JACK SCAVONE VS. BRUCE OLIVER (L-3811-17, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0159-19
JACK SCAVONE,
Plaintiff-Appellant/
Cross-Respondent,
v.
BRUCE OLIVER, ROBERTA
OLIVER, and VICTORIA
OLIVER,
Defendants-Third-Party
Plaintiffs-Respondents/
Cross-Appellants,
v.
A.J. MANZI,1
Third-Party Defendant/
Cross-Respondent,
and
NICK BERGER, MARCO TRIA,
and GRANT LAYTON,
1
Defendant's correct first name is Alan.
Third-Party Defendants.
______________________________
Argued April 26, 2021 – Decided May 24, 2021
Before Judges Mayer and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-3811-17.
Andrew F. Garcia argued the cause for appellant/cross-
respondent (The Cintron Firm, LLC, attorneys; Mark J.
Cintron, of counsel and on the brief).
Matthew G. Minor argued the cause for
respondents/cross-appellants Bruce Oliver, Roberta
Oliver, and Victoria Oliver (Sweet Pasquarelli, PC,
attorneys; Matthew G. Minor, on the briefs).
Gerard H. Hanson argued the cause for cross-
respondent A.J. Manzi (Hill Wallack LLP, attorneys;
Gerard H. Hanson and Todd J. Leon, on the brief).
PER CURIAM
Plaintiff Jack Scavone appeals from an August 2, 2019 order granting
summary judgment in favor of defendants Bruce Oliver, Roberta Oliver, and
Victoria Oliver 2 (Olivers).
The Olivers cross-appeal from the following orders: an April 12, 2019
order denying their motion to compel production of documents, specifically text
2
We refer to the individual Olivers by their first names to avoid confusion. No
disrespect is intended.
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or group chat messages; a May 10, 2019 order denying reconsideration of the
April 12, 2019 order; and an August 2, 2019 order declaring their third-party
complaint against third-party defendant A.J. Manzi3 moot based on the August
2, 2019 order granting summary judgment to the Olivers. We reverse and
remand all orders.
We summarize the facts based on the summary judgment motion record.
Victoria lived with her parents, Bruce and Roberta, in a single-family home. On
June 18, 2015, Victoria, then eighteen years old, invited some friends to her
house for a gathering. The invited guests included plaintiff and plaintiff's
friends. According to Victoria, plaintiff and his friends, including Manzi,
arrived at the house around 10:30 or 11:00 at night, later than the other guests.
Plaintiff and his friends joined the other guests in the basement of the Olivers'
home. Based on the deposition testimony, the number of guests in the basement
ranged from eight people to twenty-five people. All of the guests were under
the age of twenty-one.
There is discrepant testimony whether plaintiff and his friends consumed
alcohol prior to arriving at the Oliver home. Plaintiff and his friends testified
3
Manzi's first name is Alan. He was over the age of eighteen at the time but
under the age of twenty-one.
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they did not consumer alcohol until after their arrival at the Olivers' house.
According to the deposition testimony, there was beer available in the basement,
and people were holding cans of beer. Some party goers testified guest s were
drinking vodka from red plastic cups.
Victoria denied there was any alcohol in the basement. Bruce testified at
some point he went down to the basement to speak to Victoria. Bruce did not
see anyone drinking beer. Nor did he detect an odor of alcohol in the basement.
Roberta was on the second floor of her home and did not see anyone associated
with the gathering. Nor did Roberta notice an odor of alcohol in her home.
Plaintiff testified his friends did not bring any alcohol to the Olivers'
residence. According to plaintiff, there was alcohol in the basement when he
arrived, including cases of beer on the floor. Plaintiff drank five to six beers
and Manzi admitted drinking three to four beers. Grant Layton, one of plaintiff's
friends, spoke with Bruce that night. Bruce allegedly visited the basement
several times throughout the course of the evening. Layton believed he may
have held a beer can in his hand when he spoke with Bruce. Nicholas Berger,
another friend of plaintiff, testified there was a strong odor of alcohol in the
basement and, because it was a hot summer night, "[y]ou could smell the beer
and the alcohol."
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The party eventually moved to the driveway of the Olivers' home. 4
According to Layton, there was a case of beer on the Olivers' driveway near a
basketball hoop. While outside, plaintiff and Manzi engaged in "light
horseplay." While the specifics of the horseplay are disputed, plaintiff was
pushed from behind. Plaintiff, who claimed he was intoxicated, turned aro und
to push Manzi. Plaintiff missed, and his hand went through the Olivers' garage
door window.5
Victoria claims plaintiff did not react to the deep cut on his wrist. Because
plaintiff was not screaming in pain or showing any other emotion after his hand
went through the window, Victoria presumed plaintiff was intoxicated.
Plaintiff filed a complaint against the Olivers alleging his injury was the
result of a party during which the Olivers allowed underaged teenagers to
consume alcohol. Plaintiff argued the Olivers knew, or should have known,
there was underage consumption of alcohol on their property that night.
The Olivers filed an answer and third-party complaint against Manzi and
others. During the discovery period, the Olivers sought to compel group chat
4
There is disputed testimony whether plaintiff and the other guests were asked
to leave the Olivers' property or whether the party continued outside until
plaintiff suffered his injury.
5
As a result, plaintiff required immediate surgery to repair a torn tendon.
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text messages exchanged among plaintiff and his friends, including Manzi. The
Olivers believed plaintiff and his friends exchanged messages starting the night
of the incident, June 18, 2015, and the messages continued during the litigation.
In December 2018, the Olivers asked the court to compel production of the
messages. The judge decided to hold the demand for the production of
documents in abeyance until completion of fact depositions and issued a
scheduling order.
After the completion of the depositions, the Olivers again requested the
production of the group chat text messages. In an April 12, 2019 order, the
judge denied the motion to compel production of the messages. The Olivers
filed a motion for reconsideration, which the judge denied in a May 10, 2019
order. The judge found, "[T]here's no doubt there was some . . . generic
discussion of the lawsuit. . . . Their testimony . . . is all over the map." He also
stated, "No one gave any specifics at all in their deposition testimony as to what,
if anything, was discussed, other than the lawsuit in general, during their group
chat text messaging back and forth." In denying the motion, the judge
concluded:
[T]he depositions [of the participants in the group text
messages] are replete with "I don't know." "I can't
recall." "I don't know." "I can't recall." And that is the
mishmash of fact testimony we have in this case
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involving a party of undermined size at someone's
house, which apparently involved the consumption of
alcohol, the origin of which no one really knows, or it's
open to dispute.
On May 10, 2019, the Olivers and Manzi filed separate motions for
summary judgment. After considering the papers and hearing oral argument, in
separate August 2, 2019 orders, the judge granted summary judgment in favor
of the Olivers and dismissed as moot Manzi's motion for summary judgment as
to the third-party claims. In his oral statement of reasons, the judge remarked,
"[T]here is a myriad of testimony in different directions about a party going on
at the Oliver's house." The judge further stated, "It's not really clear how many
people are at this party, but it's not a small party. . . . [T]hey may or may not
have been drinking beforehand, they may or may not have been drinking at the
Oliver's house. There may or may not have been visible alcohol consumed at
the Oliver's house . . . ." The judge explained, "The accident in this case had
nothing to do with the operation of a motor vehicle. The accident here happened
around horseplay between . . . Manzi and [plaintiff]." The judge reiterated there
was "a mishmash of testimony . . . of what happened, when, and how it
happened, other than there's a general consensus of how the accident happened."
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The judge relied on this court's decision in Estate of Narleski v. Gomes,
459 N.J. Super. 377 (App. Div. 2019), rev'd, 244 N.J. 199 (2020), 6 in
determining the duty owed by the Olivers. According to the judge, there was
nothing in the record indicating Bruce knew or should have known underage
teenagers were drinking alcohol in the basement. The judge found "no duty on
[Bruce's] part to do more than he did" because there was "not enough here to
show [him] that [Bruce] knew there was drinking or consented to the drinking."
In granting summary judgment to Roberta, the judge held Roberta was "not
involved in this case." Regarding the claims against Victoria, the judge noted
our decision in Estate of Narleski imposed liability prospectively, commencing
180 days from the issuance of that decision. Therefore, even though she was
over the age of eighteen and knew there was underage drinking in her home, the
judge found Victoria was not liable and granted summary judgment. Regarding
Manzi's motion, the judge stated, "By definition, if the Olivers are not in the
case, [Manzi] is not in the case, as well."
On appeal, plaintiff argues there were genuine issues of material fact
precluding summary judgment as a matter of law. Plaintiff also contends Bruce
6
After the judge granted summary judgment in favor of the Olivers and after
counsel filed briefs in this appeal, the New Jersey Supreme Court reversed the
prospective application of our decision in Estate of Narleski.
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and Roberta had a duty to supervise underage individuals when it was reasonably
foreseeable alcohol would be consumed in their home. Further, plaintiff asserts
the judge erroneously relied on our holding in Estate of Narleski in granting
summary judgment to the Olivers, including Victoria, and the New Jersey
Supreme Court's reversal of our decision in Estate of Narleski warrants reversal
of summary judgment as to the Olivers. We agree.
We review orders granting summary judgment de novo and apply the
same standard at the trial court. Lee v. Brown, 232 N.J. 114, 126 (2018).
Summary judgment will be granted if, viewing the evidence in the light most
favorable to the non-moving party, "there is no genuine issue of material fact
and 'the moving party is entitled to a judgment or order as a matter of law.'"
Conley v. Guerrero, 228 N.J. 339, 346 (2017) (quoting Templo Fuente De Vida
Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016)); R.
4:46-2(c).
To determine whether there are genuine issues of material fact, the court
must consider "whether the competent evidential materials presented, when
viewed in the light most favorable to the non-moving party, are sufficient to
permit a rational factfinder to resolve the alleged disputed issue in favor of the
non-moving party." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406
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(2014) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995)). "An issue of material fact is 'genuine only if, considering the burden
of persuasion at trial, the evidence submitted by the parties on the motion,
together with all legitimate inferences therefrom favoring the non-moving party,
would require submission of the issue to the trier of fact.'" Grande v. St. Clare's
Health Sys., 230 N.J. 1, 24, 164 (2017) (quoting Bhagat v. Bhagat, 217 N.J. 22,
38 (2014)).
A motion for summary judgment should be denied where the
determination of a material disputed fact depends on a credibility determination.
See Parks v. Rogers, 176 N.J. 491, 502 (2003). Moreover, questions of law
dependent on the operative facts cannot be decided on summary judgment when
those facts are in dispute. Central Paper Distrib. Servs. v. Int'l Records Storage
& Retrieval Serv., 325 N.J. Super. 225, 232 (App. Div. 1999) (holding there
were "critical determinants in resolving the issue of law. The issue was not
amenable to resolution on summary judgment because plaintiffs had made an
adequate showing of genuine questions of material fact bearing upon the issue,
and they were entitled to plenary proof opportunities on the fact questions
involved." (citations omitted)).
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Applying this standard, we are satisfied the judge erred in awarding
summary judgment to the Olivers based on disputed material facts from the
deposition testimony. The fact disputes include the following: the number of
guests present at the Oliver home that evening; the presence of beer and
discarded beer cans in the basement and on the driveway of the Olivers' home
when the party moved outdoors; the odor of alcohol throughout the basement;
the number of times Bruce walked into the basement to check on the party;
whether Bruce spoke to any of the party goers while he was in the basement; the
nature of any discussions between Bruce and the party participants, includi ng
Victoria; who brought beer or hard liquor into the Oliver home; the presence of
red plastic cups, suggesting more than beer was being consumed; the
consumption of alcohol by some party goers prior to arriving at the Oliver home;
and Victoria's consumption of alcohol.
Based on the "mishmash" of the parties' deposition testimony, these
factual questions must be resolved to determine whether the Olivers owed a duty
to plaintiff. Viewing the facts in the light most favorable to plaintiff, there is
evidence Bruce and Roberta knew, or should have known, there were underage
teens openly consuming alcohol at their home. On this summary judgment
record, the differing versions of the evening's events present credibility
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questions for the jury, and a reasonable jury could determine the Olivers knew,
or should have known, underage teens were drinking alcohol on their property.
We next consider the granting of summary judgment in favor of Victoria.
The judge relied extensively on our decision in Estate of Narleski, determining
the imposition of liability on Victoria as an underage social host was to be
applied prospectively, and plaintiff's injury occurred prior to our decision in that
case. In light of the Supreme Court's decision in Estate of Narleski, we are
constrained to reverse the order granting summary judgment to Victoria.
In September 2020, the Court reversed prospective application of our
decision in Estate of Narleski, imposing liability on an individual over the age
of eighteen but under the age of twenty-one who served alcohol to underage
persons. The Court unequivocally held an individual over the age of eighteen
but under the age of twenty-one may be civilly liable under common law
principles if he or she facilitates the consumption of alcohol by making his or
her home available for underage drinking.
The duty to protect others from foreseeable harm is engrained "in the
common law, legislative enactments, and public policy." Estate of Narleski, 244
N.J. at 211. "Any common law duty imposed . . . must 'satisf[y] an abiding
sense of basis fairness under all of the circumstances in light of considerations
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of public policy.'" Id. at 213 (second alteration in original) (quoting Hopkins v.
Fox & Lazo Realtors, 132 N.J. 426, 439 (1993)). In reviewing sixty years of
case law and legislative enactments, the Court held:
When an underage adult controls a residence or
premises where he [or she] lives – if only by having a
key to the door – he [or she] has sway over who enters
and who remains . . . . When the same underage adult
permits underage guests to bring beer, vodka, or other
intoxicating beverages into his [or her] home for the
purpose of drinking – conduct forbidden under the law
– then he [or she] should have some concomitant
responsibility to monitor his [or her] guests' activities.
[Id. at 226.]
We reject defense counsel's suggestion the Court's decision in Estate of
Narleski applies only to situations where a social host allows an intoxicated
guest to drive a motor vehicle. Nothing in the Supreme Court's decision suggests
the duty imposed is so limited. Because the facts in Estate of Narleski involved
the death of a third-party based on the intoxication of an underaged party guest
who was provided alcohol by an underaged social host and then drove while
visibly intoxicated, the Court focused its analysis on those specific facts.
We discern no legal distinction regarding injuries resulting from drinking
and driving and injuries resulting from drinking and engaging in drunken
behaviors likely to cause injury. See Witter by Witter v. Leo, 269 N.J. Super.
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380, 386 (App. Div. 1994) (imposing a duty where the plaintiff suffered an
injury attempting to jump from the roof of the defendant's home into a swimming
pool where the risk of harm was reasonably foreseeable when alcohol was made
available to underage persons). An underage social host "is bound by the social
compact. His [or her] age does not make him [or her] immune from legal
responsibility for the violation of an established duty that is intended to protect
others from foreseeable harm." Estate of Narleski, 244 N.J. at 204. We see no
reason to limit the Court's holding to cases involving injuries or death caused by
underage drinking and driving.
We next address the August 2, 2019 order denying as moot Manzi's
summary judgment motion seeking dismissal of the Olivers' third-party claims.
The motion judge addressed only whether the Olivers owed a duty to plaintiff.
Because the judge dismissed plaintiff's claims against the Olivers, the judge
never addressed Manzi's motion on the merits.
"Mootness is a threshold justiciability determination rooted in the notion
that judicial power is to be exercised only when a party is immediately
threatened with harm." Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311
(App. Div. 2010) (citing Jackson v. Dep't of Corr., 335 N.J. Super. 227, 231
(App. Div. 2000)). "Courts normally will not decide issues when a controversy
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no longer exists, and the disputed issues have become moot." Ibid. (citing
DeVesa v. Dorsey, 134 N.J. 420, 428 (1993) (Pollock, J., concurring)).
While Manzi did not cross-appeal from the August 2, 2019 order
dismissing the third-party claims, Manzi argues in his merits brief that if we
reverse the order granting summary judgment to the Olivers, summary judgment
should be entered in his favor. We decline to reach the issue asserted in Manzi's
appeal brief because the judge never decided whether the statute of limitations
barred the third-party claims against him. On remand, Manzi may renew his
motion for dismissal of the third-party claims based on the statute of limitations
or any other legal theory. We take no position on the outcome of such a motion.
We next consider the Olivers' cross-appeal. The Olivers contend the judge
erred in denying their motion to compel production of the group chat text
messages from plaintiff and his friends. We agree.
We review discovery orders for abuse of discretion. Capital Health Sys.,
Inc. v. Horizon Healthcare Servs., Inc., 230 N.J. 73, 79-80 (2017). "[A]ppellate
courts are not to intervene but instead will defer to a trial judge's discovery
rulings absent an abuse of discretion or a judge's misunderstanding or
misapplication of the law." Ibid. (citing Pomerantz Paper Corp. v. New Cmty.
Corp., 207 N.J. 344, 371 (2011)). We "start from the premise that discovery
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rules 'are to be construed liberally in favor of broad pretrial discovery.'" Id. at
80 (quoting Payton v. N.J. Tpk. Auth., 148 N.J. 524, 535 (1997)). "Our court
system has long been committed to the view that essential justice is better
achieved when there has been full disclosure so that the parties are conversant
with all the available facts." Jenkins v. Rainner, 69 N.J. 50, 56 (1976) (citing
In re Sesler, 15 N.J. 393, 405 (1954)). Case law addressing the scope of
discovery emphasizes liberality in favor of allowing discovery. See, e.g.,
McKenny ex rel. McKenny v. Jersey City Med. Ctr., 167 N.J. 359, 370-72
(2001); Shanley & Fisher, P.C. v. Sisselman, 215 N.J. Super. 200, 215-16 (App.
Div. 1987).
We are satisfied the judge abused his discretion in denying the motion to
compel production of the group chat text messages. Plaintiff and his friends
exchanged messages starting the night plaintiff suffered his injury. They
continued messaging throughout the course of the litigation, including
exchanging messages prior to their depositions. While the judge believed the
messages would not be fruitful based on his review of the deposition testimony,
the messages may contain information "reasonably calculated to lead to the
discovery of admissible evidence . . . ." R. 4:10-2(a). Absent reviewing the
messages in camera, we are unable to determine how the judge concluded the
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messages were not reasonably calculated to lead to the discovery of potentially
admissible evidence.
In denying production of the group chat text messages, the judge also
deemed the Olivers' request to be untimely. Having reviewed the record, we
note defense counsel requested the documents early in the litigation, and the
judge deferred ruling on the issue until the completion of all depositions. Once
the depositions were completed, defense counsel timely renewed the request for
the messages.
We find no fault with counsel assenting to the judge's request to postpone
the motion to compel the production of the messages until the completion of the
depositions. Because we remand the matter to the trial court for other reasons,
the judge should reconsider the Olivers' request for production of the group chat
text messages anew without regard to the timing of the request. On remand, the
parties may assert alternate grounds in support of denial of the request to
produce the messages.
Reversed and remanded. We do not retain jurisdiction.
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