Chomatopoulos v. Roma DeNotte Social Club

• Decision Date: 08 October 1985
• Parties: Constantiane CHOMATOPOULOS and Manolis Tzirakis, Plaintiffs, v. ROMA DeNOTTE SOCIAL CLUB, Rosario Farro, Individually and t/a Roma Denotte Social Club, 285 Main Street Corp., a New Jersey corporation and William Gantz, Defendants.
• Court: New Jersey Superior Court

Page 447

212 N.J.Super. 447

515 A.2d 296

Constantiane CHOMATOPOULOS and Manolis Tzirakis, Plaintiffs, v. ROMA DeNOTTE SOCIAL CLUB, Rosario Farro, Individually and t/a Roma Denotte Social Club, 285 Main Street

Corp., a New Jersey corporation and

William Gantz, Defendants.

Superior Court of New Jersey, Law Division,

Essex County.

Decided Oct. 8, 1985.

Marvin S. Davidson, Orange, for plaintiffs.

John A. Gonnella, East Orange, for defendant Rosario Farro.

YANOFF, J.S.C. (retired and temporarily assigned on recall).

The altercation which gives rise to the interesting problem in this case occurred on September 14, 1982 immediately outside a gambling establishment conducted by defendant, Rosario Farro, at 285 Main Street, West Orange, New Jersey.

This case came to me as a proof case because of default on the part of defendant. For reasons, equitable in nature, which need not be recounted here, I vacated the default for the purpose of hearing testimony as to whether plaintiff could prove a cause of action.

On May 31, 1983 Constantiane Chomatopoulos filed suit naming William Gantz, Rosario Farro, Roma DeNotte Social Club and 285 Main Street Corp., the lessor of the premises, as defendants. The case has been reduced to an action against Rosario Farro, who concededly was the proprietor of the gambling establishment conducted under the name of Roma DeNotte Social Club.

While Farro depicted himself as a self-employed builder, which may be a fact, it is also a fact that he conducted a place where people met regularly for the purpose of gambling. Defendant called it a "club," but it was a club where there were no dues and apparently no one was denied admission. Farro testified that he maintained the club by contributions from its patrons who engaged in the gambling activities, and not by a specified percentage of the "take." I need not decide whether this is true because the crucial fact is that the club was a center for gambling activity, not how it was financed. Therefore, I conclude, for the purposes of this case, that Farro was "promoting gambling" in violation of N.J.S.A. 2C:37-2a.

On the day in question, Constantiane Chomatopoulos, Manolis Tziriakis and William Gantz were at the Roma DeNotte. Gantz and Tziriakis engaged in a Greek game, similar to "dice," called "barbute." At the time, Chomatopoulos was either playing cards or at another dice table. Gantz and Tziriakis got into an argument over the amount of a bet. Sometime later, Gantz and Tziriakis resumed their argument.

At Gantz's invitation the two went outside where Gantz slashed Tziriakis's throat. Chomatopoulos followed them when he heard the commotion, he said, as a "peacemaker." He was not aware that Tziriakis had been stabbed. Immediately outside the premises Gantz stabbed Chomatopoulos four times. Then Gantz followed Chomatopoulos across the street, where he stabbed him four more times.

Unquestionably, plaintiff was a business invitee of the club. He had gambled there on prior occasions. It was not clear whether he had done so on this occasion, but his presence added to the club revenues.

In determining that conduct of the club was a business, it matters not whether Farro was compensated by a stipulated percentage of the wager, or whether he received what he called "voluntary contributions" from the players. This was the means by which Farro maintained and conducted the gambling establishment. Farro testified that he made no profit from the operation of the establishment, but devoted the entire profit to a Christmas party for underprivileged children. Assuming, although I admit doubt on the subject, that the entire profits of the establishment were used as he claimed, it would still be a business enterprise. If an entrepreneur chooses to devote his profits to a charitable purpose, it is, nonetheless, his property which he is giving away.

Butler v. Acme Markets, Inc., 89 N.J. 270, 445 A.2d 1141 (1982) elucidates the pertinent principles of liability:

The proprietor of premises to which the public is invited for business purposes of the proprietor owes a duty of reasonable care to those who enter the premises upon that invitation to provide a reasonably safe place to do that which is within the scope of the invitation. Brody v. Albert Lifson & Sons, 17 N.J. 383, 389 (1955); Genovay v. Fox, 50 N.J.Super. 538, 549 (App.Div.1958) rev'd on other grounds, 29 N.J. 436 (1959). The measure of that care has been described as 'due care under all the circumstances.' Bozza v. Vornado, Inc., 42 N.J. 355 359 (1964); 2 Harper & James, Law of Torts (1956) § 27.12 at 1487. 'Negligence is tested by whether the reasonably prudent person at the time and place should recognize and foresee an unreasonable risk or likelihood of harm or danger to others.' Rappaport v. Nichols, 31 N.J. 188, 201 (1959). If the reasonably prudent person would foresee danger resulting from another's actions are beyond defendant's control does not preclude liability. [at 275-276, 445 A.2d 1141] ¹

In Butler there had been a history of prior criminal acts in the shopping center in question which should have alerted the operator of the shopping center to the necessity for establishing proper security. There is no such specific record in this case. However, Butler's ruling is bottomed on the general obligation of care of a storekeeper, not the specific circumstances involved. The ultimate outcome in Butler was a remand to the trial court for a trial in which the specific circumstances could be developed. So, in this case, Farro is in the position of the operator of a business enterprise to which customers are invited. He owes the same duty of care as does the storekeeper.

Brown v. Racquet Club of Bricktown, 95 N.J. 280, 284, 471 A.2d 25 (1984), while it deals primarily with the question of res ipsa loquitur, supports the general principle that the ultimate issue is whether the business invitor has provided the business invitee with a safe place to do that which was reasonably within the scope of the business invitation.

I see no reason why the fact that defendant was engaged in an illegal enterprise should diminish the scope of liability for breach of a duty of care. On the contrary, as will appear hereafter, it may well increase it. At any rate, the illegality of the enterprise does not exonerate the wrongdoer from responsibility for exercise of due care. Tomko v. Feldman, 128 Pa.Super. 429, 194 A. 338 (Sup.Ct.1937), cited in Holcomb v. Meeds, 173 Kan. 321, 246 P.2d 239, 243 (Sup.Ct.1952); Shiroma v. Itano, 10 Ill.App.2d 428, 135 N.E.2d 123 (App.Ct.1956).

On the issue of whether participation by a plaintiff in illegal gambling activities is a bar in an action for personal injuries, see Annotation, "Participation in Gambling Activities as Bar to Action for Personal Injury or Death," 77 A.L.R.2d 961 (1961).

The guiding principle is set forth in 2 Restatement, Torts 2d, § 889 at 352 (1979):

One is not barred from recovery for an interference with his legally protected interests merely because at the time of the interference he was committing a tort or a crime or, in case of an interference with his title to or possession of lands or chattels, because it was tortious or illegal for him to have the title or possession.

....

Negligent harms by third persons. The fact that one is doing an illegal act does not prevent him from maintaining an action for harm caused by the negligence or abnormally dangerous activities of a third person. Nevertheless, if the injured person has violated a statute designed to prevent a certain type of risk, he is barred from recovery for harm caused by violation of the statute if, but only if, the harm resulted from a risk of the type against which the statute was intended to give protection. [Id., § 889 at 352, Comment b]

There are, however, questions of causation. If the illegal conduct was the cause of the injury, plaintiff, under some circumstances, is barred. See Shiroma v. Itano, supra. But if the violation of law is merely the occasion, rather than a contributing cause of the injury, recovery is not barred. See Holcomb v. Meeds, supra.

As stated in the annotation in 77 A.L.R.2d, supra:

In a majority of the cases in which it has been contended that a plaintiff's action for personal injuries was barred because...