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Leming v. Harrah's Hotel & Casino

March 6, 2002

LAWRENCE J. LEMING, PLAINTIFF-APPELLANT,
v.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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. ...


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