Griesenbeck by Kuttner v. Walker

• Decision Date: 27 February 1985
• Citation: 488 A.2d 1038,199 N.J.Super. 132
• Parties: Dana GRIESENBECK, an infant by her Guardian ad Litem, Bernard A. KUTTNER, Esq., and the Estate of James R. Griesenbeck, deceased by his Guardian ad Litem, Bernard A. Kuttner, Esq., Plaintiffs-Appellants, v. John Y.G. WALKER, Jr., Maryl R. Walker, and the Estates of Caryl Griesenbeck and James L. Griesenbeck, by their Executor Richard Rosenblatt, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 132

199 N.J.Super. 132

488 A.2d 1038

Dana GRIESENBECK, an infant by her Guardian ad Litem Bernard A. KUTTNER, Esq., and the Estate of James R Griesenbeck, deceased by his Guardian ad Litem, Bernard A Kuttner, Esq., Plaintiffs-Appellants, v. John Y.G. WALKER, Jr., Maryl R. Walker, and the Estates of Caryl Griesenbeck and James L. Griesenbeck, by their Executor Richard Rosenblatt Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Submitted Sept. 24, 1984.

Decided Feb. 27, 1985.

Kuttner, Toner & DiBenedetto, Newark, attorneys for plaintiffs-appellants (Bernard A. Kuttner, Newark, on brief).

Shanley & Fisher, Morristown, attorneys for defendants-respondents (Richard E. Brennan, Morristown, of counsel and on brief; Susan M. Sharko, Morristown, on the brief).

Before Judges MORTON I. GREENBERG, O'BRIEN and GAYNOR.

The opinion of the court was delivered by

GAYNOR, J.A.D.

This case involves the asserted liability of a social host to third parties for the negligent acts of an intoxicated guest which are unrelated to the operation of an automobile. We decide that such liability may not be imposed in the circumstances of this case and accordingly affirm the trial court's summary judgment dismissing the complaint, although for reasons different from those relied upon by the judge. See Isko v. Livingston Tp. Planning Bd., 51 N.J. 162, 175, 238 A.2d 457 (1968).

On the evening of February 26, 1981 defendants, John Y.G. Walker, Jr. and Maryl R. Walker, returned to their home after a three-week Caribbean vacation. Their daughter, Caryl Griesenbeck, the mother of Dana, aged 5, and James, aged 18 months, came to their home at approximately 9:30 p.m. to welcome them back. She was joined there by her sister, Maryl Walker Lewis. According to Mr. Walker, after about 20 minutes of conversation he made everyone a drink, including a bourbon and water for his daughter, Caryl, and after a second drink Caryl left in her car sometime between 11:30 and midnight to drive to her residence in Montclair, a distance of about three miles. At 1:20 a.m. the Montclair Fire Department received a report of a fire which ultimately gutted the Griesenbeck residence and resulted in the death of Caryl Griesenbeck, her husband and the infant, James, and serious injuries to the daughter, Dana. Mrs. Griesenbeck and her daughter were found by firemen on the roof of the sun porch and James was found in the bushes below the sun porch roof. Mr. Griesenbeck's body was in one of the bedrooms. They were all dressed in sleeping clothes. An autopsy determined Mr. Griesenbeck died from smoke inhalation and that there were no traces of alcohol in his body. The cause of Caryl's death was determined as smoke inhalation and alcohol intoxication. A toxicology report indicated a blood alcohol content of .172%, a quantity suggesting acute alcohol intoxication. Plaintiffs' expert toxicologist opined that Caryl Griesenbeck must have consumed at least nine alcoholic drinks prior to her death in order to have attained the blood alcohol level stated in the report.

The report of the Fire Department concluded that the fire was caused by a cigarette left smoldering in a sofa in a downstairs room.

Plaintiffs contend that the Walkers served alcoholic drinks to Caryl while she was obviously intoxicated and permitted her to leave their home in that condition. Further, because she was impaired by alcohol, that Caryl either caused the fire by leaving a cigarette burning in the sofa or was so intoxicated that she was unable to take necessary proper precautions to alert her family to the danger or to safely evacuate them from the home.

In ruling on the Walkers' motion for summary judgment, the trial court concluded that plaintiffs' claims did not constitute a cause of action in view of this court's rejection in Kelly v. Gwinnell, 190 N.J.Super. 320, 463 A.2d 387 (App.Div.1983), of a social host's liability for injuries to third parties caused by an intoxicated adult guest's drunken driving. The subsequent reversal of that decision by the Supreme Court, Kelly v. Gwinnell, 96 N.J. 538, 476 A.2d 1219 (1984), effectively removed the basis of the trial judge's ruling on the motion. However, as the Supreme Court limited its holding in Kelly to liability for injuries resulting from the guest's drunken driving, Id. at 559, 476 A.2d 1219, that decision does not require the conclusion that a cause of action exists in the factual setting of the present case. We therefore proceed to a consideration of the issues in terms of the common law principles of negligence and proximate causation. In doing so, we accept as true the allegations of plaintiffs as to the intoxicated condition of Caryl Griesenbeck, the serving of alcoholic drinks to her by defendants, Walker, when she was visibly intoxicated, and that the fatal fire, as well as her inability to rescue the children, were in some manner related to her intoxicated condition. Thus, there are no disputed issues which would preclude a summary disposition of plaintiffs' claims. R. 4:46-2; Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 110 A.2d 24 (1954). This procedure permits an efficient resolution of this litigation as it presents issues which are determinable as a matter of law. Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505 (1980).

In concluding that plaintiffs' complaint was properly dismissed, we have determined that plaintiffs do not have a cause of action in negligence against the Walkers for the deaths and injuries resulting from the unfortunate and tragic fire which destroyed the Griesenbeck residence following Mrs. Griesenbeck's return from the Walker home. Essential elements of the asserted cause of action are lacking. Actionable negligence requires the existence of a duty to act or not to act arising by reason of the actor's creation of an unreasonable risk of foreseeable harm or one judicially imposed because of policy considerations. Kelly v. Gwinnell, 96 N.J. 538, 476 A.2d 1219.

As expressed in Caputzal v. The Lindsay Co., 48 N.J. 69, 74-75, 222 A.2d 513 (1966):

... The two applicable concepts in the case of nonintentional conduct or failure to act are the very basic ones of duty, and the breach thereof, and proximate, or legal, cause of the injury complained of.

The first is modernly summarized by Dean Prosser as:

"1. A duty, or obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks.

2. A failure on his part to conform to the standard required. These two elements go to make up what the courts have usually called negligence; but the term quite frequently is applied to the second alone. Thus it may be said that the defendant was negligent, but is not liable because he was under no duty to the plaintiff not to be." Prosser, Torts, § 30, p. 146 (3d ed. 1964) (emphasis supplied).

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This hypothetical standard conventionally brings into play the matter of "foreseeability" in determining what the reasonable man should recognize as involving an unreasonable risk of harm. Foreseeability is not solely a mere matter of logic, since anything is foreseeable, but frequently involves questions of policy as well. When it does, the matter is one for determination by the court and not by the fact-finder.... [citations omitted].

The significance of foreseeability as a duty determinant was pointed out in Hill v. Yaskin, 75 N.J. 139, 144, 380 A.2d 1107 (1977), in referring to the following portion of the text of 57 Am.Jur. 2d, Negligence, § 58 (1970), as a good statement of the concept:

... The broad test of negligence is what a reasonably prudent person would foresee and would do in the light of this foresight under the circumstances. Negligence is clearly relative in reference to the knowledge of the risk of injury to be apprehended. The risk reasonably to be perceived defines the duty to be obeyed; it is the risk reasonably within the range of apprehension, of injury to another person, that is taken into account in determining the existence of the duty to exercise care....

And as explained in Goldberg v. Housing Auth. of Newark, 38 N.J. 578, 583, 186 A.2d 291 (1962):

The question is not simply whether a[n] ... event is foreseeable, but whether a duty exists to take measures to guard against it. Whether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk and the public interest in the proposed solution.

Similar standards were expressed in the earlier case of Wytupeck v. Camden, 25 N.J. 450, 461-462, 136 A.2d 887 (1957):

"Duty" is not an abstract conception; and the standard of conduct is not an absolute. Duty arises out of a relation between the particular parties that in right reason and essential justice enjoins the protection of the one by the other against what the law by common consent deems an unreasonable risk of harm, such as is reasonably foreseeable, Lokar v. Church of the Sacred Heart, 24 N.J. 549 (1957). In the field of negligence, duty signifies conformance "to the legal standard of reasonable conduct in the light of the apparent risk"; the essential question is whether "the plaintiff's interests are entitled to legal protection against the defendant's conduct." Prosser on Torts (2d ed.), section 36. Duty is largely grounded in the natural responsibilities of social living and human relations, such as have the recognition of reasonable men; and fulfillment is had by a correlative standard of conduct.

It is now established that a social host owes a duty to the public not to serve liquor to a minor or adult guest knowing that the guest is intoxicated and will thereafter be operating a motor vehicle, as such conduct of the host creates a foreseeable and unreasonable risk of harm to others using the highways. Kelly v. Gwinnell, 96 N.J. 538, 476 A.2d 1219; ...