forbids the casino or the patron from gambling while in this condition. Nor does there appear to be any legislative or regulatory recognition of the self-evident proposition that many people's mental abilities and judgment will be impaired by alcohol consumption before they become visibly and obviously intoxicated.
A gambler, particularly a high roller like the plaintiff
is under constant surveillance by a dealer, a floor person, a pit boss, hidden overhead cameras, and sometimes even by officials of the New Jersey Casino control Commission. Since the regulation that prohibits serving a visibly intoxicated patron is based on the premise that casino employees can determine when a patron is visibly and obviously intoxicated, since it is a simple matter for the casino to prevent a patron from gambling while in this condition, and considering the extraordinary degree of regulation and control that the State exercises over casinos, the absence of a regulation barring gambling by a drunk patron cannot be considered an oversight or mistake. At the very least the State condones casino patrons drinking while they place bets, and the policy of providing free drinks on request could arguably be said to actively encourage this conduct.
Aboud was decided at the summary judgment stage and did not specifically consider the issues of comparative negligence
and proximate cause which are the subjects of this opinion. Because that court relied on the theory of dram-shop liability in predicting that New Jersey would recognize the theory of liability espoused in this case, it is tempting merely to apply the analogy in all its particulars, including the applicability of comparative negligence as determined in Lee v. Kiku. However, a closer analysis suggests at least seven major differences between the two situations:
(i) While there is clearly an overwhelming state policy against an intoxicated individual driving or engaging in any other activity which risks bodily injury or property damage, New Jersey at the very least condones drinking while gambling.
(ii) With dram-shop liability, and the related doctrine of social-host liability, the defendant's negligent act is serving alcohol. In this case, defendant's negligent "act" seems more like an omission--defendant has failed to prevent plaintiff from engaging in a risky activity, gambling while intoxicated. Framed this way, the issue becomes whether defendant has an affirmative duty to protect a drunken patron, beyond its duty not to continue serving alcohol to the person. Cf. Prosser & Keeton § 56 (discussing some exceptions to general common-law rule that person has no legal duty to aid another).
(iii) In the context of a dram-shop case the ability of a server of alcohol to anticipate or prevent harm is somewhat limited. A bartender will often not know whether a patron who leaves the bar is going to drive, and even if she does, she will have very little if any ability to prevent the driving or any subsequent calamity. A casino patron's gambling activity is always totally controlled by casino employees who are in a position to immediately stop the gambling of any patron they know to be drunk.
(iv) In a typical dram-shop case the harm being redressed is physical injury or property damage, and there can be little doubt that New Jersey public policy actively discourages conduct which leads to this kind of harm. In an Aboud -type case the harm is loss at the gambling tables, something the state as a general matter anticipates and on which it has based a large and substantial industry. Nobody is encouraged in New Jersey to go out and cause a "reasonable" amount of property damage and personal injury. The same cannot be said about gambling losses.
(v) Although dram-shop liability attaches even where the only harm caused by an inebriate is to himself, there is a substantial risk that bodily injury or other harm will result to innocent third parties, and the respective legal obligations of the server of alcohol and the drinker must be considered in this light. For the most part a drunken gambler is a menace only to herself.
(vi) As noted at pages 12-14, supra, New Jersey's public policy over the years has been to protect gamblers from consequences of their own weakness and folly, either by banning gambling or by minutely regulating those who operate games of chance. Public policy towards those who create the risk of personal injury has been to make them legally responsible for their conduct, a liability generally developed by common law courts rather than by legislation.
(vii) When allocating the respective obligations of the patron and the server in a dram-shop case, we must consider that the profit to the seller of alcohol earned by serving a few drinks too many is relatively small. As the allegations in this case demonstrate, letting a visibly and obviously intoxicated high roller gamble for even a short period of time can yield enormous profits to a casino.
Assuming, as this opinion does, that New Jersey would recognize the Aboud cause of action, the court cannot find that New Jersey would apply comparative negligence to a person who drinks, gambles, and loses. The public policies of New Jersey condone, and in certain ways even encourage, drinking, gambling and losing in a licensed casino. Accordingly, the court will not instruct the jury on comparative negligence.
B. Proximate Cause Instruction
At trial, defendants also raised the issue of what, if any, instruction the jury would be given on proximate cause. Such a charge would instruct the jury to make a finding as to whether the casino's act of permitting plaintiff to gamble while visibly and obviously intoxicated was the proximate cause of plaintiff's financial losses.
As described by the courts of New Jersey, a tortfeasor "is generally answerable for an injury that results from his wrongful act in the ordinary course of events. . . . Unless so highly extraordinary that they cannot be considered natural, consequences which follow in unbroken sequence from the original negligent act, without an intervening efficient cause, are natural and proximate. . . ." Lutz v. Westwood Transp. Co., 31 N.J. Super. 285, 289-90, 106 A.2d 329, 331 (App. Div. 1954), certif. denied, 16 N.J. 205 (1954).
An initial consideration in the "proximate cause" determination is whether defendant's conduct was a "cause in fact" of plaintiffs' loss. Kulas v. Public Service Elec. and Gas Co., 41 N.J. 311, 317, 196 A.2d 769 (1964). Plaintiff must show that the particular harmful event at issue would not have occurred but for the defendant's negligence. Id. As to the necessary degree of causation, "it is generally sufficient if [defendant's] negligent conduct was a substantial factor in bringing about the injuries." Rappaport, 31 N.J. at 203; see also Ettin v. Ava Truck Leasing, Inc., 53 N.J. 463, 483, 251 A.2d 278 (1969); Lutz, 31 N.J. Super. at 289, 106 A.2d at 331.
New Jersey has also imposed a foreseeability requirement in cases where defendant's negligence caused economic damage to the plaintiff, but no physical or property damage. In People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246, 495 A.2d 107 (1985), the court held that economic damages can be recovered from a negligent defendant "when they are reasonably to be anticipated in view of defendant's capacity to have foreseen that the particular plaintiff . . . is demonstrably within the risk created by defendant's negligence." Id. at 267.
In addition to these factual findings, the proximate cause determination is also informed by issues of public policy. As recognized by the New Jersey Supreme Court in Rappaport, "policy considerations and the balancing of the conflicting interests are the truly vital factors in the molding and application of the common law principles of negligence and proximate causation. " 31 N.J. at 205. Put another way, proximate causation is "that combination of '"logic, common sense, justice, policy and precedent"' that fixes a point in a chain of events . . . beyond which the law will bar recovery. " People Express Airlines, 100 N.J. at 264 (citation omitted).
In the instant case, the court finds as a matter of law that, if proven, the defendant casino's negligent conduct was a cause-in-fact of plaintiff's injury. If defendant had not breached its duty -- i.e., if plaintiff had been stopped from further gambling once intoxicated -- plaintiff would not have incurred any gambling losses at all. As discussed above, the activity of gambling contemplates that the gambler will lose at least some of the time. By permitting someone to gamble, a casino almost invariably will thereby "cause" that person to lose money. It thus follows that defendant's conduct is also a "substantial factor" that caused plaintiff's injuries.
Furthermore, as a matter of policy the court finds that it is impossible to allocate how much of any losses incurred would be specifically attributable to defendant's actions. One cannot make any reasonable calculation of what losses a sober gambler would have incurred compared to a drunken gambler, and it would be senseless to instruct the jury to do so. Maybe the sober gambler would not in fact have gambled for as long a time; maybe she would have placed smaller bets; maybe she would have played the cards differently. There is simply no prototype "normal" or "reasonable" gambler, and the jury should not be permitted to speculate on what losses a sober gambler would have incurred. Aboud says a patron who is visibly and obviously intoxicated should not be permitted to gamble at all.
Accordingly, the court holds that any and all losses incurred while the plaintiff was allowed to gamble while drunk will be considered proximately caused by defendant's negligence, as a matter of law. The jury will therefore not be instructed to make a specific finding concerning proximate cause.
JOSEPH E. IRENAS U.S.D.J.
DATED: April 13, 1993