now the national fraternity stands alone, as the Supreme Court’s latest decision held the pledges attending the party free from liability.

The Supreme Court found that the policy of the fraternity was to allow all members who contributed to the “Social Fund” to drink alcohol, regardless of their age. That “Social Fund” was used to buy alcohol. At the party, alcohol was provided freely to all of the attendees, including pledges. The pledges had not, however, contributed to the “Social Fund” nor taken part in adopting the policies regulating the Fund. Thus, the Supreme Court was able to find that the pledges themselves had no personal legal liability to the plaintiffs. Drawing a sharp distinction between the responsibility of the pledges and the fraternity members themselves, the court noted that:

“The fraternity members had control over the management of the fraternity. Each member had the opportunity and the power to vote for the president and two vice presidents, who appointed the social chairman; each fraternity member could have voted to disapprove any of the social chairman’s proposed activities that involved furnishing alcohol to minors; and each member could have run for an officer position or applied for a committee chairmanship.”

The pledges, the court wrote, “had no control over the fraternity’s actions and they had not contributed to the ‘Social Fund’.” As a result, the pledges could neither be regarded as engaged in a joint venture with the members of the fraternity nor in any conspiracy with the members of the fraternity. In short, the actions of the pledges (excluding the driver) did not cause the accident.

While obviously this decision is good news for the pledges involved, the Arizona Supreme Court’s decision strongly suggests that individual members of a fraternity who have the power to vote may have liability when the policies or practices of a local chapter permit the distribution of alcohol to minors.

The matter now goes back to the trial court to determine the liability of the national fraternity.

¹  The Estate of Hernandez v. Flavio, et al v. Supreme Court of Arizona, 1997 ARIZ Lexis 10; 234 ARIZ Adv. Rep. 37 (January 23, 1997).