Estate of Hernandez v. Flavio , 186 Ariz. 517 ( 1995 )

FERNANDEZ, Judge,

concurring in part and dissenting in part.

I agree that a fact issue precludes granting of summary judgment as to the national fraternity; however, I believe the trial court properly granted summary judgment in favor of the new members (pledges).

It is uncontroverted that none of the pledges as of the date of the party and accident, August 17, 1988, had ever paid any social dues to the fraternity, did not contribute any money toward the purchase of alcohol for the party, or in any other way furnish alcohol to the underage intoxicated member (Rayner), who injured Mr. Hernandez. The court apparently granted the summary judgment on behalf of the pledges on the ground that they had not contributed to the purchase of the alcohol for the party.

I believe the court’s ruling was correct but based on too narrow a consideration of the contribution factor only. The record shows that a few hours before the party, the pledges were informed of their acceptance into the fraternity and that they would be pledges and later become members, after paying their dues, maintaining proper grade averages, and complying with other requirements.

As to the party at issue, none of the pledges had any say in the planning of the party or who would attend and they were not accepted as pledges until shortly before the party. Under all these circumstances, I feel there is insufficient evidence to support this court’s ruling that a fact issue exists as to whether the pledges participated in furnishing alcohol to Rayner before the accident in this case.

I concur in the opinion as to all other matters except as to the granting of summary judgment to the pledges, which I believe was proper.