Yanoff, J.s.c. (retired and temporarily assigned on recall).
The altercation which gives rise to the interesting problem in this case occurred on September 14, 1982 immediately outside a gambling establishment conducted by defendant, Rosario Farro, at 285 Main Street, West Orange, New Jersey.
This case came to me as a proof case because of default on the part of defendant. For reasons, equitable in nature, which need not be recounted here, I vacated the default for the purpose of hearing testimony as to whether plaintiff could prove a cause of action.
On May 31, 1983 Constantiane Chomatopoulos filed suit naming William Gantz, Rosario Farro, Roma DeNotte Social Club and 285 Main Street Corp., the lessor of the premises, as defendants. The case has been reduced to an action against Rosario Farro, who concededly was the proprietor of the gambling establishment conducted under the name of Roma DeNotte Social Club.
While Farro depicted himself as a self-employed builder, which may be a fact, it is also a fact that he conducted a place where people met regularly for the purpose of gambling. Defendant called it a "club," but it was a club where there were no dues and apparently no one was denied admission. Farro testified that he maintained the club by contributions from its patrons who engaged in the gambling activities, and not by a specified percentage of the "take." I need not decide whether this is true because the crucial fact is that the club was a center for gambling activity, not how it was financed. Therefore, I conclude, for the purposes of this case, that Farro was "promoting gambling" in violation of N.J.S.A. 2C:37-2a.
On the day in question, Constantiane Chomatopoulos, Manolis Tziriakis and William Gantz were at the Roma DeNotte. Gantz
and Tziriakis engaged in a Greek game, similar to "dice," called "barbute." At the time, Chomatopoulos was either playing cards or at another dice table. Gantz and Tziriakis got into an argument over the amount of a bet. Sometime later, Gantz and Tziriakis resumed their argument.
At Gantz's invitation the two went outside where Gantz slashed Tziriakis's throat. Chomatopoulos followed them when he heard the commotion, he said, as a "peacemaker." He was not aware that Tziriakis had been stabbed. Immediately outside the premises Gantz stabbed Chomatopoulos four times. Then Gantz followed Chomatopoulos across the street, where he stabbed him four more times.
Unquestionably, plaintiff was a business invitee of the club. He had gambled there on prior occasions. It was not clear whether he had done so on this occasion, but his presence added to the club revenues.
In determining that conduct of the club was a business, it matters not whether Farro was compensated by a stipulated percentage of the wager, or whether he received what he called "voluntary contributions" from the players. This was the means by which Farro maintained and conducted the gambling establishment. Farro testified that he made no profit from the operation of the establishment, but devoted the entire profit to a Christmas party for underprivileged children. Assuming, although I admit doubt on the subject, that the entire profits of the establishment were used as he claimed, it would still be a business enterprise. If an entrepreneur chooses to devote his profits to a charitable purpose, it is, nonetheless, his property which he is giving away.
Butler v. Acme Markets, Inc., 89 N.J. 270 (1982) elucidates the pertinent principles of liability:
The proprietor of premises to which the public is invited for business purposes of the proprietor owes a duty of reasonable care to those who enter the premises upon that invitation to provide a reasonably safe place to do that which is within the scope of the invitation. Brody v. Albert Lifson & Sons, 17 ...