On appeal from Superior Court of New Jersey, Law Division, Essex County.
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 (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 (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 (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, 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 (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 (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 ...