Marcinkiewicz v. Marrero4/18/2005
parties, and, ultimately, based on considerations of public policy and fairness, the societal interest in the proposed solution.
[J.S. v. R.T.H., 155 N.J. 330, 337 (1998)(citing Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993).]
"The question whether there is a 'duty' merely begs the more fundamental question whether the plaintiff's interests are entitled to legal protection against the defendant's conduct." Libbey v. Hampton Water Works Co., 389 A.2d 434, 435 (N.H. 1978)(citing Prosser on Torts ยง53, at 325 (4th ed. 1971))(quoted in Weinberg v. Dinger, 106 N.J. 469, 481 (1987)). The imposition of a duty of care, therefore, requires an evaluation of the relative interests of the respective parties. See Portee v. Jaffee, 84 N.J. 88, 101 (1980). That evaluation includes an assessment of the defendant's responsibility for conditions creating the risk of harm, and an analysis of whether the defendant had sufficient control, opportunity, and ability to have avoided the risk of harm. See Carvalho v. Toll Brothers and Developers, 143 N.J. 565, 574-76 (1996). To the extent the plaintiff herself has had an involvement and responsibility, her conduct must be assessed on the same basis.
"The issue is whether, 'in light of the actual relationship between the parties under all of the surrounding circumstances,' the imposition of a duty . . . is 'fair and just.'" Brett v. Great American Recreation, Inc., 144 N.J. 479, 509 (1996)(quoting Hopkins, supra, 132 N.J. at 438). "Ultimately, the determination of the existence of a duty is a question of fairness and public policy." Kuzmicz v. Ivy Hill Park Apts., Inc., 147 N.J. 510, 515 (1997).
In the present matter, the record shows that defendants had knowledge of Everette's alcohol consumption and drug use since 1994, when decedent was only 14 or 15 years old, at the time residential custody was transferred from plaintiff mother to defendant father. Ruben Marrero also testified in depositions that he smelled alcohol on his son's breath on several occasions when Everette was only 16. Moreover, a friend of the decedent testified that he saw Everette drinking beer in defendant's presence before the decedent even turned 18 years old. Thus, Everette's development of a drinking problem, and, as a result, severe liver disease, was clearly foreseeable in the circumstances.
It is apparent, also, that plaintiff was aware of the developing problem. Notwithstanding that decedent had resided with defendants in the years just before his death, defendants had no greater capacity than plaintiff did to modify decedent's conduct over the period of years it must have taken, according to plaintiff's medical expert, for decedent's condition to develop into life-threatening cirrhosis of the liver. See Carvalho, supra, 143 N.J. at 576-77 (establishing that "actual awareness or knowledge of the risk of harm" and "actual knowledge of an unsafe condition" are important considerations in assessing "the fairness in imposing a duty of care").
At one time, the parents had joint legal custody of their son, and, at times, he resided with each of them. Residential custody was transferred from plaintiff to defendant in 1992 and, eventually, in 1995, at plaintiff's behest, decedent was emancipated.
Emancipation is the "act by which one who was unfree, or under the power and control of another, is rendered free, or set at liberty and made his own master." "The term is principally used with reference to the emancipation of a minor child by its parents, which involves an entire surrender of the right to the care, custody and earnings of such child as well as a renunciation of parental duties."
[Schumm v. Schum
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