JACK SCAVONE VS. BRUCE OLIVER (L-3811-17, BERGEN COUNTY AND STATEWIDE)

J
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0159-19

JACK SCAVONE,

          Plaintiff-Appellant/
          Cross-Respondent,

v.

BRUCE OLIVER, ROBERTA
OLIVER, and VICTORIA
OLIVER,

          Defendants-Third-Party
          Plaintiffs-Respondents/
          Cross-Appellants,

v.

A.J. MANZI,1

          Third-Party Defendant/
          Cross-Respondent,

and

NICK BERGER, MARCO TRIA,
and GRANT LAYTON,


1
     Defendant's correct first name is Alan.
     Third-Party Defendants.
______________________________

             Argued April 26, 2021 – Decided May 24, 2021

             Before Judges Mayer and Susswein.

             On appeal from the Superior Court of New Jersey, Law
             Division, Bergen County, Docket No. L-3811-17.

             Andrew F. Garcia argued the cause for appellant/cross-
             respondent (The Cintron Firm, LLC, attorneys; Mark J.
             Cintron, of counsel and on the brief).

             Matthew G. Minor argued the cause for
             respondents/cross-appellants Bruce Oliver, Roberta
             Oliver, and Victoria Oliver (Sweet Pasquarelli, PC,
             attorneys; Matthew G. Minor, on the briefs).

             Gerard H. Hanson argued the cause for cross-
             respondent A.J. Manzi (Hill Wallack LLP, attorneys;
             Gerard H. Hanson and Todd J. Leon, on the brief).

PER CURIAM

      Plaintiff Jack Scavone appeals from an August 2, 2019 order granting

summary judgment in favor of defendants Bruce Oliver, Roberta Oliver, and

Victoria Oliver 2 (Olivers).

      The Olivers cross-appeal from the following orders: an April 12, 2019

order denying their motion to compel production of documents, specifically text


2
  We refer to the individual Olivers by their first names to avoid confusion. No
disrespect is intended.
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                                       2
or group chat messages; a May 10, 2019 order denying reconsideration of the

April 12, 2019 order; and an August 2, 2019 order declaring their third-party

complaint against third-party defendant A.J. Manzi3 moot based on the August

2, 2019 order granting summary judgment to the Olivers. We reverse and

remand all orders.

      We summarize the facts based on the summary judgment motion record.

Victoria lived with her parents, Bruce and Roberta, in a single-family home. On

June 18, 2015, Victoria, then eighteen years old, invited some friends to her

house for a gathering. The invited guests included plaintiff and plaintiff's

friends.   According to Victoria, plaintiff and his friends, including Manzi,

arrived at the house around 10:30 or 11:00 at night, later than the other guests.

Plaintiff and his friends joined the other guests in the basement of the Olivers'

home. Based on the deposition testimony, the number of guests in the basement

ranged from eight people to twenty-five people. All of the guests were under

the age of twenty-one.

      There is discrepant testimony whether plaintiff and his friends consumed

alcohol prior to arriving at the Oliver home. Plaintiff and his friends testified



3
  Manzi's first name is Alan. He was over the age of eighteen at the time but
under the age of twenty-one.
                                                                           A-0159-19
                                       3
they did not consumer alcohol until after their arrival at the Olivers' house.

According to the deposition testimony, there was beer available in the basement,

and people were holding cans of beer. Some party goers testified guest s were

drinking vodka from red plastic cups.

      Victoria denied there was any alcohol in the basement. Bruce testified at

some point he went down to the basement to speak to Victoria. Bruce did not

see anyone drinking beer. Nor did he detect an odor of alcohol in the basement.

Roberta was on the second floor of her home and did not see anyone associated

with the gathering. Nor did Roberta notice an odor of alcohol in her home.

      Plaintiff testified his friends did not bring any alcohol to the Olivers'

residence. According to plaintiff, there was alcohol in the basement when he

arrived, including cases of beer on the floor. Plaintiff drank five to six beers

and Manzi admitted drinking three to four beers. Grant Layton, one of plaintiff's

friends, spoke with Bruce that night. Bruce allegedly visited the basement

several times throughout the course of the evening. Layton believed he may

have held a beer can in his hand when he spoke with Bruce. Nicholas Berger,

another friend of plaintiff, testified there was a strong odor of alcohol in the

basement and, because it was a hot summer night, "[y]ou could smell the beer

and the alcohol."


                                                                           A-0159-19
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        The party eventually moved to the driveway of the Olivers' home. 4

According to Layton, there was a case of beer on the Olivers' driveway near a

basketball hoop.       While outside, plaintiff and Manzi engaged in "light

horseplay." While the specifics of the horseplay are disputed, plaintiff was

pushed from behind. Plaintiff, who claimed he was intoxicated, turned aro und

to push Manzi. Plaintiff missed, and his hand went through the Olivers' garage

door window.5

        Victoria claims plaintiff did not react to the deep cut on his wrist. Because

plaintiff was not screaming in pain or showing any other emotion after his hand

went through the window, Victoria presumed plaintiff was intoxicated.

        Plaintiff filed a complaint against the Olivers alleging his injury was the

result of a party during which the Olivers allowed underaged teenagers to

consume alcohol. Plaintiff argued the Olivers knew, or should have known,

there was underage consumption of alcohol on their property that night.

        The Olivers filed an answer and third-party complaint against Manzi and

others. During the discovery period, the Olivers sought to compel group chat


4
  There is disputed testimony whether plaintiff and the other guests were asked
to leave the Olivers' property or whether the party continued outside until
plaintiff suffered his injury.
5
    As a result, plaintiff required immediate surgery to repair a torn tendon.
                                                                               A-0159-19
                                          5
text messages exchanged among plaintiff and his friends, including Manzi. The

Olivers believed plaintiff and his friends exchanged messages starting the night

of the incident, June 18, 2015, and the messages continued during the litigation.

In December 2018, the Olivers asked the court to compel production of the

messages.    The judge decided to hold the demand for the production of

documents in abeyance until completion of fact depositions and issued a

scheduling order.

      After the completion of the depositions, the Olivers again requested the

production of the group chat text messages. In an April 12, 2019 order, the

judge denied the motion to compel production of the messages. The Olivers

filed a motion for reconsideration, which the judge denied in a May 10, 2019

order. The judge found, "[T]here's no doubt there was some . . . generic

discussion of the lawsuit. . . . Their testimony . . . is all over the map." He also

stated, "No one gave any specifics at all in their deposition testimony as to what,

if anything, was discussed, other than the lawsuit in general, during their group

chat text messaging back and forth."         In denying the motion, the judge

concluded:

             [T]he depositions [of the participants in the group text
             messages] are replete with "I don't know." "I can't
             recall." "I don't know." "I can't recall." And that is the
             mishmash of fact testimony we have in this case

                                                                              A-0159-19
                                         6
            involving a party of undermined size at someone's
            house, which apparently involved the consumption of
            alcohol, the origin of which no one really knows, or it's
            open to dispute.

      On May 10, 2019, the Olivers and Manzi filed separate motions for

summary judgment. After considering the papers and hearing oral argument, in

separate August 2, 2019 orders, the judge granted summary judgment in favor

of the Olivers and dismissed as moot Manzi's motion for summary judgment as

to the third-party claims. In his oral statement of reasons, the judge remarked,

"[T]here is a myriad of testimony in different directions about a party going on

at the Oliver's house." The judge further stated, "It's not really clear how many

people are at this party, but it's not a small party. . . . [T]hey may or may not

have been drinking beforehand, they may or may not have been drinking at the

Oliver's house. There may or may not have been visible alcohol consumed at

the Oliver's house . . . ." The judge explained, "The accident in this case had

nothing to do with the operation of a motor vehicle. The accident here happened

around horseplay between . . . Manzi and [plaintiff]." The judge reiterated there

was "a mishmash of testimony . . . of what happened, when, and how it

happened, other than there's a general consensus of how the accident happened."




                                                                           A-0159-19
                                       7
      The judge relied on this court's decision in Estate of Narleski v. Gomes,

459 N.J. Super. 377

 (App. Div. 2019), rev'd, 

244 N.J. 199

 (2020), 6 in

determining the duty owed by the Olivers. According to the judge, there was

nothing in the record indicating Bruce knew or should have known underage

teenagers were drinking alcohol in the basement. The judge found "no duty on

[Bruce's] part to do more than he did" because there was "not enough here to

show [him] that [Bruce] knew there was drinking or consented to the drinking."

In granting summary judgment to Roberta, the judge held Roberta was "not

involved in this case." Regarding the claims against Victoria, the judge noted

our decision in Estate of Narleski imposed liability prospectively, commencing

180 days from the issuance of that decision. Therefore, even though she was

over the age of eighteen and knew there was underage drinking in her home, the

judge found Victoria was not liable and granted summary judgment. Regarding

Manzi's motion, the judge stated, "By definition, if the Olivers are not in the

case, [Manzi] is not in the case, as well."

      On appeal, plaintiff argues there were genuine issues of material fact

precluding summary judgment as a matter of law. Plaintiff also contends Bruce


6
  After the judge granted summary judgment in favor of the Olivers and after
counsel filed briefs in this appeal, the New Jersey Supreme Court reversed the
prospective application of our decision in Estate of Narleski.
                                                                         A-0159-19
                                         8
and Roberta had a duty to supervise underage individuals when it was reasonably

foreseeable alcohol would be consumed in their home. Further, plaintiff asserts

the judge erroneously relied on our holding in Estate of Narleski in granting

summary judgment to the Olivers, including Victoria, and the New Jersey

Supreme Court's reversal of our decision in Estate of Narleski warrants reversal

of summary judgment as to the Olivers. We agree.

       We review orders granting summary judgment de novo and apply the

same standard at the trial court. Lee v. Brown, 

232 N.J. 114

, 126 (2018).

Summary judgment will be granted if, viewing the evidence in the light most

favorable to the non-moving party, "there is no genuine issue of material fact

and 'the moving party is entitled to a judgment or order as a matter of law.'"

Conley v. Guerrero, 

228 N.J. 339

, 346 (2017) (quoting Templo Fuente De Vida

Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 

224 N.J. 189

, 199 (2016)); R.

4:46-2(c).

      To determine whether there are genuine issues of material fact, the court

must consider "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." Davis v. Brickman Landscaping, Ltd., 

219 N.J. 395

, 406


                                                                            A-0159-19
                                        9
(2014) (quoting Brill v. Guardian Life Ins. Co. of Am., 

142 N.J. 520

, 540

(1995)). "An issue of material fact is 'genuine only if, considering the burden

of persuasion at trial, the evidence submitted by the parties on the motion,

together with all legitimate inferences therefrom favoring the non-moving party,

would require submission of the issue to the trier of fact.'" Grande v. St. Clare's

Health Sys., 

230 N.J. 1

, 24, 164 (2017) (quoting Bhagat v. Bhagat, 

217 N.J. 22

,

38 (2014)).

      A motion for summary judgment should be denied where the

determination of a material disputed fact depends on a credibility determination.

See Parks v. Rogers, 

176 N.J. 491

, 502 (2003). Moreover, questions of law

dependent on the operative facts cannot be decided on summary judgment when

those facts are in dispute. Central Paper Distrib. Servs. v. Int'l Records Storage

& Retrieval Serv., 

325 N.J. Super. 225

, 232 (App. Div. 1999) (holding there

were "critical determinants in resolving the issue of law. The issue was not

amenable to resolution on summary judgment because plaintiffs had made an

adequate showing of genuine questions of material fact bearing upon the issue,

and they were entitled to plenary proof opportunities on the fact questions

involved." (citations omitted)).




                                                                             A-0159-19
                                       10
      Applying this standard, we are satisfied the judge erred in awarding

summary judgment to the Olivers based on disputed material facts from the

deposition testimony. The fact disputes include the following: the number of

guests present at the Oliver home that evening; the presence of beer and

discarded beer cans in the basement and on the driveway of the Olivers' home

when the party moved outdoors; the odor of alcohol throughout the basement;

the number of times Bruce walked into the basement to check on the party;

whether Bruce spoke to any of the party goers while he was in the basement; the

nature of any discussions between Bruce and the party participants, includi ng

Victoria; who brought beer or hard liquor into the Oliver home; the presence of

red plastic cups, suggesting more than beer was being consumed; the

consumption of alcohol by some party goers prior to arriving at the Oliver home;

and Victoria's consumption of alcohol.

      Based on the "mishmash" of the parties' deposition testimony, these

factual questions must be resolved to determine whether the Olivers owed a duty

to plaintiff. Viewing the facts in the light most favorable to plaintiff, there is

evidence Bruce and Roberta knew, or should have known, there were underage

teens openly consuming alcohol at their home. On this summary judgment

record, the differing versions of the evening's events present credibility


                                                                            A-0159-19
                                       11
questions for the jury, and a reasonable jury could determine the Olivers knew,

or should have known, underage teens were drinking alcohol on their property.

       We next consider the granting of summary judgment in favor of Victoria.

The judge relied extensively on our decision in Estate of Narleski, determining

the imposition of liability on Victoria as an underage social host was to be

applied prospectively, and plaintiff's injury occurred prior to our decision in that

case. In light of the Supreme Court's decision in Estate of Narleski, we are

constrained to reverse the order granting summary judgment to Victoria.

      In September 2020, the Court reversed prospective application of our

decision in Estate of Narleski, imposing liability on an individual over the age

of eighteen but under the age of twenty-one who served alcohol to underage

persons. The Court unequivocally held an individual over the age of eighteen

but under the age of twenty-one may be civilly liable under common law

principles if he or she facilitates the consumption of alcohol by making his or

her home available for underage drinking.

      The duty to protect others from foreseeable harm is engrained "in the

common law, legislative enactments, and public policy." Estate of Narleski, 

244

N.J. at 211

. "Any common law duty imposed . . . must 'satisf[y] an abiding

sense of basis fairness under all of the circumstances in light of considerations


                                                                              A-0159-19
                                        12
of public policy.'" 

Id. at 213

 (second alteration in original) (quoting Hopkins v.

Fox & Lazo Realtors, 

132 N.J. 426

, 439 (1993)). In reviewing sixty years of

case law and legislative enactments, the Court held:

            When an underage adult controls a residence or
            premises where he [or she] lives – if only by having a
            key to the door – he [or she] has sway over who enters
            and who remains . . . . When the same underage adult
            permits underage guests to bring beer, vodka, or other
            intoxicating beverages into his [or her] home for the
            purpose of drinking – conduct forbidden under the law
            – then he [or she] should have some concomitant
            responsibility to monitor his [or her] guests' activities.

            [Id. at 226.]

      We reject defense counsel's suggestion the Court's decision in Estate of

Narleski applies only to situations where a social host allows an intoxicated

guest to drive a motor vehicle. Nothing in the Supreme Court's decision suggests

the duty imposed is so limited. Because the facts in Estate of Narleski involved

the death of a third-party based on the intoxication of an underaged party guest

who was provided alcohol by an underaged social host and then drove while

visibly intoxicated, the Court focused its analysis on those specific facts.

      We discern no legal distinction regarding injuries resulting from drinking

and driving and injuries resulting from drinking and engaging in drunken

behaviors likely to cause injury. See Witter by Witter v. Leo, 269 N.J. Super.


                                                                               A-0159-19
                                       13
380, 386 (App. Div. 1994) (imposing a duty where the plaintiff suffered an

injury attempting to jump from the roof of the defendant's home into a swimming

pool where the risk of harm was reasonably foreseeable when alcohol was made

available to underage persons). An underage social host "is bound by the social

compact. His [or her] age does not make him [or her] immune from legal

responsibility for the violation of an established duty that is intended to protect

others from foreseeable harm." Estate of Narleski, 

244 N.J. at 204

. We see no

reason to limit the Court's holding to cases involving injuries or death caused by

underage drinking and driving.

      We next address the August 2, 2019 order denying as moot Manzi's

summary judgment motion seeking dismissal of the Olivers' third-party claims.

The motion judge addressed only whether the Olivers owed a duty to plaintiff.

Because the judge dismissed plaintiff's claims against the Olivers, the judge

never addressed Manzi's motion on the merits.

      "Mootness is a threshold justiciability determination rooted in the notion

that judicial power is to be exercised only when a party is immediately

threatened with harm." Betancourt v. Trinitas Hosp., 

415 N.J. Super. 301

, 311

(App. Div. 2010) (citing Jackson v. Dep't of Corr., 

335 N.J. Super. 227

, 231

(App. Div. 2000)). "Courts normally will not decide issues when a controversy


                                                                             A-0159-19
                                       14
no longer exists, and the disputed issues have become moot." 

Ibid.

 (citing

DeVesa v. Dorsey, 

134 N.J. 420

, 428 (1993) (Pollock, J., concurring)).

      While Manzi did not cross-appeal from the August 2, 2019 order

dismissing the third-party claims, Manzi argues in his merits brief that if we

reverse the order granting summary judgment to the Olivers, summary judgment

should be entered in his favor. We decline to reach the issue asserted in Manzi's

appeal brief because the judge never decided whether the statute of limitations

barred the third-party claims against him. On remand, Manzi may renew his

motion for dismissal of the third-party claims based on the statute of limitations

or any other legal theory. We take no position on the outcome of such a motion.

      We next consider the Olivers' cross-appeal. The Olivers contend the judge

erred in denying their motion to compel production of the group chat text

messages from plaintiff and his friends. We agree.

      We review discovery orders for abuse of discretion. Capital Health Sys.,

Inc. v. Horizon Healthcare Servs., Inc., 

230 N.J. 73

, 79-80 (2017). "[A]ppellate

courts are not to intervene but instead will defer to a trial judge's discovery

rulings absent an abuse of discretion or a judge's misunderstanding or

misapplication of the law." 

Ibid.

 (citing Pomerantz Paper Corp. v. New Cmty.

Corp., 

207 N.J. 344

, 371 (2011)). We "start from the premise that discovery


                                                                            A-0159-19
                                       15
rules 'are to be construed liberally in favor of broad pretrial discovery.'" 

Id. at

80

 (quoting Payton v. N.J. Tpk. Auth., 

148 N.J. 524

, 535 (1997)). "Our court

system has long been committed to the view that essential justice is better

achieved when there has been full disclosure so that the parties are conversant

with all the available facts." Jenkins v. Rainner, 

69 N.J. 50

, 56 (1976) (citing

In re Sesler, 

15 N.J. 393

, 405 (1954)). Case law addressing the scope of

discovery emphasizes liberality in favor of allowing discovery.         See, e.g.,

McKenny ex rel. McKenny v. Jersey City Med. Ctr., 

167 N.J. 359

, 370-72

(2001); Shanley & Fisher, P.C. v. Sisselman, 

215 N.J. Super. 200

, 215-16 (App.

Div. 1987).

      We are satisfied the judge abused his discretion in denying the motion to

compel production of the group chat text messages. Plaintiff and his friends

exchanged messages starting the night plaintiff suffered his injury.         They

continued messaging throughout the course of the litigation, including

exchanging messages prior to their depositions. While the judge believed the

messages would not be fruitful based on his review of the deposition testimony,

the messages may contain information "reasonably calculated to lead to the

discovery of admissible evidence . . . ." R. 4:10-2(a). Absent reviewing the

messages in camera, we are unable to determine how the judge concluded the


                                                                             A-0159-19
                                       16
messages were not reasonably calculated to lead to the discovery of potentially

admissible evidence.

      In denying production of the group chat text messages, the judge also

deemed the Olivers' request to be untimely. Having reviewed the record, we

note defense counsel requested the documents early in the litigation, and the

judge deferred ruling on the issue until the completion of all depositions. Once

the depositions were completed, defense counsel timely renewed the request for

the messages.

      We find no fault with counsel assenting to the judge's request to postpone

the motion to compel the production of the messages until the completion of the

depositions. Because we remand the matter to the trial court for other reasons,

the judge should reconsider the Olivers' request for production of the group chat

text messages anew without regard to the timing of the request. On remand, the

parties may assert alternate grounds in support of denial of the request to

produce the messages.

      Reversed and remanded. We do not retain jurisdiction.




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