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April 13, 1993

LEONARD TOSE, Counterclaimant/Plaintiff

The opinion of the court was delivered by: JOSEPH E. IRENAS


 IRENAS, District Judge:

 On January 9, 1991, the Sands casino *fn1" sued Leonard H. Tose to recover alleged gambling debts. Mr. Tose filed a counterclaim seeking to recover gambling losses incurred at the Sands while he was alleged to be obviously and visibly intoxicated. *fn2"

 Presently before the court in this tort action are questions presented by the parties regarding proper instructions for the jury. Specifically, defendants wish to have the jury instructed on the defense of comparative negligence against plaintiff, and on the issue of proximate cause. For the reasons stated below, the court will not charge the jury on either of these issues.

 A jury trial on Tose's counterclaim was conducted from February 16, 1993 through March 5, 1993. Before the conclusion of the trial, defendant requested that the jury be charged on the issue of plaintiff's comparative negligence. *fn3" Defendant argued that plaintiff's becoming voluntarily intoxicated was contributory negligence, and that defendant's liability should thus be reduced to the extent that this negligence contributed to his losses. In addition, defendant requested that the jury receive a proximate cause charge, which would instruct that plaintiff could recover only for those losses which were causally related to the casino's permitting plaintiff to gamble while drunk.

 A. Comparative Negligence Instruction

 The doctrine of comparative negligence is an affirmative defense that a defendant can assert to reduce liability. As codified by the New Jersey legislature, any damages attributable to a defendant's negligence "shall be diminished by the percentage sustained of negligence attributable to the person recovering," so long as the plaintiff's negligence was not greater than the defendant's. N.J.S.A. § 2A:15-5.1. Under New Jersey's previous doctrine of contributory negligence, any negligence by the plaintiff could bar all recovery. See Soronen v. Olde Milford Inn, Inc., 46 N.J. 582, 589, 218 A.2d 630 (1966); see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 65, at 461 (5th ed. 1984) [hereinafter "Prosser & Keeton"] (contributory negligence is complete bar to plaintiff's action for defendant's common-law negligence).

 Both comparative and contributory negligence doctrines limit a plaintiff's recovery based on that plaintiff's negligent conduct. *fn4" A plaintiff is considered contributorily negligent where "his actions are such as to constitute a failure to use such care for his safety as the ordinarily prudent man in similar circumstances would use." Hendrikson v. Koppers Co., Inc., 11 N.J. 600, 607, 95 A.2d 710 (1953); see also Prosser & Keeton § 65, at 453 ("Contributory negligence is conduct which involves an undue risk of harm to the actor himself."). One policy consideration underlying this doctrine is that "one's right to protection from the negligence of others carries with it the duty of reasonable care for one's own safety." Milstrey v. City of Hackensack, 6 N.J. 400, 414, 79 A.2d 37 (1951).

 In the typical contributory negligence situation, the issue is whether the plaintiff was moving about in the world in a way that posed an unreasonable risk of physical injury to herself. See, e.g., Milstrey, 6 N.J. at 413-14 (plaintiff's duty to avoid impediments on sidewalk); Hendrikson, 11 N.J. at 608 (plaintiff's failure to observe and avoid open hole in a trench); Keller v. Frank Kull, Inc., 165 N.J. Super. 258, 398 A.2d 106 (App. Div. 1978) (plaintiff's opening lid of large dumpster which then fell on her); Citro v. Stevens Institute of Technology, 55 N.J. Super. 295, 150 A.2d 678 (App. Div. 1959) (plaintiff's duty to avoid crack in sidewalk). The courts of New Jersey have undoubtedly imposed a duty on individuals not to place themselves in positions of unreasonable physical danger.

 An individual who becomes voluntarily intoxicated increases the risk that she will move about carelessly and put herself in a dangerous position. Voluntary intoxication thus undermines the policy of individual responsibility on which contributory and comparative negligence defenses are based.

 It follows that in New Jersey, individuals are generally not excused from acting negligently if their voluntary intoxication dulled their appreciation of a risk. Rather, an intoxicated person is held to the same standard of care as a sober person. See Tabor v. O'Grady, 59 N.J. Super. 330, 339, 157 A.2d 701, 706 (App. Div. 1960); see also Allen v. Rutgers, State Univ. of New Jersey, 216 N.J. Super. 189, 195, 523 A.2d 262, 265 (App. Div. 1987), certif. denied, 107 N.J. 653 (1987); Anslinger v. Martinsville Inn, Inc., 121 N.J. Super. 525, 534, 298 A.2d 84, 88 (App. Div. 1972), certif. denied, 62 N.J. 334 (1973). As recently reiterated by the New Jersey Supreme Court, the state's "statutory and case law reflect the compelling public policy that those who voluntarily become intoxicated must be held responsible for the consequences of their behavior." Lee v. Kiku Restaurant, 127 N.J. 170, 182, 603 A.2d 503 (1992).

 In the specific context of dram-shop liability, *fn5" other policy considerations have influenced the use of the contributory negligence defense. In Soronen, 46 N.J. at 587, the New Jersey Supreme Court held that a defendant tavern in a dram-shop action could not assert the patron's voluntary intoxication as a form of contributory negligence. Id. at 592. The court reasoned that because it was New Jersey's policy to hold liquor licensees accountable for serving visibly intoxicated patrons, "the accountability may not be diluted by the fault of the patron for that would tend to nullify the very aid being afforded." Id. It was significant that at the time Soronen was decided, a defense of contributory negligence would completely bar a plaintiff's claim. See Lee, 127 N.J. at 176.

 New Jersey's adoption of comparative negligence principles altered the Soronen analysis, because a comparative negligence defense would not act as a total bar to plaintiff's recovery. Upon reexamination of this issue one year ago, the New Jersey Supreme Court found that "continued application of our holding in Soronen, adopted at a time when contributory negligence operated as a complete bar to a plaintiff's recovery, is no longer appropriate." Lee, 127 N.J. at 183.

 The Lee court went on to hold that "in dram shop litigation a jury should apportion fault between the patron and the tavern based on the extent to which each party's negligence contributed to the plaintiff's injuries." Using the drunk driving case as an example, the court stated that a server may assert a comparative negligence defense against an intoxicated passenger who accepted a ride from an intoxicated driver "to the extent that the passenger's drinking to the point of intoxication contributed to his inability to appreciate the risk of his behavior." Id. at 187. The server may also assert this defense against an intoxicated driver "to the extent that the driver's act of drinking to the point of intoxication contributed to his inability to drive carefully." *fn6" Id.

 Contributory negligence in a dram-shop action, therefore, is now not much different from contributory negligence in other contexts. Individuals have always had a duty not to put themselves at risk of physical injury by becoming voluntarily intoxicated, whether the risk be through driving or through engaging in other activities. What has made dram-shop cases unusual is that there the defendant has a corresponding duty not to contribute to the individual's intoxication after a certain point. It was because of this additional duty on the part of the defendant, and not because of any lessening of the patron's duty, that New Jersey did not always permit the patron's voluntary intoxication to be considered contributory negligence.

 Plaintiff's claim is based on the decision in GNOC v. Aboud, 715 F. Supp. 644 (D.N.J. 1989), where Judge Mitchell H. Cohen predicted that the New Jersey courts would hold that "a casino has a duty to refrain from knowingly permitting an invitee to gamble where that patron is obviously and visibly intoxicated and/or under the influence of a narcotic substance." Id. at 655. *fn7" Although there was no New Jersey state court authority imposing such potential liability on the casinos, Judge Cohen analogized the claim to a dram-shop action and found that imposition of this liability furthers New Jersey's public policy of "protect[ing] . . . gambling patrons from the deleterious effects of alcohol imbibement." Id. at 654. *fn8"

  In Lee, the court stated that once a person is visibly intoxicated he is presumed to have lost the capacity to evaluate the risk of driving while intoxicated, or the risk of being a passenger with an intoxicated driver. 127 N.J. at 184, 187. The server is liable for continuing to serve a patron only after he has reached this incapacitated state. Likewise, Aboud imposes liability on casinos for failing to protect clearly intoxicated patrons who have lost the ability to "comprehend[] the consequences of continued, protracted gambling." 715 F. Supp. at 655.

 However, while the actions of the casino defendants may be analogous to the actions of other dram-shop defendants, the significance of the plaintiffs' actions, particularly before becoming visibly and obviously intoxicated, is quite different. In dram-shop cases, New Jersey has held that an individual plaintiff has a duty not to increase her risk of physical injury, either by becoming voluntarily intoxicated, being unduly careless, or otherwise.

 The crucial question in the instant case is whether the State of New Jersey imposes on a gambling casino patron a duty to protect herself from the financial injury which might occur if she gambles while her mental facilities are impaired by alcohol. Certainly the public policy of this state imposes such a duty on a negligent driver or foolhardy pedestrian through the doctrine of comparative negligence. Does the Aboud analogy to dram-shop liability dictate the same result for a gambler who carelessly becomes intoxicated?

 Gambling, like other human activities, can create a risk of harm to one who engages in it. However, the state has a long history of seeking to protect the gambler from her own weakness or foolishness - prior to 1976 by a broad-based ban on gambling activity and thereafter by comprehensive regulation of casino activities.

 New Jersey's restrictions on gambling date back to at least 1844, when the State adopted a constitution that made lotteries unlawful. N.J. Const. art. IV, § 2 (1844), reprinted in N.J. Stat. Ann. (West 1971). That section of the constitution was amended in 1897 and again in 1939 to encompass additional forms of gambling, including "roulette . . . game[s] of chance of any form . . . pool-selling, book-making, or gambling of any kind . . . ." Id.; see also State v. Rucker, 46 N.J. Super. 162, 168, 134 A.2d 409, 412 (App. Div. 1957) (discussing New Jersey's constitutional prohibitions on gambling), certif. denied, 25 N.J. 102 (1957).

 In its Constitution of 1947, New Jersey again incorporated a general prohibition on "gambling of any kind," N.J. Const. art. IV, § 7, P 2. Gambling may only be authorized if it is of a type permitted in the constitution, or if it is submitted to and authorized by a majority of the people voting at a general election. Id. The current statutes of New Jersey also provide that "all wagers, bets or stakes made to depend upon . . . any gaming by lot or chance . . . shall be unlawful." N.J.S.A. § 2A:40-1.

 Courts have viewed the temptation to gamble as extremely powerful. In Lucky Calendar Co., Inc. v. Cohen, 19 N.J. 399, 117 A.2d 487 (1955), the New Jersey Supreme Court referred to "the lure of the chance for 'easy money,'" which "has not changed in the [past] century." Id. at 410. The court also quoted other judicial opinions describing lotteries specifically as "prey[ing] upon the hard earnings of the poor," "plunder[ing] the ignorant and simple," and "arousing the desire to gain something for nothing." Id. at 410, 413 (citations omitted).

 New Jersey's restrictions on gambling are thus intended to protect both the individual gambler, and society, from the harms of gambling. See Lucky Calendar, 19 N.J. at 410-11 (restrictions prevent "catering to the weakness of those whom the statute seeks to protect, primarily for the benefit of society in general" (emphasis added)). New Jersey's policy of protecting those who fall prey to gambling is also evident from N.J.S.A. § 2A:40-5, which provides that a person who loses money or property in an unlawful gambling operation may sue to recover the value of what was lost. See also N.J.S.A. § 2C:37-2(c) (providing defense to criminal prosecution for gambling if person was only a "player," i.e. bettor); but cf. Rucker, 46 N.J. Super. at 171, 134 A.2d at 413-14 (although in many instances New Jersey legislature has chosen not to punish bettors, some statutes can be construed to encompass player as violator).

  In 1976 the citizens of New Jersey voted to create an exception to the general ban on casino gambling. At that time a majority of voters approved an amendment to the state constitution that made lawful the establishment of gambling houses or casinos within Atlantic City. See N.J. Const. art. IV, § 7, P 2(D); see also Knight v. City of Margate, 86 N.J. 374, 380, 431 A.2d 833 (1981) (discussing the constitutional amendment). In response to this constitutional amendment, the legislature passed the Casino Control Act in 1977. See N.J.S.A. 5:12-1 to 5:12-190.

 As described by New Jersey's Supreme Court, the Casino Control Act's "statutory and administrative controls over casino operations . . . are extraordinary pervasive and intensive. . . . Over 11 statutory articles and almost 200 separate provisions cover virtually every facet of casino gambling and its potential impact upon the public. The regulatory scheme is both comprehensive and minutely elaborate. " Knight, 86 N.J. at 381. The Legislature recognized that the public had authorized this exception to the general policy against gambling in order to promote the economic welfare of Atlantic City, "and therefore determined casino gambling to be a revocable, highly regulated and conditioned privilege." Id.

 Given this historical background, it cannot be said that New Jersey has generally placed upon potential gamblers the burden of protecting themselves from gambling losses. Whether through outright prohibitions or minute regulation, New Jersey has throughout its history exercised a high degree of control over gambling by regulating gambling operators, and not by penalizing bettors.

 Furthermore, it would make no sense for New Jersey to authorize casino gambling while at the same time imposing a "duty" on a gambler to protect himself from loss. It is clear that gamblers are at a high risk of losing money in a casino -- otherwise, the casino could not stay in business. Rules governing the play of casino gambling games are fixed by the Casino Control Commission, and these rules determine the odds which a gambler has of winning, odds which always favor the casino. Cf., e.g., N.J. Admin. Code tit. 19, § 19:47-1.4 (1993) (payout odds for craps); § 19:47-2.7 (payout odds for blackjack); § 19:47-3.3 (payout odds for baccarat-punto banco). Only by choosing not to gamble at all can an individual insure freedom from gambling losses.

 Yet even if a sober gambler has no duty to protect herself from loss, does it necessarily follow that one has no duty to avoid increasing the risk of greater losses by becoming intoxicated? Although a gambler can't change the advantage the house has in every game, an individual can minimize the amount of her loss by betting in a manner which gives her the best odds of winning, *fn9" by placing smaller or fewer bets and, maybe most importantly, by leaving the gaming tables before the losses grow to unacceptable levels. Since drinking will often impair cognitive functioning, an individual who drinks while gambling may be unable to take those actions which are necessary to minimize loss. Cf. Aboud, 715 F. Supp. at 655 (noting the risk of "continued, protracted gambling").

 The New Jersey legislature has not clearly indicated an intention to impose on a gambler the duty to avoid becoming intoxicated while gambling. Specifically, the legislature has explicitly permitted casinos to serve alcoholic beverages at gaming tables upon request of the patron, see N.J.S.A. 5:12-103(g)(1), and these beverages may be served without cost to a patron and her guests, see N.J.S.A. § 5:12-102(m)(1). Although there is a regulation which forbids a casino to serve alcohol to a visibly and obviously intoxicated patron, *fn10" there is no regulation which either 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 *fn11" 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 *fn12" 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: *fn13"

 (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. *fn14"

 (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. *fn15"

 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. *fn16"

 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. *fn17"


 DATED: April 13, 1993

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