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Genovay v. Fox

Decided: June 16, 1958.


Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.


The principal questions posed for resolution on this appeal are these. To what extent does the proprietor of a combination bowling alley-bar owe his business invitees the duty of securing the premises against the hazard of entry by an armed bandit and consequent injury at the hands of the intruder in the course of a holdup of the proprietor? After such an entry has been effected is the proprietor under a duty to conduct himself in such a manner as to avoid inducing or encouraging resistance to the bandit by those present if resistance reasonably appears to entail a heightened risk of serious injury or death to one or more of those present? Assuming such a duty, was there sufficient evidence here of defendant's breach of duty to warrant submission of the liability question to the jury? There are collateral questions, the more important relating to proximate cause and contributory negligence.

On the night of April 21-22, 1955 defendant was the owner of the White Horse Bowling Academy on Bordentown Road, Hamilton Township. The enterprise included a licensed bar for the sale and consumption on the premises of alcoholic beverages. At about 3:15 A.M. a masked gunman gained entry into the building. Defendant Fox, owner of the place, four of his employees and six patrons were in the bar section of the premises, talking, some drinking beer. In the course of the ensuing holdup, one of the patrons, James Aversano, attempted to disarm the bandit but was shot and mortally wounded in the effort. Plaintiff, a close friend of Aversano, went to his aid and was also shot by the gunman, sustaining the serious injuries for which he now sues for compensation in damages.

The basis for the action is negligence on the part of the proprietor, both in failing to secure the premises against unlawful entry and in encouraging and inciting activity conducive to gunfire after the robber's entry, either by design or imprudence. At the close of the plaintiff's case the trial judge granted a motion for involuntary dismissal, resting his action solely on a lack of evidence showing a "proximate

connection between any acts of the defendant and the injuries sustained by this plaintiff." The judge concluded that the acts of Aversano and the plaintiff were done "independently" of the defendant and he implied that these were intervening factors which broke the chain of legal causation between any negligence of the defendant and the damage sued for.


In reviewing the factual record in this procedural context we are, of course, guided by the precept that the plaintiff is entitled to have the sufficiency of his case appraised on the basis of the most favorable testimony introduced on his behalf along with all favorable inferences which a jury might properly draw therefrom, resolving in his favor all matters of credibility. Martin v. Bengue, Inc. , 25 N.J. 359, 362 (1957). We therefore recite the facts we deem material in their most favorable relation to plaintiff's projected theories of recovery, but also allude to some other aspects of the proofs in the interest of contrast and background.

Defendant's business premises are divided roughly into two sections. The front portion, facing the road, consists of a barroom which includes booths, a dance floor and snack bar. The main entry door leads directly into the bar. The bowling alleys take up the rear portion of the premises. There are two doors giving direct access between the bar and the alleys, but there are two other doors for direct entrance to the alleys from the outside, and still two other doors from which entry can be had from the outside to a corridor leading to either the bar or the bowling alleys. There are several windows in the bowling alley section of the structure. To the right (looking from the front) of the bowling alleys is a 10' x 10' office room wherein was situated a very large safe in which defendant kept certain moneys. There were six cash registers on the premises.

The bar was customarily closed at 2:00 A.M., the legal closing hour, but closing time for the bowling alleys was

indeterminate, varying from 2:00 A.M. to 6:00 A.M., depending on the volume of business. The most frequent closing hour was about 4:00 A.M. Thursday was a "slow" bowling night (April 21, 1955 was a Thursday), and the alleys generally closed between 2:00 A.M. and 2:30 A.M. on that night. Defendant testified (on depositions which plaintiff read into evidence) that he had read in the newspapers of increased armed robberies in the county, occurring more frequently in the late night hours than by daytime. Defendant had never sustained an armed robbery previously but there had been surreptitious thefts of money and property on occasion by employees. A combination porter-night watchman was employed, who usually came to work between 12:00 midnight and 12:30 A.M., and whose duties included locking up the bar after closing, cleaning up the bar, and, after the bowling alleys were vacated, checking to see that all the doors and windows in the premises were locked.

Plaintiff arrived at the premises at about 2:20 A.M., expecting to bowl with his close friend, James Aversano, and others. The doors were locked, but he was recognized by the bartender and admitted through the front door. The few bowlers, including defendant himself, were finishing their last game. At about 2:35 A.M., the bowling concluded, and all the bowlers, together with defendant and his employees, Papp, the manager, Fuccello, the watchman, Cimore, the bartender, and Potzer, a mechanic, congregated in the bar. The defendant asked the men "to have a drink." He himself and at least one of the group had beer. Fuccello was also drinking beer, but as part of his "lunch." The defendant stayed behind the bar until the advent of the gunman. Fuccello had not yet gone out to the alleys to check the doors and windows. By that time Papp was supposed to have "locked up" the entire building. Additional customers would be admitted through the front door, but only if they were known to the management. A front door alarm was in operation, set to ring whenever there should be a front door entry. When those then in the place left, no more customers were to be admitted. Another bowling

customer, coming to inquire about a bowling ball, came in about 3:00 A.M. with a companion, and they joined the group in the bar in general conversation about an impending bowling tournament. There were thus 11 men in the room.

At about 3:15 A.M. the left-side door between the alleys and the bar opened and the bandit entered. He carried a gun in each hand and a bandanna covered his face from the nose down. He wore a ski cap and a trench coat which were wet from the rain. The defendant and some of the others laughed when he said, "This is a stick-up. Who is the boss?" thinking someone was playing a joke. All soon realized the intruder meant business, and the defendant identified himself. The bandit said, "I want you to open the safe in the other room," to which defendant replied, "What safe?" and "sort of laughed." This evoked the rejoinder, "You know what safe I mean, in the other room. Get going." There is undenied testimony that defendant told the group, in effect, that his money was insured. Defendant testified he also said, "Let's be calm about this," and, "We want no trouble," or, "Let's not have no trouble because there's so many of us in here." From other testimony, however, the jury could have concluded the latter remarks were not made. Defendant testified that as soon as he realized a holdup was actually in progress he felt the situation was dangerous "because all these men were friends of mine and they are liable to do something for me that might be very dangerous to all of us."

The gunman directed the entire group to precede him out of the right-side bar door leading to the alleys and thence to the room where the safe was kept. Vogler, one of the bowlers, protested sharply when the thug poked a gun in his back to hurry him along. Papp, in the corridor with Fuccello before the bandit left the bar, told Fuccello to sneak into the men's toilet, and the latter did so, taking one of the other men with him. They locked the door and escaped through a window to summon the police. The gunman yelled for the fugitives to return, and then said to the remaining group, "We have still got time to do this

before the cops get here. I know one got away, get going and nobody will get hurt." Defendant testified he realized the danger in the situation had increased with the escape of the two men.

The remaining nine men were herded into the office where the safe was, a room about ten feet square. The entrance was close to the right corner of the room (looking in the door). The large safe stood against the wall to the left of the door. There was a closet on the opposite (far) wall. The gunman stood just inside the door, Aversano to his right, and the others ranged about the small room. The gunman told Fox to open the safe. On the first try Fox missed the combination. The gunman became angry, remarked again that one man had escaped and told him to hurry up. Fox opened the safe, took a box of money out of it, turned around with his back to the bandit, walked across the room and laid the box on the closet on the opposite side of the room. While this was going on the gunman exchanged angry words with Agabiti, one of the group, who he thought was staring at him, and he threatened to kill the man if he did not look out the window. Aversano told the gunman not to get "trigger happy," that "nobody was going to do anything."

Fox then made a remark to the gunman which has been worded in various ways by the witnesses. Plaintiff testified Fox said "there was still more money in the safe and if he [the gunman] wanted it he would have to go and get it * * *"; that "the box was bolted to the safe." A written statement to the police by the manager, Papp, on the night of the occurrence (Papp was deceased at the time of trial) was to the effect that Fox said, "Do you want to look in the safe and see what you want?" The witness Terlicky (a bowler) said that the gunman asked for the rest of the money after Fox put the box on the closet and that Fox responded, "There is more in there, but it is bolted down. I can't give you that. You can go in and take it yourself if you want to." This same witness said the gunman wanted Fox to "hurry up with the extra money" but that Fox "kind

of slowed down a little bit." In any case, while the gunman hesitated a moment or two after Fox' last remark, Aversano suddenly struck or tackled the gunman, the two went out of the door and a shot rang out from the alleys. Immediately Genovay, the plaintiff, from the far side of the room, ran out of the door, and there, seeing the gunman "over Jimmy [Aversano] and it looked like he was going to shoot him again," jumped on the gunman and was himself seriously wounded by gunshot. The bandit ran out of the front door and escaped. Aversano died later at the hospital. The lapse of time between the entry of the bandit and the shootings was between five and ten minutes.

It may be material to note that Aversano and Genovay were both World War II veterans, aged respectively 38 and 35. Genovay had been in the Marine Corps. As already stated, they were close friends and bowling companions, apparently to defendant's knowledge.

An inspection of the premises after the holdup showed all doors and windows locked with the exception of one window on the left side of the bowling alley section of the building, which was unlocked and open about an inch.


As indicated above, plaintiff projects his case on two general hypotheses of defendant's tortious conduct, one based on events prior to the appearance of the gunman, the other on those subsequent. As defendant justifies the result at the trial on the contentions both of absence of duty and lack of proximate cause, as well as the other defenses mentioned above, we must consider the duty phases of the case before inquiring into whether the trial judge was justified in concluding there was no proximate connection between defendant's conduct and plaintiff's injury. We turn our attention first to the theory of duty on the part of the defendant to safeguard the premises in order to protect plaintiff invitee against harm from armed robbers.

Plaintiff's position is that defendant, as his "business invitor," is liable for exposing him ...

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