This matter comes before the court on cross motions for summary judgment. Summary judgment may be granted only if there is no genuine issue as to any material fact and all doubts are resolved against the moving party. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74, 110 A.2d 24 (1954).
Defendant Wagner, hereinafter defendant, is plaintiff's husband. The primary issue is whether defendant, while having control of an automobile, owed a legal duty to plaintiff to ensure that she did not drive the automobile after becoming
intoxicated, and by failing to do so, became liable to her for injuries she received in an accident caused by her intoxication.*fn1 The existing case law imposes liability as to third parties injured by the drunken driver's negligence. Kelly v. Gwinnell, 96 N.J. 538, 549, 476 A.2d 1219 (1984); Lombardo v. Hoag, 237 N.J. Super. 87, 566 A.2d 1185 (Law Div.1989). This decision explores liability to the intoxicated driver. And for the reasons discussed, it is concluded that such a duty exists, and defendant may be held liable to plaintiff for her injuries.
The material facts are undisputed. A single car accident occurred on March 18, 1989 on the White Horse Pike in Egg Harbor City, Atlantic County, New Jersey. At the time of the accident, plaintiff was the owner and driver of the vehicle. Defendant was a passenger.
On the date of the accident plaintiff, who was a bartender at the Lounge Around Bar, completed her employment and drove home and picked up defendant at approximately 8:00 p.m. They returned to the bar and both consumed beer and shots of Jack Daniels. Defendant purchased beer and at least one shot of Jack Daniels for plaintiff. Plaintiff purchased her own liquor and other patrons of the bar also bought drinks for her. Approximately four hours after arriving at the bar, the parties left to go home. Defendant suggested they leave as they were both becoming intoxicated. Defendant was an unlicensed driver, but having observed that plaintiff was visibly intoxicated, he drove the car. However, after travelling a short distance, plaintiff left the car and walked back to the bar. Defendant returned to the bar with the car.
The parties remained at the bar until it closed. (The time of closing has not been provided to the court.) They were the last ones to leave and although it was defendant's intention to drive home that evening, when they left the bar plaintiff sat in the
driver's seat. She refused to move and allow defendant to drive and she began to argue with defendant because he did not have a driver's license. According to defendant, in order to avoid a physical confrontation, he gave the keys to plaintiff, even though he realized that she was too intoxicated to drive home. While on their way home, the car struck a pole and plaintiff was injured.
In Kelly v. Gwinnell,*fn2 supra, the Supreme Court concluded that a social host who provides intoxicating liquor to a guest, knowing the guest to be intoxicated and soon to be driving, is liable for injuries inflicted on a third party as a result of the negligent operation of the motor vehicle by the guest if the negligence was caused by the intoxication. The Court explained that whether a duty existed was a question of fairness. Citing Goldberg v. Housing Auth. of Newark, 38 N.J. 578, 583, 186 A.2d 291 (1962), the Court explained that the inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution. Id. 96 N.J. at 544, 476 A.2d 1219.
The Court noted that the imposition of a duty in such a case was consistent with and supportive of a social goal. "Unlike those cases in which the definition of desirable policy is the subject of intense controversy, here the imposition of a duty is both consistent with and supportive of a social goal -- the reduction of drunken driving ...