New Jersey has consistently been at the forefront in adopting common law and enacting legislation that provides civil remedies for those who are injured by an intoxicated driver. The New Jersey Supreme Court recently expanded the scope of those common law protections by allowing for a cause of action against an adult social host who is under 21, when that person facilitates the consumption of alcohol by a social guest who is under 21. The first paragraph of the New Jersey Supreme Court’s opinion in Narleski v. Gomes illustrates the court’s view of its role in determining what causes of action are available to those injured by drunk drivers:
The deterrence of drunk driving has been a preeminent policy goal of legislative enactments and our common law for many decades. Nonetheless, drunk driving remains one of the major causes of carnage on our highways and roadways. To address this seemingly intractable societal problem, statutory schemes and the common law generally impose civil liability on taverns and social hosts who serve or facilitate the service of alcohol to visibly intoxicated customers and guests who then get into their vehicles and maim or kill others.
In New Jersey, under both statutes and case law, it has long been the rule that a social host over the age of 21 has a duty not to serve alcohol to a visibly intoxicated guest, either an adult or a minor, if it is reasonably foreseeable the guest is about to drive. The court in Narleski considered a related, but unique issue regarding whether an adult over 18, but under 21 has a duty not to facilitate the service of alcohol to a visibly intoxicated underage guest in his home, if the guest is expected to operate a motor vehicle.
By way of background, this opinion stems from a wrongful death case. A 19-year-old was killed in an automobile crash as a passenger in a vehicle being operated by an intoxicated 19-year-old driver. Prior to operating the vehicle, the driver was at the house of a 19-year-old friend where alcohol was consumed but was not furnished by the host. The plaintiff brought suit against the driver and the market where the alcohol was purchased. The market then brought a third-party complaint against the host. The trial court determined that the host, despite providing his home as a drinking venue and arguably facilitating the excessive use of alcohol, owed no legal duty to the plaintiff because of the driver’s intoxication. The Appellate Division affirmed the dismissal, but declared that, going forward, an underage adult “shall owe a common law duty to injured parties to desist from facilitating the drinking of alcohol by underage adults in his place of residence, regardless of whether he owns, rents, or manages the premises.”
The New Jersey Supreme Court undertook a detailed analysis of the statutory and common law duties already recognized under New Jersey law, and considered whether underage adult social hosts should owe a duty of care to prevent guests from operating a vehicle while intoxicated. The court held; a plaintiff injured by an intoxicated underage social guest may succeed in a cause of action against an underage social host if the plaintiff can prove by a preponderance of the evidence the following:
(1) The social host knowingly permitted and facilitated the consumption of alcoholic beverages to underage guests in a residence under his control. This element does not require that the social host be a leaseholder or titleholder to the property. It is enough that the social host has the ability and apparent authority to give others access to the property;
(2) The social host knowingly provided alcohol to a visibly intoxicated underage guest or knowingly permitted the visibly intoxicated underage guest to serve himself or be served by others. It is no defense that the underage guests bought and brought the alcoholic beverages that they or others consumed;
(3) The social host knew or reasonably should have known that the visibly intoxicated social guest would leave the premises and operate a motor vehicle and therefore would foreseeably endanger the lives and property of others;
(4) The social host did not take any reasonable steps to prevent the intoxicated guest from getting behind the wheel of the vehicle; and
(5) The social guest, as a result of intoxication facilitated by the social host, negligently operated a vehicle and proximately caused injury to a third party.
The court was very specific in its holding, laying out a roadmap of the elements necessary for a plaintiff to be successful in a cause of action against an underage adult social host, and potential defenses available to defendants.
It should be noted that the court did not impose strict liability on the social host; in order for a plaintiff to be successful in this cause of action, the plaintiff must prove that the social guest was visibly intoxicated. As such, it is not enough that alcohol was consumed, but there must be some evidence presented that the guest was visibly intoxicated, and the host was aware of same.
The status of the host and the source of the alcohol has no bearing on liability. A social host is only required to have apparent authority to allow others to access the premises. A host’s status whether he or she holds title, a lease, or merely lives with a parent does not provide a defense. With regard to the service of alcohol, the social host only needs to know that alcohol is being consumed. It does not matter if the host provided the alcohol or if it was brought by guests.
While this new rule does seem to present significant liability concerns for a social host, there are defenses available. It has long been the rule that an intoxicated social guest who causes injury to himself has no recourse against the social host. The court’s present holding does not seem to disturb that rule, as it clearly requires an injury to a third party. Moreover, the host must know that the guest is likely to operate a motor vehicle before liability is triggered. Similarly, there appears to be a defense if a host takes reasonable steps to prevent intoxicated guests from operating a motor vehicle. The likely scenario here is if a social host goes to sleep with reasonable belief that all his guests are spending the night, liability should not trigger if a guest leaves without the host’s knowledge. Similarly, if a host takes reasonable steps to prevent an intoxicated person from accessing a vehicle, and the intoxicated guest still operates a vehicle, it is likely liability will not attach.
The court, in reaching its conclusion, relied heavily on the dangers of drunk driving, the public policy considerations, and the social impact of these issues. New Jersey already has the Social Host Liability Act, N.J.S.A. 2A:15-5.5 to -5.8, which largely codified the New Jersey Supreme Court’s holding in Kelly v. Gwinnell, 96 N.J. 538 (1984), which expanded social host liability to private residences. The New Jersey Legislature might act similarly again, and the New Jersey Supreme Court has provided a very good starting point.
New Jersey homeowners and their insurers should be aware of the potential liability which comes when underage adults are permitted to drink alcohol at a New Jersey residence. The New Jersey Supreme Court has streamlined a cause of action against underage social hosts, making it very clear that as long as the host grants access to the premises, any technical defense about ownership and possession is not relevant. Moreover, the source of the alcohol is not relevant. If the social host allows the consumption of alcohol at his or her residence, he or she has the potential to be liable for injuries to third parties. In Narleski v. Gomes the social host was made a defendant by way of a third-party complaint filed by the market that sold the alcohol. With the court’s ruling, it should be anticipated that future similar actions will involve claims against social hosts regardless of their age, regardless of who supplied the alcohol, and regardless of who owns the premises where alcohol is consumed.