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Kelly v. Gwinnell

Decided: June 29, 1983.

MARIE E. KELLY, PLAINTIFF-APPELLANT,
v.
DONALD C. GWINNELL AND PARAGON CORP., DEFENDANTS-APPELLANTS, AND JOSEPH J. ZAK AND CATHERINE ZAK, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.

Ard, King and McElroy.

Per Curiam

This is a joint appeal which arose from the grant of summary judgment in favor of Joseph and Catherine Zak. Appellants seek reversal of the trial judge's determination that the Zaks, as social hosts, owed no duty to appellants.

Defendant Donald Gwinnell, a painting contractor, left his home at approximately 5:15 p.m. to assist Joseph Zak, a subcontractor, whose truck was mired in mud. Their efforts were unsuccessful so Gwinnell drove Zak home. Zak invited Gwinnell into the house and offered him a drink. Gwinnell had not eaten since lunchtime. Zak stated that Gwinnell had two drinks, each of which contained a shot of liquor. He did not perceive Gwinnell to be drunk. Gwinnell left Zak's house at approximately 8:45 p.m. On his way home, Gwinnell was involved in a head-on collision with plaintiff Marie E. Kelly.

Kelly secured the services of a chemist who certified that based on the ethyl alcohol reading of .286% Gwinnell may have had up to 13 drinks, and that by 8:30 p.m. there would have been unmistakable symptoms of drunkenness.

Kelly filed a complaint against the driver Gwinnell and against owner Paragon Corporation, who in turn filed a third-party complaint against the Zaks. Thereafter, plaintiff filed an amended complaint adding the Zaks as direct defendants. The Zaks moved for summary judgment, which was granted; this appeal followed.

The issue is whether a cause of action exists against social hosts for the subsequent negligent acts of adults who consume liquor on the social host's premises.

Presently in New Jersey we have two situations in which the supplier of intoxicating liquor may be liable to a third person negligently injured by an intoxicated person: the tavern owner and the social host of a minor.

The liability of the tavern owner and that of the social host of a minor have evolved logically.

Rappaport points out that this is consistent with state policy. Id. at 201-202. The sale and service of alcoholic beverages is heavily regulated by statute. N.J.S.A. 33:1-1 et seq. As indicated, the Division of Alcoholic Beverage Control, which was established under the above-cited act, prohibits the sale or service of alcohol by a licensed seller to a minor or to an intoxicated person. N.J.A.C. 13:2-23.1. Thus, a violation of this regulation may be evidence of negligence by a tavern owner. Ibid.

In pointing out the tavern keeper's liability to third parties for serving a minor, our Supreme Court recognized the particular vulnerability of a minor:

Policy considerations obviously weigh heavily in favor of imposing liability upon tavern owners who can discharge their civil responsibility by adhering to the regulations of the Division of ...


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