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Marcinkiewicz v. Marrero

April 18, 2005

CHRISTINA R. MARCINKIEWICZ, INDIVIDUALLY AND AS ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF EVERETTE R. MARRERO, DECEASED, PLAINTIFF-APPELLANT,
v.
RUBEN MARRERO AND SONIA MARRERO, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Middlesex County, MID-L-286-00.

Before Judges Kestin, Lefelt and Falcone.

The opinion of the court was delivered by: Kestin, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 15, 2005

Plaintiff, Christina R. Marcinkiewicz, suing individually and on behalf of the Estate of Everette R. Marrero, appeals from an order dismissing her claims against defendants, Ruben Marrero and Sonia Marrero. Marcinkiewicz is the mother of decedent, who was nineteen years of age when he died and, at the time, resided with his father, Ruben Marrero.

The causes of action as initially alleged in the five-count complaint were "wrongful death . . ., child injured by parent's supervision . . ., life not rescued or saved . . ., domestic violence civil liability . . ., and dereliction of duty of custodial parent resulting in anguish and loss to plaintiff."

The amended complaint alleges the first four counts. It seeks damages for the death of decedent caused by cirrhosis of the liver and related conditions stemming from years-long consumption of alcohol.

In a prior appeal under docket no. A-2092-02, in an unpublished opinion, we reversed a trial court order denying plaintiff's motion to reinstate her previously dismissed complaint. As the matter came on for trial, Judge Edward J. Ryan noted "everyone's surprise [] that there's a 1995 order . . . which emancipated the decedent at the request of the plaintiff mother[.]" He found it undisputed that before the child was declared emancipated at about the age of seventeen, the parties had had joint legal custody of the child.

Initially, residential custody was with the mother. Later, it was transferred to the father, but both parties maintained joint legal custody at all times while their son remained unemancipated. Judge Ryan went on to observe:

That gave both parties, mother and father, regardless of the residential custody, some control over the lifestyle of this child, over his health, education and general welfare. I don't think anyone can dispute that, that's basic family law, parent/child law.

Obviously, both parents were aware of this young man's propensity for alcohol and/or drugs, . . . mentioned here, as well. The Court now finds itself on the proverbial horns of a dilemma to determine whether or not the mother has a cause of action on her own individually and as the administratrix . . . ad prosequendum of the estate of her son for allegations of negligence against the father, who last had residential custody of the boy. There would be no question that this trial would be proceeding on those issues if the emancipation had not occurred. We find out on the commencement of the trial, in fact, after the commencement, after the jury's been seated and sworn that, in fact, a genuine order executed in 1995 has emancipated the decedent child.

It's significant that the emancipation order was granted at the application of the mother, who is the plaintiff in this matter, only because she has the responsibility and she is charged with the responsibility of having known that he was emancipated from that time forward and fails to properly state that in the complaint which she has filed and in the amended complaint which was filed on or about January 22nd of 2001.

The Courts of this State clearly have created a duty and enforced a duty of . . . persons with knowledge of potential dangers and foreseeable dangers as to third parties and the fact that warnings, in certain cases, should take place and that a failure to warn, in some cases, does produce and create a liability.

The host theory of liability, which is put forward by plaintiff's attorney, arises out of a statutory cause of action created by the Legislature. [See N.J.S.A. 2A:15-5.5 to -5.8.] Regarding host liability and the use of alcoholic beverages, and perhaps the misuse of alcoholic beverages as it may affect third parties, it doesn't provide for direct liability. ...


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