On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Before Judges Shebell, Wallace and Kleiner.
The opinion of the court was delivered by SHEBELL, P.J.A.D.
In this case of first impression, we are called upon to interpret the meaning of the word "provide" as used in N.J.S.A. 2A:15-5.6b,
which sets forth an exclusive avenue for social host liability for personal injury or damage arising from the social host's provision of alcoholic beverages to persons of legal age. Specifically, we are asked to determine whether the statute covers a situation in which the consumption occurs on the host-property, but the alcoholic beverage may not have been directly "served" by the host to the person who consumed it.
Plaintiffs, Theresa Dower and Sheila Dower, who are sisters, filed a complaint in May, 1990 against five defendants: Matthew Kohaut, the adult driver of a car in which plaintiffs were injured, and the four Gamba brothers, Michael, Christopher, Gregory, and Dean, who together allegedly hosted a party at which Kohaut and the then underaged plaintiffs imbibed alcoholic beverages. In September 1990, the action against Kohaut was settled for his policy limits.
In July 1992, the Gambas moved for summary judgment. There was no opposition, and the motion was granted by order of September 28, 1992. Plaintiffs retained new counsel, and were granted an order dated November 9, 1992, vacating the summary judgment.
In January 1993, the Gambas again moved for summary judgment. After several extensions of discovery, the Law Division Judge granted summary judgment to defendants. Plaintiffs then moved for reconsideration. Their motion was argued and denied on July 23, 1993, whereupon they filed this appeal.
The facts as presented through discovery and the various motions reflect that on May 31, 1988, at 12:43 a.m., Kohaut was driving with the two plaintiffs as passengers when he hit a tree with his motor vehicle, causing plaintiffs to suffer personal injuries. Kohaut's blood alcohol content was represented as .17.
Kohaut and the plaintiffs had just left a barbecue hosted by the Gamba brothers. The barbecue followed a softball game off defendants' property, at which there had also been drinking.
Twenty to thirty-five persons attended the Gamba party, which began during the afternoon hours of May 30, 1988. Some of those at the party had brought beer from the softball game to the house. However, the plaintiffs maintain that a quantity of ice and beer was present in a kiddie pool on the Gamba property, before anyone from the ballgame arrived at the party. Guests also brought beer and put it in the kiddie pool that was filled with ice, apparently supplied by the Gambas. The beer, which was termed "plentiful," was available to all present including minors. It was "without any control or supervision whatsoever," according to Theresa Dower.
Kohaut arrived around 6 p.m. and brought two six-packs of beer, which he placed in the pool. He remained at the party until midnight. In her certification in opposition to the motion for summary judgment, Theresa Dower stated:
What I am trying to emphasize is that the co-defendant Matt Kohaut was drinking heavily and it was obvious to everyone at the party including the Gambas, that he was drunk and in no condition to drive. This should have been readily apparent to Mike Gamba who was present when Matt Kohaut was drinking large ...