March 6, 2002
LAWRENCE J. LEMING, PLAINTIFF-APPELLANT,
HARRAH'S HOTEL & CASINO, DEFENDANT-RESPONDENT.
Before Judges Petrella and Kestin. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, L-2299-00.
The opinion of the court was delivered by: Petrella, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 4, 2002
Plaintiff Lawrence J. Leming appeals the Law Division's grant of summary judgment dismissing his complaint on the ground that the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act, N.J.S.A. 2A:22A-1 et seq. (the Act) precludes his claim for negligent service of an alcoholic beverage at Harrah's Hotel and Casino.*fn1 He also argues for the first time on appeal, that the Act is inapplicable because the Casino Control Act, N.J.S.A. 5:12-1 et seq., gives the Casino Control Commission exclusive jurisdiction over his claim because the incident occurred in a casino.
The incident giving rise to the complaint occurred on September 8, 1998, when Leming, a recovering alcoholic who had not had a drink in approximately thirty years, was at Harrah's Casino in Atlantic City for"an evening of gambling." Leming is an active member of Alcoholics Anonymous and a counselor for Al-Anon. He is also involved with several other programs for recovering alcoholics.
While playing the slot machines, Leming requested a Diet Coke from a beverage server named"Mickelena," who responded that she already had one on her tray. Leming proceeded to ingest this beverage, unaware that it was actually a"rum and Coke." Harrah's does not dispute that Leming was accidently served an alcoholic beverage on the date in question.
Leming alleges that as a result of this incident he has been plagued by feelings of guilt, irritability, depression and remorse. He also claims that this incident has caused him to lose sleep, lose his appetite, and lose interest in his daily life activities. As a result, he has undergone treatment with a licensed psychologist.
His complaint asserted negligence, as well as a cause of action under N.J.S.A. 2A:22A-1 et seq., the New Jersey licensed Alcoholic Beverage Server Fair Liability Act. Defendant's motion for summary judgment was granted on the ground that Leming had not met the criteria for recovery under the Act. The judge held that because the Act states that it is the exclusive remedy for any claims based upon the negligent service of alcoholic beverages, his claims on the basis of common law negligence were also barred. This appeal followed.
While Leming originally claimed that defendant Harrah's violated the Act by negligently serving him an alcoholic beverage, on appeal he claims that the Act does not apply to his case. Rather, Leming claims that the judge erred in concluding that N.J.S.A. 2A:22A-1 et seq. was Leming's sole remedy, and that the act precluded his claim of common law negligence.
Leming argues that he does not fall under the purview of the Act because he is not a member of the class that the Legislature chose to limit recovery because he did not voluntarily drink the alcoholic beverage served to him.
Specifically at issue is N.J.S.A. 2A:22A-4 of the Act which states:
This act shall be the exclusive civil remedy for personal injury or property damage resulting from the negligent service of alcoholic beverages by a licensed alcoholic beverage server. Nothing contained herein shall be deemed to limit the criminal, quasi criminal, or regulatory penalties which may be imposed upon a licensed alcoholic beverage server by any other statute, rule or regulation. [Emphasis added].
In analyzing the applicability of the above provision to the present case, the Law Division Judge examined the legislative purpose of the Act as set forth in N.J.S.A. 2A:22A-2. The Act states that the Legislature's intention was to mitigate licensed alcoholic beverage servers'"great difficulty in obtaining liability insurance coverage" as well as to lower the cost of such insurance, making it more affordable. Moreover, the Legislature stated that the Act sought to make the incidence of alcohol related liability more predictable by defining the limits of civil liability associated with the service of alcohol. See also, Truchan v. Sayreville Bar and Restaurant, Inc., 323 N.J. Super. 40, 52-53 (App. Div. 1999) (Common law claims predicated upon the negligent service of alcoholic beverages are precluded by the exclusivity provisions of the Act.). The motion judge further noted:
The purpose of the act...is to protect the alcoholic beverage servers, to allow them to be able to get insurance, to allow them to limit the type of risks that they are going to have....And it does, in fact, fit in with the purpose that they shouldn't be held responsible when they don't do what's in the Act, which is in this case they didn't serve a minor, they didn't serve someone who was visibly intoxicated. They served somebody who didn't want a drink, and under the act that is not a basis for liability.
The court, therefore, finds that I am constrained by the language of the statute, and that I think that the purpose of the statute, which is to protect the beverage server and limit their liability to really two certain foreseeable types of negligence.
Leming claims that the reach of the Act is limited to minors and visibly intoxicated patrons, and that the Legislature never intended it to apply to cases such as this. To support his claim, Leming points to N.J.S.A. 2A:22A-5-(b) which states that"[a] licensed alcoholic beverage server shall be deemed to have been negligent only when the server served a visibly intoxicated person, or served a minor, under circumstances where the server knew, or reasonably should have known, that the person served was a minor." However, this provision refers solely to liability under the act, not the reach of the Act itself. As its legislative purpose demonstrates, this is a liability limiting act. Furthermore, the Act is explicit in that it affords the exclusive remedy for the"negligent service of alcoholic beverages." The Act's reach is clearly not limited to the two areas where liability is permitted.
Leming also argues that"[t]his case involves the negligent service of a'diet coke' not the negligent service of alcoholic beverages," because he never ordered an alcoholic beverage. This argument is unpersuasive. The Act clearly states that it applies to situations involving the"negligent service of alcoholic beverages." [Emphasis added]. One need not request or order an alcoholic beverage in order for there to a negligent service of such a beverage. Because the drink delivered to Leming was in fact alcoholic, the statute applies.
Both the legislative purpose as set out in N.J.S.A. 2A:22A-2 as well as a plain meaning analysis of the Act support the motion judge's conclusion that Leming is barred under the statute.
Next, Leming argues, for the first time on appeal, that the judge erred in applying the Act because N.J.S.A. 5:12-103 has given the Casino Control Commission exclusive jurisdiction over the service of alcoholic beverages in casinos."An issue not raised below may be considered by the court if it meets the plain error standard or is otherwise of special significance to the litigant, to the public or to the achieving of substantial justice and the record is sufficiently complete to permit its adjudication." N.J. Court Rules, comment to R. 2:6-2 (2001).
Leming alleges that the Casino Control Act supercedes all other regulations of alcohol when the issue concerns alcohol in a casino or hotel. He claims that because the Casino Control Act is so expansive and sweeping in the field of alcoholic beverages in casino facilities, it can be said to have preempted the field to the exclusion of other legislative regulations.
In support of his argument, Leming cites Hakimoglu v. Trump Taj Mahal Associates, 876 F. Supp. 625, 632 (D.N.J. 1994), aff'd 70 F.3d 291, 293 (3d Cir. 1995), where a footnote states:
In contrast [to the New Jersey Licensed Alcoholic Beverage Server Fair liability Act], the Casino Control Act at N.J.S.A. 5:12-103 provides:
Notwithstanding any law to the contrary, the authority to grant any license for, or to permit or prohibit the presence of, alcoholic beverages in, on, or about any premises licensed as part of a casino hotel shall exclusively be vested in the commission... Except as otherwise provided in this section, the provisions of Title 33 of the revised Statutes and the rules, regulations and bulletins promulgated by the Director of the Division of Alcoholic Beverage Control shall apply to a Casino Hotel and Casino Hotel Alcoholic Beverage Licensee licensed under this act. Clearly, no provision of the Server Fair Liability Act applies to casinos, as this Act is not part of Title 33.
Leming further relies upon a statement made by this court in Atlantic City Showboat v. DCA, 331 N.J. Super. 40, 51-52 (2000), that,"Other courts in other contexts have examined the pervasiveness of the Casino Control Act and found that it indeed does preempt well-settled areas of law. E.g., Hakimoglu v. Trump Taj Mahal Associates, 70 F.3d 291, 293 (3d Cir. 1995) (finding that dram shop laws do not apply to casinos)."
However, Atlantic City Showboat's reading of Hakimoglu is over-broad to say the least. In affirming the District Court, the Circuit Court of Appeals merely stated that the dram-shop laws are inapplicable to instances where the loss claimed is attributable to gambling while intoxicated. Hakimoglu, supra (70 F.3d at 293). The third circuit court never stated that it intended to shield casinos from all dram-shop liability. To the contrary, in Petitto v. Sands Hotel & Casino, 288 N.J. Super. 304 (App. Div. 1996), we held a casino liable under the dram-shop laws for continuing to serve a patron after she had already become visibly intoxicated. The fact that the Act was enacted in 1987, and compiled in Title 2A, ten years after the Casino Control Act, reinforces the legislative purpose to have the Act apply to all licensed alcohol servers, including those in the casino setting even though the provisions of the Act are not in Title 33 or the Casino Control Act.
A review of the Casino Control Act, N.J.S.A. 5:12-103, reveals that it affords the Casino Commission a great deal of discretion in licensing, regulating, administrating and enforcing regulations dealing with alcoholic beverages in casino hotel facilities. However, the Casino Control Act does not mention tort liability for the service of alcoholic beverages. It is not at all evident from that statute that the Legislature meant to preempt the tort provisions of the subsequently enacted Server Fair Liability Act. Just the opposite appears.