On Appeal from the United States District Court for the District of New Jersey (D.C. Civ. No. 83-3997)
Before: Seitz, Becker, and Rosenn, Circuit Judges
Appellant Debra Pierzga was terribly injured in a traffic accident on October 24, 1981. Appellant attended a wedding reception hosted by the Gerstenberg and Collins defendants in a fire hall leased from the Borough of Washington. After the reception, she accepted a ride in a Ford automobile driven by defendant Timothy Minchin, another wedding guest, who had been served alcohol at the reception. Minchin lost control of his car, which left the highway and rolled over several times, throwing appellant from the vehicle. The investigating police officer testified by way of deposition that Minchin was visibly intoxicated, and that two separate blood tests were conducted sometime between two and one-half to three hours after the accident, which revealed that Minchin had a blood alcohol content of 0.196 and 0.169 percent, respectively.
Appellant filed suit in the district court for the District of New Jersey*fn1 seeking damages against several defendants on a variety of theories: against Timothy Minchin on the basis of general negligence; against the Ford Motor Company on a theory of product liability; against the Borough of Washington and Dale Bulmer, the member of the fire company responsible for leasing out the fire hall, for negligence in leasing out a town hall and failing to control the manner in which alcohol was served during a function in therein; and finally against Richard Gerstenberg, Jr., Cindy Gerstenberg see Collins, and Mr. and Mrs. Richard P. Gerstenberg, Sr. and Mr. and Mrs. Roger J. Collins, the wedding hosts, based on a social host liability theory.
The district court, without opinion, granted a motion for summary judgment in favor of appellees Collins and Gerstenberg families, the Borough of Washington, and Dale Bulmer. Pursuant to Fed. R. Civ. P. 54(b), the court entered a final order as to the parties before this Court and certified the case for appellate review. This appeal followed. The appeal presents the question whether New Jersey will extend the rule of question whether New Jersey will extend the rule of social host liability established by the New Jersey Supreme Court in Kelly v. Gwinnell, 96 N.J. 538, 476 A.2d 1219 (1984), to causes of action that arose prior to the date of that decision. Concluding that it would not, we affirm.*fn2
In Kelly v. Gwinnell, defendant Gwinnell had driven defendant Zak home, and remained several hours to socialize. According to the defendants, Gwinnell consumed "two or three" drinks of scotch whiskey during this period. Gwinnell then left Zak's home to drive to his own residence. En route to his home, however, Gwinnell was involved in a head-on collision with another car, driven by plaintiff Kelly. At the scene of the accident, Gwinnell was subjected to a blood alcohol test which showed a blood alcohol content of 0.286 percent.*fn3 Based upon this percentage, an expert witness for Kelly concluded that, rather than "two or three" drinks, Gwinnell had consumed the equivalent of thirteen drinks, and that he must have been obviously intoxicated when he left Zak's home. The trial court granted Zak's motion for summary judgment, which was affirmed by the appellate division. The New Jersey Supreme Court reversed, holding that a host who serves liquor to a social guest, knowing that the guest is both intoxicated and will thereafter be operating a motor vehicle, is liable for injuries inflicted on a third party as a result of the negligent operation of the motor vehicle by the adult guest, when such negligence is caused by the intoxication. 96 N.J. at 548, 476 A.2d at 1224.
Appellant contends that New Jersey law under Kelly v. Gwinnell, supra, allows her to recover from the persons responsible for the intoxicated state of Timothy Minchin, her driver. Appellant claims that the district court therefore erred in granting summary judgment for the defendants, and further that the district court improperly granted summary judgment as to the Borough of Washington and Dale Bulmer in light of the provisions of the New Jersey Tort Claims Act, N.J. Stat. Ann. § 59:1 et seq (West 1982 & Supp. 1985). Appellees counter that in light of the express holding in Kelly prohibiting retroactive application of social host liability, the district court properly applied New Jersey law to the facts of this case, hence its judgment on the motions should be affirmed.
On the subject of prospective application of its opinion, the Kelly court said:
The imposition of retroactive liability could be considered unexpected and its imposition unfair. We therefore, have determined that the liability imposed by this case on social host shall be prospective, applicable only to events that occur after the date of this decision. We will, however, apply the doctrine to the parties before us on the usual theory that to do otherwise would not only deprive the plaintiff of any benefit resulting from her own efforts but would also make it less likely that, in the future, individuals will be willing to claim rights, not yet established, that they believe are just.
Kelly, supra, 96 N.J. 538, 476 A.2d at 1225-26. That the New Jersey Supreme Court has the ability to so limit the authority of its decisions to prospective application is undisputed. In Re ...