NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3167-06T23167-06T2

MARK CHAMPION, by and through

BONNIE CHAMPION EZZO, his

Attorney-In-Fact,

Plaintiff-Appellant,

v.

DAVID W. DUNFEE, JR., SAFECO

LIFE INSURANCE COMPANY, and

ATLANTIC EMPLOYERS INSURANCE

COMPANY,

Defendants,

and

KRISTI KAKODA,

Defendant-Respondent,

and

DAVID W. DUNFEE, JR.,

Third-Party Plaintiff,

v.

KRISTI KAKODA,

Third-Party Defendant.

________________________________

Argued January 7, 2008 - Decided

Before Judges Parrillo, Graves and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-274-03.

James F. Crawford argued the cause for appellant.

Frank J. Caruso argued the cause for respondent (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; John C. Simons, of counsel; Mr. Caruso, on the brief).

The opinion of the court was delivered by

PARRILLO, J.A.D.

At issue is whether a passenger in a motor vehicle, which she neither owns nor controls, owes an affirmative duty to a fellow passenger to prevent a visibly intoxicated driver from operating his own automobile. Under the circumstances, we find no legal duty arises from the mere presence of a guest passenger who enjoys no special relationship to, and has not substantially encouraged the wrongful behavior of, the actual tortfeasor. We, therefore, affirm the summary judgment dismissal of plaintiff Mark Champion's personal injury lawsuit against defendant Kristi Kakoda.

The salient facts are not in dispute. At around 7:30 p.m. on June 15, 2002, defendant Kakoda drove to David Dunfee's apartment in Bridgeton. She had been dating Dunfee for about two years. While at the apartment, she saw Dunfee consume two or three beers, although she herself did not drink any alcoholic beverages. Plaintiff arrived at the apartment sometime later, driven there by two other friends who left shortly thereafter. Kakoda left at 11:00 p.m. and drove alone to McDonald's, but returned to Dunfee's apartment one-half hour later. At around midnight, plaintiff received a call from the two friends who had driven him to Dunfee's asking to meet them at a graduation party on nearby Barretts Run Road. Dunfee agreed to take plaintiff to the party.

The trio left Dunfee's apartment at 12:30 a.m. There was no discussion as to who would drive. Although Kakoda had not been drinking, Dunfee drove his 1997 Chevy Camaro with Kakoda in the front passenger seat and plaintiff seated in the rear, behind Kakoda. Their destination was only a couple of miles away and according to Kakoda, who had acted as Dunfee's designated driver on prior occasions, Dunfee showed no signs he was unable to drive the short distance although he did appear to be "buzzed."

En route to the party, plaintiff chided Dunfee about the performance capabilities of his Camaro, comparing it to a friend's speedier Ford Mustang. Dunfee told plaintiff he had modified his Camaro to run faster, but plaintiff insisted the Mustang could outpace the Camaro. As if to prove plaintiff wrong, after Dunfee made a right turn onto Barretts Run Road, he "started hauling tail." Kakoda repeatedly told Dunfee to slow down. First when he reached 70 m.p.h., Kakoda said, "[T]hat's enough, you proved your point." Then when Dunfee approached 100 m.p.h., Kakoda again told him to slow down. A third time, she cursed at him.

Within seconds, Dunfee hit a bump in the road, lost control of the car, blacked out and crashed into a fence on the side of the roadway, severely injuring plaintiff. A State Police investigation of the accident revealed that Dunfee was traveling at least 82 m.p.h., and Dunfee himself admitted speeding between 90 and 100 m.p.h. He also admitted having consumed an entire twelve-pack of beer prior to driving that evening. Indeed, Dunfee's blood alcohol level was .143%.

Plaintiff sued Dunfee for negligence. Dunfee answered, counterclaimed and filed a third-party complaint against Kakoda. Thereafter, plaintiff amended his complaint to name Kakoda as a direct defendant, alleging she had a duty to prevent Dunfee from operating his own vehicle. Kakoda filed an answer, separate defenses, cross-claims for contribution and indemnification from Dunfee, and a jury demand to the affirmative claims of plaintiff and Dunfee's third-party complaint.

Following discovery, Kakoda moved for summary judgment dismissing all claims, counterclaims, cross-claims and third-party claims against her. The motion judge granted full relief, finding that Kakoda owed no affirmative duty to either the driver or injured passenger that was breached in this case. Plaintiff now appeals from this order of summary judgment, arguing that Kakoda, who knew of Dunfee's propensity to drink and drive by virtue of their dating relationship, had a legal duty to take reasonable precautions and that a jury question exists whether she breached that duty on this occasion.

The existence of a legal duty is a question of law to be decided by the court, rather than the jury. Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991). Generally speaking,

[to] determin[e] whether a duty [should]

. . . be imposed, courts . . . weigh[] and balance[] several . . . factors, including the nature of the underlying risk of harm,

. . . [such as] its foreseeability and severity[;] the opportunity and ability to exercise care to prevent the harm[;] the comparative interests of, and the relationships between or among, the parties[;] and . . . the societal interest in the proposed solution [based on public policy and fairness considerations].

[J.S. v. R.T.H., 155 N.J. 330, 337 (1998) (citation omitted).]

"The scope of a duty is determined under 'the totality of the circumstances,' and must be 'reasonable' under those circumstances." Id. at 339 (quoting Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 514, 520 (1997)).

"Ordinarily, then, mere presence at the commission of the 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." Podias v. Mairs, 394 N.J. Super. 338, 346 (App. Div.) (citing W. Page Keeton et al., Prosser and Keeton on Torts