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Estate of Narleski v. Gomes

Superior Court of New Jersey, Appellate Division

June 6, 2019

ESTATE OF BRANDON TYLER NARLESKI, deceased by Administrator ad Prosequendum, JOHN A. NARLESKI and LORI ANNIELLO-NARLESKI, and JOHN A. NARLESKI, Individually, Plaintiffs,

          Argued May 6, 2019

          On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7085-15.

          Mark Robert Scirocco argued the cause for appellant (Law Offices of Robert A. Scirocco, PC, attorneys; Mark R. Scirocco and Robert A. Scirocco, of counsel and on the briefs).

          Russell L. Macnow argued the cause for respondents.

          Before Judges Sabatino, Haas and Susswein.

          SABATINO, P.J.A.D.

         The tragedy of this wrongful death case began when the defendant liquor store sold about a half-gallon of vodka and three twenty-four ounce cans of beer to the nineteen-year-old decedent without checking his identification. Decedent and a group of his friends - all of whom were likewise young adults under the legal drinking age of twenty-one - then converged at the home of one of the young men. They drank the purchased alcohol in the young host's bedroom. Decedent then left the house as a passenger in the car of one of the inebriated youths. He died when the driver lost control of the car and it flipped over.

         The decedent's estate sued the car driver and its owners for negligence and the liquor store under the Dram Shop Act. The liquor store pled a third- party complaint against the young man who had hosted the gathering and his parents, although the estate declined to name them as direct defendants. The estate eventually settled its claims with the liquor store and the driver.

         The third-party defendants moved for summary judgment. The trial court granted the motion, finding that neither the underage adult host nor his parents had breached any established legal duty. The liquor store now appeals, urging us to recognize and enforce such duties.

         We hold that, under the circumstances presented, the parents had no statutory or common law duty to prevent their adult underage son from allowing his adult underage friends to drink alcohol in their home without the parents' proven knowledge or consent. Nor did the son have an established duty of care under current law.

         Going forward, however, we prospectively hold that an adult who is under the legal drinking age shall owe injured parties a duty under the common law to desist from facilitating drinking by underage adults in his or her place of residence. The recognition of such a legal duty is a logical extension of case law, and is consistent with the general public policies that underpin the related statutes.



         We summarize the pertinent facts presented in the summary judgment record, mindful that there are a few variations in the witnesses' narratives. We consider those facts in a light most favorable to appellant as the non-moving party. R. 4:46-2; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

         On November 9, 2014, decedent Brandon Narleski purchased a "handle" of vodka, [1] three twenty-four ounce cans of beer, and a two-liter bottle of soda from a liquor store owned and operated by defendant Amboy Food Liquor and News, Inc. ("Amboy"). Three young men - Xavier Pinto, Zachary Johnson, and Mark[2] Zwierzynski - accompanied Narleski to the liquor store. Notably, all four individuals were adults over the age of eighteen but were under the legal drinking age of twenty-one. When Narleski went to the counter to make his purchase, Amboy's retail clerk did not ask him for a driver's license or other identification to confirm he was of legal drinking age.

         Once Narleski purchased the alcohol, the young men drove to Mark's house, where he lived with his mother, Mercedes Apraez.[3] While at the residence, the four friends "hung out" in Mark's bedroom, drank the purchased alcohol, and played games. Mark's mother was not home when they arrived. Apparently, she had been out of the house since the night before.

         At some point during the gathering, Narleski sent a text message to Nicholas Gomes, who also was an adult under the age of twenty-one, to come to Mark's house to join the group in drinking. According to Gomes, he arrived at Mark's house around 9:00 p.m. Gomes claimed he "downed" two cups filled with approximately two inches of vodka mixed with orange juice while he was there.

         It is undisputed that Mark's mother eventually came home that evening. However, there is some dispute about exactly what time she arrived. According to Gomes's deposition testimony, after he was at Mark's residence for about fifty minutes, Mark received a call that his mother was coming home. Gomes and Narleski then left the residence to go to another friend's house.

         Before coming home, Apraez picked up Mark's daughter from the house of the child's mother. Apraez testified at her deposition that, except for her son Mark, she never saw any of the other young men in her house that night, or knew that they were drinking alcohol there. She insisted that she did not leave alcohol in her home, nor did she allow Mark to drink there.

         According to Apraez, upon arriving at the house, she sent Mark a text message and asked him to help bring his daughter inside. Apraez testified that Mark met her at the front door and assisted her with the child.

         Mark provided slightly different accounts of what occurred. He testified at his deposition that he could not recall whether his daughter was present in the house while he and his friends were drinking. However, in an earlier statement to the police, Mark stated that, on that night, he "departed his bedroom to tend to his child in another room of the residence for a time period of approximately twenty . . . minutes, and upon his return, at approximately 10 p.m. . . . [he] briefly spoke to Brandon [Narleski] and Nicholas [Gomes] who then departed the residence in Gomes's vehicle."

         Mark did admit at his deposition that he had accompanied Narleski to purchase the alcohol at the liquor store, and that he and his friends drank the alcohol in his bedroom. He denied that Gomes and Narleski appeared to him to be intoxicated.

         After Gomes and Narleski left the house, they got into Gomes's car, intending to go to a friend's house about fifteen minutes away. Gomes got into the driver's seat and fastened his seatbelt. Narleski got into the passenger's seat, but did not fasten his own seatbelt.

         While Gomes was driving on a highway, he lost control of the car and crashed into the center median. As a result of the crash, Narleski was ejected from the vehicle and pronounced dead on the scene.

         An analysis of Gomes's blood revealed his blood alcohol content ("BAC") was .161 at the time of the accident, well above the .08 legal limit for BAC specified by N.J.S.A. 39:4-50(a).


         In the wake of this tragedy, the Estate of Brandon Narleski and his parents filed a wrongful death complaint in the Law Division. As amended, the complaint alleged that Gomes was liable for his intoxicated operation of the vehicle that resulted in the crash and Narleski's death, and that, in addition, Amboy was liable under the Dram Shop Act, N.J.S.A. 2A:22A-1 to -7.[4]

         With leave of court, Amboy filed a third-party complaint against Mark Zwierzynski and his parents, seeking contribution and indemnity. The third-party complaint alleged that Mark and his parents were negligent in failing to supervise Narleski and Gomes, enabling those underage adults to consume alcohol in their home. Notably, plaintiffs declined to name Mark and his parents as direct defendants after Amboy brought them into the case.

         At the close of discovery, the third-party defendants moved for summary judgment. After hearing oral argument, the trial court granted the motion in an oral ruling on March 29, 2018.

         In granting summary judgment, the motion judge concluded that the third-party defendants did not have a legal duty to supervise the underage persons who had been drinking alcohol in their home because those persons were adults. The judge also found that Mark's father did not reside in the home at the time and that he clearly had no duty to supervise the visitors. Additionally, the judge found that Mark's mother Apraez had no duty under the circumstances presented. The judge noted in particular that Apraez did not make her home available "for the purpose of" underage drinking pursuant to the disorderly persons statute relied upon by Amboy, N.J.S.A. 2C:33-17(b).[5]Amboy moved for reconsideration, which the judge denied.

         Thereafter, plaintiffs settled their claims with the direct defendants, i.e., Amboy and Gomes. In the consent order memorializing that settlement, Amboy preserved its right to ...

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