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Driscoll v. State

Decided: April 8, 1993.

FLORENCE DRISCOLL, PLAINTIFF,
v.
STATE OF NEW JERSEY, DEPARTMENT OF TREASURY, DIVISION OF THE LOTTERY; RITE-AID PHARMACY, DEFENDANTS



Piscal, J.s.c.

Piscal

This opinion resolves the motion for summary judgment filed by defendant Rite-Aid of New Jersey, Inc. (hereinafter Rite-Aid). The complaint was filed by the plaintiff, Florence Driscoll, a purchaser of a lottery ticket. She sues the State of New Jersey, Department of Treasury, Division of the Lottery (hereinafter Commission) and Rite-Aid, a licensed vendor of lottery tickets, to recover damages as the holder of a PICK "Six" New Jersey lottery ticket bearing the winning numbers for the October 1, 1990 drawing.

The gravamen of plaintiff's complaint is that the defendants negligently and carelessly failed to notify the plaintiff and the general public that the lottery time of the drawing for the PICK "Six" lottery was to change from 9:56 p.m. to 7:56 p.m. beginning with the October 1, 1990 drawing causing her to delay in purchasing her ticket for the October 1, 1990 drawing until after 7:56 p.m. Because this opinion decides the defendant Rite-Aid's motion for summary judgment, the facts presented by plaintiff are accepted as true and the plaintiff is given the benefit of all inferences favorable to her claim. R. 4:46-2.

In August of 1990, approval was obtained for the lottery drawing time to be changed from 9:56 p.m. to 7:56 p.m. effective October 1, 1990. When the drawing time was changed to 7:56 p.m. the PICK "Six" tickets were available for purchase until 10:00 p.m. and any ticket purchased after the drawing was entered into the next succeeding drawing.

In order to notify lottery players of the new time the Commission implemented a plan to publicize the change. The plan provided for notification to the general public by several different means. First, an announcement of the drawing time change was published for five days, September 26, 27, 28, 29, 1990 and October 1, 1990, in numerous papers throughout New Jersey including the Asbury Park Press, Ocean County Observer, Atlantic City Press, Bergen Record, Camden Courier, Elizabeth Daily Journal, Jersey Journal, Morristown Record, New Brunswick Home News, Newark Star Ledger, and N.J. Herald News. A press release was also distributed to the Associated Press and the United Press International. Second, letters were enclosed in the packages of lottery tickets and informational materials delivered to all lottery ticket sales agents on August 30 through September 4, 1990 which explained the changes in drawing times and the effective date of the change. Third, and most importantly for the purposes of this motion, a poster announcing the change in drawing time and the effective date of the change was distributed to all licensed agents in the delivery cycle covering September 20, 1990 to September 26, 1990, which was to be mounted on a prominent public window of the agencies' premises. Fourth, the change in drawing time was announced during the lottery's televised drawings on September 24, 1990 through September 30, 1990. Lastly, electronic advisory messages were run on the customer display screen of the lottery ticket terminal which is directed at the lottery customers waiting on line to purchase tickets. These electronic messages announcing the change of time appeared on August 31, September 1 and 2, and September 25 through October 1, 1990.

At deposition the plaintiff testified that during the six month period prior to the October 1, 1990 drawing, she purchased lottery tickets at least twice weekly. She generally purchased her tickets on the day of the drawing and from only two licensed agents other than Rite-Aid, namely, the Briar Mill Pharmacy in Bricktown and the Buy-Rite Liquors in Point Pleasant. Additionally, during the same time period, she frequented, at least twice monthly, a 7-11

store in Bricktown which was also a licensed lottery agency selling lottery tickets.

The plaintiff testified that she did not observe posters announcing the time change at any of these locations. In fact, although there was no evidence proffered to establish whether the posters were displayed at the Briar Mill Pharmacy or the Buy-Rite Liquors, it was undisputed that Rite-Aid had discarded the poster without ever displaying it in view of the public.

The plaintiff also testified that she did not learn of the time change despite her exposure to the other sources utilized by the Commission to announce the change of drawing time: She read the Asbury Park Press less than once a week at work; checked the Press at least twice a week but only to verify the winning numbers for the lottery drawings; watched the news on NBC and CBS, and listened to the WNEW-AM radio stations commuting to and from work. She did not subscribe to any newspapers or purchase the newspaper on a day to day basis.

Against this backdrop, the plaintiff entered the Rite-Aid pharmacy located in Bricktown on October 1, 1990 at approximately 7:40 p.m., for the purpose of purchasing a lottery ticket for the October 1, 1990 PICK "Six" drawing. However, she did not immediately purchase her ticket, she says, because there was a very long line of people waiting at the lottery terminal. Instead, she browsed through the store waiting for the line to decrease. While the plaintiff was browsing through the store, the October 1, 1990 drawing took place as scheduled at approximately 7:56 p.m.

At about 8:00 p.m.,*fn1 the plaintiff finally purchased at least three PICK "Six" chances printed on one machine ticket believing, she says, that the tickets were for the October 1, 1990 drawing.

However, since the October 1, 1990 drawing had already taken place, the machine automatically printed the date of October 4, 1990 on the face of the plaintiff's ticket thus indicating that her tickets were for the October 4, 1990 drawing. As it turned out, one of the chances the plaintiff had purchased was for the combination of numbers 6, 11, 13, 22, 26, 45.*fn2 These numbers were the winning numbers for the October 1, 1990 drawing!

At home later that evening, the plaintiff telephoned the lottery information number and discovered that the numbers on her ticket were selected as the winning numbers for the October 1, 1990 PICK "Six" drawing. However, upon attempting to validate the ticket at the Rite-Aid store the following day, she learned that the ticket was dated for the October 4, 1990 drawing and not for the drawing on October 1, 1990.

Both defendants filed motions for summary judgment asserting that if they owed a duty to the plaintiff to provide notice of the change of drawing time, there was no breach of that duty on the facts of this case. As to the defendant Rite-Aid, the plaintiff contends that but for the failure to display the promotional poster announcing the change in drawing time she would have been aware of the change in time and not delayed in purchasing her ticket for the October 1, 1990 drawing.

For the reasons set forth below this court grants the defendant Rite-Aid's motion finding the plaintiff fails to state a claim upon which relief can be granted. As to the defendant Commission's motion, the plaintiff stipulated at oral argument that she did not oppose the motion. Thus, this court dismissed the plaintiff's complaint as to the defendant State of New Jersey, Department of the Treasury, Division of ...


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