Another Permutation of “Legal Duty and Tort Liability in a Drunk Driving Context”

Diaz v. Reynoso, ___ N.J. Super. ___ (App. Div. 2021). Near the beginning of his opinion for the Appellate Division today, Judge Sabatino succinctly stated the issue in this case: “whether a volunteer who assures police officers at a roadside stop of an apparently inebriated driver that he will take the driver and his car safely to a residence—but thereafter relinquishes the car to the driver before reaching that destination—can be civilly liable as a joint tortfeasor if the driver then collides with and injures another motorist.” On a motion to dismiss for failure to state a claim, the Law Division held that the volunteer owed no duty. That court dismissed the complaint. Today, the Appellate Division reversed and reinstated the case.

On a motion to dismiss, both the Law Division and the Appellate Division were required to be “generous and hospitable” toward the complaint, searching it “in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.” Here, the Law Division was provided, and considered, materials that went beyond the complaint. Under Rule 4:46-2, that meant that the motion to dismiss was to be converted to a motion for summary judgment. The Law Division did not expressly so convert the case, but Judge Sabatino said that the standards for summary judgment still “have pertinence.”

The summary judgment standard is a familiar one: “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. ” The question of whether a legal duty exists is “predominantly a question of law, although it can be affected by the presence or absence of facts.”

Citing Estate of Narleski v. Gomes, 244 N.J. 199 (2020), another case involving “legal duty and tort liability in a drunk driving context,” Judge Sabatino identified four factors that are relevant to whether a duty exists: “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.” Several sources of law led to the conclusion that, at least at this early stage of the case, the volunteer might be found to have a legal duty.

Judge Sabatino first cited John’s Law, N.J.S.A. 39:4-50.22. That statute provides: “Whenever a person is summoned by or on behalf of a person who has been arrested for a violation of [N.J.S.A. 39:4-50] in order to transport or accompany the arrestee from the premises of a law enforcement agency, the law enforcement agency shall provide that person with a written statement advising him of his potential criminal and civil liability for permitting or facilitating the arrestee’s operation of a motor vehicle while the arrestee remains intoxicated.” The statute does not identify the source(s) for such legal liability, and Judge Sabatino acknowledged that the statute was not directly applicable because the drunk driver had not been arrested. Nonetheless, John’s Law presupposes that our civil and criminal laws already contemplate that a volunteer who undertakes to take away a drunk driver safely from the police has a legal duty to carry out that commitment.”

Also supportive of a duty was N.J.S.A. 39:4-50, the general prohibition of drunk driving. That statute, Judge Sabatino summarized after quoting it, “imposes quasi-criminal liability for ‘permitting’ an intoxicated individual to operate a motor vehicle.” Judge Sabatino also found support in the Restatements (Second) and (Third) of Torts. At a minimum, section 41 of the Third Restatement buttressed the “general notion that a volunteer who commits to law enforcement that he or she will take charge of an inebriated driver can be held liable for willingly abandoning that commitment.”

That the facts here involved a specific assurance to the police by the volunteer that he would see the inebriated driver safely home was essential to the result. It was due to that alleged fact that the Appellate Division rejected the Law Division’s reliance on Lombardo v. Hoag, 269 N.J. Super. 36 (App. Div. 1993), a case that otherwise was somewhat similar to today’s. The same fact served to distinguish cases from other jurisdictions that also bore some similarity to this one.

So important was that fact that Judge Sabatino punctuated his opinion with this observation: “The core message of this opinion can be bluntly stated: If you promise the police that you will take charge of a drunk driver and his or her car, you will be counted on to do so. You can be held liable if you don’t.” It does not get much clearer than that.

The panel reversed the dismissal of the case and reinstated the case. But that ruling was subject to two caveats. First, the duty that the court recognized “will hinge upon whether the volunteer is advised by the police, or objectively has reason to know from the surrounding circumstances, that his or her promise is an important obligation and that failing to carry it out could result in civil financial consequences. Adding such an actual or constructive notice condition to the common law rule is in keeping with the analogous notice feature of John’s Law.”

Second, Judge Sabatino was quick to stress “absolve any other parties whose negligence, if proven, contributed to the harm. That includes the drunk driver himself, the police officials who failed to field test or arrest him, and the restaurant that served him alcohol. Subject to any applicable defenses, their own shares of fault would need to be determined and allocated, based upon customary rules of proximate causation and joint tortfeasor liability.” Plaintiff had sued those various other parties. They cannot assume that if the volunteer is found liable, their own shares of liability, if any, will be reduced.