brought an action against the patron to recover gambling debts, and the patron counterclaimed to recover millions of dollars of gambling losses incurred on multiple occasions while he was allegedly obviously and visibly intoxicated. Tose, 819 F. Supp. at 1314.
In denying the casino's motion for summary judgment, Judge Joseph H. Rodriguez in Tose addressed the issues (a) whether the Casino Control Commission has exclusive jurisdiction over the power to order repayment of paid gaming losses, and (b) whether a claim sounding in common law negligence arises in favor of a patron whom the casino has knowingly permitted to gamble where the patron is obviously and visibly intoxicated. Greate Bay Hotel and Casino, Inc, v. Leonard H. Tose, Civil No. 91-600 (JHR) (Order filed May 11, 1992). Judge Rodriguez, in the decision later affirmed by the Third Circuit, found that the Casino Control Commission was not vested with exclusive jurisdiction in such matters. Id., aff'd, Greate Bay, supra, 34 F.3d 1227. Further, Judge Rodriguez found that plaintiff's cause of action arose in common law negligence against a tavern owner based on negligent sale of intoxicating liquor, citing Buckley v. Estate of Pirolo, 101 N.J. 68, 70, 500 A.2d 703 (1985). Id., slip op. at 4-5. Judge Rodriguez found that Aboud's precedent was unaffected by Miller v. Zoby, 250 N.J. Super. 568, 579, 595 A.2d 1104 (App. Div.), certif. denied, 127 N.J. 553 (1991) (declining to imply private right of action against a casino for violating credit regulations), because Aboud 's holding did not depend upon finding a violation of the Casino Control Act. Id., slip op. at 4-5. Thus, in the unpublished Opinion, Judge Rodriguez denied the casino's motion for summary judgment addressing the patron's counterclaim for refund of gambling losses.
Judge Joseph E. Irenas in Tose, to whom the case was reassigned, was bound by the prior decision of Judge Rodriguez following Aboud as the law of the case,
but Judge Irenas expressed strong reservations about implying this tort cause of action from the casino regulatory scheme: "There is no direct regulation [in the Casino Control Act or regulations] barring the conduct which is alleged to create liability -- permitting an inebriated patron to gamble." Tose, 819 F. Supp. at 1317 n.8 (discussing GNOC Corp. v. Aboud, 715 F. Supp. 644 (D.N.J. 1989)).
Upon consideration of Judge Irenas' reservations and the intervening Miller v. Zoby decision of the Appellate Division of the Superior Court of New Jersey, as well as the trend of recent restrictions upon the scope of New Jersey's law of dram shop liability, this court respectfully disagrees with Judge Cohen's prediction in 1989 and Judge Rodriguez's opinion in 1992 that the New Jersey Supreme Court would find that a tort cause of action for recovery of gambling losses by intoxicated patrons can be implied from common law dram shop liability or from the Casino Control Act and regulations promulgated by the Casino Control Commission. However, that issue is not squarely before this court and need not be decided here, to the extent that plaintiff does not assert his cause of action is implied from the regulatory scheme governing casinos. Rather, plaintiff insists that his claims sound purely in common law dram-shop liability, to which we now turn.
C. Common Law Dram-Shop Liability5
Plaintiff alleges that his cause of action against the casino for recoupment of his gambling losses while visibly intoxicated is based on dram-shop liability. The dram-shop liability doctrine is New Jersey's common law recognition that a tavern keeper who serves alcoholic beverages to a patron, when the tavern keeper knows or should have known that the patron is intoxicated, may properly be found to have created an unreasonable risk of harm and may be held liable for the injuries which resulted from that conduct. Soronen v. Olde Milford Inn, Inc., 46 N.J. 582, 218 A.2d 630 (1966); Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959); see also Geherty v. Moore, 238 N.J. Super. 463, 473, 570 A.2d 29 (recognizing the continuing viability of dram-shop liability).
However, this court cannot agree that the plaintiff has stated a claim under common law dram-shop liability. The emphasis of dram-shop liability is protecting innocent victims from the effects of an alcohol server's negligence. See generally Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959); see also Geherty, 238 N.J. Super. at 473 (recognizing the continuing viability of dram-shop liability); Lee v. Kiku Restaurant, 127 N.J. 170, 175, 603 A.2d 503 (1992) (recounting the evolution of dram-shop liability). Dram-shop liability was also extended to protect intoxicated patrons as well. See Soronen, supra (patron slipped and fell in tavern after being served alcohol while visibly and obviously intoxicated). However, the New Jersey Supreme Court has expressly recognized that statutory and case law reflects the public policy that an intoxicated patron may not avoid responsibility for injuries proximately caused by his or her voluntary decision to consume alcohol to the point of intoxication. Lee, 127 N.J. at 182. The Lee court cut back on the Soronen cause of action for personal injuries to an intoxicated patron by requiring assessment of the comparative fault of patron and bartender, comparing the impacts of a patron's negligence in voluntarily becoming intoxicated with the bartender's negligence in continuing to serve him after the point of obvious and visible intoxication. Lee, 127 N.J. 170, 603 A.2d 503 (1992).
Plaintiff asks this court to expand dram-shop liability by recognizing a cause of action in tort against a casino which serves alcohol to an allegedly visibly intoxicated patron for the gambling losses he suffered while intoxicated. We find nothing in either New Jersey statutory or case law indicating New Jersey would recognize such an expansion of dram-shop liability. In Griesenbeck v. Walker, the Appellate Division of the Superior Court of New Jersey noted that New Jersey courts had not extended the liability of servers of alcoholic beverages beyond injuries related to drunken driving, barroom accidents and barroom brawls. Griesenbeck, 199 N.J. Super. 132, 141, 488 A.2d 1038 (App. Div.), certif. denied, 101 N.J. 264 (1985) (declining to extend social host liability when drunken guest drove home and accidentally burned down own house).
Furthermore, Judge Irenas discussed his reservations about extending traditional common law principles of dram-shop liability into the highly regulated casino industry, stating "on close examination the superficial analogy between the dram-shop case and an Aboud case breaks down in numerous particulars," Tose, 819 F. Supp. at 1317 n.8, and particularly in the confusion between tort and contract claims created by allowing this cause of action, which is next discussed.
D. Distinction between Tort and Contract Claims
The distinction between an action in tort and an action in contract is so central to this court's decision that it bears reiteration. The instant case is an action by a patron against a casino grounded in tort law, alleging a tort not provided for by the regulations, nor predictable as an expansion of New Jersey common law. The Appellate Division of the Superior Court of New Jersey held that no private cause of action can be implied from a violation of the Casino Control Act unless expressly provided for by the Act or regulations. See Miller v. Zoby, 250 N.J. Super. 568, 570, 595 A.2d 1104 (App. Div.), certif. denied, 127 N.J. 553 (1991). As Judge Irenas intimated in his Tose reservations, it would be naive to believe that the possibility of tort recovery by intoxicated patrons losing money gambling has been somehow overlooked by the Legislature and by the Casino Control Commission:
Considering the breadth of areas covered by statute and regulation, it would seem that if it were indeed the public policy of New Jersey to impose liability on casinos for allowing intoxicated patrons to gamble, that policy would have been enacted. The State has regulated the minutiae of gaming rules and alcohol service . . . . Surely it could not have been unaware that the cognitive functions of many gamblers would be impaired by drinking or of the consequences of permitting persons so impaired to gamble.
Tose, 819 F. Supp. at 1317 n.8.
Casino gambling has been legal in New Jersey for seventeen years, since 1977, and the casino industry in New Jersey is purely a creature of statute. Its very existence required an amendment to the New Jersey Constitution and extensive implementing legislation. See Knight v. Margate, 86 N.J. 374, 380-81, 431 A.2d 833 (1981) (citing Bally Mfg. Corp. v. New Jersey Casino Control Comm'n, 85 N.J. 325, 426 A.2d 1000 (1981)). It is uncontroverted that casinos are a highly regulated industry. Extending common law dram-shop liability into an area so fully regulated, without a glimmer of legislative intent, is not a predictable extension of common law tort principles, and has not been foreshadowed by the New Jersey courts.
This narrow holding, that a dram-shop liability cause of action will not be expanded to include a patron seeking to recover his gambling losses from a casino that served him alcohol and allowed him to gamble while visibly intoxicated, does not mean that common law claims are not cognizable in this court whenever alcohol and casinos are involved. To the contrary, for example, when a casino comes to court to enforce a marker debt against a patron, it seeks to enforce a contractual debt. In that case, the patron is entitled to raise all the common law defenses to a contract, including that his capacity to contract was impaired by voluntary intoxication. See, e.g., Feighner v. Sauter, 259 N.J. Super. 583, 590, 614 A.2d 1071 (App. Div. 1992) (listing grounds for contract rescission, including intoxication); Onderdonk v. The Presbyterian Homes of New Jersey, 85 N.J. 171, 182, 425 A.2d 1057 (1981) (every contract has "implied covenant of good faith and fair dealing").
Additionally, the Law Division of the Superior Court of New Jersey has held that traditional common law contract defenses were not abrogated by the Casino Control Act. See Lomonaco v. Sands Hotel, 259 N.J. Super. 523, 614 A.2d 634 (Law Div. 1992). In Lomonaco, the gambler sued the casino seeking a declaration that the casino markers signed by the gambler were void because they were signed under duress. The court held the gambler could assert common law defenses of incapacity, duress, and unconscionability. Id. at 530. "This court must assume that if the Legislature intended to do away with the defenses to the validity of a contract in the casino context, it would have incorporated such an intent into the statute." Lomonaco, 259 N.J. Super. 523, 530, 614 A.2d 634. This court agrees that the simple existence of the Casino Control Act does not automatically abrogate common law causes of action involving casinos. See generally Lomonaco, 259 N.J. Super. 523, 529, 614 A.2d 634 (Law Div. 1992) (citing State of New Jersey v. Western Union Tel. Co., 12 N.J. 468, 486, 97 A.2d 480 (1953)). However, this court believes that the expansion of tort liability urged by the plaintiff is a task for the New Jersey Legislature or the New Jersey Supreme Court. See Robinson, 4 F.3d at 243-44.
Accordingly, this court next considers whether the Third Circuit's Greate Bay decision is a controlling or persuasive change in the law which should prompt a different prediction of the evolution of New Jersey's common law.
II. Whether Greate Bay Alters the Reasoning in the March 31, 1994 Opinion
General Rule 12I (D.N.J.) requires that in seeking reconsideration the moving party "set forth concisely the matters or controlling decisions which counsel believes the Court has overlooked."
A movant for reconsideration faces obstacles: the party "must show more than a disagreement with the court's decision," Panna v. Firstrust Savings Bank, 760 F. Supp. 432, 435 (D.N.J. 1991), and "recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden." Carteret Savings Bank, F.A. v. Shushan, 721 F. Supp. 705, 709 (D.N.J. 1989). However, "there is nothing to prevent the court from examining new facts or evidence that might lead to a different result if considered by the court." Panna, 760 F. Supp. at 435; Salter v. VA Medical Center, et al, No. 91-2437, 1992 WL 80937, at *1 (D.N.J. 1992). Under this discretionary standard, we evaluate whether or not the Third Circuit's opinion in Greate Bay Hotel & Casino v. Tose, 34 F.3d 1227 (3d Cir. 1994) represents a change in law through a new controlling or persuasive precedent sufficient to cause modification of the March 31, 1994 Opinion herein, bearing in mind that the law of the case, set in the prior opinion, should not change unless intervening precedent indicates it was erroneous.
On September 6, 1994, the Third Circuit filed Greate Bay Hotel & Casino v. Tose, 34 F.3d 1227 (3d Cir. 1994). The Greate Bay court held that "the legislature did not vest the Commission with exclusive primary jurisdiction over claims such as [one by a gambler to recover losses to a casino which allowed him to gamble while visibly intoxicated]."
Greate Bay, 34 F.3d at 1235. In reaching this determination, the Greate Bay court stated in a footnote:
The current posture of this case obviates the need to determine whether Zoby casts doubts on the correctness of the Aboud court's prediction that the New Jersey Supreme Court would recognize that a casino had a duty to a patron to refrain from permitting him to gamble when he is obviously and visibly intoxicated. . . . We need not review the Aboud ruling pursuant to our obligation to consider the district court's jurisdiction. . . . While we do not make a ruling on the point, a reasonable argument can be made that a casino owes a common law duty to a patron to prevent him from gambling when it knows he is intoxicated. See Aboud, 715 F. Supp. at 653.