NICOLE ACRI v. RICHARD HILTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1969-08T21969-08T2

NICOLE ACRI,

Plaintiff-Appellant,

v.

RICHARD and MARY HILTON,

husband and wife, STEVEN HILTON

and CHRIS HILTON,

Defendants,

and

JESSIE WHITE and RICKY HILTON,

Defendants-Respondents.

_________________________________________________

 

Argued October 6, 2009 - Decided

Before Judges Skillman and Simonelli.

On appeal from Superior Court, Law Division, Monmouth County, Docket No. L-4244-06.

William W. Graham argued the cause for appellant.

Stephen E. Gertler argued the cause for respondent Ricky Hilton (Law Offices of Stephen E. Gertler, attorneys; Mr. Gertler, on the brief).

Stephen J. Foley, Jr., argued the cause for respondent Jessie White (Campbell, Foley, Lee, Murphy & Cernigliaro, attorneys; Mr. Foley, on the brief).

PER CURIAM

On September 9, 2005, plaintiff suffered personal injuries when she fell off the back of an all-terrain vehicle (ATV), commonly known as a "quad," being operated by defendant Steven Hilton. It is undisputed that the ATV had no passenger seat and that it was unsafe for plaintiff to ride on the back of the vehicle. It is also undisputed that plaintiff, who was then sixteen years old, was intoxicated at the time of the accident.

During the summer of 2005, plaintiff and her friends regularly drank beer in the garage of defendant Jessie White, became intoxicated, and then rode ATVs. On the day of the accident, they again engaged in this activity.

Plaintiff, along with her friend Caitlin Stadler, was driven to the garage by her boyfriend, Ricky Hilton. After they drank a substantial amount of beer, plaintiff became intoxicated, drove to an area where an ATV could be operated and then convinced Steven Hilton to allow her to ride on the back of his ATV. The accident occurred shortly thereafter.

Plaintiff brought this personal injury action against Steven and Ricky Hilton, their brother Chris Hilton, their parents Richard and Mary Hilton, and Jessie White. One count of the complaint alleged that defendants served alcohol to plaintiff, which resulted in her intoxication and contributed to the accident.

The parties conducted discovery, which included depositions of plaintiff, Steven and Ricky Hilton, Jessie White, and Caitlin Stadler. After the completion of discovery, defendants moved for summary judgment.

The trial court ruled in an oral opinion that even though the evidence would support a finding that Ricky Hilton and Jessie White served plaintiff alcoholic beverages on the night of the accident and that plaintiff became intoxicated as a result, the evidence would not support a finding of a proximate causal relationship between her intoxication and the accident. Accordingly, the court granted defendants partial summary judgment dismissing plaintiff's claims based on defendants' alleged negligent service of alcoholic beverages. This order preserved plaintiff's claims based on Steven Hilton's alleged negligence in permitting plaintiff to ride on his ATV and in his operation of the ATV. However, plaintiff's claims against Steven Hilton were subsequently settled and the complaint was dismissed as to him.

Plaintiff appeals from the summary judgment in favor of Ricky Hilton and Jessie White. She does not appeal from the summary judgments in favor of Mary, Richard and Chris Hilton.

Ordinarily, the determination whether there is a proximate causal relationship between a defendant's alleged negligence and an accident upon which a personal injury claim is based is a jury issue. Fluehr v. City of Cape May, 159 N.J. 532, 543 (1999). The issue may be removed from determination by the jury or other finder of fact only "in the highly extraordinary case in which reasonable minds could not differ on whether [proximate cause] has been established." Ibid.

This is not one of those extraordinary cases. Plaintiff's deposition testimony indicated that she regularly became intoxicated and only rode on the back of an ATV when she was intoxicated. This testimony included the following:

Q. Now when you say, "We would do this," are you saying that throughout the summer of 2005, you guys would drink alcohol, get intoxicated to various degrees, jump on the quads, and go riding?

A. Yes.

. . . .

Q. So you yourself never were on the quad going in or really coming out, but once you were there and you were intoxicated, you would be quad riding with the rest?

A. Yes.

. . . .

Q. And did you tell us -- that night when you went out to the pits with these guys, and Caitlin, you were aware of the fact that it could be dangerous riding on the back of this quad being drunk?

A. Yes.

Q. But you decided to do it anyway?

A. Yes, but it was no different than what happened every other night.

Q. No different than 20 or 30 other times?

A. It was no different at all.

Q. But you yourself knew it was a dangerous idea getting on the back of a quad drunk?

A. Now sitting here sober with you I can tell you yes, it was a dumb idea, but at the time it seemed like a fun idea.

Q. And the 20 or 30 times that summer going out the various pits drunk getting on quads, did it occur to you during any of those 20 or 30 times while you were doing it this really could be a stupid idea?

A. The next morning when I woke up with bruises all over my legs, yes, I said this probably wasn't the best idea to do.

Q. But the week after, you would do it again?

A. Yes.

Q. And the week after that you did it again?

A. Yes.

Q. And the week after that you did it again until finally on September 9th you did it the last time?

A. Yes. I can't even sit on a quad now. It scares me.

Regarding her level of intoxication and decision to get on the ATV on the night of her accident, plaintiff testified:

My intoxication level was through the roof. My decision making process was completely impaired. I should have known -- honestly, every time I did that I should have known getting on the back of a quad when you're drunk with a drunk driver is not the best thing to do, and so Steve was saying, "No, don't get on," and I was just like, "No, no, I want to." Finally, he just gave up and I got on the back.

There was no deposition testimony by plaintiff or anyone else that she ever rode on the back of an ATV when she was not intoxicated.

A trier of fact could reasonably infer from this testimony that, even though plaintiff may have anticipated or even planned to ride on the back of an ATV when she began drinking with her friends, she would not have engaged in this activity unless she first became intoxicated. It is common knowledge that intoxication impairs judgment and reduces inhibitions, thus sometimes leading an intoxicated person to engage in reckless conduct that he or she would not otherwise engage in. Therefore, a trier of fact could find that plaintiff would not have ridden on the back of an ATV on the night of her accident were it not for the fact that one or more of the defendants negligently served her beer and she became intoxicated.

The trial court erred in reading Dower v. Gamba, 276 N.J. Super. 319 (App. Div. 1994), certif. denied, 140 N.J. 276 (1995), to support its conclusion that plaintiff presented insufficient evidence to warrant submission of the issue of proximate cause to the jury. Dower was a negligence action by two minors who suffered personal injuries while riding as passengers in an automobile operated by an intoxicated driver. The minors brought suit not only against the intoxicated driver but also the persons who hosted a party at which the driver became intoxicated.

The primary question presented by the appeal was whether the party hosts could be held liable under N.J.S.A. 2A:15-5.6 for providing alcoholic beverages to the driver even though they may not have directly served him. 276 N.J. Super. at 321-22. We answered this question in the affirmative and reversed a summary judgment in favor of the party hosts on the counts of the complaint that predicated liability upon the service of alcohol to the intoxicated driver. Id. at 324-28.

In a separate count of their complaint, the minor plaintiffs also asserted a claim against the party hosts for allowing them to consume alcoholic beverages even though they were underage. Id. at 328. We concluded that even though the service of alcoholic beverages to plaintiffs could provide a basis for a finding of negligence, "plaintiffs [had] failed to make any showing that their decision to enter [the intoxicated driver's] vehicle was affected by their drinking." Ibid.

However, because the party hosts' alleged liability based on service of alcoholic beverages to the minor plaintiffs was a subordinate issue in the appeal, which we spent less than a page of our opinion discussing, see id. at 328-29, Dower does not indicate the amount of alcoholic beverages served to the minors, whether there was any evidence they were intoxicated, or the circumstances under which they allowed the intoxicated driver to drive them home. Consequently, the court may have concluded that there was a lack of sufficient evidence to support a finding of a proximate causal relationship between the service of alcoholic beverages to plaintiffs and their occupancy of the vehicle operated by the intoxicated driver either because there was no evidence that the plaintiffs themselves were intoxicated or because the evidence indicated that the plaintiffs had no practical alternative means of getting home other than accepting a ride with the intoxicated driver. Therefore, Dower is not inconsistent with our conclusion that plaintiff presented sufficient evidence to support a finding that there was a proximate causal relationship between defendants' service of alcoholic beverages to her and the accident.

Ricky Hilton argues, as an alternative ground for affirmance of the summary judgment in his favor, that there was no evidence from which a trier of fact could find that he served alcoholic beverages to plaintiff before her accident. However, plaintiff testified that Ricky asked her what she wanted to drink before they went to Jessie White's garage, that she responded "Bud Light," and that there was "Bud Light" in Jessie's garage when she arrived there. A trier of fact could infer from this testimony that Ricky played some role in procuring the Bud Light consumed by plaintiff. In addition, Caitlin Stadler stated that she saw Ricky give plaintiff beer. Therefore, there was sufficient evidence presented on the motion for summary judgment to support a finding that Ricky served plaintiff alcoholic beverages before the accident. See Kelly v. Gwinnell, 96 N.J. 538, 546 (1984); Dower, supra, 276 N.J. Super. at 325-26.

 
Accordingly, the summary judgment dismissing plaintiff's claims against Ricky Hilton and Jessie White is reversed, and the case is remanded to the trial court.

Jessie White does not dispute that there was sufficient evidence presented to the trial court to support a finding that he served beer to plaintiff.

(continued)

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9

A-1969-08T2

October 23, 2009