Tose v. Greate Bay Hotel and Casino Inc., Civ. A. No. 91-600 (JEI).

Citation819 F. Supp. 1312
Decision Date13 April 1993
Docket NumberCiv. A. No. 91-600 (JEI).
PartiesLeonard TOSE, Counterclaimant/Plaintiff, v. GREATE BAY HOTEL AND CASINO INC. t/a Sands Hotel, Casino & Country Club, Respondent/Defendant.
CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey


A. Charles Peruto, Philadelphia, PA, Philip L. Blackman, Cherry Hill, NJ, for counterclaimant/plaintiff.

Frederick H. Kraus, Susan Shirk, Greate Bay Hotel and Casino, Inc., Atlantic City, NJ, for respondent/defendant.


IRENAS, District Judge:

On January 9, 1991, the Sands casino1 sued Leonard H. Tose to recover alleged gambling debts. Mr. Tose filed a counterclaim seeking to recover gambling losses incurred at the Sands while he was alleged to be obviously and visibly intoxicated.2

Presently before the court in this tort action are questions presented by the parties regarding proper instructions for the jury. Specifically, defendants wish to have the jury instructed on the defense of comparative negligence against plaintiff, and on the issue of proximate cause. For the reasons stated below, the court will not charge the jury on either of these issues.

A jury trial on Tose's counterclaim was conducted from February 16, 1993 through March 5, 1993. Before the conclusion of the trial, defendant requested that the jury be charged on the issue of plaintiff's comparative negligence.3 Defendant argued that plaintiff's becoming voluntarily intoxicated was contributory negligence, and that defendant's liability should thus be reduced to the extent that this negligence contributed to his losses. In addition, defendant requested that the jury receive a proximate cause charge, which would instruct that plaintiff could recover only for those losses which were causally related to the casino's permitting plaintiff to gamble while drunk.

A. Comparative Negligence Instruction

The doctrine of comparative negligence is an affirmative defense that a defendant can assert to reduce liability. As codified by the New Jersey legislature, any damages attributable to a defendant's negligence "shall be diminished by the percentage sustained of negligence attributable to the person recovering," so long as the plaintiff's negligence was not greater than the defendant's. N.J.S.A. § 2A:15-5.1. Under New Jersey's previous doctrine of contributory negligence, any negligence by the plaintiff could bar all recovery. See Soronen v. Olde Milford Inn, Inc., 46 N.J. 582, 589, 218 A.2d 630 (1966); see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 65, at 461 (5th ed. 1984) hereinafter "Prosser & Keeton" (contributory negligence is complete bar to plaintiff's action for defendant's common-law negligence).

Both comparative and contributory negligence doctrines limit a plaintiff's recovery based on that plaintiff's negligent conduct.4 A plaintiff is considered contributorily negligent where "his actions are such as to constitute a failure to use such care for his safety as the ordinarily prudent man in similar circumstances would use." Hendrikson v. Koppers Co., Inc., 95 A.2d 710, 11 N.J. 600, 607 (1953); see also Prosser & Keeton § 65, at 453 ("Contributory negligence is conduct which involves an undue risk of harm to the actor himself."). One policy consideration underlying this doctrine is that "one's right to protection from the negligence of others carries with it the duty of reasonable care for one's own safety." Milstrey v. City of Hackensack, 79 A.2d 37, 6 N.J. 400, 414 (1951).

In the typical contributory negligence situation, the issue is whether the plaintiff was moving about in the world in a way that posed an unreasonable risk of physical injury to herself. See, e.g., Milstrey, 6 N.J. at 413-14 (plaintiff's duty to avoid impediments on sidewalk); Hendrikson, 11 N.J. at 608 (plaintiff's failure to observe and avoid open hole in a trench); Keller v. Frank Kull, Inc., 165 N.J.Super. 258, 398 A.2d 106 (App.Div.1978) (plaintiff's opening lid of large dumpster which then fell on her); Citro v. Stevens Institute of Technology, 55 N.J.Super. 295, 150 A.2d 678 (App.Div.1959) (plaintiff's duty to avoid crack in sidewalk). The courts of New Jersey have undoubtedly imposed a duty on individuals not to place themselves in positions of unreasonable physical danger.

An individual who becomes voluntarily intoxicated increases the risk that she will move about carelessly and put herself in a dangerous position. Voluntary intoxication thus undermines the policy of individual responsibility on which contributory and comparative negligence defenses are based.

It follows that in New Jersey, individuals are generally not excused from acting negligently if their voluntary intoxication dulled their appreciation of a risk. Rather, an intoxicated person is held to the same standard of care as a sober person. See Tabor v. O'Grady, 59 N.J.Super. 330, 339, 157 A.2d 701, 706 (App.Div.1960); see also Allen v. Rutgers, State Univ. of New Jersey, 216 N.J.Super. 189, 195, 523 A.2d 262, 265 (App. Div.1987), certif. denied, 107 N.J. 653, 527 A.2d 472 (1987); Anslinger v. Martinsville Inn, Inc., 121 N.J.Super. 525, 534, 298 A.2d 84, 88 (App.Div.1972), certif. denied, 62 N.J. 334, 301 A.2d 449 (1973). As recently reiterated by the New Jersey Supreme Court, the state's "statutory and case law reflect the compelling public policy that those who voluntarily become intoxicated must be held responsible for the consequences of their behavior." Lee v. Kiku Restaurant, 127 N.J. 170, 182, 603 A.2d 503 (1992).

In the specific context of dram-shop liability,5 other policy considerations have influenced the use of the contributory negligence defense. In Soronen, 46 N.J. at 587, the New Jersey Supreme Court held that a defendant tavern in a dram-shop action could not assert the patron's voluntary intoxication as a form of contributory negligence. Id. 46 N.J. at 592. The court reasoned that because it was New Jersey's policy to hold liquor licensees accountable for serving visibly intoxicated patrons, "the accountability may not be diluted by the fault of the patron for that would tend to nullify the very aid being afforded." Id. It was significant that at the time Soronen was decided, a defense of contributory negligence would completely bar a plaintiff's claim. See Lee, 127 N.J. at 176.

New Jersey's adoption of comparative negligence principles altered the Soronen analysis, because a comparative negligence defense would not act as a total bar to plaintiff's recovery. Upon reexamination of this issue one year ago, the New Jersey Supreme Court found that "continued application of our holding in Soronen, adopted at a time when contributory negligence operated as a complete bar to a plaintiff's recovery, is no longer appropriate." Lee, 127 N.J. at 183.

The Lee court went on to hold that "in dram shop litigation a jury should apportion fault between the patron and the tavern based on the extent to which each party's negligence contributed to the plaintiff's injuries." Using the drunk driving case as an example, the court stated that a server may assert a comparative negligence defense against an intoxicated passenger who accepted a ride from an intoxicated driver "to the extent that the passenger's drinking to the point of intoxication contributed to his inability to appreciate the risk of his behavior." Id. at 187. The server may also assert this defense against an intoxicated driver "to the extent that the driver's act of drinking to the point of intoxication contributed to his inability to drive carefully."6Id.

Contributory negligence in a dram-shop action, therefore, is now not much different from contributory negligence in other contexts. Individuals have always had a duty not to put themselves at risk of physical injury by becoming voluntarily intoxicated, whether the risk be through driving or through engaging in other activities. What has made dram-shop cases unusual is that there the defendant has a corresponding duty not to contribute to the individual's intoxication after a certain point. It was because of this additional duty on the part of the defendant, and not because of any lessening of the patron's duty, that New Jersey did not always permit the patron's voluntary intoxication to be considered contributory negligence.

Plaintiff's claim is based on the decision in GNOC v. Aboud, 715 F.Supp. 644 (D.N.J. 1989), where Judge Mitchell H. Cohen predicted that the New Jersey courts would hold that "a casino has a duty to refrain from knowingly permitting an invitee to gamble where that patron is obviously and visibly intoxicated and/or under the influence of a narcotic substance." Id. at 655.7 Although there was no New Jersey state court authority imposing such potential liability on the casinos, Judge Cohen analogized the claim to a dram-shop action and found that imposition of this liability furthers New Jersey's public policy of "protecting ... gambling patrons from the deleterious effects of alcohol imbibement." Id. 715 F.Supp. at 654.8

In Lee, the court stated that once a person is visibly intoxicated he is presumed to have lost the capacity to evaluate the risk of driving while intoxicated, or the risk of being a passenger with an intoxicated driver. 127 N.J. at 184, 187, 603 A.2d 503. The server is liable for continuing to serve a patron only after he has reached this incapacitated state. Likewise, Aboud imposes liability on casinos for failing to protect clearly intoxicated patrons who have lost the ability to "comprehend the consequences of continued, protracted gambling." 715 F.Supp. at 655.

However, while the actions of the casino defendants may be analogous to the actions of other dram-shop defendants, the significance of the plaintiffs' actions, particularly before becoming visibly and obviously intoxicated, is quite different. In dram-shop cases, New Jersey has held that an individual plaintiff has a duty not to increase her risk of physical injury,...

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  • Del Tufo v. Township of Old Bridge
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    ...of comparative fault is based on "a policy of individual responsibility" for voluntary behavior. See Tose v. Greate Bay Hotel & Casino, Inc., 819 F.Supp. 1312, 1315 (D.N.J.1993). As the Lee Court observed, it is contrary to that principle to allow an individual to avoid responsibility for d......
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