Kelly v. Gwinnell

476 A.2d 1219 (N.J. 1984).

Gwinnell is the defendant. Dismissed in the trial and appellate court.


Whether the court should impose a duty on hosts who allow guests to become intoxicated and then drive intoxicated.


Policy considerations should be in place to determine whether this duty should be imposed.


Reversed, a host can be liable for the intoxication of their guests.


Gwinnell was a guest of the Zak family. He become severely intoxicated while there and then drove away while visibly intoxicated. Gwinnell then caused an accident which severely injured the plaintiff. Thus, Gwinnell was sued who attached the Zak family as other defendants.


There is no doubt that the Zak family would be aware of the risk they were creating. So the only issue to determine is whether there should be a duty on the hosts.

There are many issues with drunk driving. Thousands of deaths each year. Damages caused by accidents. There are liquor license requirements and criminal sanctions for disobedience. In other words, imposing a duty on a host would make sense because of these policy considerations.

The dissent disagrees because this should be left up to the legislature. Additionally, there are several other policy considerations related to hosts specifically. The host may not know the condition, not having been trained, may not be alert to several guests, or may also be drunk. All these should limit the liability on a host.

Additional Notes

One of the ways to solve these policy issues (driving intoxicated) is to hold social hosts liable. This is to act as a deterrence to social hosts from contributing to the issue.

The dissent disagrees because social hosts are different than commercial.

It is important to note that the courts can announce public policy. However, the legislature has the right to alter that policy by passing their own policy.

Enright v. Eli Lilly & Co.

570 N.E.2d 198 (N.Y. App. 1991).

Enright is the plaintiff, claims were dismissed and she appealed.


Can the child affected by the mother’s taking of DES have a cause of action against the company for injuries that were caused by the drug?


Examine policy considerations.


No cause of action, barriers are too large. Affirmed.


See earlier case about the effects of DES of mothers, daughters, and granddaughters.


There are several policy reasons why the court is reluctant to show a cause of action. It is because the negative effects of allowing this cause of action far outweigh countervailing policy considerations.

Additional Notes

The court says that we need to manage liability at some point. That is, we don’t know how many generations may feel the effects of DES so the court has to draw the line somewhere. Even though it is arbitrary, that is the policy situation.


All jurisdictions have broad (foreseeability) and narrow (direct) application of proximate cause.

Risk Analysis

  • Why do we hold a person negligent? What risks are we trying to avoid?
  • If one of those risks materializes, then we hold the defendant liable.

We have to argue the facts of a case, not just the related law. (i.e. not just “the defendant’s actions were the proximate cause”). We need to ask “why” (i.e. the defendant would argue that it was not proximate because it is unforeseeable that a second car would run over the victim. The plaintiff would argue that it was proximate because it is foreseeable that hitting someone with a car would cause an injury that could lead to death). This is the most important takeaway from Proximate Cause.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 1L Fall, Torts

Will Laursen

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