Jun 10, 2019

Appellate Division Creates New Cause of Action for Serving of Alcohol

In a recent case involving a wrongful death caused by a drunk driver, the Appellate Division held that the parents of a defendant who had hosted a gathering and served alcohol 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.  The Court held that the son did not have a duty but crucially prospectively held 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.  Estate of Narleski, et al. v. Gomes, et al., - N.J. Super. – (App. Div. 2019).

After purchasing alcohol at a liquor store, three young man who were over eighteen, but under the legal drinking age of twenty-one, went to defendant Mark Zwierzynski’s house to drink.  Ultimately, another friend came over to the house and started drinking.  They all got in his car and Brandon Narleski was killed when the driver lost control of the car and crashed into the center median.  At the time of the accident, the driver had a blood alcohol content of .161 – roughly double the .08 legal limit.

The trial Court held that neither Zwierzynski nor his parents owed a legal duty to prevent underage adults to consume alcohol in their home.  The Appellate Division upheld the dismissal.  However, the Court did hold that prospectively, an adult such as Zwierzynski who is under the legal drinking age shall owe a common law duty to injured parties to desist from facilitating the drinking of alcohol by underage adults in his place of residence, regardless of whether he owns, rents or manages the premises.

The opinion is not entirely clear as to whether liability is to be imposed merely for serving alcohol to an underage drinker who becomes intoxicated, or whether liability must be imposed for serving an underaged person who is “visibly intoxicated”.  Presumably, it is the former as it is illegal for underage adults to serve other underage adults.