June 27, 2013
DOMINIC PIZZUTO, VELMA PIZZUTO, and CARMEN PIZZUTO, Plaintiffs-Appellants,
ROBERT G. ADAMS, JENNY ADAMS, MONICA ADAMS, GERARD ADAMS, PERAGH PATEL, JOSEPH FASOLO, JOSEPH FERRERI, Defendants, and CHRISTINA AURICCHIO, LIA GIACHINO, ALYSSA CASALINO, Defendants-Respondents. PERAGH PATEL, Defendant/Third-Party Plaintiff,
MATTHEW SCHMARAK and HOLLYWOOD LIQUORS, Third-Party Defendants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 23, 2013
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket Nos. L-9576-08 and L-5407-10.
Glenn M. Gerlanc argued the cause for appellants (Parisi & Gerlanc, attorneys; Mr. Gerlanc, of counsel and on the brief; Aileen D. Dumlao, on the brief).
Annette Verdesco argued the cause for respondent Christina Auricchio (Anthony Pope Law Firm, attorneys; Ms. Verdesco, on the brief).
Robert J. Gallop argued the cause for respondent Lia Giachino (O'Toole Fernandez Weiner and Van Liew, L.L.C., attorneys; on the brief).
Russell A. Pepe argued the cause for respondent Alyssa Casalino (Harwood Lloyd, L.L.C., attorneys; Mr. Pepe, of counsel and on the brief; Seth D. Griep, on the brief).
Before Judges Reisner, Hayden and Hoffman.
Plaintiff Dominic Pizzuto (plaintiff) and his parents, plaintiffs Velma and Carmen Pizzuto, appeal from three orders dated October 6, 2011, granting summary judgment to defendants Christina Auricchio, Lia Giachino, and Alyssa Casalino. After reviewing the record de novo, we agree with the trial judge that there were no material facts in dispute, and in light of the undisputed facts, plaintiffs had no cause of action against these defendants. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Therefore, we affirm.
The case arises from a New Year's Eve party at the home of Monica Adams (Monica), a seventeen-year-old high school student whose parents were out of town and did not know about the party. Defendants, who were sixteen years old, were Monica's friends and classmates. They knew Monica was planning to have a party for a few friends at her house, while her parents were out of town. They discussed the party plans with Monica, but none of the defendants brought any food, beverages or other supplies to the party. At her deposition, Monica testified that it was her party, she was hosting it, and she did not ask or expect her friends to bring anything. There is no testimony in the record that any of the defendants knew there would be alcohol at the party, planned to have alcohol at the party, brought alcohol to the party, or served alcohol to any guests.
Plaintiff, who was underage, came to the party with four companions, only one of whom was an invited guest. He and his friends brought two bottles of Southern Comfort and a bag containing other alcoholic beverages to the party. Plaintiff consumed large amounts of alcohol, got drunk, and got into an altercation with three other male guests. In the ensuing melee, one of those guests hit plaintiff in the eye, causing a permanent loss of vision. There was no evidence that the three male guests were intoxicated or that they appeared to be intoxicated.
Defendants were not involved in the fight. In fact, one of them was asleep at the time. When the police arrived at the scene, they charged Monica with serving alcohol to underage persons. See N.J.S.A. 2C:33-17(a). The three male guests involved in the altercation with plaintiff were charged with assault. Defendants were not charged with any offense.
Plaintiffs filed suit against Monica and her parents and the three male guests. More than a year later, plaintiffs amended the complaint to add defendants, on the theory that they helped Monica plan the party without her parents' knowledge and, therefore, were responsible for what occurred at the party. At the oral argument of the summary judgment motion, plaintiffs' counsel conceded that there were no cases directly on point that supported liability under the facts of this case, and he was unable to specifically identify any material facts that remained in dispute.
In an oral opinion issued on October 6, 2011, the motion judge reasoned that the cases plaintiffs cited, involving social host liability, business liability, or Dram Shop Act liability, involved factual scenarios that were "not close to this case." The judge declined to create a new body of law to accommodate plaintiffs' theory of liability. The judge later denied plaintiffs' motion for reconsideration, for reasons stated on the record on November 18, 2011.
We review the trial court's grant of summary judgment de novo, employing the same standard used by the trial court. Davis v. Devereaux Found. 209 N.J. 269, 286 (2012); Brill, supra, 142 N.J. at 540. If there are no material facts in dispute, we consider whether, viewing the undisputed facts in the light most favorable to the non-moving party, the moving party is nonetheless entitled to judgment as a matter of law. Agurto v. Guhr, 381 N.J.Super. 519, 525 (App. Div. 2005).
On this appeal, plaintiffs contend that there were material facts in dispute which precluded the grant of summary judgment. However, in their appellate briefs, and at oral argument, they did not specify what those alleged factual disputes were. Like the motion judge, we conclude the case was ripe for summary judgment.
Plaintiffs further contend that the record "supports a finding" that defendants "acted in concert" with Monica "to conduct an unlawful and unsupervised New Year's Eve drinking party for minors." However, as previously noted, they do not cite to any evidence in the record that these defendants planned to have alcohol at the party, brought alcohol to the party, or served it to anyone. As previously noted, Monica testified that it was her party and she did not ask defendants to bring any food or beverages or to participate in hosting the event. Nor is there any evidence that defendants invited plaintiff to the party, gave him alcohol, or encouraged him to drink alcohol.
Plaintiffs' reliance on Dower v. Gamba, 276 N.J.Super. 319 (App. Div. 1994), certif. denied, 140 N.J. 276 (1995), is misplaced. In that case, the defendants collectively hosted a barbecue and provided alcohol to a visibly intoxicated guest and several minors. Here, defendants did not host the event. Chomatopoulos v. Roma DeNotte Social Club, 212 N.J.Super. 447 (Law Div. 1985), a suit against the host of a gambling establishment in which a fight broke out, is inapplicable for the same reason.
Plaintiffs produced evidence that defendants knew Monica's parents would not be home during the party and were aware that her parents would not permit her to have the party if they knew about it. However, plaintiffs cite no case law that supports the proposition that a minor can be held liable, without more, for assisting another minor in disobeying her parents. Nor do any of the cases they cite stand for the proposition that someone who helps a friend plan a social event can be held liable, on that basis alone, for a mishap that occurs at the event hosted by the friend.
As the Supreme Court recently observed, in declining to hold a business owner liable after a robber shot two of his neighbors:
[T]he function of the law, and in particular the common law governing tort recoveries, cannot be driven by sympathy or overshadowed by the effects of tragedy. Rather, the function of tort law is deterrence and compensation, and absent circumstances in which the definition of the duty can be applied both generally and justly, this Court should stay its hand. In the end, although creating a cause of action to suit these facts might serve the ends of these particular plaintiffs, we cannot say that it would advance the public interest or lead to a rule that would sensibly, predictably, and fairly govern future conduct.
[Estate of Desir v Vertus ___NJ ___, ___(2013) (slip op at 35)]
Given the undisputed facts of this case we find no basis to hold defendants liable for plaintiff's injury Plaintiffs' arguments are without sufficient merit to warrant further discussion See R 2:11-3(e)(1)(E)