Franco v. Fairleigh Dickinson Univ.

• Decision Date: 25 March 2021
• Docket Number: DOCKET NO. A-3055-18
• Citation: 467 N.J.Super. 8,248 A.3d 1254
• Parties: Kenneth FRANCO, an incapacitated individual, by his Guardians Ad Litem, Cecilia Griglak and Patrick Griglak, and Cecilia Griglak and Patrick Griglak, individually, Plaintiffs-Appellants, v. FAIRLEIGH DICKINSON UNIVERSITY, Frank Dades, Dominick Stellaccio, Jason Misener, Matthew Pieroni, Rachel Listman, Matthew Smigelski, Spencer Goldin, James Frisby, Michael DaCosta, Joseph Piserchio and Alena Ramos, Defendants-Respondents, and Upsilon Hexaton Chapter of Phi Sigma Kappa Fraternity, the Grand Chapter of Phi Sigma Kappa, Inc., Craig Felming, Jkl Tavern, United Rentals (North America), Inc., Tilcon New York, Inc., Florham Park Liquors, Danishek Brothers, Inc., Defendants.
• Court: New Jersey Superior Court — Appellate Division

467 N.J.Super. 8

248 A.3d 1254

Kenneth FRANCO, an incapacitated individual, by his Guardians Ad Litem, Cecilia Griglak and Patrick Griglak, and Cecilia Griglak and Patrick Griglak, individually, Plaintiffs-Appellants,

v.FAIRLEIGH DICKINSON UNIVERSITY, Frank Dades, Dominick Stellaccio, Jason Misener, Matthew Pieroni, Rachel Listman, Matthew Smigelski, Spencer Goldin, James Frisby, Michael DaCosta, Joseph Piserchio and Alena Ramos, Defendants-Respondents,andUpsilon Hexaton Chapter of Phi Sigma Kappa Fraternity, the Grand Chapter of Phi Sigma Kappa, Inc., Craig Felming, Jkl Tavern, United Rentals (North America), Inc., Tilcon New York, Inc., Florham Park Liquors, Danishek Brothers, Inc., Defendants.

DOCKET NO. A-3055-18

Superior Court of New Jersey, Appellate Division.

Argued December 15, 2020

Decided March 25, 2021

Raymond S. Vivino and Leonard P. Rosa argued the cause for appellant(Vivino & Vivino, LLC, and Hartman Doherty Rosa Berman & Bulbulia, LLC, attorneys; Raymond S. Vivino, Wayne, and Leonard P. Rosa, Woodland Park, on the briefs).

Angelo A. Stio, III argued the cause for respondent Fairleigh Dickinson University (Troutman Pepper Hamilton Sanders, LLP, and Post & Schell, PC, attorneys; Angelo A. Stio, III, Princeton, and Richard B. Wickersham, Jr. on the brief).

Peter E. Mueller argued the cause for respondentFrank Dades, Shannon M. Burke argued the cause for respondentMatthew Pieroni, and Cynthia J. Birkitt argued the cause for respondentDominick Stellaccio(Harwood Lloyd, LLC, Gaul, Baratta & Rosello, LLC, and Law Offices of James H. Rohlfing, attorneys; Peter E. Mueller, Hackensack, Joseph M. Gaul, Jr., Shannon M. Burke, and Stephen C. Cahir, of counsel and on the joint brief).

Carolyn Kelly Bogart argued the cause for respondentJason Misener(Marshall Dennehey Warner Coleman & Goggin, attorneys; Carolyn Kelly Bogart, Mount Laurel, on the brief).

Ryan J. Gaffney argued the cause for respondentRachel Listman(Chasan Lamparello Mallon & Cappuzzo, PC, attorneys; Ryan J. Gaffney, Secaucus, on the brief).

John Burke argued the cause for respondentSpencer Goldin(Burke & Potenza, PA, attorneys; John Burke, Parsippany, on the brief).

Thomas W. Griffin argued the cause for respondentJames Frisby(Litvak & Trifiolis, PC, attorneys; Thomas W. Griffin, on the brief).

Michael A. Graziul, II argued the cause for respondentMichael DaCosta(Law Offices of Patricia A. Palma, attorneys; Michael A. Graziul, II, Berkeley Heights, on the brief).

Lewis M. Markowitz argued the cause for respondentJoseph Piserchio(Campbell, Foley, Delano & Adams, LLC, attorneys; Helen A. Cummings, and Lewis M. Markowitz, on the brief).

Carmen E. Mendiola, Jersey City, attorney for respondentAlena Ramos, joins in the briefs of respondents Fairleigh Dickinson University, James Frisby, Michael DaCosta and Joseph Piserchio.

Before Judges Gilson, Moynihan, and Gummer.

The opinion of the court was delivered by

GILSON, J.A.D.

This appeal raises questions concerning the scope of the duty owed to an adult who is not old enough to drink legally but who nonetheless drinks alcohol to excess and injures himself in a motor-vehicle accident.The issues on this appeal are governed by the common law and related public policies.The Social Host Liability Act (SH Act), N.J.S.A. 2A:15-5.5 to -5.8, does not apply because it governs liability for third-party injuries resulting from the service of alcohol to an of-age adult.¹

In September 2014, Kenneth Franco, a twenty-year-old college student, attended a social gathering in a suite in a residential hall at Fairleigh Dickinson University (FDU or the University).Franco had informed the suitemates and his parents that he planned to spend the night in the suite.In addition to bringing an overnight bag, Franco brought and consumed alcohol.He became visibly intoxicated and then fell asleep on a couch in the suite.Sometime later, the suitemates and remaining guests either left or went to sleep.At approximately 5 a.m., Franco awoke, left the suite, and forty-seven minutes later was severely injured when his car went off the road, struck an unoccupied parked vehicle, and flipped over.

Franco and his parents appeal from a series of orders that granted summary judgment to FDU, four student residential assistants (RAs), four student suitemates (the Suitemates), and three other students who attended the gathering as guests.Franco contends that the University and the students had a duty to take action that would have prevented him from driving while drunk.

The resolution of these issues turns on an undisputed fact and policy considerations.The undisputed fact is that Franco had planned to spend the night and not drive.The policy issues are whether tort duties and social host liability should apply when an underaged adult voluntarily drinks to excess and thereafter injures himself.We hold that certain defendants had no duty, while the duty of other defendants, and a related causation issue, present questions of fact for a jury to resolve.The three student guests had no duty to monitor the actions of Franco.Any duty of the Suitemates ended when Franco fell asleep with the previously-arranged plan to spend the night in the suite.

FDU and its student RAs are protected by the Charitable Immunity Act (CI Act), N.J.S.A. 2A:53A-7 to -11, which shields them from claims based on simple negligence.There are disputed issues of material fact concerning whether the RAs were grossly negligent or acted with willful or wanton indifference in failing to enforce FDU's policies prohibiting underage drinking.There is also a related disputed issue of material fact concerning whether any breach by the RAs caused Franco's injuries.

Accordingly, we affirm the summary judgments in favor of the Suitemates and the social guests.We reverse the summary judgments in favor of the RAs.We also affirm in part and reverse in part the summary judgment in favor of FDU.The undisputed material facts established that FDU did not directly breach any duty to Franco.Nevertheless, FDU can be vicariously liable in its capacity as the employer of the RAs.

I.

We take the facts from the summary judgment record and view them in the light most favorable to Franco.SeeBauer v. Nesbitt, 198 N.J. 601, 604 n.1, 969 A.2d 1122(2009)(first citing R. 4:46-2(c); and then citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146(1995));see alsoGlobe Motor Co. v. Igdalev, 225 N.J. 469, 479, 139 A.3d 57(2016).

In September 2014, Franco lived with his parents and commuted to FDU, where he was a college student in his junior year.He was a member of the Phi Sigma Kappa fraternity and periodically spent nights at FDU sleeping in friends' rooms or suites.

On September 18, 2014, while at FDU, Franco heard Frank Dades, one of his fraternity brothers, discussing plans to host a Thursday night football-watching party in his suite (S207) in the Park Avenue residential hall.At Franco's request, Dades invited Franco to attend.

Before going to the party, Franco and his mother agreed he would spend the night at FDU and would travel from there to his part-time banking job the next morning.Accordingly, when Franco left his parents' home at around 8:30 p.m. that evening, he took his work clothes and toiletries with him.

Approximately twenty to thirty people attended the party, with students coming and leaving at different times.The party lasted several hours and broke up around 2 a.m. on September 19, 2014.The suite's residents – Dominick Stellaccio, Dades, Matthew Pieroni, and Matthew Smigelski(collectively, the Suitemates) – were present.Other students attending included Stellaccio's girlfriend Rachel Listman, and Spencer Goldin and Jason Misener, both of whom were Franco's fraternity brothers.

Franco arrived at the suite at approximately 10 p.m., bringing bottles of alcohol with him in a backpack.Several students attending the gathering saw Franco drinking from a bottle of clear liquid, which they assumed was alcohol.Franco was also seen drinking a beer he apparently had obtained while in S207.Students attending the party testified that beer and other alcohol was available in S207 that evening.In addition, some guests brought beer to S207.

Franco's expert opined that Franco was visibly intoxicated while in S207 and had a rising blood alcohol content (BAC) of .15% around 12:30 a.m. and that his BAC peaked at .23% at 2:15 a.m. on September 19, 2014.A blood sample taken at the hospital following the car accident showed that Franco's BAC was .164% at 6:52 a.m.A driver is presumed to be under the influence of alcohol if his or her BAC is .08% or greater.N.J.S.A. 39:4-50(a).

Stellaccio, one of the Suitemates, saw Franco drinking and asked Franco if he was spending the night at the suite.When Franco confirmed he was staying, Stellaccio told Franco he would be sleeping on S207's common-room couch.S207 had two bedrooms with attached bathrooms, a common room, and a kitchenette.

Michael Brown, one of Franco's closest friends, also attended the gathering.Brown confirmed with Franco that he was not planning on driving that night.Brown offered to have Franco stay overnight in his dorm room.In response, Franco told Brown that he would be sleeping in S207.Later, after noticing that Franco was visibly intoxicated, Brown verified with Stellaccio that Franco was staying on the couch in S207 that night.

Sometime late in the evening or after midnight, Franco fell asleep on the common-room couch.Thereafter, several people drew on Franco's face and body.Students also placed chairs on Franco.Franco did not react to either the drawing or the chairs being placed on him.Instead, he remained asleep.

Listman testified that she spent most of the evening in Stellaccio's bedroom and did not recall seeing Franco asleep before she went to bed in Stellaccio's room.Goldin slept in one of the bedrooms in S207, woke up sometime between 2 a.m. and 4 a.m., and saw Franco...