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Witter v. Leo

Decided: January 6, 1994.

ERIC M. WITTER, AN INFANT BY HIS GUARDIAN AD LITEM, ROSE MARIE WITTER, AND ROSE MARIE WITTER, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
DIANE M. LEO, DEFENDANT-RESPONDENT



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

Brody, Stern and Keefe. The opinion of the court was delivered by Brody, P.J.A.D.

Brody

[269 NJSuper Page 384] This personal-injury action is based on the claim that defendant Diane Leo negligently failed to provide reasonable supervision for her 16-year-old son Jeffrey when she left him home alone. While defendant was gone for the day to take a sick friend to Connecticut for a visit, Jeffrey threw a beer party in the course of which one of his guests, plaintiff Rose Marie Witter's 16-year-old son Eric, severely injured himself. After drinking five cans of beer, he attempted to jump from a flat portion of the roof of defendant's house into her adjacent pool. He lost his footing on the roof and landed on a wooden deck that framed the pool.*fn1 Plaintiff sued both as Eric's guardian and individually. Defendant asserted the defense of comparative negligence against both Eric and plaintiff, the latter defense based on a claim that plaintiff negligently failed to supervise Eric by allowing him access to cans of beer that he brought to the party. The jury answered only the first of eleven

special interrogatories. By that answer it found that defendant was not negligent.

Plaintiff's main arguments are that the Judge erred by (1) admitting into evidence Jeffrey's deposition testimony taken by plaintiff's attorney during discovery; (2) refusing to charge the jury that it could draw adverse inferences from defendant's failure to call Jeffrey as a trial witness; and (3) admitting into evidence defendant's testimony that a police officer had told her that Eric once possessed a device used by shoplifters to remove security tags from clothing. We agree with these contentions and order a new trial because the errors, at least when taken together, had the clear capacity to produce an unjust result.

In January 1987 defendant moved to the home where the accident occurred the following August. She was a single parent, having been divorced from Jeffrey's father for thirteen years.

Jeffrey and Eric were classmates and soon became friends. Defendant testified that she did not approve of Eric and had told him before the accident that he was "banned" from her property. She testified that her antipathy was the result of two incidents. On one occasion Eric and Jeffrey damaged a neighbor's screen when they unsuccessfully attempted to break into his house. The affair was more a prank than a criminal act. A mutual friend of the boys' was baby-sitting inside. They intended to scare the friend and then drink beer they thought was in the refrigerator. The parents of both boys paid the neighbor the cost of repairing the screen.

On the other occasion Jeffrey had lent defendant's unregistered and uninsured moped to Eric to ride home. Eric was later riding the moped with a girlfriend when they were stopped by police for unlawfully riding "double." When contacted by the police to pick up the moped, defendant told them to keep it. Some weeks later she went to the police station to sign over title to the moped. While there she was told by a police officer that when the police had stopped Eric they found a shoplifting device in his possession. The officer also told her that there had been several shoplifting

incidents at local stores. However, there was no evidence that Eric was ever charged with shoplifting or any other offense.

I.

Courts have been especially sensitive to the high risk of harm that is presented when alcoholic beverages are made available to minors. Where that risk is reasonably foreseeable, those responsible generally have a duty to take reasonable precautions. Thus, in Morella v. Machu, 235 N.J. Super. 604, 611, 563 A.2d 881 (App.Div.1989), we held that parents had a duty

There, the plaintiff was injured in an automobile accident with a careless minor who had become intoxicated at a party in the home of the teenage host's parents. Here, however, a minor guest injured himself, not others, after apparently becoming intoxicated at a party.

The duty is the same. Parents have a duty to provide for reasonable supervision of their minor child if it is reasonably foreseeable that, in their absence, the child will invite friends to a beer party at which one of the minor guests will become intoxicated and thereby injure himself. See Thompson v. Victor's Liquor Store, Inc., 216 N.J. Super. 202, 523 A.2d 269 (App.Div.1987) (seller of alcoholic beverage to underage person may be liable for injuries to minor with whom purchaser shared beverage where, while intoxicated by beverage, minor injured himself by carelessly driving a car into a brick wall). See also Macleary v. Hines, 817 F. 2d 1081 (3rd Cir.1987) (host of party where alcoholic beverages consumed may be liable for injuries to minor guest who, as result of becoming intoxicated there, carelessly entered a car being driven by visibly intoxicated person and was injured when driver drove the car into a tree).

The foregoing legal framework of plaintiff's claim was not disputed at trial. Plaintiff's attorney in his summation stressed the undisputed fact that defendant had left Jeffrey home without any supervision and had done so on prior occasions:

No request of a neighbor to swing by, I have to go out of town and take a sick friend to Connecticut. And no request of the local police department, could you drive by once in a while when I'm at work or when I'm out of town or when I'm on a date or with my friends.

Defendant's attorney stressed that defendant could not reasonably have foreseen that her son would have a beer party or that plaintiff would injure himself trying to jump into the pool at such a party. Defendant testified that although she had never discussed the matter with Jeffrey before the accident, in her mind he was not allowed to have friends at the house unless she was there, or to permit friends to use the pool:

Q . . . [H]ad you discussed with Jeffrey the propriety of bringing teenagers to your home?

Relative to using the swimming pool, had you talked to Jeffrey about dos and do nots in bringing his ...


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