Genovay v. Fox, A--623

• Decision Date: 16 June 1958
• Docket Number: No. A--623,A--623
• Citation: 143 A.2d 229,50 N.J.Super. 538
• Parties: Anthony GENOVAY, Plaintiff-Appellant, v. Charles FOX, trading as White Horse Bowling Academy, Defendant-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 538

50 N.J.Super. 538

143 A.2d 229

Anthony GENOVAY, Plaintiff-Appellant, v. Charles FOX, trading as White Horse Bowling Academy Defendant-Respondent.

No. A--623.

Superior Court of New Jersey.

Appellate Division.

Argued Feb. 24, 1958.

Decided June 16, 1958.

George Pellettieri, Trenton, argued the cause for plaintiff-appellant (Pellettieri & Rabstein and Lewis C. Stanley, Trenton, attorneys).

Richard J. S. Barlow, Jr., Trenton, argued the cause for defendant-respondent (Lenox, Giordano & Lenox, Trenton, attorneys).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

CONFORD, J.A.D.

The principal questions posed for resolution on this appeal are these. To what extent does the proprietor of a combination bowling alley-bar owe his business invitees the duty of securing the premises against the hazard of entry by an armed bandit and consequent injury at the hands of the intruder in the course of a holdup of the proprietor? After such an entry has been effected is the proprietor under a duty to conduct himself in such a manner as to avoid inducing or encouraging resistance to the bandit by those present if resistance reasonably appears to entail a heightened risk of serious injury or death to one or more of those present? Assuming such a duty, was there sufficient evidence here of defendant's breach of duty to warrant submission of the liability question to the jury? There are collateral questions, the more important relating to proximate cause and contributory negligence.

On the night of April 21--22, 1955 defendant was the owner of the White Horse Bowling Academy on Bordentown Road, Hamilton Township. The enterprise included a licensed bar for the sale and consumption on the premises of alcoholic beverages. At about 3:15 A.M. a masked gunman gained entry into the building. Defendant Fox, owner of the place, four of his employees and six patrons were in the bar section of the premises, talking, some drinking beer. In the course of the ensuing holdup, one of the patrons, James Aversano, attempted to disarm the bandit but was shot and mortally wounded in the effort. Plaintiff, a close friend of Aversano, went to his aid and was also shot by the gunman, sustaining the serious injuries for which he now sues for compensation in damages.

The basis for the action is negligence on the part of the proprietor, both in failing to secure the premises against unlawful entry and in encouraging and inciting activity conducive to gunfire after the robber's entry, either by design or imprudence. At the close of the plaintiff's case the trial judge granted a motion for involuntary dismissal, resting his action solely on a lack of evidence showing a 'proximate connection between any acts of the defendant and the injuries sustained by this plaintiff.' The judge concluded that the acts of Aversano and the plaintiff were done 'independently' of the defendant and he implied that these were intervening factors which broke the chain of legal causation between any negligence of the defendant and the damage sued for.

I.

In reviewing the factual record in this procedural context we are, of course, guided by the precept that the plaintiff is entitled to have the sufficiency of his case appraised on the basis of the most favorable testimony introduced on his behalf along with all favorable inferences which a jury might properly draw therefrom, resolving in his favor all matters of credibility. Martin v. Bengue, Inc., 25 N.J. 359, 362, 136 A.2d 626 (1957). We therefore recite the facts we deem material in their most favorable relation to plaintiff's projected theories of recovery, but also allude to some other aspects of the proofs in the interest of contrast and background.

Defendant's business premises are divided roughly into two sections. The front portion, facing the road, consists of a barroom which includes booths, a dance floor and snack bar. The main entry door leads directly into the bar. The bowling alleys take up the rear portion of the premises. There are two doors giving direct access between the bar and the alleys, but there are two other doors for direct entrance to the alleys from the outside, and still two other doors from which entry can be had from the outside to a corridor leading to either the bar or the bowling alleys. There are several windows in the bowling alley section of the structure. To the right (looking from the front) of the bowling alleys is a 10 10 office room wherein was situated a very large safe in which defendant kept certain moneys. There were six cash registers on the premises.

The bar was customarily closed at 2:00 A.M., the legal closing hour, but closing time for the bowling alleys was indeterminate, varying from 2:00 A.M. to 6:00 A.M., depending on the volume of business. The most frequent closing hour was about 4:00 A.M. Thursday was a 'slow' bowling night (April 21, 1955 was a Thursday), and the alleys generally closed between 2:00 A.M. and 2:30 A.M. on that night. Defendant testified (on depositions which plaintiff read into evidence) that he had read in the newspapers of increased armed robberies in the county, occurring more frequently in the late night hours than by daytime. Defendant had never sustained an armed robbery previously but there had been surreptitious thefts of money and property on occasion by employees. A combination porter-night watchman was employed, who usually came to work between 12:00 midnight and 12:30 A.M., and whose duties included locking up the bar after closing, cleaning up the bar, and, after the bowling alleys were vacated, checking to see that all the doors and windows in the premises were locked.

Plaintiff arrived at the premises at about 2:20 A.M., expecting to bowl with his close friend, James Aversano, and others. The doors were locked, but he was recognized by the bartender and admitted through the front door. The few bowlers, including defendant himself, were finishing their last game. At about 2:35 A.M., the bowling concluded, and all the bowlers, together with defendant and his employees, Papp, the manager, Fuccello, the watchman, Cimore, the bartender, and Potzer, a mechanic, congregated in the bar. The defendant asked the men 'to have a drink.' He himself and at least one of the group had beer. Fuccello was also drinking beer, but as part of his 'lunch.' The defendant stayed behind the bar until the advent of the gunman. Fuccello had not yet gone out to the alleys to check the doors and windows. By that time Papp was supposed to have 'locked up' the entire building. Additional customers would be admitted through the front door, but only if they were known to the management. A front door alarm was in operation, set to ring whenever there should be a front door entry. When those then in the place left, no more customers were to be admitted. Another bowling customer, coming to inquire about a bowling ball, came in about 3:00 A.M. with a companion, and they joined the group in the bar in general conversation about an impending bowling tournament. There were thus 11 men in the room.

At about 3:15 A.M. the left-side door between the alleys and the bar opened and the bandit entered. He carried a gun in each hand and a bandanna covered his face from the nose down. He wore a ski cap and a trench coat which were wet from the rain. The defendant and some of the others laughed when he said, 'This is a stick-up. Who is the boss?' thinking someone was playing a joke. All soon realized the intruder meant business, and the defendant identified himself. The bandit said, 'I want you to open the safe in the other room,' to which defendant replied, 'What safe?' and 'sort of laughed.' This evoked the rejoinder, 'You know what safe I mean, in the other room. Get going.' There is undenied testimony that defendant told the group, in effect, that his money was insured. Defendant testified he also said, 'Let's be calm about this,' and, 'We want no trouble,' or, 'Let's not have no trouble because there's so many of us in here.' From other testimony, however, the jury could have concluded the latter remarks were not made. Defendant testified that as soon as he realized a holdup was actually in progress he felt the situation was dangerous 'because all these men were friends of mine and they are liable to do something for me that might be very dangerous to all of us.'

The gunman directed the entire group to precede him out of the right-side bar door leading to the alleys and thence to the room where the safe was kept. Vogler, one of the bowlers, protested sharply when the thug poked a gun in his back to hurry him along. Papp, in the corridor with Fuccello before the bandit left the bar, told Fuccello to sneak into the men's toilet, and the latter did so, taking one of the other men with him. They locked the door and escaped through a window to summon the police. The gunman yelled for the fugitives to return, and then said to the remaining group, 'We have still got time to do this before the cops get here. I know one got away, get going and nobody will get hurt.' Defendant testified he realized the danger in the situation had increased with the escape of the two men.

The remaining nine men were herded into the office where the safe was, a room about ten feet square. The entrance was close to the right corner of the room (looking in the door). The large safe stood against the wall to the left of the door. There was a closet on the opposite (far) wall. The gunman stood just inside the door, Aversano to his right, and the others ranged about the small room. The gunman told Fox to open the safe. On the first try Fox missed the combination. The gunman became angry, remarked again that one man had escaped and told him to hurry up. Fox opened the safe, took a box of money out of it, turned around with his back to the bandit, walked across the room and laid the box on the closet on the opposite side of the room. While this was...