Kelly v. Gwinnell , 96 N.J. 538 ( 1984 )


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  • GARIBALDI, J.,

    dissenting.

    Today, this Court holds that a social host who knowingly enables an adult guest to become intoxicated knowing that the guest will operate a motor vehicle is liable for damages to a third party caused by the intoxicated guest. The imposition of this liability on a social host places upon every citizen of New Jersey who pours a drink for a friend a heavy burden to monitor and regulate guests. It subjects the host to substantial potential financial liability that may be far beyond the host’s resources.

    My position as a strong advocate of legal measures to combat drunk driving is established. See In re Kallen, 92 N.J. 14 (1983). The majority need not parade the horrors that have been caused by drunk drivers to convince me that there is always room for stricter measurers against intoxicated drivers. I too am concerned for the injured victim of a drunken driver. However, the almost limitless implications of the majority’s decision lead me to conclude that the Legislature is better equipped to effectuate the goals of reducing injuries from drunken driving and protecting the interests of the injured party, without placing such a grave burden on the average citizen of this state.

    I

    Prior to today’s decision, this Court had imposed liability only on those providers of alcoholic beverages who were licensed by the State. See Rappaport v. Nichols, 31 N.J. 188 (1959). The Appellate Division also had expanded the liability to a social host who served liquor to a minor. Lind v. Rand, 140 N.J.Su*561per. 212 (App.Div.1976).1 Although both of these cases were based on common-law negligence, the courts deemed the regulations restricting the service of alcohol to minors significant enough evidence of legislative policy to impart knowledge of foreseeable risk on the provider of the alcohol and to fashion a civil remedy for negligently creating that risk.

    Many other states have considered the problem before us today but no judicial decision establishing a cause of action against a social host for serving liquor to an adult social guest is currently in force. Any prior judicial attempts to establish such a cause of action have been abrogated or restricted by subsequent legislative action. See, e.g., Cal.Civ.Code § 1714 (as amended Stats.1978, ch. 929, § 2, p. 2904); Or.Rev.Stat. § 30.955 (1979).

    State courts have found that imposition of this new form of liability on social hosts is such a radical departure from prior law, with such extraordinary effects on the average citizen, that the issue is best left to a legislative determination. See Kowal v. Hofher, 181 Conn. 355, 436 A.2d 1 (1980); Miller v. Moran, 96 Ill.App.3d 596, 52 Ill.Dec. 183, 421 N.E.2d 1046 (1981); Behnke v. Pierson, 21 Mich.App. 219, 175 N.W.2d 303 *562(1970); Cole v. City of Spring Lake Park, 314 N.W.2d 836 (Minn.1982); Runge v. Watts, 180 Mont. 91, 589 P.2d 145 (1979); Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969); Schirmer v. Yost, 60 A.D.2d 789, 400 N.Y.S.2d 655 (1977); Edgar v. Kajet, 84 Misc.2d 100, 375 N.Y.S.2d 548 (Sup.Ct.1975), aff’d, 55 A.D.2d 597, 389 N.Y.S.2d 631 (1976); Klein v. Raysinger, supra, Pa. —, 470 A.2d 507; Halvorson v. Birchfield Boiler, Inc., 76 Wash. 2d 759, 458 P.2d 897 (1969).

    I agree with the holdings of our sister states and with their misgivings about the judicial imposition of the duty that the majority today places on social hosts. Their conclusions, and the unanimity with which they express them, are instructive.

    In Olsen v. Copeland, 90 Wis.2d 483, 491, 280 N.W.2d 178, 181 (1979), the Supreme Court of Wisconsin said:

    A change in the law which has the power to so deeply affect social and business relationships should only be made after a thorough analysis of all the relevant considerations. * * * The type of analysis required is best conducted by the legislature using all of the methods it has available to it to invite public participation.

    Similarly, in Edgar v. Kajet, supra, 84 Misc.2d at 103, 375 N.Y.S.2d at 552, the New York Supreme Court, Appellate Division, stated:

    The implications of imposing civil liability on Avis herein are vast and far-reaching. Extending liability to non-sellers would open a virtual Pandora’s box to a wide range of numerous potential defendants when the Court does not believe that the legislature ever intended to enact a law that makes social drinking of alcoholic beverages and the giving of drinks of intoxicating liquors at social events actionable. Just a recitation of a few of the considerations involved herein impels this Court to conclude that any extension of liability should be a legislative act. For example, how is a host at a social gathering to know when the tolerance of one of his guests has been reached? To what extent should a host refuse to serve drinks to those nearing the point of intoxication? Further, how is a host to supervise his guests' social activities? The implications are almost limitless as to situations that might arise when liquor is dispensed at a social gathering, holiday parties, family celebrations, outdoor barbecues and picnics, to cite a few examples. If civil liability were imposed on Avis herein, it could be similarly imposed on every host who, in a spirit of friendship, serves liquor. In the final analysis, the controlling consideration is public policy, and *563any extension of liability should be carefully considered after all the factors have been examined and weighed in our legislative process, that is, after extensive hearings, surveys and investigation.

    In Cartwright v. Hyatt Corp., 460 F.Supp. 80, 82 (D.D.C. 1978), the Federal District Court for the District of Columbia stated:

    Valid policy considerations exist on both sides of this issue, and the Court is not prepared to adopt for the District of Columbia a rule not judicially imposed by any other court in any other jurisdiction. If such a rule is to become a part of District of Columbia law, the decision should appropriately be made by the legislature — as it has been wherever the rule has been adopted.

    In Runge v. Watts, supra, 180 Mont. at 94, 589 P.2d at 147, the Supreme Court of Montana stated:

    Establishing such a civil cause of action involves considerations of public policy far beyond those presented by the circumstances of the instant case.

    In Holmes v. Circo, 196 Neb. 496, 505, 244 N.W.2d 65, 70 (1976), the Supreme Court of Nebraska stated:

    We agree * * * that, in the final analysis, the controlling considerations are public policy and whether the court or the Legislature should declare it. We believe that the decision should be left to the Legislature. The Legislature may hold hearings, debate the relevant policy considerations, weigh the testimony, and, in the event it determines a change in the law is necessary or desirable, it can then draft statutes which would most adequately meet the needs of the public in general, while balancing the interest of specific sectors.

    In Manning v. Andy, 454 Pa. 237, 239, 310 A.2d 75, 76 (1973), the Supreme Court of Pennsylvania stated:

    While appellant’s proposal may have merit, we feel that a decision of this monumental nature is best left to the legislature.

    II

    My reluctance to join the majority is not based on any exaggerated notion of judicial deference to the Legislature. Rather, it is based on my belief that before this Court plunges into this broad area of liability and imposes high duties of care on social hosts, it should carefully consider the ramifications of its actions. The Court acts today with seemingly scant knowledge and little care for the possible negative consequences of its decision.

    *564The magnitude of the problem with which we are dealing is entirely unknown. As the Illinois Appellate Court noted in Miller v. Moran, supra, 96 Ill.App.3d at 600, 421 N.E.2d at 1049, the injured party normally has a remedy against the direct perpetrator of the injury, the intoxicated driver. The majority’s portrayal of the specter of many innocent victims with no chance of recovery against drunk drivers is specious.

    The Legislature of this state has enacted a comprehensive auto insurance program to guarantee that those injured on our highways have remedies. Even in cases in which the drunk driver is insolvent and has no insurance, the victim’s own automobile insurance policy is required by law, N.J.S.A. 17:28—1.1, to include coverage for all or part of the sums that the insured “shall be legally entitled to recover as damages from owners or operators of uninsured automobiles * * Furthermore, all motorists must have uninsured motorist coverage. N.J.S.A. 39:6A-14. If the drunk driver hits an uninsured pedestrian, the pedestrian, after obtaining a judgment, and unsuccessfully attempting to satisfy it, could satisfy the judgment out of the Unsatisfied Claim and Judgment Fund. N.J.S.A. 39:6-73. Thus, only in the situation in which a victim of a drunk driver is himself an uninsured motorist at the time of the injury will the victim have no remedy under our insurance laws. There, the victim, having broken the law by driving without insurance, is not entitled to collect from the Unsatisfied Claim and Judgment Fund.

    I do not know whether the Legislature’s insurance scheme provides adequate protection for victims of drunk drivers and whether further relief may be necessary. I have seen no statistics to indicate the extent of this problem. However, the Legislature can collect information indicating the number of victims of drunk drivers who have not been adequately compensated. These statistics would be significant factors in ascertaining the scope of the problem and in creating solutions that would protect the injured party without excessively burdening the average citizen.

    *565As stated earlier in this dissent, this Court has, in the past, imposed civil liability on commercial licensees who serve alcoholic beverages to intoxicated patrons. Commercial licensees are subject to regulation by both the Alcoholic Beverage Commission (ABC) and the Legislature. It is reasonable to impose tort liability on licensees based on their violation of explicit statutes and regulations.

    I have no quarrel with the imposition of such liability because of the peculiar position occupied by the licensee. A social host, however, is in a different position. A brief discussion of the dissimilarities between the licensee and the private social host will illustrate the many problems this Court is creating by refusing to distinguish between the two in imposing liability upon them.

    A significant difference between an average citizen and a commercial licensee is the average citizen’s lack of knowledge and expertise in determining levels and degrees of intoxication. Licensed commercial providers, unlike the average citizen, deal with the alcohol-consuming public every day. This experience gives them some expertise with respect to intoxication that-social hosts lack. A social host will find it more difficult to determine levels and degrees of intoxication.

    The majority holds that a host will be liable only if he serves alcohol to a guest knowing both that the guest is intoxicated and that the guest will drive. Ante at 548. Although this standard calls for a subjective determination of the extent of the host’s knowledge, a close reading of the opinion makes clear that the majority actually is relying on objective evidence. The majority takes the results of Gwinnell’s blood alcohol concentration test and concludes from that test that “the Zaks must have known that their provision of liquor was causing Gwinnell to become drunk * * *." Ante at 543.

    Whether a guest is or is not intoxicated is not a simple issue. Alcohol affects everyone differently. “[T]he precise effects of a particular concentration of alcohol in the blood varies from *566person to person depending upon a host of other factors. See generally Perr, ‘Blood Alcohol Levels and “Diminished Capacity”,’ 3 (No. 4) J. Legal Med. 28-30 (April 1975).” State v. Stasio, 78 N.J. 467, 478 n. 5 (1979). One individual can consume many drinks without exhibiting any signs of intoxication. Alcohol also takes some time to get into the bloodstream and show its outward effects. Experts estimate that it takes alcohol twenty to thirty minutes to reach its highest level in the bloodstream. See American Medical Association, Alcohol and the Impaired Driver (1968). Thus, a blood alcohol concentration test demonstrating an elevated blood alcohol level after an accident may not mean that the subject was obviously intoxicated when he left the party some time earlier. “Moreover, a state of obvious intoxication is a condition that is very susceptible to after the fact interpretations, i.e., objective review of a subjective decision. These factors combine to make the determination that an individual is obviously intoxicated not so obvious after all.” Comment, “Social Host Liability for Furnishing Alcohol: A Legal Hangover?” 1978 Pac.L.J. 95, 103. Accordingly, to impose on average citizens a duty to comprehend a person’s level of intoxication and the effect another drink would ultimately have on such person is to place a very heavy burden on them.

    The nature of home entertaining compounds the social host’s difficulty in determining whether a guest is obviously intoxicated before serving the next drink. In a commercial establishment, there is greater control over the liquor; a bartender or waitress must serve the patron a drink. Not so in a home when entertaining a guest. At a social gathering, for example, guests frequently serve themselves or guests may serve other guests. Normally, the host is so busy entertaining he does not have time to analyze the state of intoxication of the guests. Without constant face-to-face contact it is difficult for a social host to avoid serving alcohol to a person on the brink of intoxication. Furthermore, the commercial bartender usually does not drink on the job. The social host often drinks with the *567guest, as the Zaks did here. The more the host drinks, the less able he will be to determine when a guest is intoxicated. It would be anomalous to create a rule of liability that social hosts can deliberately avoid by becoming drunk themselves.

    The majority suggests that my fears about imposition of liability on social hosts who are not in a position to monitor the alcohol consumption of their guests are “purely hypothetical” in that the present case involves a host and guest in a one-to-one situation. It is unrealistic to assume that the standards set down by the Court today will not be applied to hosts in other social situations. Today’s holding leaves the door open for all of the speculative and subjective impositions of liability that I fear.

    A more pressing distinction between the social host and commercial licensees is the host’s inability to fulfill the duty the majority has imposed even if the host knows that a particular guest is intoxicated. It is easy to say that a social host can just refuse to serve the intoxicated person. However, due to a desire to avoid confrontation in a social environment, this may become a very difficult task. It is much easier in a detached business relationship for a bartender to flag a patron and either refuse to serve him or ask him to leave. We should not ignore the social pressures of requiring a social host to tell a boss, client, friend, neighbor, or family member that he is not going to serve him another drink. Moreover, a social host does not have a bouncer or other enforcer to prevent difficulties that may arise when requesting a drunk to stop drinking or not to drive home. We have all heard of belligerent drunks.

    Further, it is not clear from the Court’s opinion to what lengths a social host must go to avoid liability. Is the host obligated to use physical force to restrain an intoxicated guest from drinking and then from driving? Or is the host limited to delay and subterfuge tactics short of physical force? What is the result when the host tries to restrain the guest but fails? *568Is the host still liable? The majority opinion is silent on the extent to which we must police our guests.

    Ill

    The most significant difference between a social host and a commercial licensee, however, is the social host’s inability to spread the cost of liability. The commercial establishment spreads the cost of insurance against liability among its customers. The social host must bear the entire cost alone. While the majority briefly discusses this issue, noting that it may result in a catastrophic loss of a home to a husband and wife, it apparently does not consider this much of a problem to the average New Jersey citizen. It assumes that such liability is now covered or will be covered under the homeowner’s insurance policy.

    The majority cites no authority for its belief that actions against social hosts will be covered under homeowner’s insurance. This new cause of action will be common and may result in large awards to third parties. Even if it is assumed that homeowner’s insurance will cover this cause of action, it is unrealistic to believe that insurance companies will not raise their premiums in response to it.

    Furthermore, many homeowners and apartment renters may not even have homeowner’s insurance and probably cannot afford it. Other homeowners may not have sufficient insurance to cover the limitless liability that the Court seeks to impose. These people may lose everything they own if they are found liable as negligent social hosts under the Court’s scheme. The individual economic cost to every New Jersey citizen should be weighed before today’s result is reached.

    The majority cites several cases in which this Court took action without prior legislative study or approval and was subsequently reversed by the Legislature. Ante at 555-556. I take no solace in the fact that the Legislature may reverse today’s decision if it disagrees with the Court’s action.

    *569There are obviously instances in which this Court must take action in the absence of legislative guidance. Burlington Cty. NAACP v. Mount Laurel Tp., 92 N.J. 158, 212-13 (1983) (Mount Laurel II), is a perfect example of this kind of decision. In Mount Laurel II this Court felt compelled to act to protect the constitutional rights of citizens against discriminatory zoning where the Legislature had failed to act.

    Here the Legislature has not, by refusing to act, forced this Court to fashion a remedy. Although it is true, as the majority points out, that New Jersey has no Dram Shop Statute, our Legislature and the ABC have been particularly active and diligent in creating duties and remedies to protect the public from drunk drivers.

    Recently, our Legislature has enacted laws making New Jersey the unchallenged leader in the national crackdown on drunken driving. Evidence that the Legislature is still vitally interested in the area of drunken driving is Senate Bill S-1054, recently passed by the Senate and Assembly. It provides a criminal penalty for a social host who serves alcohol to a minor. The absence of any similar imposition of criminal liability on social hosts who serve adult guests should be instructive as to the Legislature’s intent on the matter before the Court.

    IV

    In conclusion, in trivializing these objections as “cocktail party customs”, ante at 555 and “inconvenience”, ante at 559, the majority misses the point. I believe that an indepth review of this problem by the Legislature will result in a solution that will further the goals of reducing injuries related to drunk driving and adequately compensating the injured party, while imposing a more limited liability on the social host. Imaginative legislative drafting could include: funding a remedy for the injured party by contributions from the parties most responsible for the harm caused, the intoxicated motorists; making the social host secondarily liable by requiring a judg*570ment against the drunken driver as a prerequisite to suit against the host; limiting the amount that could be recovered from a social host; and requiring a finding of wanton and reckless conduct before holding the social host liable.

    I do not propose to fashion a legislative solution. That is for the Legislature. I merely wish to point out that the Legislature has a variety of alternatives to this Court’s imposition of unlimited liability on every New Jersey adult. Perhaps, after investigating all the options, the Legislature will determine that the most effective course is to impose the same civil liability on social hosts that the majority has imposed today. I would have no qualms about that legislative decision so long as it was reached after a thorough investigation of its impact on average citizens of New Jersey.

    For reversal and remandment—Chief Justice WILENTZ, and Justices CLIFFORD, SCHREIBER, HANDLER, POLLOCK and O’HERN—6.

    Opposed—Justice GARIBALDI—1.

    If this case involved service of alcohol by a social host to a minor guest, I would vote with the majority in approving Lind v. Rand, supra, 140 N.J.Super. 212, to the extent it has been interpreted as applying only to social hosts who serve liquor to minors. The distinction I draw is based on the clearly and frequently expressed legislative policy that minors should not drink alcoholic beverages, see, e.g., N.J.S.A. 33:1-77, and on the fact that minors occupy a special place in our society and traditionally have been protected by state regulation from the consequences of their own immaturity. Although the majority sees no basis for this distinction, I am not alone in making it. Compare Klein v. Raysinger, _ Pa. _, 470 A.2d 507 (1983) (in which the Supreme Court of Pennsylvania refused to extend liability to a social host who serves an adult guest) with Congini v. Porterville Valve Co., - Pa. -, 470 A.2d 515 (1983) (decided on the same day as Klein by the same court but extending liability to a social host who served liquor to a minor guest); see also Senate Bill S-1054 (recently passed by the Senate and Assembly imposing criminal liability on social hosts who serve liquor to minors but not mentioning hosts who serve liquor to adults).

Document Info

Citation Numbers: 476 A.2d 1219, 96 N.J. 538, 1984 N.J. LEXIS 2714

Judges: Wilentz, Garibaldi

Filed Date: 6/27/1984

Precedential Status: Precedential

Modified Date: 10/19/2024