New Jersey Tough Love: Protecting Underage Adults from Themselves
By Paul V. Eposito
A speeding car weaves through the nighttime traffic. The car’s speed is too great, the driver’s reactions too slow. The car crosses multiple lanes and hits a concrete divider. The impact ejects its unrestrained passenger. The car goes airborne, and after flipping several times lands on him. The passenger is dead at the scene; the driver survives. He is visibly intoxicated, his BAC about 0.16—twice the legal limit. Pleading guilty to vehicular homicide, the driver is sentenced to seven years in state prison. He is 20, his passenger 19.
Alcohol and young people are a frightening combination. It’s the mixture of their youthful sense of invincibility with a chemical that dulls inhibitions. Having temporarily lost any fear of death, they open the door to it. Though making strides, legislatures and courts nationwide have been unable to solve the problem. Now the New Jersey Supreme Court has taken the next step. Estate of Narleski v. Gomes, 237 A.3d 933 (N.J. 2020).
Along with two buddies, 19-year olds Mark Zwierzynski and Brandon Narleski drove to a liquor store where Narleski bought beer and vodka. The store clerk did not card him. Zwierzynski lived in a house owned by his parents, and he invited the group to drink there. His mother was out; his father lived elsewhere. After drinking 2-3 cups of vodka, Narleski texted 20-year old Nicholas Gomes, asking him to join them. Gomes came in his parents’ car. Zwierzynski gave Gomes a cup, and in Zwierzynski’s presence Gomes drank two cups of vodka and juice. He and Narleski later drove in Gomes’ car to a friend’s home. By that time, Gomes was buzzed and Narleski was slurring his words. The accident happened on the way.
Narleski’s parents sued the liquor store, Gomes, and his parents for wrongful death. The store sought contribution from Zwierzynski. The trial court ruled that Zwierzynski owed no legal duty to Narleski because of Gomes’ intoxication. The Appellate Division affirmed, finding that Zwierzynski owed no duty to prevent underage drinking in a home he neither owned, rented, nor managed. But it ruled that going forward, underage drinkers owe a common law duty to not facilitate underage drinking in their residences, even if they lack ownership, possession, or control of them.
Strangely, despite not having liability Zwierzynski appealed.
The Supreme Court examined the history of the state’s efforts in fighting underage drinking. Decades earlier, the legislature banned taverns from selling liquor to minors, and the Supreme Court created a cause of action for third-parties injured from a sale. The Appellate Division extended liability to social hosts serving alcohol to visibly intoxicated underage guests unfit to drive. The Supreme Court extended that ruling to social hosts serving known, intoxicated adult guests unfit to drive. The legislature then created a third-party cause of action against of-age social hosts who serve alcohol to intoxicated persons old enough to legally drink. Though the statute failed to cover underage servers and drinkers, it operated as a public policy warning: don’t serve, and don’t drink.
Given the difficulties in curbing underage drinking, the Supreme Court considered whether to impose a duty on underage adult servers. It examined “the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.” All factors supported a finding of duty. Zwierzynski was a legal adult who controlled access to his house. He invited his friends to illegally drink. He provided the cups. That he did not directly serve or make alcohol available was irrelevant. So was his lack of house ownership or tenancy. He allowed the drinking to happen there.
The attendant risks were high. Drunk driving is a well-known killer. At 0.16% BAC—Gomes’ level—an intoxicated driver is between 82 and 1,772 times more likely than a sober one to have a fatal accident. Zwierzynski could have prevented the drinking, or at least stopped it before anyone became visibly intoxicated. And he could have arranged to keep intoxicated drinkers safe. Finally, the public interest calls for the exercise of responsibility by legal adults to control what happens in their residences. Immunizing underage adults is inconsistent with negligence law and unfair to the victims of illegal conduct.
The Court imposed a duty on an underage, adult social host if an injured person shows:
(1) the host knowingly allowed and facilitated the drinking of alcohol by an underage guest in the host’s residence, despite the lack of ownership or leasehold;
(2) the host knowingly provided alcohol to a visibly intoxicated underage guest, or knowingly permitted that guest to serve himself or be served by others, even if the guests brought the liquor;
(3) the host knew or should have known that the visibly intoxicated guest would operate a vehicle and foreseeably endanger others;
(4) the host did not take reasonable steps to prevent the visibly intoxicated guest from driving; and
(5) as a result of intoxication facilitated by the host, the guest negligently operated a vehicle and injured a third party.
To make its point absolutely clear, the Court applied the duty to Zwierzynski himself. The law had already provided enough early warning.
This issue bears watching. It goes far beyond the death at the accident scene. Drunk driving forever touches the lives of parents, spouses, children, brothers, sisters, relatives, and friends. Time doesn’t always heal wounds. Not this one. Despite the best efforts of so many people to eradicate the problem, it is still there. And with the advent of legal marijuana, it may get worse. Gomes admitted that he smoked marijuana earlier in the evening. It won’t take much for legislatures or other courts to follow New Jersey’s lead in imposing a new duty.
Strategically, Zwierzynski should not have appealed. He was in the clear; he could have left well enough alone. But if his appeal ultimately saves lives and prevents needless suffering, he unwittingly performed a service.