An article addressing Alternative Theories of Liability to Overcome the “No Duty to Control the Conduct of Another” Rule authored by Frank T. Luciano, Esq., an experienced litigation attorney whose office is located in Lodi. Mr. Luciano has represented numerous clients in litigation cases for over thirty years. He works in Bergen (Hackensack, Ridgewood, Saddle River, Woodcliff Lake, Closter, Englewood, Fair Lawn), Passaic (Passaic, Paterson, Wayne, Totowa), Hudson (Jersey City, Union City, Hoboken), Morris (Morristown, Long Valley) and Essex (Newark) Counties.

From time to time over the last 20 or 30 years victims of drunk drivers have sought to impute liability against friends or passengers of the drunk driver (DWI) for failing to prevent the drunk from driving while intoxicated. On each occasion, the claimant has been met with the daunting task of overcoming a time-warn rule that instructs that there is no duty for an individual to prevent the tortuous conduct of another, absence special circumstances or a special relationship. Recently we were successful in prosecuting a claim against an off-duty police officer who allowed an individual to drive a motor vehicle while intoxicated, where the drunk driver ultimately killed the husband and father of our clients. The various theories of liability asserted against this individual are recited below.

I. THE SPECIAL CIRCUMSTANCES EXCEPTION

In this case, we developed three separate instances of a "special circumstance".

A. The Active Encouragement Theory of Liability

The Restatement (Second) of Torts § 876 states, in essence, that a person will be held responsible for the conduct of others who injure third parties when that person knows “the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to that conduct.” This rule of common sense was specifically adopted in this state in Gardenshire v. N.J. Manuf. Ins. Co..

This principle of law was later applied in Podias v. Mairs. In that case, a motorcyclist was killed by a drunk driver (DWI). The motorcyclist’s personal representatives sued the passengers of the vehicle that struck and killed the motorcyclist. The claimant’s central thesis of liability was that the passengers failed to summons emergency assistance that could have saved the life of the motorcyclist. In reversing the trial court’s order for summary judgment, the appellate court looked to two separate principles of law. The first, which seemed to be newly created in the factual crucible of that case, required a duty of care because the passengers had “some relationship not only to the primary wrongdoer, but to the incident itself.” The second reason for imputing liability to the passengers in the drunk driver’s (DWI) vehicle had its roots in § 876 of the Restatement. In that regard, the, the court observed that the “aiding - abetting” concept contained in § 876 “focused on whether a defendant knowingly gave ‘substantial assistance’ to someone engaged in wrongful conduct, not on whether the defendant agreed to join the wrongful conduct (citation omitted)” Resultingly, the court concluded that the passengers in that case could be held vicariously liable for the drunk driver’s (DWI) conduct, because they “supported” or “approved” the drunk driver’s (DWI) decision to leave the scene of the accident, and that this conduct which may have even been passive was still “substantial” enough to impute liability under § 876. Parenthetically, the court in Podias noted that the question of “how much assistance is substantial enough is fact-sensitive,” and, as a result, a jury should decide issues of that type.

The instructions contained in § 876 of the Restatement were later endorsed by the court in Champion v. Denefee. In that case, the court canvassed the application of the rule, and cited decisions from other jurisdictions where liability was placed on passengers and others where those persons supplied intoxicants to or encourage the use of intoxicants by a drunk driver, who caused injury to third parties. One of the cases, cited with approval by the court in Campion was “Cooper v. Bondoni a case decided by an appellate panel in Oklahoma. (minor passengers gave substantial assistance and encouragement to minor driver’s negligent operation of his vehicle where they provided him with alcoholic beverages and urged him to pass a truck while climbing a hill in a no-passing zone.) See, also, Halberstam v. Welch, for a well studied assessment of the law on this important issue.

In, Fassett v. Delta Kappa Epsition, decided by the District of Columbia Federal Circuit Court of Appeals, the court identified six (6) non-exclusive factor that could be used to analyze this theory of liability: (1) the nature of the act encouraged; (2) the amount of assistance given by the defendant; (3) the defendant’s presence or absence at the time of the tort; (4) the defendant’s relation to the other tortfeasor; (5) the defendant’s state of mind; and (6) the foreseeability of the harm that occurred. See also, Tarr v. Ciasull and Podias.

B. The Serious Peril Theory of Liability

In Podia, supra, the court noted that “the mere knowledge of serious peril, threatening death or great bodily harm to another, which an identified defendant might avoid with little inconvenience, creates a sufficient relation to impose a duty of action (citations omitted).” This principle is also found in the Restatement (Second) of Torts § 321 which states that “[i]f an actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect.” See, DeJesus v. Dept. of Veterans Affairs.

C. The Voluntary Undertaking Theory of Liability

In Praet v. Borough of Sayerville, the court concluded that:

[a]n individual may not be obligated to perform a service for another, yet upon his voluntary undertaking to act, may be found liable in tort for negligently performing or failing to perform the service gratuitously assumes, even in the absence of a contractual undertaking.”

This rule was later reaffirmed in Podias, supra. See, also Turbe v. Gov. of the Virgin Islands.

In the case referenced above, the off-duty police officer and his wife induced the drunk driver to accompany them to a bar with a promise that they would take her home at the end of the evening. When the drunk driver resisted the couple’s sexual advances, they became miffed and instead they returned her to her vehicle and not her home. At that time, the drunk driver’s BAC was 0.19% and her symptomology was consistent with an alcohol-induced stupor.

Stated differently, when the couple committed to taking the drunk driver home at the end of the evening, they had an affirmative responsibility to discharge that duty. When they defaulted, the catastrophic results of that default were readily evident, given the heightened level of the drunk driver’s intoxication and the irrefragable nexus between drunk driving and the great potential of serious injury and death. Sacci, supra (“propensities of alcohol consumption to create aggressive, combative and often reckless behavior is legendary.”).

II. THE “SPECIAL RELATIONSHIP” EXCEPTION

There was a fourth theory of liability that is asserted against the off duty police officer. That theory of liability is based on “special relationship” that he had as an off-duty police officer and his resulting responsibility to insure that the drunk driver did not drive while intoxicated.

In that regard, it has been said that the question of whether a legal duty exists is a matter of law to be decided by the court, Wang v. Allstate Insurance Co., given the totality of the circumstances. J.S. v. R.T.H.. It appears clear that when the court approaches the “special relationship” exception, it will look to the legal precepts that control all other duty of care issues. Sccai v. Mataxas. See, also Campion v. Drunfee.

The analysis associated with issues of this type should not be “tethered to rigid formalism of static historical classifications.” Vodias v. Mairs, but rather “changing social relationships and exigencies.” In the end, the fundamental question is “whether the plaintiffs interests are entitled to legal protection against the defendants conduct.”

The following factors influence the imposition of a duty of care: (A) the foreseeability and severity of the harm; (B) the opportunity and ability to exercise the care needed to prevent the harm; and (C) the comparative interest of the parties, public policy and fairness.

A. Forseeability and the Severity of the Harm

Foreseeability of the risk of harm is the “foundational element” when analyzing a duty of care issue. These risks should be viewed from the eye of the putative tort feasor because his/her past experiences will allow a more intelligent assessment of whether the third-party’s conduct is likely to endanger another. Sacci. In this case, the husband, a police officer had special training in the detection of drunk drivers (DWI) and has participated in numerous drunk driving arrests. In addition, the wife has had good experience in the bar/restaurant industry. Resultingly, both of these individuals can readily recognize the great potential for serious injury and death whenever an intoxicated person operates a motor vehicle and that is especially so given the drunk driver’s heightened level of intoxication.

Even without these special skills, the couple should be charged with recognizing the foreseeability of harm resulting from the drunk driver’s operation of her motor vehicle that night because the “propensities of alcohol consumption to create aggressive, combative and often reckless behavior in adults is legendary.” Sacci, supra. See, also Rappaport v. Nicholas. Indeed, last year, in this country, over 2.5 million people were killed or injured by drunk drivers. (119).

B. The Opportunity and Ability to Prevent the Harm

The tragedy that produced this lawsuit could have been prevented with relative ease if the couple did what they had promised to do and that is to take the drunk driver (DWI) to her home when they left the tavern and not “dump” her at her car which was a decision provoked by the couples’ anger when the drunk driver (DWI) rejected their sexual advances.

For that reason, the case is readily distinguishable from the cases where courts have refused to impose liability on passengers and mere companions who allowed a drunk to operate a motor vehicle causing injury to a third-party. See, Lombardo v. Haag and Champion v. Drunfree, supra.

C. Relationship of the Parties, Public Policy and Principles of Fairness

1. The Relationship of the Parties

There are a number of “relational” features in this case that should impose a duty of care on the husband, including: (a) his responsibility to interdict crime; (b) his contractual responsibility to protect others and prevent injury; (c) his escalated standard of responsibility to the public; and (c) his role in this fatal accident.

i. Duty to Interdict Crime

In New Jersey, a police officer has an absolute responsibility to arrest an individual if a criminal offense occurs in the officer’s presence, State v. Abdelnoor; State v. Corso, irrespective of whether the officer is on duty or off. Operuta v. Perrillo; State v. Corso; State v. Gebbia. In Feilder v. Stonack, the court cited with approval the observations of an appellate panel in Roll v. Timberman, where it was said that “[i]t is the duty of a police officer to apprehend those whose reckless driving makes use of the highways dangerous to others.” See, also State v. Cohen. (police officer can not motivate others to commit a crime).

Critically, in Podias, the court concluded that “if one already has a pre-existing legal duty to render assistance, who either by statute or ‘public calling’ has undertaken a duty to give service, then it is that duty which impels him to act, for which omission he may be liable (citation omitted).” Manifestly, the husbands’ obligation to prevent crime requires a conclusion that he had a duty to take the drunk driver home and, thereby obviate the prospects of allowing her to operate a motor vehicle while intoxicated.

ii. Escalated Standard of Responsibility

A police officer symbolizes the public good and since he/she must be beyond reproach, his/her conduct is judged by a higher standard than others. Morristown v. Armstrong. Indeed, a police officer can not complain that he is held to a higher standard of conduct because “it is one of the obligations he undertakes upon voluntary entry into public service” In re Phillips. Consequently, the “obligation to act in a responsible manner is especially compelling in a case involving a law enforcement official.” Ibid.

Putting aside for the moment the couples’ plans that evening, the off-duty police officer promised to return the drunk driver (DWI) to her home because she did not want to drink and drive. Additionally, after his failed tryst, the drunk driver (DWI) again requested him to take her to her home. The special responsibility placed on police officer to assume a higher standard of conduct, than that imposed on others required him drive the drunk driver to her home.

iii. Contractual Responsibility to Protect Life and Arrest Violators of the Law

Apart from the dictates of the law recited above, the off-duty police officer had a contractual responsibility that created a special relationship. Particularly, the Police Manual that controlled the off-duty police officers conduct required him to “protect life and property” and “[d]etect and arrest violators of law.” This arrangement is enough to impose a special relationship. Praet, supra at 224 (a duty may be imposed because of contractual, relational or transactional reasons.)

iv. The Husbands’ Role in this Case

In the Podias case, the court imposed liability on passengers of a drunk driver’s vehicle who failed to summons emergency assistance because they had “some relationship not only to the primary wrongdoer, but the incident itself.” Those comments apply with equal force to the facts of this case.

2. Public Policy

With respect to public policy, it is clear beyond question, that there is a deep-rooted public policy in this state to rid its roads of drunken drivers. Kelly v. Grimwald (“This state has a social goal to reduce drunk driving because drunk driving produces thousands of deaths a year.”); State v. Tishio (“The overall scheme of these laws (viz. N.J.S.A. 39:4-50) reflects the dominant legislative purpose to eliminate intoxicated drivers from the roadways of the state.”) See also legislative comment to N.J.S.A. 39:4-50, where it said that “drunk drivers constitute a serious threat to the public safety.”

In this regard, it has been stated that “it may only be necessary [to impose a duty] ‘to find that some definite relation between the parties is of such a character that social policy justifies the imposition of a duty.’” Podias, supra 394 N.J. Super. 348.

3. Principles of Fairness

Manifestly, the imposition of a duty of care on the off-duty police officer to bring the drunk driver to her home and to insure that she did not drive a motor vehicle does not offend principles of fairness and is in accordance with public policy and common decency. Plainly, there are no countervailing policies that can seriously interfere with this conclusion.