HEATHER M. SCHULTZ v. RYAN GALLAGHER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2050-10T3

HEATHER M. SCHULTZ,

Plaintiff-Appellant,

v.

RYAN GALLAGHER and

TARA GALLAGHER, h/w,

Defendants,

and

JOSHUA GONZALEZ and

DAWN GONZALEZ,

Defendants-Respondents.

December 15, 2011

Argued September 26, 2011 - Decided

Before Judges Grall and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2488-08.

Thomas J. Joyce, III, argued the cause for appellant.

William L. Lundgren, III, argued the cause for respondents (Green, Lundgren & Ryan, P.C., attorneys; Alexa J. Nasta, on the brief).

PER CURIAM

In this appeal, we consider two questions: whether a social host has a duty to render aid to an intoxicated guest injured on another's premises, and whether that duty should be expanded when the host and guest are sisters. We answer both questions in the negative and therefore affirm the trial court's September 16, 2010 grant of summary judgment dismissing plaintiff Heather M. Schultz's complaint.

The events leading to plaintiff's injuries are virtually undisputed. Plaintiff attended a party at the home of her brother-in-law and sister, defendants Joshua and Dawn Gonzalez, on August 18, 2006. Plaintiff, who was then twenty-one, brought a case of beer to the gathering and consumed approximately ten beers over the course of the evening. She had planned to sleep at defendants' home, but at around midnight left to go swimming at the home of two other guests, defendants Ryan and Tara Gallagher.

Once at the Gallagher residence, plaintiff continued to drink. At some point, she jumped into the shallow end of the pool, as she described it, "hit[ting] her head on the water funny." She complained she could not move when she was pulled out of the water, so Ryan Gallagher carried her upstairs and put her to bed in a guest room.

Plaintiff immediately realized she could not open her hands. During the night she intermittently banged her arms against the wall, crying out for help. Between 2:00 and 3:00 a.m., Tara Gallagher called Dawn Gonzalez. Although their recollections of the substance of the conversation differ, they ultimately agreed plaintiff was probably just intoxicated and needed to sleep.

Plaintiff awakened at approximately 7:30 a.m., and resumed calling out for help. Tara Gallagher again telephoned Dawn Gonzalez, who this time came to the Gallagher residence, and seeing that plaintiff had fallen asleep, left her undisturbed. When plaintiff awakened some time later, Dawn Gonzalez observed that plaintiff was immobile and that her hands were "kind of balled up [and] she couldn't move her fingers." Dawn Gonzalez contacted their mother, who arrived within fifteen minutes and immediately called an ambulance.

Plaintiff's injuries are severe. She fractured two vertebrae, and underwent three significant surgical procedures, including a spinal fusion. Plaintiff's cervical spinal cord injury is permanent in nature, and her expert opines it was exacerbated by the delay in obtaining treatment.

Plaintiff contends the trial court erred in deciding by way of summary judgment the question of whether a breach of a duty of care occurred, as the issue presented a question of fact properly resolved by a jury. Plaintiff also contends the court erred in finding, as a matter of law, that the Gonzalez defendants did not breach a duty of care.

It is well-established that a cause of action in negligence consists of three elements: "(1) a duty of care owed by defendant to plaintiff; (2) a breach of that duty by defendant; and (3) an injury to plaintiff proximately caused by defendant's breach." Endre v. Arnold, 300 N.J. Super. 136, 142 (App. Div.), certif. denied, 150 N.J. 27 (1997). The threshold determination of whether a duty exists is purely legal, however, and is to be decided by the court and not a jury. Ibid. Thus, it was proper for the trial court to decide the issue at the summary judgment stage.

We review the grant of summary judgment using the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. R. 4:46-2(c). Viewing the facts in the light most favorable to the nonmoving party, where it is clear that there is but one "single, unavoidable resolution of the alleged dispute[,]" summary judgment should be granted. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Because we conclude the court correctly declined to expand the scope of a social host's duty, we also agree that dismissal of plaintiff's complaint was the "single, unavoidable resolution of the . . . dispute[]." See ibid.

Initially, we note that the extent of a social host's duty is in part a "value judgment, based on an analysis of public policy . . . ." Kelly v. Gwinnell, 96 N.J. 538, 544 (1984) (citing Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 352-53 (1928)). It requires a balancing of "notions of fairness, common sense and morality." Podias v. Mairs, 394 N.J. Super. 338, 349 (App. Div.), certif. denied, 192 N.J. 482 (2007) (citing Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 443 (1993)). Therefore, in determining whether the scope of the duty should be expanded, as plaintiff suggests, to include injuries suffered by the intoxicated guest at their next destination, we look to a combination of factors, including in the equation the foreseeability of the injuries. Podias, supra, 394 N.J. Super. at 350.

In this instance, the risk of harm was not foreseeable. And foreseeability of the risk of harm is a "foundational element." See ibid. Plaintiff planned to go swimming with a group, as opposed to, for example, driving her car. It would not be reasonable to impose on the Gonzalez defendants the duty to envision all possibilities of harm that plaintiff might be exposed to once at the Gallaghers' home. "'Foresight, not hindsight, is the standard by which one's duty of care is to be judged.'" Hill v. Yaskin, 75 N.J. 139, 144 (1977) (quoting 57 Am. Jur. 2d Negligence, 58 (1970)).

In Podias, a case plaintiff relies upon in advancing her claim, we imposed a duty on passengers to assist a motorcyclist who had been struck by the intoxicated driver. Instead of rendering aid, the passengers, who had cell phones with them, encouraged the driver to flee, leaving the injured motorcyclist lying immobile in the southbound lane of the Garden State Parkway at 2:00 a.m. Id. at 344-45. Clearly, the injured man's death was a foreseeable consequence of the act of abandoning him on a highway in the middle of the night. Here, in contrast, the injury could not have been foreseen. See id. at 351.

Similarly, it weighs against plaintiff that the harm could not have been easily prevented. Ibid. When a defendant's actions are "relatively easily corrected," Kelly, supra, 96 N.J. at 549-50, and the harm to be avoided is serious and foreseeable, the imposition of a duty is fair. Podias, supra, 394 N.J. Super. at 350. In Podias, for example, the passengers could have easily called for emergency assistance on their cell phones, and understood full well the obvious potential for even more severe injury or death which would ensue from leaving the motorcyclist stranded on the roadbed. It would not have been so easy for the Gonzalez defendants to have protected plaintiff from all possible harms she was exposed to because of her level of intoxication if she left their home, with the exception of driving, other than by simply forcing her to remain there. And obviously, that is neither practical nor reasonable.

Furthermore, Tara Gallagher's phone call did not effectively convey the gravity of plaintiff's situation. The Gallagher defendants themselves did not appear to understand the extent of plaintiff's injuries and hence could not have accurately communicated it to others. Defendants as a result could not have easily "corrected" their course of action.

Moreover, the duty of a host to come to the aid of a social guest has been defined as "nothing more than reasonable care under the circumstances." Endre, supra, 300 N.J. Super. at 145. Plaintiff has not brought to our attention any case in which social host liability is imposed, excluding drunk driving, where the injury occurred outside of at least earshot of the party obliged to render aid. See id. at 143-45. "Reasonable care" does not include the obligation to act in some fashion when the injuries occur at another's home.

The Gonzalez defendants were not even reliably informed of plaintiff's condition until the following morning, although we do not mean to suggest by making the point that had the information been accurate, a duty of care would have arisen. That issue need not be addressed in this case. We conclude that as a matter of law, the duty of care owed by a social host does not extend to these facts. No duty of care should be imposed upon the Gonzalez defendants in light of contemporary "notions of fairness, common sense, and morality." Hopkins, supra, 132 N.J. at 443.

A duty of affirmative action to render aid has been imposed where special relationships exist between the injured plaintiff and another. See, e.g., Champion ex rel. Ezzo v. Dunfee, 398 N.J. Super. 112, 121-22 (App. Div.), certif. denied, 195 N.J. 420 (2008). As a matter of public policy or otherwise, plaintiff has not brought anything to our attention which would move us to expand a host's duty when the guest is the host's adult sibling.