Linn v. Rand

• Citation: 356 A.2d 15,140 N.J.Super. 212
• Parties: Glenn LINN, an infant by his Guardian ad Litem, Charles Linn, and Charles Linn, individually, Plaintiffs-Appellants, v. Lucy E. RAND, Defendant-Appellant, and Thomas Nacnodovitz and Wayne J. Patenaude, Defendants-Respondents.
• Decision Date: 29 March 1976
• Court: New Jersey Superior Court — Appellate Division

Page 212

140 N.J.Super. 212

356 A.2d 15

Glenn LINN, an infant by his Guardian ad Litem, Charles

Linn, and Charles Linn, individually, Plaintiffs-Appellants, v. Lucy E. RAND, Defendant-Appellant, and Thomas Nacnodovitz and Wayne J. Patenaude, Defendants-Respondents.

Superior Court of New Jersey,

Appellate Division.

Argued March 16, 1976.

Decided March 29, 1976.

Robert L. Garrenger, Jr., New Brunswick, for plaintiffs-appellants (Garrenger & Rosta, New Brunswick, attorneys).

Bernard F. Boglioli, West Long Branch, for respondent Thomas nacnodovitz.

Harry V. Osborne II, Elizabeth, for defendant-appellant Lucy E. Rand (Evans, Koelzer, Marriott & Osborne, Rumson, attorneys).

Before Judges HALPERN, CRANE and MICHELS.

The opinion of the court was delivered by

HALPERN, P.J.A.D.

Plaintiffs Glenn Linn, an infant by his guardian Ad litem, Charles Linn and Charles Linn individually (hereinafter referred to as plaintiff), with leave granted, appeal from a summary judgment in favor of Thomas Nacnodovitz dismissing their amended complaint for personal injuries sustained by Glenn Linn, a pedestrian, when hit by a car driven by Lucy E. Rand.

Plaintiff charged Nacnodovitz with negligence in serving an excessive amount of alcoholic beverages to defendant Rand, a minor, while she was a guest at his home. Plaintiff further charged Nacnodovitz with negligently permitting Rand to drive her car from his home just prior to Rand's running down and seriously injuring plaintiff.

Nacnodovitz's answer denied negligence and, among other separate defenses, alleged that the 'defendant was under no duty to the plaintiffs herein' and reserved the right to strike the amended complaint on the ground that it failed to set forth a cause of action against him. Nacnodovitz then moved for summary judgment supported solely by the affidavit of his attorney which merely cited some of the allegations in the amended complaint and referred to an answer by plaintiff of an interrogatory requiring him to set forth the basis of his claim. The answer given was 'The defendant, Thomas Nacnodovitz, negligently allowed the defendant, Lucy Rand to consume quanities (sic) of alcohol at his residence and further allowed her to drive on the highway of the State of New Jersey in an unsober condition.'

We pause to point out that there was nothing before the trial judge on the summary judgment motion, or in the record before us, to indicate the exact age of Rand, ¹ whether she was licensed to drive a car, the amount of alcohol furnished by Nacnodovitz to Rand or his knowledge of her physical condition when she left his home. In short, we are merely indicating the sparse factual record on which summary judgment was granted.

It is obvious the trial judge was not too concerned about the facts because he considered the issue before him as one of law only. In granting the motion he relied principally upon Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959), and Anslinger v. Martinsville Inn. Inc., 121 N.J.Super 525, 298 A.2d 84 (App.Div.1972), certif. den. 62 N.J. 334, 301 A.2d 449 (1973). Among other things, the trial judge in his oral opinion held:

In Anslinger the Appellate Division held that liability in negligence for the sale or serving of alcholic beverages to intoxicated persons or minors is specifically limited to tavern keepers or to those in a strictly business setting. The Appellate Division refused to hold quasi-business organizations liable for the actions of drunken guests at their social affairs.

Having considered the arguments of counsel, it is this court's opinion that the rule of Rappaport must be followed without the expansion urged by plaintiff's counsel. To do otherwise could create limitless implications as to the liability of anyone who gives liquor to another solely as a gesture of friendship or good fellowship. This court is unwilling to give its stamp of approval to such an expanded concept of liability.

This leaves for determination the narrow legal issue of whether Nacnodovitz owed a legal duty of exercising reasonable care to protect third parties from the negligent acts of Rand. Stating the problem another way, in general terms the issue is whether a person (not the holder of a liquor license), who furnishes excessive amounts of intoxicating liquors to a minor on a social occasion, may be held liable for the intoxicated minor's negligent acts which cause injury to an innocent third party. We have concluded that such a person, where the facts presented warrant it, may be held responsible by a jury, and therefore reverse the granting of summary judgment.

It is fundamental that a motion for summary judgment should be granted only if the pleadings, depositions and admissions on file show palpably that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law. R. 4:46--2; Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 73--75, 110 A.2d 24 (1954). Such motions are granted only with much caution, Devlin v. Surgent, 18 N.J. 148, 154, 113 A.2d 9 (1955), and where there are genuine disputed issues of fact, they must be resolved at a plenary hearing. Wilson v. Miller, 25 N.J.Super. 280, 289, 96 A.2d 283 (App.Div.1953). In deciding whether a genuine issue as to any material fact exists, the moving papers and pleadings are considered most favorably for the party opposing the motion and all doubts are resolved against the movant. If there is the slightest doubt as to the facts, the motion should be denied. Ruvolo v. American Cas. Co., 39 N.J. 490, 499, 189 A.2d 204 (1963); United Advertising Corp. v. Metuchen, 35 N.J. 193, 195--196, 172 A.2d 429 (1961).

There is nothing in Rappaport v. Nichols, supra, and its progeny, which specifically bars the suit here involved as a matter of law. The foward-looking and far-reaching philosophy expressed in Rappaport should also be applicable to negligent social hosts and should not be limited to holders of liquor licenses and their employees. A few quotations from Rappaport, as they relate to the definition of actionable negligence, bring this view into sharp focus:

Negligence is tested by whether the reasonably prudent person at the time and place should recognize and foresee an unreasonable risk or likelihood of harm or danger to others (citations omitted). And, correspondingly, the standard of care is the conduct of the reasonable person of ordinary prudence under the circumstances.

* * * The negligence may consist in the creation of a situation which involves unreasonable risk because of the expectable action of another. (31 N.J. at 201, 156 A.2d at 8.)

On the issue of proximate cause and foreseeability of harm to others Rappaport held:

But a tortfeasor is generally held answerable for the injuries which result in the ordinary course of events from his negligence and it is generally sufficient if his negligent conduct was a substantial factor in bringing about the injuries. (Citations omitted). The fact that there were also intervening causes which were foreseeable or were normal incidents of the risk created would not relieve the tortfeasor of liability. (citations omitted). Ordinarily these questions of proximate and intervening cause are left to the jury for its factual determination. (at 203, 156 A.2d at 9.)

The fact that a plaintiff may have a heavier burden of proof to carry when his suit is against a social host, does not warrant granting such host immunity from liability.

So here, plaintiff should be given his day in court to prove that (a) Rand was a minor, (b) Nacnodovitz knew she was a minor, knew she intended to drive her car, and nevertheless served her alcoholic beverages to the degree that she was unfit to drive, and (c) it was reasonably forseeable that Rand might injure herself, or others, and that his negligence was a proximate cause of the accident and plaintiff's injuries. It makes little sense to say that the licensee in Rappaport is under a duty to exercise care, but give immunity to a social host who may be guilty of the same wrongful conduct merely because he is unlicensed.

Our courts have not hesitated to place responsibility for tortious acts upon the person committing the wrong, nor have they refrained from removing old common law doctrines which granted immunity to wrongdoers. Why should a social host be given the special privilege of immunity from liability if he acts negligently with resulting harm to others? As indicated in the dissent filed in Manning v. Andy, 310 A.2d 75 (Pa.Sup.Ct.1973):

We do not give such immunity to automobile drivers. We do not give such immunity to drug dispensers. We do not give such immunity to homeowners. Once there was a special immunity for charities--but no longer. Once there was a special immunity for municipalities--but no longer. Once there was a special immunity for parents--but no longer. The creation of...