KENNETH FRANCO VS. FAIRLEIGH DICKINSON UNIVERSITY (L-5362-16, BERGEN COUNTY AND…

                        RECORD IMPOUNDED

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                 SUPERIOR COURT OF NEW JERSEY
                                 APPELLATE DIVISION
                                 DOCKET NO. A-3055-18

KENNETH FRANCO, an
incapacitated individual, by
his GUARDIANS AD LITEM,
CECILIA GRIGLAK and
PATRICK GRIGLAK, and
CECILIA GRIGLAK and
PATRICK GRIGLAK, individually,

      Plaintiffs-Appellants,
                                  APPROVED FOR PUBLICATION
v.
                                        March 25, 2021

FAIRLEIGH DICKINSON                  APPELLATE DIVISION
UNIVERSITY, FRANK DADES,
DOMINICK STELLACCIO,
JASON MISENER, MATTHEW
PIERONI, RACHEL LISTMAN,
MATTHEW SMIGELSKI,
SPENCER GOLDIN, JAMES
FRISBY, MICHAEL DACOSTA,
JOSEPH PISERCHIO and ALENA
RAMOS,

      Defendants-Respondents,

and

UPSILON HEXATON CHAPTER
OF PHI SIGMA KAPPA
FRATERNITY, THE GRAND
CHAPTER OF PHI SIGMA KAPPA,
INC., CRAIG FELMING, JKL
TAVERN, UNITED RENTALS
(NORTH AMERICA), INC.,
TILCON NEW YORK, INC.,
FLORHAM PARK LIQUORS,
DANISHEK BROTHERS, INC.,

     Defendants.
___________________________

         Argued December 15, 2020 — Decided March 25, 2021

         Before Judges Gilson, Moynihan, and Gummer.

         On appeal from the Superior Court of New Jersey, Law
         Division, Bergen County, Docket No. L-5362-16.

         Raymond S. Vivino and Leonard P. Rosa argued the
         cause for appellant (Vivino & Vivino, LLC, and
         Hartman Doherty Rosa Berman & Bulbulia, LLC,
         attorneys; Raymond S. Vivino, and Leonard P. Rosa,
         on the briefs).

         Angelo A. Stio, III argued the cause for respondent
         Fairleigh Dickinson University (Troutman Pepper
         Hamilton Sanders, LLP, and Post & Schell, PC,
         attorneys; Angelo A. Stio, III, and Richard B.
         Wickersham, Jr. on the brief).

         Peter E. Mueller argued the cause for respondent Frank
         Dades, Shannon M. Burke argued the cause for
         respondent Matthew Pieroni, and Cynthia J. Birkitt
         argued the cause for respondent Dominick Stellaccio
         (Harwood Lloyd, LLC, Gaul, Baratta & Rosello, LLC,
         and Law Offices of James H. Rohlfing, attorneys; Peter
         E. Mueller, Joseph M. Gaul, Jr., Shannon M. Burke, and
         Stephen C. Cahir, of counsel and on the joint brief).




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            Carolyn Kelly Bogart argued the cause for respondent
            Jason Misener (Marshall Dennehey Warner Coleman &
            Goggin, attorneys; Carolyn Kelly Bogart, on the brief).

            Ryan J. Gaffney argued the cause for respondent Rachel
            Listman (Chasan Lamparello Mallon & Cappuzzo, PC,
            attorneys; Ryan J. Gaffney, on the brief).

            John Burke argued the cause for respondent Spencer
            Goldin (Burke & Potenza, PA, attorneys; John Burke,
            on the brief).

            Thomas W. Griffin argued the cause for respondent
            James Frisby (Litvak & Trifiolis, PC, attorneys;
            Thomas W. Griffin, on the brief).

            Michael A. Graziul, II argued the cause for respondent
            Michael DaCosta (Law Offices of Patricia A. Palma,
            attorneys; Michael A. Graziul, II, on the brief).

            Lewis M. Markowitz argued the cause for respondent
            Joseph Piserchio (Campbell, Foley, Delano & Adams,
            LLC, attorneys; Helen A. Cummings, and Lewis M.
            Markowitz, on the brief).

            Carmen E. Mendiola, attorney for respondent Alena
            Ramos, joins in the briefs of respondents Fairleigh
            Dickinson University, James Frisby, Michael DaCosta
            and Joseph Piserchio.

      The opinion of the court was delivered by

GILSON, J.A.D.

      This appeal raises questions concerning the scope of the duty owed to an

adult who is not old enough to drink legally but who nonetheless drinks alc ohol


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to excess and injures himself in a motor-vehicle accident. The issues on this

appeal are governed by the common law and related public policies. The Social

Host Liability Act (SH Act), N.J.S.A. 2A:15-5.5 to -5.8, does not apply because

it governs liability for third-party injuries resulting from the service of alcohol

to an of-age adult.1

      In September 2014, Kenneth Franco, a twenty-year-old college student,

attended a social gathering in a suite in a residential hall at Fairleigh Dickinson

University (FDU or the University). Franco had informed the suitemates and

his parents that he planned to spend the night in the suite. In addition to bringing

an overnight bag, Franco brought and consumed alcohol. He became visibly

intoxicated and then fell asleep on a couch in the suite. Sometime later, the

suitemates and remaining guests either left or went to sleep. At approximately

5 a.m., Franco awoke, left the suite, and forty-seven minutes later was severely

injured when his car went off the road, struck an unoccupied parked vehicle, and

flipped over.

      Franco and his parents appeal from a series of orders that granted



1
  New Jersey considers persons to be an adult when they are eighteen years of
age or older. N.J.S.A. 9:17B-3. Persons can legally purchase and consume
alcohol when they are twenty-one years of age or older. N.J.S.A. 9:17B-1(b).
Accordingly, an "of-age adult" is someone twenty-one years of age or older.
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summary judgment to FDU, four student residential assistants (RAs), four

student suitemates (the Suitemates), and three other students who attended the

gathering as guests. Franco contends that the University and the students had a

duty to take action that would have prevented him from driving while drunk.

      The resolution of these issues turns on an undisputed fact and policy

considerations. The undisputed fact is that Franco had planned to spend the

night and not drive. The policy issues are whether tort duties and social host

liability should apply when an underaged adult voluntarily drinks to excess and

thereafter injures himself. We hold that certain defendants had no duty, while

the duty of other defendants, and a related causation issue, present questions of

fact for a jury to resolve. The three student guests had no duty to monitor the

actions of Franco. Any duty of the Suitemates ended when Franco fell asleep

with the previously-arranged plan to spend the night in the suite.

      FDU and its student RAs are protected by the Charitable Immunity Act

(CI Act), N.J.S.A. 2A:53A-7 to -11, which shields them from claims based on

simple negligence.    There are disputed issues of material fact concerning

whether the RAs were grossly negligent or acted with willful or wanton

indifference in failing to enforce FDU's policies prohibiting underage drinking.




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There is also a related disputed issue of material fact concerning whether any

breach by the RAs caused Franco's injuries.

      Accordingly, we affirm the summary judgments in favor of the Suitemates

and the social guests. We reverse the summary judgments in favor of the RAs.

We also affirm in part and reverse in part the summary judgment in favor of

FDU. The undisputed material facts established that FDU did not directly

breach any duty to Franco. Nevertheless, FDU can be vicariously liable in its

capacity as the employer of the RAs.

                                        I.

      We take the facts from the summary judgment record and view them in

the light most favorable to Franco. See Bauer v. Nesbitt, 

198 N.J. 601

, 604 n.1

(2009) (first citing R. 4:46-2(c); and then citing Brill v. Guardian Life Ins. Co.

of Am., 

142 N.J. 520

, 540 (1995)); see also Globe Motor Co. v. Igdalev, 

225

N.J. 469

, 479 (2016).

      In September 2014, Franco lived with his parents and commuted to FDU,

where he was a college student in his junior year. He was a member of the Phi

Sigma Kappa fraternity and periodically spent nights at FDU sleeping in friends'

rooms or suites.

      On September 18, 2014, while at FDU, Franco heard Frank Dades, one of


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his fraternity brothers, discussing plans to host a Thursday night football-

watching party in his suite (S207) in the Park Avenue residential hall. At

Franco's request, Dades invited Franco to attend.

      Before going to the party, Franco and his mother agreed he would spend

the night at FDU and would travel from there to his part-time banking job the

next morning. Accordingly, when Franco left his parents' home at around 8:30

p.m. that evening, he took his work clothes and toiletries with him.

      Approximately twenty to thirty people attended the party, with students

coming and leaving at different times. The party lasted several hours and broke

up around 2 a.m. on September 19, 2014. The suite's residents – Dominick

Stellaccio, Dades, Matthew Pieroni, and Matthew Smigelski (collectively, the

Suitemates) – were present.     Other students attending included Stellaccio's

girlfriend Rachel Listman, and Spencer Goldin and Jason Misener, both of

whom were Franco's fraternity brothers.

      Franco arrived at the suite at approximately 10 p.m., bringing bottles of

alcohol with him in a backpack. Several students attending the gathering saw

Franco drinking from a bottle of clear liquid, which they assumed was alcohol.

Franco was also seen drinking a beer he apparently had obtained while in S207.

Students attending the party testified that beer and other alcohol was available


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in S207 that evening. In addition, some guests brought beer to S207.

      Franco's expert opined that Franco was visibly intoxicated while in S207

and had a rising blood alcohol content (BAC) of .15% around 12:30 a.m. and

that his BAC peaked at .23% at 2:15 a.m. on September 19, 2014. A blood

sample taken at the hospital following the car accident showed that Franco's

BAC was .164% at 6:52 a.m. A driver is presumed to be under the influence of

alcohol if his or her BAC is .08% or greater. N.J.S.A. 39:4-50(a).

      Stellaccio, one of the Suitemates, saw Franco drinking and asked Franco

if he was spending the night at the suite. When Franco confirmed he was

staying, Stellaccio told Franco he would be sleeping on S207's common-room

couch. S207 had two bedrooms with attached bathrooms, a common room, and

a kitchenette.

      Michael Brown, one of Franco's closest friends, also attended the

gathering. Brown confirmed with Franco that he was not planning on driving

that night. Brown offered to have Franco stay overnight in his dorm room. In

response, Franco told Brown that he would be sleeping in S207. Later, after

noticing that Franco was visibly intoxicated, Brown verified with Stellaccio that

Franco was staying on the couch in S207 that night.

      Sometime late in the evening or after midnight, Franco fell asleep on the


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common-room couch. Thereafter, several people drew on Franco's face and

body. Students also placed chairs on Franco. Franco did not react to either the

drawing or the chairs being placed on him. Instead, he remained asleep.

      Listman testified that she spent most of the evening in Stellaccio's

bedroom and did not recall seeing Franco asleep before she went to bed in

Stellaccio's room. Goldin slept in one of the bedrooms in S207, woke up

sometime between 2 a.m. and 4 a.m., and saw Franco sleeping on the couch.

Goldin reportedly maneuvered Franco onto his side and left a cup of water near

him. Misener testified that he arrived at the suite around 8 p.m. Misener

believed that Franco was visibly intoxicated when he left S207 around 10:30

p.m., soon after Franco had arrived.

      Four RAs also attended the party: Michael DaCosta, Joseph Piserchio,

James Frisby, and Alena Ramos. DaCosta and Frisby were off duty as RAs that

night and attended the gathering as guests. Piserchio was on duty in anoth er

residential hall but also attended the gathering as a guest. Ramos was the RA

on duty for the Park Avenue hall.

      DaCosta saw Franco at the party but testified he did not have any contact

with Franco and did not know anyone in S207 was drinking alcohol. When

DaCosta left the gathering between 11:30 p.m. and 1:00 a.m., Franco was asleep


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on the S207 common-room couch.

       Frisby visited S207 around 10:30 p.m. after having multiple alcoholic

beverages. Frisby saw Franco holding a clear bottle but denied seeing anyone

in the suite drinking alcohol. When he left the suite around midnight, Franco

was still in S207.

       When Piserchio arrived, Franco was already in S207. Piserchio testified

that he observed beer and alcohol in the suite and saw Franco holding a beer.

Piserchio could not say when Franco fell asleep, but he admitted he was one of

the people who had drawn on Franco as he slept around 1:30 a.m. He recalled

only Franco, the Suitemates, Listman, and one other guest remaining in the suite

when he departed.

       Ramos walked into S207 around midnight. She testified that she did not

observe anyone drinking or bringing alcohol into S207, nor did she recall

observing anything that would trigger her to take action in her capacity as an

RA. She purposefully stayed in the suite's kitchen to avoid seeing anything she

would have to report. Ramos witnessed guests drawing on Franco as he slept

but testified she did not know he was intoxicated. She left S207 around 1:30

a.m.

       FDU had a written alcohol policy that prohibited underage drinking on


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campus.   The policy was published in FDU's student handbook and was

distributed by email to every student each year. New students were required to

take an online alcohol-education course. The University also regularly provided

seminars on alcohol awareness, including programs for freshmen and an annual

Alcohol Awareness Week.

      FDU allowed students who were twenty-one years of age or older to

possess and consume alcohol in certain residential halls, known as "wet" dorms,

under certain conditions. Those conditions required that the students possess

alcohol solely for their personal use, not become intoxicated, and not serve

alcohol to underaged persons. The Park Avenue hall, which was on FDU's

Florham Park campus, was a "wet" dorm. In the year before Franco's accident,

FDU reported 528 alcohol violations. FDU's Public Safety Assistant Director

acknowledged that there were more alcohol-related incidents at the Park Avenue

hall than any other dorm.

      The RAs were required to investigate and report to University senior staff

conduct that violated FDU's alcohol policy. Accordingly, the RAs were required

to perform nightly rounds in the residence halls.     If an RA saw underage

drinking, he or she was to identify all persons present, ask each person if they

were drinking and, if they answered yes, note whether they consumed alcohol


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or may be intoxicated. If there was a violation, the RAs were required to

supervise the disposal of alcohol and document the situation. RAs were also

required to call University public safety officers if they encountered a non-FDU

student drinking, faced resistance, or believed someone needed medical

attention.

      None of the RAs who attended the party in S207 took any steps to

determine if any underaged guest was drinking alcohol. They did not report

Franco or anyone else for violation of the alcohol policy. Moreover, they did

not notify senior staff or the Public Safety Office.

      The last person to see Franco on September 19, 2014, was Goldin, who,

when he woke up some time between 2 a.m. and 4 a.m., saw Franco sleeping on

the couch with no chairs on him. After Goldin went back to sleep, Franco

apparently woke up around 5 a.m., left the suite, got into his car, and drove off

campus. At approximately 5:47 a.m., while traveling northbound on Route 287,

Franco's car went off the road, drove up an embankment, struck an unoccupied,

parked construction vehicle, slid back down the embankment, and flipped over.

Franco suffered a traumatic brain injury, lost his eyesight and ability to speak,

and his critical motor functions were impaired. Those permanent injuries have

left him disabled. Franco was the only person injured in the accident.


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      In July 2016, Franco and his parents sued numerous defendants seeking

to hold them liable for Franco's injuries. Franco settled with several defendants.

The remaining defendants included FDU and eleven students: the four

Suitemates, the four RAs, and three guests. In his fourth amended complaint,

Franco alleged that the University and the students were negligent and grossly

negligent for allowing him to drink to the point of intoxication and leave S207

while intoxicated. Franco sought to hold defendants liable for his personal

injuries. His parents asserted claims of loss of consortium.

      Following almost two years of extensive discovery, FDU and several of

the students moved for summary judgment. The initial motion was filed by

Listman and the trial court granted summary judgment in her favor in an order

entered on October 12, 2018.

      Thereafter, the University and all but two of the remaining student

defendants filed for summary judgment.         Franco cross-moved for partial

summary judgment against FDU and the RAs.            The trial court heard oral

argument on those motions in January 2019. On February 8, 2019, the court

entered orders granting summary judgment to all the remaining defendants

except for Ramos and Smigelski, who had previously defaulted. The court also

denied Franco's cross-motion. The court explained the reasons for its rulings in


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a written opinion.

      On March 3, 2019, counsel for plaintiffs sent the trial court a letter

requesting it to enter summary judgment in favor of Smigelski and Ramos, the

remaining defendants. Accordingly, on March 11, 2019, the court entered an

order dismissing the claims against those two defendants and stated that it was

doing so for the same reasons it had granted summary judgment to the other

student defendants. 2

                                         II.

      Franco now appeals from the orders that granted summary judgment and

dismissed his claims against FDU and the eleven students. He makes four main

arguments, each of which has various sub-arguments. He contends that the trial

court erred in (1) holding that none of defendants owed him a legal duty of care;

(2) holding that Franco's injuries were not proximately caused by any of

defendants' failures to exercise reasonable care; (3) dismissing his claims


2
   In the letter sent by plaintiffs' counsel, they pointed out that the trial court's
reasoning in its prior decisions would likely apply to Smigelski and Ramos.
Plaintiffs did not agree with the court's reasoning or sign a consent order
dismissing their complaint. Accordingly, we reject defendants' argument that
plaintiffs cannot appeal this order because they consented to the order. See
Jacobs v. Mark Lindsay & Son Plumbing & Heating, Inc., 

458 N.J. Super. 194

,
205 (App. Div. 2019) (citing Winberry v. Salisbury, 

5 N.J. 240

, 255 (1950))
("[A]n order consented to by the attorneys for each party is ordinarily not
appealable.").
                                                                              A-3055-18
                                        14
against the four Suitemates and three guest defendants; and (4) holding that FDU

and the RAs were entitled to immunity under the Charitable Immunity Act.

      A. Our Standard of Review

      We conduct a de novo review of summary judgment orders and apply the

same standard employed by the trial court. Davis v. Brickman Landscaping,

Ltd., 

219 N.J. 395

, 405 (2014). Accordingly, we determine whether the moving

parties have demonstrated there were no genuine disputes as to any material

facts and, if so, whether the moving parties are entitled to judgment as a matter

of law.

Id. at 405-06

(quoting 

Brill, 142 N.J. at 540

). Our function, like the trial

court's, is not "to weigh the evidence and determine the truth of the matter but

to determine whether there is a genuine issue for trial." 

Brill, 142 N.J. at 540

(quoting Anderson v. Liberty Lobby, Inc., 

477 U.S. 242

, 249 (1986)); R. 4:46-

2(c). A dispute of a material fact is genuine if 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." 

Brill, 142 N.J. at 540

.

      B. Negligence

      Franco asserts that FDU and the students were negligent and grossly

negligent. To establish a claim of negligence, a plaintiff must show that there


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was a legal duty, the duty was breached, the breach proximately caused a

foreseeable injury, and plaintiff suffered damages. Townsend v. Pierre, 

221 N.J.

36

, 51 (2015) (citing Polzo v. Cnty. of Essex, 

196 N.J. 569

, 584 (2008)); Jersey

Cent. Power & Light Co. v. Melcar Util. Co., 

212 N.J. 576

, 594 (2013).

Negligence is "conduct which falls below a standard recognized by the law as

essential to the protection of others from unreasonable risks of harm." Marshall

v. Klebanov, 

378 N.J. Super. 371

, 378 (App. Div. 2005) (quoting Sanzari v.

Rosenfeld, 

34 N.J. 128

, 134 (1961)). The question is "'whether [a] reasonably

prudent person at the time and place should recognize and foresee an

unreasonable risk or likelihood of harm or danger to others' by his [or her]

conduct." Est. of Narleski v. Gomes, 

244 N.J. 199

, 226 (2020) (quoting Kelly

v. Gwinnell, 

96 N.J. 538

, 543 (1984)); Rappaport v. Nichols, 

31 N.J. 188

, 201

(1959)).

      Franco must establish the existence of negligence "by some competent

proof," 

Townsend, 221 N.J. at 51

(quoting 

Davis, 219 N.J. at 406

), because

"[n]egligence is a fact which must be shown and which will not be presumed."

Long v. Landy, 

35 N.J. 44

, 54 (1961). "The mere showing of an incident . . . is

not alone sufficient to authorize the finding of an incident of negligence ."

Ibid.

A-3055-18
16
The

key questions on this appeal concern whether any defendants owed

Franco a duty and, if so, how far that duty extended. Franco contends that FDU,

the RAs, the Suitemates, and the three guests had the opportunity and ability to

exercise reasonable care to prevent him from driving while drunk. Franco also

argues that duties of care should be imposed because the foreseeable risks are

substantial when excessive alcohol is consumed by an underaged person.

      The question of whether a duty exists is a question of law. Robinson v.

Vivirito, 

217 N.J. 199

, 208 (2014) (first citing Carvalho v. Toll Brothers &

Devs., 

143 N.J. 565

, 572 (1996); and then citing 

Kelly, 96 N.J. at 552

). Plaintiff

must prove the existence of that duty. Mergel v. Colgate-Palmolive-Peet Co.,

41 N.J. Super. 372

, 379 (App. Div. 1956). "Any common law duty imposed by

[a c]ourt must 'satisf[y] an abiding sense of basic fairness under all of the

circumstances in light of considerations of public policy.'" 

Narleski, 244 N.J.

at 213

(second alteration in original) (quoting Hopkins v. Fox & Lazo Realtors,

132 N.J. 426

, 439 (1993)).

      Moreover, a court should consider whether the injury was foreseeable

when determining if a duty exists. Est. of Desir ex rel. Estiverne v. Vertus, 

214

N.J. 303

, 317 (2013). In other words, if a duty is to be imposed, there must be

a foreseeable risk of harm. J.S. v. R.T.H., 

155 N.J. 330

, 337 (1998) (citing


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                                       17
Williamson v. Waldman, 

150 N.J. 232

, 239 (1997)). A "duty of reasonable care

and prudence is founded on the probabilities of a given situation, not on [the]

mere possibility." Griesenbeck ex rel. Kuttner v. Walker, 

199 N.J. Super. 132

,

139 (App. Div. 1985) (citing McKinley v. Slenderella Sys., 

63 N.J. Super. 571

,

582 (App. Div. 1960)).

      Accordingly, a court must consider whether it is practical for a defendant

to try to prevent the injury to another. Podias v. Mairs, 

394 N.J. Super. 338

, 350

(App. Div. 2007) (citing 

J.S., 155 N.J. at 339-40

). In determining whether to

recognize a duty, courts consider four factors: "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." 

Hopkins, 132 N.J. at 439

(citing

Goldberg v. Hous. Auth., 

38 N.J. 578

, 583 (1962)); see also 

Narleski, 244 N.J.

at 223

; 

Kelly, 96 N.J. at 544

.

      Our Supreme Court has explained that there is a distinction between

foreseeability as it relates to a determination of duty and foreseeability as it

relates to proximate cause. Hill v. Yaskin, 

75 N.J. 139

, 143 (1977) ("Simply

put, the distinction is between foreseeability as it impacts on duty determination

and foreseeability as it is sometimes applied to proximate cause [-] a critical

distinction too often (because too easily) overlooked."); see also Clohesy v.


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Food Circus Supermarkets, 

149 N.J. 496

, 502-03 (1997) (recognizing that

"[f]oreseeability as a determinant of a business owner's duty of care to its

customers is to be distinguished from foreseeability as a determinant of whether

a breach of duty is a proximate cause of an ultimate injury").

      "The broad test of negligence is what a reasonably prudent person would

foresee and would do in the light of this foresight under the circumstances."

Hill, 75 N.J. at 144

. Foreseeability as it relates to proximate cause, "on the other

hand, relates to 'the question of whether the specific act or omission of the

defendant was such that the ultimate injury to the plaintiff' reasonably flowed

from defendant's breach of duty." 

Clohesy, 149 N.J. at 503

(quoting 

Hill, 75

N.J. at 143

). In other words, "[f]oreseeability in the proximate cause context

relates to remoteness rather than the existence of a duty." Ibid.; see also S.H. v.

K & H Transp., 

465 N.J. Super. 201

, 213-15 (App. Div. 2020) (discussing and

analyzing the two different types of foreseeability).

      Franco has asserted negligence claims against twelve defendants who can

be analyzed in four groupings: (1) the four Suitemates; (2) the three guests; (3)

FDU; and (4) the four RAs. The duty and scope of the duty of each group of

defendants differ. Moreover, the potential liability of the student defendants

within the groupings depends on the specific facts established by discovery.


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Accordingly, we separately analyze whether there was a duty and the scope of

that duty for each group of defendants.

      In undertaking that evaluation, we are guided by the State's strong public

policy of discouraging drunk driving.       Our Supreme Court has recently

emphasized that "[i]ntoxicated driving remains one of the preeminent public

safety threats in New Jersey[.]" 

Narleski, 244 N.J. at 213

. The Court has

explained: "This State's public policy of imposing severe sanctions on drunk

drivers and of prohibiting the service of alcohol to minors and visibly

intoxicated adults has deep roots in our law. The common law has been in the

vanguard in addressing the acute problem of underage drinking and drunk

driving."

Ibid.

1.

   The Suitemates

      The question of whether the four Suitemates owed Franco a duty is not

directly answered by statutes or existing case law. Instead, imposing a duty

would involve an extension of the common law.

      The SH Act does not apply because that Act addresses the liability of a

social host "who legally provides alcoholic beverages to another person who has

attained the legal age to purchase and consume alcoholic beverages." N.J.S.A.

2A:15-5.5. Franco was not of legal age to purchase and consume alcohol.


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        New Jersey criminal law prohibits supplying alcohol to minors and

making property available to facilitate underaged consumption of alcohol.

N.J.S.A. 2C:33-17(a) and (b). Our Supreme Court has clarified, however, that

those criminal statutes "create penal sanctions, not tort liability standards."

Narleski, 244 N.J. at 218

; see also Thomas v. Romeis, 

234 N.J. Super. 364

, 374

(App. Div. 1989) (discerning no legislative intent that N.J.S.A. 2C:33-17 be

used to establish a tort standard).    Accordingly, in considering whether to

impose a duty, we look to existing case law addressing common law social host

duty.

        Initially, we clarify that the Suitemates' potential duty is governed by

social host liability and not some general negligence theory. Franco's injuries

arose out of his drunk driving and for the past four decades, when the SH Act

does not apply New Jersey has addressed such claims under the common law of

social host liability. See 

Narleski, 244 N.J. at 213

-17; see also Linn v. Rand,

140 N.J. Super. 212

, 219 (App. Div. 1976) (establishing liability of social host

who served alcohol to a visibly intoxicated minor, causing injury to another);

Romeis, 234 N.J. Super. at 371

.

        In determining whether to impose a duty on the Suitemates and

determining the extent of that duty, we are guided by the most recent case


                                                                          A-3055-18
                                       21
addressing and analyzing social host liability: Narleski. There, the Court held

that an adult, underaged social host who allowed other underaged adult guests

to drink alcohol in his parents' home could be liable to a third party injured by

an intoxicated underaged social guest if certain facts were 

established. 244 N.J.

at 228

. To establish liability, a plaintiff must be able to present evidence of five

facts:

            1.     The social host knowingly permitted and
            facilitated the consumption of alcoholic beverages to
            underage guests in a residence under his control . . . ;

            2.    The social host knowingly provided alcohol to a
            visibly intoxicated underage guest or knowingly
            permitted the visibly intoxicated underage guest to
            serve himself or be served by others . . . ;

            3.    The social host knew or reasonably should have
            known that the visibly intoxicated social guest would
            leave the premises and operate a motor vehicle and
            therefore would foreseeably endanger the lives and
            property of others;

            4.    The social host did not take any reasonable steps
            to prevent the intoxicated guest from getting behind the
            wheel of the vehicle; and

            5.     The social guest, as a result of intoxication
            facilitated by the social host, negligently operated a
            vehicle and proximately caused injury to a third party.

            [Ibid.]



                                                                              A-3055-18
                                        22
      Two of those facts are not present in this case. First, Franco is a first-

party plaintiff; there was no injury to a third party.        Second, the evidence

established that the Suitemates believed that Franco was spending the night in

S207 and would not be driving.          Consequently, to impose a duty on the

Suitemates we would extend social host liability into new territory. Indeed, in

Narleski, the Court recognized that its holding was a new rule announced in

2020.

Ibid. While the Court

applied that "new social host liability rule to the

parties in [that] case," ibid., it is not clear the rule would apply to the Suitemates

in this case because the gathering took place in 2014, approximately six years

before Narleski extended social host liability.

      But even if the new Narleski rule was applied to this case, as already

noted, there are material factual distinctions between this case and Narleski.

Most of the existing case law concerning social host liability addresses claims

by third parties. In other words, the duty the social host owes is to a third party

who is injured when the intoxicated guest drives a car and causes an accident.

Case law imposing first-party liability is limited and distinguishable.

      Our Supreme Court has not yet addressed first-party social host liability.

We have addressed first-party liability in two published cases: Finer v. Talbot,

230 N.J. Super. 19

, 21 (App. Div. 1988), and Camp v. Lummino, 352 N.J. Super.


                                                                               A-3055-18
                                         23
414, 415-16 (App. Div. 2002). There are also two published cases issued by the

Law Division: Wagner v. Schlue, 

255 N.J. Super. 391

, 397 n.2 (Law Div. 1992),

and Batten by Batten v. Bobo, 

218 N.J. Super. 589

, 590-91 (Law Div. 1986).

      In Finer, an of-age motorist was killed when he drove his vehicle into a

tree. 230 N.J. Super. at 20

. His next of kin alleged defendant , a social host,

negligently served decedent alcohol when he was visibly intoxicated.

Id. at 20-

21.

The SH Act had not been enacted at the time of the accident but had been

passed by the time we considered the issues on appeal.

Id. at 21.

We reversed

the denial of the social host's motion for summary judgment because the first-

party liability plaintiffs sought to impose had not been judicially recognized and

would have been "an extension of principles rejected by the [SH Act.]"

Ibid.

In Camp, a

twenty-year-old plaintiff attended a party, consumed alcohol

to excess, and was injured in a single-vehicle accident after leaving. 352 N.J.

Super. at 416. Plaintiff sued the social host, who moved for summary judgment.

The trial court denied defendant's motion for summary judgment, and we

affirmed.

Id. at 420.

      The focus of our decision in Camp was on defendant's contention that

plaintiff was precluded from bringing a suit under N.J.S.A. 39:6A-4.5(b)

because plaintiff had pled guilty to driving while intoxicated.

Id. at 416-17.

                                                                            A-3055-18
                                       24
N.J.S.A. 39:6A-4.5(b) bars a person who is convicted of or pleads guilty to

driving while intoxicated from recovering economic and non-economic damages

sustained in the accident. We determined that statute did not immunize a social

host who contributed to causing an accident by serving an underaged drinker.

Camp, 352 N.J. Super. at 419

. Additionally, we rejected the argument that the

SH Act precluded Camp's lawsuit because he was under the age of twenty-one,

making the SH Act inapplicable.

Id. at 417;

see also N.J.S.A. 2A:15-5.6(a)

(outlining liability for negligent provision of alcohol to an of-age drinker).

Given the arguments presented in Camp, we did not address whether social hosts

generally would be subject to tort liability and would owe a duty to a fir st-party

plaintiff.

       In Bobo, the Law Division determined an "intoxicated minor guest c[ould]

maintain a cause of action against [a] social host," but that matter involved a

fifteen-year-old child, not a legal 

adult. 218 N.J. Super. at 591

. The other case,

Wagner, did not involve statutory or common law social host liability. 255 N.J.

Super. at 397 n.2. The Law Division considered the duty of a defendant who

entrusted a vehicle to his intoxicated wife, who then sued him after she drove

and was injured in an automobile accident.

Id. at 392-93.



                                                                             A-3055-18
                                       25
      None of those cases answers the duty issues posed in this matter.

Accordingly, our analysis turns to whether we should extend social host liability

for a first-party claim under the material facts of this case. We decline to make

such an extension because the four factors for recognizing a tort duty do not

support imposing liability on the Suitemates.

      The relationship among the Suitemates and Franco were friendships

developed at college. The party did not take place in a private home; rather, it

took place in a college dormitory. Nonetheless, the Suitemates controlled access

to the suite and permitted Franco to bring alcohol and to drink to the point wh ere

he was visibly intoxicated.

      The nature of the attendant risks was well known. Those risks included

that Franco could drive and cause injury to others or himself. As the Court has

recently noted, "the scope of the public-health threat presented by drunk drivers

in general and underage drunk drivers in particular" is well known and well

documented. 

Narleski, 244 N.J. at 224-25

.

      The key consideration is whether the Suitemates had the opportunity and

ability to exercise care to prevent Franco from driving. The record establishes

that at least one of the Suitemates confirmed with Franco that he planned to

spend the night in S207. Making inferences in plaintiffs' favor we accept on this


                                                                             A-3055-18
                                       26
record that the Suitemates saw Franco visibly intoxicated. The record also

established, however, that all the Suitemates saw Franco fall asleep and,

therefore, reasonably expected that he would sleep off his intoxication.

      Franco argues that the Suitemates should have done something more, such

as take his car keys or call for medical assistance. There is no evidence that any

of the Suitemates saw Franco attempt to leave the suite to drive. Moreover,

Franco has no expert to testify that he was in medical distress or required

medical assistance while in S207.

      We are mindful of the disturbing fact that at least two of the Suitemates

and other guests drew markings on Franco and placed chairs on him while he

was asleep. Although such immature behavior should not be encouraged or

condoned, there is no evidence it created any greater risk that Franco would

drive while intoxicated. Furthermore, Goldin, the last person to see Franco

before the accident, testified that he saw Franco asleep on the couch with no

chairs on him. More critically, when the gathering broke up and the Suitemates

all went to sleep, Franco was asleep. Consequently, no Suitemate saw Franco

wake up later and leave the suite.

      Underaged adults have "all the civil rights and obligations of any other

adult – other than the privilege to consume alcohol."

Id. at 225.

The public


                                                                            A-3055-18
                                       27
policy question posed in this case is whether imposing a duty on an underaged

adult not to provide alcohol to a visibly intoxicated underaged guest will deter

drunk driving. "The public clearly has an interest in deterring the unnecessary

destruction and maiming of lives on our roadways and highways."

Id. at 226.

Nevertheless, while the SH Act is inapplicable to this matter, its legislative

history reflects a policy of holding social hosts responsible only "in extreme

circumstances where their behavior is egregious and their culpability is

manifest" because "a social host is not the party at fault for the accident[.]"

Sponsor's Statement to S. 545 3 (L. 1987, c. 404). Accordingly, the SH Act does

not allow first-party claims.

      Imposing a duty of care on a social host to an underaged adult social guest

would be inconsistent with the policies embodied in the SH Act.           Franco

voluntarily chose to drink. He did it in a context where the expectation was that

he would stay in the suite and not drive. At some point, when no one else was

awake, Franco awoke and made the decision to drive while he was still

intoxicated. Given those undisputed material facts, we do not think that it would

advance the goal of deterring drunk driving by imposing a duty and making the

Suitemates liable for Franco's injuries.

      2.    The Social Guest


                                                                           A-3055-18
                                       28
      Next, we analyze a clearer issue: was Franco owed a duty by other social

guests who never saw him attempt to leave the gathering to drive a car? We

hold no; those social guests did not owe a duty to Franco.

      Franco asserted claims of negligence and gross negligence against

Misener, Listman, and Goldin, who were also guests attending the gathering in

S207. Franco alleges that Listman and Misener brought containers of beer to

S207, and Franco may have consumed some of those beers. Franco claims that

Goldin, while not a Suitemate, often slept over at S207 and did so on the night

of the gathering.

      No case or statute in New Jersey imposes a civil tort duty of care on social

guests to monitor and control the alcoholic drinking of another guest absent a

special relationship or circumstance. Champion ex rel. Ezzo v. Dunfee, 398 N.J.

Super. 112, 121 (App. Div. 2008) (citations omitted). We decline to impose a

new duty on the three social guests in this case.

      There is no evidence that Listman, Misener, or Goldin invited Franco to

S207 or controlled access to that suite. Accordingly, their relationship with

Franco was as co-guests. More importantly, there is no evidence that Misener,

Listman, or Goldin saw Franco leaving the suite in an intoxicated condition.

Misener left the suite by 10:30 p.m., when Franco was still in the suite. Listman


                                                                            A-3055-18
                                       29
testified that she fell asleep in one of the bedrooms, did not see Franco fall asleep

in the common room, and did not see him thereafter. Goldin was the last person

to see Franco, but he saw Franco sleeping. Goldin then went back to bed.

Accordingly, none of the guests had reason to believe that Franco would be

operating a motor vehicle while he was intoxicated. Generally, "mere presence

at the commission of the [alleged] wrong, or failure to object to it, is not enough

to charge one with responsibility inasmuch as there is no duty to take affirmative

steps to interfere."

Id. at 118

(quoting 

Podias, 394 N.J. Super. at 346

).

      3.     FDU

      Franco argues that FDU was negligent and grossly negligent in failing to

enforce its alcohol policies and allowing a "wet" dorm. Franco also argues that

FDU and its RAs are not protected by the CI Act because when he was injured,

the University was not promoting an educational purpose and he was not a

beneficiary of FDU's educational works. We disagree.

      FDU is a nonprofit entity organized to promote higher education. "[A]n

entity qualifies for charitable immunity when it '(1) was formed for nonprofit

purposes; (2) is organized exclusively for religious, charitable or educational

purposes; and (3) was promoting such objectives and purposes at the time of the

injury to plaintiff who was then a beneficiary of the charitable works.'"


                                                                               A-3055-18
                                        30
O'Connell v. State, 

171 N.J. 484

, 489 (2002) (quoting Hamel v. State, 321 N.J.

Super. 67, 72 (App. Div. 1999)).        Accordingly, when FDU is promoting

education, a beneficiary of that education cannot sue FDU or its employees for

negligence. N.J.S.A. 2A:53A-7(a); Green v. Monmouth Univ., 

237 N.J. 516

,

530-31 (2019); Hardwicke v. Am. Boychoir Sch., 

188 N.J. 69

, 95 (2006).

      There is no dispute that FDU satisfies the first two prongs of the test for

charitable immunity. Franco, however, disputes the third prong. The third

prong of the charitable immunity test involves two inquiries: (1) whether the

organization "was engaged in the performance of the . . . objectives it was

organized to advance[;]" and (2) "whether 'the injured party [was] a direct

recipient of those [charitable] works.'" 

Green, 237 N.J. at 531

(second alteration

in original) (quoting Ryan v. Holy Trinity Evangelical Lutheran Church, 

175

N.J. 333

, 350 (2003)).

      The CI Act "is to be liberally construed," and "the phrase 'educational

purpose' has been interpreted broadly."

Id. at 538.

Accordingly, nonprofit

entities have "substantial latitude in determining the appropriate avenues for

achieving their objectives." Orzech v. Fairleigh Dickinson Univ., 411 N.J.

Super. 198, 206 (App. Div. 2009) (quoting Bloom v. Seton Hall Univ., 307 N.J.

Super. 487, 491 (App. Div. 1998)). In Green, for example, the Court held that


                                                                            A-3055-18
                                       31
a non-student injured at a concert in a university building could not sue the

university for negligence because the concert was "a cultural and educational

experience" the attendee 

received. 237 N.J. at 538

. We have also recognized

that a university is engaged in educational works where it provides dormitory

residences to its students because a campus experience that allows the

opportunity for diverse forms of social interchange is consistent with reasonable

educational goals.   

Orzech, 411 N.J. Super. at 209

.       Critically, a student's

violation of a university's alcohol policy in a dorm does not extinguish his

beneficiary status.

Id. at 210-11

(barring negligence action by student who, after

drinking to excess, fell out a dormitory window); see also Bloom, 307 N.J.

Super. at 492 (holding student injured in a campus pub was a beneficiary of

college's works).

      In all those cases, the Supreme Court and this court reasoned that

educational purposes were to be construed broadly and persons receiving those

educational purposes were also to be construed broadly. Applying the holdings

and rationale of these cases, we hold that when Franco was at the gathering at

an FDU dormitory, the University was promoting an educational purpose and

Franco was a beneficiary of that purpose. We have already recognized that

residential halls promote a university's educational goals by allowing social


                                                                            A-3055-18
                                       32
interaction.   While Franco did not live on campus, he nonetheless was a

beneficiary of FDU's educational purposes when he socially interacted with

other students in a residential hall. Consequently, we affirm the dismissal of

plaintiffs' direct negligence claims against FDU.

      We also affirm the dismissal of Franco's claims of gross negligence

because there are no facts establishing that FDU engaged in gross negligence.

Initially, we clarify the scope of the immunity provided by the CI Act.

      When Franco was injured in 2014, the CI Act did not exempt employees

of the charitable entity from claims for damages caused by gross negligence or

willful or wanton conduct. L. 1995, c. 183, § 1 ("Nothing in this section shall

be deemed to grant immunity to . . . [an] employee . . . causing damage by a

willful, wanton or grossly negligent act[.]"). Our Supreme Court clarified that

exclusion also applied to the charitable organization itself and, thus, the CI Act

barred simple negligence actions only. 

Hardwicke, 188 N.J. at 98

. The CI Act

did not preclude claims based on "other forms of aggravated wrongful conduct,

such as malice or fraud, or intentional, reckless and wanton, or even grossly

negligent behavior."

Ibid. (quoting Schultz v.

Roman Cath. Archdiocese, 

95

N.J. 530

, 542 (1984) (Handler, J., dissenting)).




                                                                            A-3055-18
                                       33
      More recently, the Legislature amended the CI Act to expressly vitiate the

immunity of a nonprofit charitable entity in addition to its employees for

damages caused by "a willful, wanton or grossly negligent act[.]" L. 2019, c.

120, § 5. That amendment was effective December 1, 2019. Therefore, the

holding in Hardwicke governs here and makes FDU open to a claim for damages

arising out of gross negligence, recklessness, intentional and willful or wanton

conduct. 188 N.J. at 97

, 99.

      FDU argues that the language in Hardwicke was dicta and the holding in

Hardwicke is limited to intentional acts such as sexual assault. We reject that

argument. The Court in Hardwicke was clear and expressly held "that the [CI

Act] immunizes simple negligence only, and not 'other forms of aggravated

wrongful conduct, such as malice or fraud, or intentional, reckless and wanton,

or even grossly negligent behavior.'"

Id. at 97

(citation omitted). Consequently,

to the extent that the trial court held that FDU could not be liable for gross

negligence, we reject that holding. 3


3
   In 2011, we held that the CI Act's exemption for claims arising from the
negligent operation of a motor vehicle did not apply to the charitable entity and
only applied to individual trustees, directors, officers, employees, agents,
servants, or volunteers of the charitable entity. Hehre v. DeMarco, 421 N.J.
Super. 501, 505 (App. Div. 2011). The exemption for negligent operation of an
automobile is in a separate section from the exemption that governs here.


                                                                           A-3055-18
                                        34
      Although FDU could be subject to a claim based on gross negligence, the

undisputed material facts here establish that FDU was not grossly negligent.

Moreover, those facts also establish that FDU did not engage in willful or

wanton conduct.

      Gross negligence "is commonly associated with egregious conduct and is

used to describe 'the upper reaches of negligent conduct.'" Kain v. Gloucester

City, 

436 N.J. Super. 466

, 482 (App. Div. 2014) (citations omitted).

Accordingly, gross negligence exists on a scale above ordinary negligence and

recklessness and is part of a continuum of conduct that extends to intentional

acts. Steinberg v. Sahara Sam's Oasis, LLC, 

226 N.J. 344

, 363 (2016). Gross

negligence is more than inattention or mistaken judgment.

Id. at 364.

      Willful or wanton conduct is an even higher standard than gross

negligence.

Id. at 365-66.

"Conduct is considered willful or wanton if done

with the knowledge that injury is likely to, or probably will, result." G.S. v.

Dep't of Hum. Servs., 

157 N.J. 161

, 178 (1999) (citing McLaughlin v. Rova

Farms, Inc., 

56 N.J. 288

, 305 (1970)). This "implies an intentional deviation

from a clear duty[.]" 

Steinberg, 226 N.J. at 366

(citation omitted). To establish




Compare N.J.S.A. 2A:53-7(c)(2) with N.J.S.A. 2A:53-7(c)(1).           Moreover,
logically a charitable entity cannot drive a car.
                                                                           A-3055-18
                                      35
a claim of willful or wanton conduct, a plaintiff must demonstrate that defendant

acted or failed to act with knowledge that injury would likely or probably result

and with reckless indifference to that consequence. Foldi v. Jeffries, 

93 N.J.

533

, 549 (1983).

      FDU did not host the gathering where Franco became intoxicated or invite

Franco to that gathering. The involvement of the University itself was limited

to providing a dormitory. More importantly, FDU had policies prohibiting

excessive drinking and underage drinking.        FDU also had administrators,

security personnel, and RAs who monitored for violations of its alcohol policies

and enforced those policies. There is no evidence in the record that FDU was

grossly negligent in enforcing its policies on September 18 and 19, 2014.

Similarly, there is no evidence in the record that FDU's actions or omissions

rose to the level of willful or wanton conduct concerning the gathering in S207.

      4.    The RAs

      Like FDU, the RAs are immunized from claims of simple negligence

under the CI Act. Abdallah v. Occupational Ctr. of Hudson Cnty, 351 N.J.

Super. 280, 282 n.1 (App. Div. 2002) (citing N.J.S.A. 2A:53A-7). Thus, the

RAs can be held liable only if Franco has evidence showing that the RAs

engaged in gross negligence or willful or wanton conduct. Following the close


                                                                           A-3055-18
                                      36
of discovery, Franco presented some evidence that the RAs may have engaged

in gross negligence or willful or wanton conduct. There is also a related factu al

question of whether any breaches by the RAs caused Franco's injuries.

      The responsibilities of FDU's RAs were set forth in the University's 2014-

2015 Resident Assistant Manual and Resident Assistant Agreement. RAs were

"expected to abide by, and enforce, all FDU Community Standards, Campus Life

policies, State and/or Federal Laws anywhere on campus or in FDU owned or

leased property." The Resident Assistant Manual contained an alcohol protocol.

Under that protocol, if RAs suspected that there was underage drinking going

on in a dormitory, they were to (1) knock and announce themselves; (2) ask to

speak to the residents; (3) ask each person found in the room or suite for his or

her name and identification; (4) "[a]sk each person '[h]ave you been drinking?'

and note each person's response"; (5) if there was alcohol, supervise disposal of

the alcohol; and (6) "[i]nform the people that [they] will be documenting the

situation." RAs were required to call FDU public safety officials if they felt

intimidated, if "[s]omeone may need medical attention," or if residents were

uncooperative. In addition, RAs were expected to comply with the reporting

requirements and the alcohol protocol even when off duty.




                                                                            A-3055-18
                                       37
      Viewing the facts in the light most favorable to Franco, there is evidence

from which a jury could find that all the RAs were aware that underage drinking

was occurring in S207. Some of the student defendants, as well as other guests

who were at the gathering, testified at their depositions that people at the party,

including Franco, were openly drinking alcohol.

      RA Ramos came to the party at S207 around midnight when she was the

on-duty RA for that dormitory. She did not abide by the University's alcohol

policies or protocol. She did not ask for everyone's identification nor did she

report the underaged drinking. Instead, she stood in the kitchen and did nothing.

      RA Piserchio was on duty at another residential hall when he came to the

party at S207. He observed beer and alcohol in the suite and saw Franco holding

a beer. When Franco fell asleep, Piserchio participated in drawing on Franco.

He did not abide by the University's alcohol policies or protocol. He did not

take the beer from Franco and report Franco. Nor did he supervise the disposal

of all the alcohol in the suite.

      RAs DaCosta and Frisby were off duty as RAs on the night of the party.

Nevertheless, under the University's Resident Assistant Manual, they were still

expected to comply with the protocol even when off duty. Both DaCosta and

Frisby saw Franco at the party. While they both denied seeing anyone drinking,


                                                                             A-3055-18
                                       38
on this summary judgment record that contention presents a credibility question

for a jury because other guests testified that people at the party, including

Franco, were openly drinking alcohol.

      Based on that evidence, a reasonable jury could determine that one or

more of the RAs were grossly negligent or were willfully or wantonly indifferent

when they failed to enforce the University's policies prohibiting underaged and

excessive drinking. Nevertheless, if the jury determines that one or more of the

RAs was grossly negligent, that will not end the inquiry. The issue will then

become whether any RA's gross negligence had a causal connection to the

injuries suffered by Franco.

      Franco is not claiming that he was injured simply by drinking to a point

of intoxication. There is no evidence in the record that anyone believed Franco

needed medical attention. The evidence establishes that he fell asleep while

intoxicated and was sleeping for several hours. All the RAs testified without

rebuttal that when they left S207 Franco was either still in the suite or asleep in

the suite.

      More critically, Franco's injuries resulted from an automobile accident.

None of the RAs saw Franco attempt to leave S207 in an intoxicated condition

with the intent to drive. Accordingly, the jury will need to be instructed that if


                                                                             A-3055-18
                                       39
they find gross negligence by any of the RAs they must also find that Franco's

injuries from the car accident reasonably flow from the RAs' gross negligence.

See 

Hill, 75 N.J. at 143

. In other words, the jury must find that the inactions or

omissions by the RAs had a foreseeable causal connection to Franco's driving

while intoxicated. If, on the other hand, the jury finds that the RAs reasonably

believed that Franco would not leave S207 in an intoxicated condition and

operate a motor vehicle, then that finding would break the chain in any causation

argument.

                                       III.

      In summary, we hold that the Suitemates and three student guests owed

no duty to Franco in this first-party common law negligence action. Whether

the four student RAs, and through them FDU vicariously, engaged in any gross

negligence or willful or wanton conduct presents a jury question. In resolving

that question, the jury will also have to determine if the injuries suffered by

Franco flowed from any act or omission of the RAs. Accordingly, on remand it

will be plaintiffs' obligation to establish the scope of the RAs' duty, as well as

to prove any breach proximately caused Franco's injuries. The jury will also

have to consider any comparative negligence of Franco. N.J.S.A. 2A:15-5.1;

New Gold Equities Corp. v. Jaffe Spindler Co., 

453 N.J. Super. 358

, 380 (App.


                                                                            A-3055-18
                                       40
Div. 2018) (quoting LaBracio Fam. P'ship v. 1239 Roosevelt Ave., Inc., 340 N.J.

Super. 155, 164 (App. Div. 2001) ("When apportioning liability . . . 'the fact-

finder should compare the fault of all parties whose negligence was a proximate

cause of the plaintiff's injuries.'"); see also N.J.S.A. 2A:15-5.2.

      Affirmed in part, reversed in part, and remanded for further proceedings

consistent with this opinion. We do not retain jurisdiction.




                                                                         A-3055-18
                                        41
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