Hakimoglu v. Trump Taj Mahal Associates , 70 F.3d 291 ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
11-20-1995
Hakimoglu v Trump Taj Mahal
Precedential or Non-Precedential:
Docket 95-5022
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 95-5022
____________
AYHAN HAKIMOGLU,
Appellant
v.
TRUMP TAJ MAHAL ASSOCIATES;
TRUMP TAJ MAHAL, INC.;
DONALD TRUMP; THE TRUMP TAJ
MAHAL CORPORATION; TM/GP
CORPORATION
No. 95-5087
______________
AYHAN HAKIMOGLU,
Appellant
v.
BOARDWALK REGENCY CORP.
____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil Nos. 93-02084 and 93-01874)
____________________
Argued: July 24, 1995
Before: BECKER, NYGAARD, and ALITO, Circuit Judges
(Opinion Filed: November 20, 1995)
____________________
Michael M. Mustokoff, Esq. (Argued)
Ronald F. Kidd, Esq.
Teresa N. Cavenagh, Esq.
Duane, Morris & Heckscher
4200 One Liberty Place
Philadelphia, PA 19103-7396
1
Counsel for Appellants
Gerard W. Quinn, Esq. (Argued)
Lloyd D. Levenson
Cooper, Perskie, April,
Niedelman, Wagenheim & Levenson
1125 Atlantic Avenue
Suite 320
Atlantic City, New Jersey 08401-4891
Counsel for Trump Taj Mahal Associates,
Trump Taj Mahal, Inc, Donald Trump,
The Trump Taj Mahal Corporation,
TM/GP Corporation
Robert L. Hollingshead, Esq. (Argued)
Joy M. Sperling, Esq.
Pitney, Hardin, Kipp & Szuch
Post Office Box 945
Morristown, New Jersey 07962-1945
Counsel for Boardwalk Regency
____________________
OPINION OF THE COURT
____________________
ALITO, Circuit Judge:
This case presents the question whether under New
Jersey law a casino patron may recover from a casino for gambling
losses caused by the casino's conduct in serving alcoholic
beverages to the patron and allowing the patron to continue to
gamble after it becomes obvious that the patron is intoxicated.
2
The plaintiff in this case, Ayhan Hakimoglu, filed two
separate actions in the United States District Court for the
District of New Jersey against defendants associated with two
Atlantic City casinos. Invoking the district court's diversity
jurisdiction, his complaints alleged that the defendants had
"intentionally and maliciously enticed him" to gamble at the
casinos on numerous occasions by providing him with free
alcoholic beverages and other amenities; that while he gambled he
was served free alcoholic beverages until he became intoxicated;
that after he became "visibly and obviously intoxicated" the
defendants "invited and permitted him to continue to gamble in
that condition" for lengthy periods; and that he consequently
incurred "substantial gambling losses." Asserting claims for
negligence, intentional and malicious conduct, and unjust
enrichment, he sought to recover compensatory and punitive
damages, as well as other relief.
In both cases, the district court dismissed the
plaintiff's claims for failure to state a claim on which relief
could be granted. The court issued a detailed published opinion
in one case, Hakimoglu v. Trump Taj Mahal, 876 F.Supp. 625(D.N.J.), and it relied on this opinion in the other. Although
the defendants' counterclaims for gambling-related debts had not
been completely adjudicated, the court directed the entry of
final judgment on the plaintiff's claims under Fed. R. Civ. P.
54(b). The plaintiff appealed in both cases, and the appeals
were consolidated.
3
Our task in this appeal is to predict whether the
Supreme Court of New Jersey would recognize claims such as those
asserted by the plaintiff. Unfortunately, we must make this
prediction without specific guidance from the New Jersey
appellate courts, for neither the Supreme Court of New Jersey nor
the Appellate Division has addressed the question that is now
before us or any closely related question. If New Jersey law,
like that of some other states,0 permitted us to certify the
question at issue to the Supreme Court of New Jersey, we would
seek to do so here, because the question is both difficult and
important. New Jersey law, however, does not allow such
certification, and therefore we are relegated to predicting what
the Supreme Court of New Jersey would do if it were confronted
with this question.0
While we are required to venture this prediction and
while we recognize the need to issue a published opinion for the
guidance of the district courts in the circuit, we understand
that our decision here is unlikely to have -- and should not
have -- lasting precedential significance. We expect that claims
such as those advanced by the plaintiff in this case will work
their way up through the New Jersey court system and that the New
Jersey appellate courts will provide a definitive answer to the
question before us. For this reason and because most of the
0
See e.g., Del. Const., art. IV, sec. 9; Del. Sup. Ct. R.
41(a)(ii).
0
Judges Nygaard and Alito join section V of Judge Becker's
Dissent, and enthusiastically endorse his recommendations
therein.
4
chief arguments on both sides of this question have already been
set out in excellent published district court opinions, we do not
find it necessary to engage in a lengthy discussion here. The
opinion in GNOC v. Aboud, 715 F. Supp. 644 (D.N.J. 1993), argues
forcefully that the New Jersey Supreme Court would recognize
claims like those in this case. By contrast, the published
opinion of the district court in one of the cases now before us
and the opinion in Tose v. Greate Bay Hotel and Casino, 819 F.
Supp. 1312, 1317 n.8 (D.N.J. 1993), aff'd, 34 F.3d 1227 (3d Cir.
1994), persuasively set out the opposite case.0
0
On appeal in this case, we did not decide the question that is
now before us. See Greate Bay Hotel & Casino v. Tose, 34 F.3d
1227, 1232 n.7 (3rd Cir. 1994). In that case, the casino sued
Tose for gambling debts, and Tose responded with a counterclaim
similar to the claims of the plaintiff here. The district court
judge to whom the case was initially assigned ruled, in
accordance with Aboud, that the plaintiff's allegations stated a
claim on which relief could be granted under New Jersey law. The
case was later reassigned to a different district court judge,
and that judge allowed the counterclaim to go to trial based on
the law-of-the-case doctrine, but in his published opinion he
expressed his reservations concerning Aboud. See 819 F. Supp. at1317 n.8. The counterclaim was tried to a jury, and Tose lost.
Tose appealed the district court's denial of his motion for a new
trial, and the casino argued, among other things, that the
district court should not have exercised jurisdiction over the
counterclaim because it lay within the exclusive primary
jurisdiction of the state Casino Control Commission. We rejected
this argument, as well as Tose's contentions regarding the denial
of the new trial motion. We expressly declined to predict
whether the state supreme court would hold that Tose's
counterclaim stated a claim on which relief could be granted. See
34 F. 3d at 1232 n.7. We did observe: "[W]hile we do not make a
ruling on the point, a reasonable argument can be made that a
casino owes a common law duty to a patron to prevent him from
gambling when it knows he is intoxicated." Id. This comment did
not decide the question presented in this case; nor do we
interpret it as inconsistent with our holding in this appeal. We
completely agree that "a reasonable argument can be made" in
support of a result contrary to the one we reach. However,
5
Although it is not clear which way the New Jersey
Supreme Court would rule on this question--as the conflicting
district court opinions illustrate--it seems to us more likely
that the New Jersey Supreme Court would not recognize claims such
as those that the plaintiff asserted. In reaching this
conclusion, we find it significant that, except in cases
involving minors, the New Jersey courts have not extended "the
liability of servers of alcoholic beverages beyond injuries
related to drunken driving, barroom accidents and barroom
brawls." Hakimoglu, 876 F. Supp. at 632. The intense state
regulation of casinos is also important because, as the district
court observed in this case:
[e]xtending common law dram-shop liability into an area
so fully regulated, without a glimmer of legislative
intent, is not a predictable extension of common law
tort principles, and has not been foreshadowed by the
New Jersey courts.
676 F. Supp. at 633 (footnote omitted). And as the district
court noted in Tose:
[c]onsidering the breadth of areas covered by statute
and regulation, it would seem that if it were indeed
the public policy of New Jersey to impose liability on
casinos for allowing intoxicated patrons to gamble,
that policy would have been enacted. The State has
regulated the minutiae of gaming rules and alcohol
service and expressly permitted the serving of free
drinks to patrons at the gambling tables. Surely it
could not have been unaware that the cognitive
functioning of many gamblers would be impaired
by drinking or of the consequences of permitting
persons so impaired to gamble.
819 F. Supp. at 1317 n.8.
forced to predict whether the New Jersey Supreme Court would
accept that argument, we predict that it would not.
6
We are also influenced by the difficult problems of
proof and causation that would result from the recognition of
claims such as those involved here. As the district court judge
in this case aptly put it:
[e]nlargement [the doctrine of dram-shop liability] to
casino gambling losses could present almost
metaphysical problems of proximate causation, since
sober gamblers can play well yet lose big, intoxicated
gamblers can still win big, and under the prevailing
rules and house odds, "the house will win and the
gamblers will lose" anyway in the typical transaction.
Hakimoglu, 876 F. Supp. at 636 (quoting Greate Bay, 34 F.3d at1233 n.8). Moreover,
[s]uch a cause of action could be fabricated with
greater ease than a dram-shop action involving personal
injury, since in the accident case the occurrence of
the accident is a specific notable event and reliable
evidence of blood alcohol content is usually obtained;
in the gambling loss case, on the other hand, a dram-
shop negligence claim might be brought up to two years
after the gambling events concerning plays of which no
casino dealer or server could have reason to recollect.
Although sometimes highstakes table games are
videotaped using surveillance cameras, such tapes from
multiple cameras would amount to hundreds of hours of
films per day that are routinely recycled rather than
retained if no incident is reported within thirty days.
The New Jersey Supreme Court has expressed concern for
the reliability of evidence of intoxication and its
effects, . . . and such reliability is largely absent
after-the-fact in the casino gaming environment.
876 F. Supp. at 637.
For these reasons and many of the others mentioned in
the district court opinions in this case and Tose, we predict
that the New Jersey Supreme Court would not permit recovery on
claims such as those asserted by the plaintiff here. Accordingly,
we affirm the district court's dismissal of the plaintiff's
7
claims in both cases, and we remand to the district court for
further proceedings on the defendants' counterclaims.
8
AYHAN HAKIMOGLU, Appellant in No. 95-5022 v. TRUMP TAJ MAHAL
ASSOCIATES; TRUMP TAJ MAHAL, INC.; DONALD TRUMP; THE TRUMP TAJ
MAHAL CORPORATION; TM/GP CORPORATION
AYHAN HAKIMOGLU, Appellant in No. 95-5087 v. BOARDWALK REGENCY
CORP.
BECKER, Circuit Judge, Dissenting Opinion.
Ayhan Hakimoglu played his hand, and lost. Now we are
being asked to make our own bet. Sitting in diversity, we must
predict how the highest court of New Jersey would rule. See
Robertson v. Allied Signal, Inc., 914 F.2d 360, 378 (3d Cir.
1990). As the majority points out, we must make this prediction
with little guidance from New Jersey law. But that is an
incident -- and a flaw -- of the regime of diversity
jurisdiction. I believe that the New Jersey Supreme Court would
recognize a cause of action, in tort, allowing patrons to recover
gambling debts from casinos that serve them alcohol after they
are visibly intoxicated.0 This prediction is founded on long
0
In addition to the tort theory Hakimoglu has pursued, a gambler
in his position may have a claim in contract. The gambler's
obvious intoxication, one might argue, voided the gambling
contract. See, e.g., Feighner v. Sauter, 259 N.J. Super. 583,
590, 614 A.2d 1071, 1075 (App. Div. 1992) (listing grounds for
contract rescission, including intoxication); Onderdonk v.
Presbyterian Homes of New Jersey, 85 N.J. 171, 183, 425 A.2d
1057, 1062 (1981) (every contract has "implied covenant of good
faith and fair dealing"). The district court seemed to doubt the
existence of this "so-called gambling 'contract'" because "there
is no mutuality." Dist. Ct. Op. at 17 n.7. "The patron does not
negotiate the terms of his relationship with the casino," the
court explained, "nor can the patron or the casino vary the rules
of the game, the odds, or the payoffs." Id.; see also Tose v.
Greate Bay Hotel and Casino, Inc., 819 F. Supp. 1312, 1317 n.8
(D.N.J. 1993) ("[B]ecause every aspect of the relationship
between the gambler and the casino is minutely regulated by the
state[,] there is little of freedom contract in the usual
sense."). But the patron retains the choice whether to play, and
how much to bet. Thus, this situation is little different from
9
standing trends in New Jersey law recognizing new causes of
action, even in areas pervaded by legislation.
In my view, the New Jersey Supreme Court is especially
likely to create a cause of action where a defendant profits from
conduct causing the foreseeable injury, and has the ability, in
the exercise of due care, to prevent such injury at small cost to
itself. Because this case presents these factors, and because I
am unpersuaded by the majority's arguments, I would reverse the
judgment of the district court and remand for trial on the
merits. I also write to underscore a crucial point mentioned by
the majority: as New Jersey has no certification procedure, we
are forced to make important state policy with little guidance. I
therefore suggest that New Jersey, to serve its own interests and
ours, enact a certification provision.
I.
In predicting the course of New Jersey law, we must
focus on policies and trends in the jurisprudence of New Jersey.0
most sales contracts. Purchasing a hair dryer, for example,
forms a contract even though the price is set and the
characteristics of the good are heavily regulated. On what other
basis is the casino legally able to keep the gambler's money
after he loses? Moreover, the pervasive regulation of the
gambling relationship does not nullify its contractual nature.
New Jersey courts have held that gambling on credit markers forms
a contract between the casino and the patron, see Lomonaco v.
Sands Hotel, 259 N.J. Super. 523, 614 A.2d 634 (Law Div. 1992),
and that the Casino Control Act did not abrogate traditional
common law contract defenses such as intoxication. See id.However, Hakimoglu has declined to press a contract claim and
hence we do not decide the question.
0
Precedent from Nevada, the only other state in which casino
gambling is legal, provides no help, for Nevada does not
10
See McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 662 (3d
Cir. 1980) (in evaluating state law, "relevant state precedents
must be scrutinized with an eye toward the broad policies that
informed those adjudications and to the doctrinal trends which
they evince"), cert. denied, 449 U.S. 976 (1980). The New Jersey
Supreme Court has long been a leader in expanding tort liability.
For example, it was one of the first courts to announce the
doctrine of strict liability, applying it to automobiles. See
Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69(1960). Moreover, the court's recent cases show its continuing
willingness to expand tort liability in a variety of contexts.
See, e.g., Weinberg v. Dinger, 106 N.J. 469, 524 A.2d 366 (1987)
(imposing a duty of care on water companies to ensure adequate
water pressure for firefighters); T&E Industries, Inc. v. Safety
Light Corp., 123 N.J. 371, 587 A.2d 1249 (1991) (recognizing a
cause of action by the owner of contaminated property against a
previous owner who allegedly caused the contamination); Hopkins
v. Fox & Lazo Realtors, 132 N.J. 426, 625 A.2d 1110 (1993)
(imposing a duty of care for the safety of visitors to open
houses); Dunphy v. Gregor, 136 N.J. 99, 642 A.2d 372 (1994)
(expanding bystander liability to include a fianceé). Most
relevant for our purposes, the New Jersey Supreme Court has
recognize dram shop liability at all. See Hamm v. Carson City
Nugget, Inc., 450 P.2d 358 (Nev. 1969). The federal government
has virtually complete authority over Native American Indian
reservations, see James J. Belliveau, Casino Gambling Under The
Indian Gaming Regulatory Act: Narragansett Tribal Sovereignty
Versus Rhode Island Gambling Law, 27 Suffolk U. L. Rev. 389(1994), but there is no federal law in this area.
11
consistently imposed liability on providers of alcohol for
foreseeable drinking-related injuries -- even though the sale of
alcoholic beverages has been intensely regulated for many years.
See, e.g., Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959)
(recognizing action for death and damages against tavern that
sold alcohol to minor). The court has imposed common law tort
liability upon tavern owners and restaurateurs for furnishing
alcohol to intoxicated persons who subsequently cause injury
through drunk driving. See Sorenen v. Olde Milford Inn, Inc., 46
N.J. 582, 218 A.2d 630 (1966) (extending dram shop liability to
patron's own injuries), modified in part by Lee v. Kiku
Restaurant, 127 N.J. 170, 603 A.2d 503 (1992). Importantly,
under New Jersey law, the person who was served while intoxicated
himself can sue the tavernkeeper even for damages to his car. See
N.J.S.A. 2A:22A-5(a). Additionally, the court has extended this
liability to social hosts, even though they, unlike tavern
owners, do not profit from the transaction. It "makes little
sense to say that [a licensed defendant] is under a duty to
exercise care, but give immunity to a social host who may be
guilty of the same wrongful conduct merely because he is
unlicensed." Linn v. Rand, 140 N.J. Super. 212, 356 A.2d 15(1976); accord Kelly v. Gwinnell, 96 N.J. 538, 476 A.2d 1219(1984) (extending dram shop liability to social hosts).
The only two New Jersey cases to address the present
issue, both from a federal district court, have predicted that
New Jersey would recognize this cause of action. In GNOC Corp.
v. Aboud, 715 F. Supp. 644 (D.N.J. 1989), Judge Cohen opined that
12
"New Jersey has unambiguously communicated a strong policy
against the noxious potential of excessive alcohol consumption in
the twin contexts of common law dram shop liability and
statutory/administrative regulation of casino alcoholic beverage
service." Id. at 653. In extending dram shop liability to the
defendant casino, the court explained that its decision was
"merely furthering the public policy goals underlying the Casino
Control Act and the regulations promulgated thereunder." Id. at
654.0
Then, in Tose v. Greate Bay Hotel And Casino, Inc., 819
F. Supp. 1312 (D.N.J. 1993), the district court, following Aboud,
held that the casino could be liable for losses flowing from its
allowing an intoxicated patron to gamble. Id. at 1321-23. Tose
subsequently tried his case to a jury, which rejected his claim.
Greate Bay Hotel And Casino, Inc. v. Tose, 34 F.3d 1227, 1228 (3d
Cir. 1994). On appeal, which focused mainly on the question
whether the Casino Control Commission had exclusive primary
jurisdiction over gamblers' claims against casinos, the judgment
for the defendant was affirmed. Id. Because Tose lost his
0
The holding of Aboud is actually broader than necessary for
Hakimoglu: "In sum, 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. This raises the interesting
question about the scope of putative liability: is it liability
for continuing to serve the intoxicated gambler (essentially a
dram-shop theory), or liability for failure to stop him from
gambling (essentially an invitee theory). While in practical
terms there may be little difference between the two, doctrinally
I think that the proper issue is liability for continuing to
serve. At all events, Hakimoglu does not present a claim for
failing to stop him from gambling.
13
trial, we did not need to decide whether New Jersey would
recognize this cause of action. Id. at 1232 n.7.
II.
Analysis of this case under the principles of New
Jersey tort law supports the conclusions of Aboud and Tose that
New Jersey's highest court would recognize Hakimoglu's cause of
action. In Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 625
A.2d 1110 (1993), the New Jersey Supreme Court set out its
standard for determining when a tort duty, and thus a cause of
action in negligence, exists. The inquiry, "ultimately a
question of fairness," requires the court to weigh (1) the
relationship of the parties; (2) the nature of the risk; (3) the
opportunity and ability to exercise care; and (4) the public
interest in the proposed solution. Id. These factors support a
cause of action in this case.
First, the relationship of the parties argues strongly
for casino liability. Casinos, perhaps the ultimate for-profit
institution, make their money from patrons' losses. Gambling
losses are the casino's business. The casino and the gambler,
therefore, are linked in an immediate business relationship much
like that from which dram shop liability sprang -- the tavern and
the patron. See Rappaport, 31 N.J. at 188, 156 A.2d at 1. Like
the tavern owner, the casino's control over the environment into
which the patron places himself, and its ability to open or close
the alcohol spigot, imposes on the casino some concomitant
responsibility toward that patron. Just as the tavern owner must
14
make sure that drinking does not cause her patron to hurt himself
or others, the casino should ensure that its alcohol service does
lead its patron to hurt himself through excessive gambling.
Second, the nature of the risk -- essentially a test of
foreseeability -- also points to casino liability. Gamblers come
to the casino to gamble; the casino supplies free alcohol; the
odds favor the casino. Losses are the natural result, if not the
intent, of this situation. Unacceptable losses due to alcohol
consumption are certainly foreseeable.
This foreseeability factor explains the inapplicability
of contrary authority. The New Jersey Supreme Court's recent
limitations of dram shop liability, fairly read, all turn on a
lack of foreseeability. See, e.g., Lombardo v. Hoag, 269 N.J.
Super. 36, 634 A.2d 550 (App. Div. 1993), certif. denied, 135
N.J. 469, 640 A.2d 850 (1994) (rejecting duty of passenger to
stop owner of vehicle from driving because imposing such an
"overbroad duty would open a Pandora's box of potential liability
and responsibility problems"); Jensen v. Schooley's Mountain Inn,
Inc., 216 N.J. Super. 79, 522 A.2d 1043 (App. Div.) certif.
denied, 528 A.2d 11 (N.J. 1987) (tavern not liable for
intoxicated customer's death after he climbed to top of tree,
fell, and drowned in river); Griesenbeck v. Walker, 199 N.J.
Super. 132, 488 A.2d 1038 (N.J. Super Ct. App. Div. 1985),
certif. denied, 501 A.2d 932 (1985) (no cause of action against
social host for physical injuries from a fire at guest's
residence which occurred after the guest returned intoxicated).
15
Lack of foreseeability also explains why the New Jersey
courts and legislature have never extended liability for tavern
owners and social hosts (as opposed to casinos) beyond physical
injuries and property damage. See Griesenbeck, 199 N.J. Super.
at 144, 488 A.2d at 1043 (App. Div. 1985) (observing that the
court has never extended liability for servers of alcohol beyond
injuries related to drunken driving, barroom accidents and
barroom brawls); see also N.J.S.A. 2A:22A-1 et seq. (1987)
(codifying liability for physical injury and property damages for
"licensed alcoholic beverage server[s]").0 Casinos, on the other
hand, can plainly foresee large and unacceptable losses from
patrons they help get drunk. And the New Jersey Supreme Court
has made clear that tort is an appropriate basis for liability
(possibly in addition to a contract theory, see supra n.1), even
if no physical damage occurs, when the losses are foreseeable.
See, e.g., People Express Airlines, Inc. v. Consolidated Rail
Corp., 100 N.J. 246, 495 A.2d 107 (1985) (allowing airline to
recover economic damages in tort when defendant's tank car
accident required it to vacate its offices).
Finally, the presence of foreseeability rebuts the
casinos complaint that recognizing liability in this case would
lead to unfair and extreme results. A restaurant located near a
casino would be held liable, the casinos argue, if it served
alcohol to a patron who became intoxicated, entered the casino,
0
Because casinos are not "licensed alcoholic beverage server[s]"
under the act, this law does nothing to limit casino liability
directly.
16
and lost money. This, they imply, would be unfair. That may be
so. But because foreseeability is lacking in the casinos'
hypothetical, the analogy to the present case does not withstand
scrutiny. The restaurant and its customer, in the casinos'
hypothetical, do not stand in a similar posture to a casino and
its gambling patron. The restaurant is not in the gambling
business and does not necessarily know whether the dining patron
would later be gambling. The loss involved, therefore, is too
remote to fairly and rationally hold the restaurant accountable.
By contrast, in a casino setting with gambling as the primary
activity, there is no difficulty in foreseeing that the patron
will engage in that activity and the high chance that he will
suffer financial losses under a state of intoxication.
The third factor -- the opportunity and ability to
exercise care -- further suggests liability here. To a much
greater degree than tavern owners, casino operators can readily
protect themselves against the type of liability sought to be
imposed here. Unlike most tavern owners, restaurateurs or social
hosts, casinos generally have huge staffs and sophisticated
surveillance cameras. Gamblers, particularly high rollers, are
constantly monitored by a dealer, floor persons, a pit boss,
hidden cameras, and sometimes even officials of the New Jersey
Casino Control Commission. See Tose, 819 F. Supp. at 1320. When
the line is crossed, the casino need only refuse to serve more
alcohol.0
0
Again, on the theory that Hakimoglu pursues (based on dram shop
liability), the casino presumably would need only to stop serving
17
Of course, the patron is also in a position to exercise
care by not getting drunk. But this does not undermine my
argument. New Jersey has made it clear that if the intoxicated
person sues for injuries to himself, he may be charged with
contributory negligence. See Kiku, 127 N.J. at 170, 603 A.2d at
503. Imposing contributory negligence is not a retreat from the
policy underlying dram shop liability; rather, it is best
explained as an effort to fairly apportion the loss among all who
bear some responsibility. See Fisch v. Bellshot, 135 N.J. 374,
387, 640 A.2d 801, 807 (1994) ("[P]ublic policy is best served by
limiting a licensee's dram shop liability through the application
of comparative negligence rather than by eliminating such
liability altogether."). This holding also ensures, from the
standpoint of deterrence, that both parties in a position to
avert the harm take steps to prevent it.
Finally, the public interest in the proposed solution
also leads to the conclusion that New Jersey would recognize this
cause of action. Throughout its history, New Jersey has
exercised strict control over various types of gambling. See
Tose, 819 F. Supp. at 1319. Indeed, only by a constitutional
provision or amendment can any type of gambling be lawfully
conducted in this state, subject to approved "restrictions and
control." N.J. Const., Art. IV, § VII, par. 2. In an
the patron alcohol after he became obviously and visibly
intoxicated. It would not need to bar him from further gambling,
though hopefully the refusal to serve might serve as a "wake-up
call." On the broader theory articulated in Aboud, however, the
casino might have to keep a patron from gambling, even if he had
become drunk elsewhere.
18
environment where gambling has been regarded as "an activity rife
with evil," the state's general ban on casino gambling should be
no surprise. See Petition of Soto, 236 N.J. Super. 303, 314, 565
A.2d 1088, 1094 (App. Div. 1989), cert. denied, 496 U.S. 937(1990).
Concern for the struggling city's welfare drove New
Jersey citizens to allow casino operations, with strict controls,
in Atlantic City. See Tose, 819 F. Supp. at 1319. The 1977
Casino Control Act establishes a comprehensive and elaborate
regulatory framework for the casino industry, reflecting a
concern that casinos be restrained in order to protect the
public. See N.J.S.A. 5:12-1 to 190; see also Knight v. City of
Margate, 86 N.J. 374, 380, 431 A.2d 833, 836-37 (1981). The Act
typically regulates the gambling operators rather than penalizing
the individual gamblers. For instance, casinos, rather than an
underage gambler, are held liable when the latter enters a
casino. See N.J.S.A. 5:12-119; see also Department of Law &
Public Safety v. Boardwalk Regency, 227 N.J. Super. 549, 548 A.2d
206 (App. Div. 1988) (holding casino responsible for allowing two
underage persons to gamble).
When it passed the Act, the New Jersey legislature
recognized that casinos -- with their concentration of wealth --
have disproportionate power over the political process. See
Petition of Soto, 236 N.J. Super. at 313, 565 A.2d at 1093-94. As
expressed in the Act, it is New Jersey's pronounced policy to
regulate casinos "with the utmost strictness to the end that
public confidence and trust in the honesty and integrity of the
19
State's regulatory machinery can be sustained." Id. (emphasis
added). The historical background reveals that New Jersey
recognizes an important public interest in protecting gamblers.
From New Jersey's perspective, requiring casinos to protect
gamblers from losses flowing from their excessive service of
alcohol would probably also be in the public interest.
The most plausible objection to my position is that
torts of negligence generally seek to deter and compensate for
the destruction of wealth, while the tort in this case is
arguably merely allocative. In other words, a typical economic
tort would redress negligence that shut down a factory, causing a
loss in production, while in this case the alleged tortfeasor
casino coaxes the money from the gambler and then retains it.
Society is no worse off; different parties just possess the
wealth. But allocative economic torts, at least for intentional
acts of conversion, are no stranger to New Jersey law. See,
e.g., Atlantic Northern Airlines v. Schwimmer, 12 N.J. 293, 96
A.2d 652 (1953); Charles Bloom & Co. v. Echo Jewelers, 279 N.J.
Super. 372, 652 A.2d 1238 (App. Div. 1995); Lombardi v. Marzulli,
230 N.J. Super 205, 553 A.2d 67 (Law Div. 1988).
For all the foregoing reasons, application of the
Hopkins criteria, see supra at 6, counsels us to recognize this
cause of action under New Jersey law, particularly when analyzed
against the background of New Jersey tort doctrine.
III.
20
The arguments of the majority and the district court do
not compel a different result. These arguments, drawn largely
from Judge Irenas's footnote in Tose,0 rest on two main
assertions: (1) that Miller v. Zoby, 250 N.J. Super. 568, 595
A.2d 1104 (App. Div.), cert. denied, 606 A.2d 366 (N.J. 1991),
undermined Aboud; and (2) that the intense legislative regulation
of gambling precluded the court from finding this cause of
action. In the present case, Judge Simandle relied on both
assertions, see Hakimoglu v. Trump Taj Mahal Associates, 876 F.
Supp. 625, 630-31, 633 (D.N.J. 1994), and the majority places
most of its stock in the legislative "scope preemption" argument.
Both of these assertions are incorrect.
First, it is untrue that the Appellate Division's
decision in Zoby undermined Aboud. In Zoby, the court denied an
implied cause of action against a casino for violating credit
regulations. Id. at 1104. But this court in Tose carefully
distinguished Zoby as involving the availability of an implied
right of action under the Casino Control Act -- analytically a
very different issue from the applicability of common law tort
liability. Greate Bay, 34 F.3d at 1232 n.7. Like the case at
bar, neither Aboud nor Tose was based on an implied cause of
action under the Casino Control Act or its regulations. Rather,
0
The complicated procedural posture of the Tose case served as a
sounding board for both sides of this debate. Judge Rodriguez,
to whom the case was originally assigned, elected to follow
Aboud. The case was then reassigned to Judge Irenas, who
acknowledged that he was bound by Aboud as the law of the case,
but noted his disagreement with that case in a footnote. Tose,
819 F. Supp. at 1316 n.8.
21
all involve common law causes of action, which I believe the New
Jersey Supreme Court would recognize.
Second, the argument that legislation regulation of
casinos precludes this common law cause of action both
misapprehends New Jersey jurisprudence and overstates its own
force. This scope preemption argument, which forms the bulk of
the majority opinion, mistakes New Jersey jurisprudence by
viewing this issue through the lens of federal court interpretive
assumptions, including great deference to legislative bodies. If
this case presented an issue of federal law, a federal court
might view the extensive legislative regulation of casinos as
precluding it from properly recognizing this cause of action. But
many factors might fundamentally affect how a state supreme court
would interpret and make the law. To reiterate, this case
requires us to predict what the New Jersey Supreme Court would do
if presented with this situation. See Robertson, 914 at 378.
In my view, as explained above, New Jersey's
jurisprudence differs from that of the federal courts: New
Jersey is likely to recognize a cause of action when the Hopkins
factors are present, even where, because of extensive legislative
regulation, federal courts would not. New Jersey's high court
has made clear that tort liability, historically a judicial
matter, falls squarely in its bailiwick. "[W]e do not agree that
the issue addressed in this case is appropriate only for a
legislative resolution. Determination of the scope of duty in
negligence cases has traditionally been a function of the
judiciary." Gwinnell, 96 N.J. at 552, 476 A.2d at 1226; accord
22
Hopkins, 132 N.J. at 439, 625 A.2d at 1116 ("[D]etermining the
scope of tort liability has traditionally been the responsibility
of the courts."). In Dunphy, the court's most recent expansion
of tort liability, the court stated:
We have recognized, in numerous settings, that
traditional principles of tort liability can be adapted
to address areas in which recognition of a cause of
action and the imposition of a duty of care are both
novel and controversial.
136 N.J. at 109, 642 A.2d at 376-77 (citations omitted).
As I have explained, the New Jersey Supreme Court has
long been hospitable to the recognition of liability for
drinking-related injuries. See, e.g., Sorenen, 46 N.J. at 582,
218 A.2d at 630 (extending dram shop liability to patron's own
injuries); Gwinnell, 96 N.J. at 538, 476 A.2d at 1219 (extending
dram shop liability to social hosts). This willingness to define
the scope of liability exists even where the conduct at issue is
the subject of legislative or administrative regulation. See,
e.g., Kiku, 127 N.J. at 170, 603 A.2d at 503 (creating
contributory negligence defense in dram shop action against
restaurant despite intense legislative regulation of alcohol,
restaurants, and codification of dram shop liability).
Indeed, even the authority cited by the casinos as
"indicative of the firm efforts of the New Jersey courts to limit
the liability of a server of alcohol for a plaintiff's injuries"
acknowledges that the state supreme court is free to recognize
new causes of action. In Lombardo, 269 N.J. Super. at 36, the
court reversed the trial court's decision to extend dram shop
23
liability. In doing so, it noted "that it is generally not
considered the function of a trial court to create an exception
to an established rule of law. Such a function is generally
reserved for the Supreme Court or the legislature." Id. at 48(citations omitted). To emphasize again, our task here is to
determine what the New Jersey Supreme Court -- not a trial court
-- would do in this situation. See Pennsylvania Glass Sand Corp.
v. Caterpillar Tractor Co., 652 F.2d 1165, 1167 (3d Cir. 1981).
Moreover, even given federal jurisprudential
assumptions, the scope preemption argument is overstated. As I
will explain, the logical extension of this argument would lead
to an absurd result: namely, absolving casinos for liability
when patrons they have continued to serve kill others in drunk
driving accidents. As the majority points out, the Casino
Control Act closely regulates casino operation. In particular,
the casinos, like the taverns, are not permitted to serve visibly
and obviously intoxicated persons. See N.J.S.A. 5:12-103(d) &
(f)(2); N.J.A.C. 13:2-23.1(b). The other act on which the
majority leans for scope preemption, the Licensed Alcoholic
Beverage Server Act, N.J.S.A. 2A:22A-1 et seq., imposes liability
for physical and property injury when licensed alcoholic beverage
servers (not including casinos) serve already intoxicated
persons. Under the majority's approach, because of this lacuna,
casinos would not be liable for deaths caused by a gambler that
it nevertheless continues to serve after the gambler is obviously
intoxicated. In passing these two acts, the legislature must
have thought of this possibility, and yet made no provision for
24
it. It cannot be the case, however, that a host is liable for
injuries that his guest sustained after drinking at a dinner
party while casinos are absolved from liability for drunk driving
accidents, even to third parties, under New Jersey law. The
scope preemption argument is thus flawed for this reason as well.
IV.
While our job is not to make policy for New Jersey (and
we should be careful not to do so accidently by interpreting New
Jersey law under assumptions of legislative deference it does not
share), policy rationales would, in fact, guide the state's high
court in appraising this putative cause of action. The district
court enumerated seven problems to recognizing this cause of
action. I will set out and rebut these objections below.
The first objection is essentially that the aggrieved
gambler, as such, had no inhibitions that alcohol could overcome.
Hakimoglu, 876 F. Supp. at 636. The second objection is that the
gambler, seeking risk, got just what he came for. Id. These two
objections seem to state the same point; hence I deal with them
together. The point is that, inhibitions or not, the gambler got
much more than he came for. Tavern patrons, of course, come to
drink, but injury results if they become so drunk that they hurt
themselves or someone else, and dram shop liability attaches. It
is surely true, as Judge Simandle observed, that sober gamblers
can lose big and intoxicated gamblers can win big. However, ex
ante, gambling is a form of consumption because the odds favor
the casino. In other words, because the casino wins in the long
25
run, statistically the patron is paying to gamble. The patron is
consuming a nondurable good like someone dining out, taking a
vacation -- or drinking liquor. Alcohol, by impairing judgment
and lowering inhibitions, can lead the patron to consume more
than he would if he were sober. As with drinking itself,
excessive consumption in the form of alcohol-induced gambling can
cause quite severe injury -- just ask the spouse of a gambler
whose house is foreclosed and kids withdrawn from their schools
because the gambler lost the family's savings. And the damage
can be wrought in an instant. This is more than even the most
uninhibited person bargains for.
The third, also related objection is that alcohol
cannot interfere with responsible gambling because gambling
requires no particular skill. Id. To begin with, the latter
part of this assertion is wrong. Although slot machines require
no particular ability, many others games do require skill in
counting cards and making strategic choices. See Tose, 819 F.
Supp. at 1319 n.9 (discussing how card counting improves a
bettor's odds). As a whole, this assertion is also beside the
point. Even if a gambler plays a game requiring no skill,
alcohol can have a critical effect on his judgment about when to
stop playing.
The fourth objection is that problems of proof --
principally regarding proximate causation -- would confound fact-
finders in evaluating such claims. Hakimoglu, 876 F. Supp. at
636. Once again, the relevant concern here is not, as the
casinos suggest, whether the intoxicated gambler reduces his odds
26
of winning because of his inability to play "prudently." Rather,
the issue is whether the intoxication impairs the gambler's
ability to determine when to stop gambling when his losses grow
beyond a level which he can afford. And proof of the nexus
between the intoxicated status of a high roller such as Hakimoglu
and his losses seems less difficult than determining the
causation of cancer in many medical malpractice and toxic tort
cases. Regardless, it does not furnish a basis on which to
conclude that New Jersey would shy away from recognizing a cause
of action. See People Express Airlines v. Consolidated Rail, 100
N.J. 246, 254, 495 A.2d 107, 111 (1985) (explaining that an
"asserted inability to fix crystalline formulae for recovery on
the differing facts of future cases simply does not justify the
wholesale rejection of recovery in all cases").
I acknowledge that it is not always easy to determine
when a gambler is intoxicated. But this matter is before us on a
motion under Fed. R. Civ. Pro. 12(b)(6), and we must take the
well pleaded facts as true. And when we do, the alleged
(mis)conduct of the defendant casinos, i.e., that they continued
to serve a visibly intoxicated gambler who was losing millions of
dollars, should be sufficient to state a claim for relief under
the federal rules. I do not mean to pin a medal on the gambler,
especially one such as Hakimoglu, who knows full well what he is
doing when he goes repeatedly to the casino and loses big. The
jury may have no sympathy for him and find him contributorily
negligent, or find the casino not liable at all, as it did in the
Tose case. But that is a question for the jury: whether as the
27
result of the casino's (mis)conduct, the gambler has lost his
ability to make a reasonable judgment as to whether to continue.
In my view, such an individual, at such a time, appears to be
within the class that the New Jersey jurisprudence protects.
The district court's fifth objection is that
recognizing this tort could open the floodgates to fraudulent
claims. Hakimoglu, 876 F. Supp. at 637. A typical dram shop
claim, defendants argue, will follow an accident at which the
police will be called, the blood alcohol content of the driver
examined and witnesses interviewed. But that is not always the
case. Many a dram shop claim -- and they are recognized by New
Jersey without any prerequisite of prompt investigation -- are
filed "out of the blue" from the vantage point of the defendant.
Moreover, lawsuits such as Hakimoglu's are both extremely costly
to pursue and quite risky, and lawyers will not undertake them
except in the rare case where losses are substantial. The
"floodgates" argument, therefore, is unconvincing. And since the
high rollers who are both losing and drinking big are surely
identified at the time of their losses, the surveillance cameras
can be concentrated on them and the tapes can be specially marked
and preserved. In other words, the casinos can protect
themselves.
The sixth objection is that sufficient deterrence
already exists because casinos cannot enforce credit markers
entered into by drunk patrons. Id. A remedy in the marker
situation, however, does nothing to deter losses in the many
cases when, as here, the loss in question was not on credit. This
28
objection could be restyled as one against overdeterrence (and
its corresponding inefficiency), which is always a potential
problem for torts. If the casino had little to gain and much to
lose from its behavior -- as it might if, say, New Jersey law
allowed large recoveries for minor physical injuries sustained in
a casino -- it might take overly zealous steps to prevent this
occurrence. Overdeterrence is not likely to be problematic here,
however, because the casinos would be liable only up to the
amount that they had gained by their tortious conduct. They have
much to gain and little to lose from continuing to serve
intoxicated gamblers, even if this tort were recognized. If
anything, underdeterrence probably would remain the biggest
problem: only in some percentage of cases will the gambling
losers claim and win their money back.0
Finally, the district court argues that the court
should not recognize this cause of action because New Jersey's
casino regulators have never required "a casino to refund such
gaming losses allegedly incurred by an intoxicated patron at any
time in sixteen years of casino gambling in New Jersey." Id. In
addition to undermining its sufficient deterrence argument,0 this
objection also misses the point. The legal authority and policy
choices of the casino commission have no bearing on how the New
0
For more analysis of the economics of a gambling tort, and the
connection between gambling and alcohol, see Jeffrey C. Hallam,
Note, Rolling the Dice: Should Intoxicated Gamblers Recover
Their Losses, Nw. U. L. Rev. 240 (1990).
0
How can there be sufficient deterrence in the nonmarker
situation when enforcement has been totally lacking?
29
Jersey Supreme Court, as a matter of common law, might choose to
regulate this situation.
For all of the foregoing reasons, I am satisfied
that the New Jersey Supreme Court would recognize Hakimoglu's
cause of action.
V.
This case is its own best evidence, as the majority
observes, of the utility of a certification procedure; I
respectfully urge New Jersey to adopt one.0 The lack of a
certification procedure disadvantages both New Jersey and the
federal judiciary. Especially in cases such as this where little
authority governs the result, the litigants are left to watch the
federal court spin the wheel. Meanwhile, federal judges, by no
means a high-rolling bunch, are put in the uncomfortable position
of making a choice.0 In effect, we are forced to make important
state policy, in contravention of basic federalism principles.
See Dolores K. Sloviter, A Federal Judge Views Diversity
Jurisdiction Through the Lens of Federalism, 78 VA. L. REV. 1671
(1992). The possibility that federal courts may make
interpretive assumptions that differ from those of the state
court further complicates this process. States like New Jersey
lacking certification procedures face the threat that federal
courts will misanalyze the state's law, already open to varied
0
Judges Nygaard and Alito have expressed their agreement with the
recommendations contained in this part of my opinion.
0
I am, needless to say, not the first to make this observation.
See, e.g., McKenna, 622 F.2d at 661 ("Although some have
characterized this assignment as speculative or crystal-ball
gazing, nonetheless it a task we may not decline.")
30
interpretations, by inadvertently viewing it through the lens of
their own federal jurisprudential assumptions.
The mischief created by the lack of a certification
procedure was demonstrated by Judge Sloviter when she catalogued
some of the Third Circuit's missteps in interpreting the law of
Pennsylvania, which also lacks a certification procedure:
[W]e have guessed wrong on questions of the
breadth of arbitration clauses in automobile
insurance policies (we predicted they would
not extend to disputes over the entitlement
to coverage [Myers v. State Farm Ins. Co.,
842 F.2d 705 (3d Cir. 1988)], but they do
[Brennan v. General Accident Fire & Life
Assurance Corp., 574 A.2d 580 (Pa. 1990)],
the availability of loss of consortium
damages for unmarried cohabitants (we
predicted that they would be available
[Bulloch v. United States, 487 F. Supp. 1078(D.N.J. 1980)], but they are not [Leonardis
v. Morton Chem. Co., 184 N.J. Super 10, 445
A.2d 45 (App. Div. 1982)], and the
"unreasonably dangerous" standard in products
liability cases (we predicted the Restatement
would not apply [Beron v. Kramer-Trenton Co.,
402 F. Supp. 1268 (E.D. Pa. 1975), aff'd, 538
F.2d 319 (3d Cir. 1976)], but it does
[Azzarello v. Black Bros. Co., Inc., 480 Pa.
547, 391 A.2d 1020 (1978)].
Sloviter, 78 Va. L. Rev. at 1679-80.0
0
For additional examples of our difficulty predicting state law,
and a call for the State of Pennsylvania to adopt a certification
procedure, see Stella L. Smetanka, To Predict or To Certify
Unresolved Questions of State Law: A Proposal for Federal Court
Certification to the Pennsylvania Supreme Court, Temp. L. Rev.
725 (1995). In particular, Smetanka describes the Third
Circuit's troubles in assessing the scope of Pennsylvania's
public-policy exception to at-will employment in the wake of
Geary v. United States Steel Corp., 319 A.2d 174 (Pa. 1974). For
recent examples of this difficulty, see Borse v. Piece Goods
Shop, Inc., 963 F.2d 611 (3d Cir. 1992), and Smith v. Calgon
Carbon Corp., 917 F.2d 1338 (3d Cir. 1990).
31
New Jersey, in failing to adopt a certification
procedure, is in a small minority. At present, forty-three state
supreme courts, the court of last resort in Puerto Rico, and the
Court of Appeals of the District of Columbia can answer certified
questions of law from federal circuit courts. See American
Judicature Society ("AJS"), Certification of Questions of Law:
Federalism in Practice 15-17 (1995).0 Granting certification
power is also supported by the federal judiciary's Long Range
Plan for the Federal Courts. Recommendation 8 of that Plan
states: "The states should be encouraged to adopt certification
procedures, where they do not currently exist, under which
federal court (both trial and appellate) could submit novel or
difficult state law questions to state supreme courts." Committee
on Long Range Planning, Judicial Conference of the United States,
Proposed Long Range Plan for the Federal Courts 32 (March 1995).0
Certification is not a panacea, and can inflict delay on
litigants. See Geri Yonover, A Kinder, Gentler Erie: Reining in
the Use of Certification, 47 Ark. L. Rev. 305 (1994). But this is
an argument for exercising the authority wisely --not for denying
it altogether.
0
[hereinafter "AJS Report"]. The states vary widely on whether
the source of this authority is a constitutional provision,
statute, court rule -- or a combination of the three. Id. The
states also differ considerably on their standard for accepting
certified questions. Eleven states require that the certified
question be determinative of the litigation; twenty-six states,
Puerto Rico, and the District of Columbia require only that the
question may be determinative; and six others require that there
be -- or appear to be -- no controlling precedent or authority.
AJS Report, supra, at 18-20.
0
Recommendation 8 was adopted by the Judicial Conference as part
of the approved long range plan on September 19, 1995.
32
Fifty-four percent of United States Circuit judges
responding to the AJS survey indicated they were "willing" or
"very willing" to certify questions, AJS Report, supra, at 43,
and eighty percent of state supreme court justice said they were
"willing" or "very willing" to answer these questions. AJS
Report, supra, at 46. Ninety-five percent of the United States
Circuit Judges and ninety percent of the United States District
Judges were either "very satisfied" or "somewhat satisfied" with
the certification process in their most recent certified case.
Id. at 42. In terms of overall satisfaction, eighty-seven
percent of the state court justices said they were either "very
satisfied" or "somewhat satisfied" with their most recent
certification experience. Id. at 43.
While this is not a forum for drafting a certification
statute, I believe that a federal court should be authorized to
certify a question of law to the state court when: (1) the issue
is one of importance; (2) it may be determinative of the
litigation; and (3) state law does not provide controlling
precedent through which the federal court could resolve the
issue. This is a textbook case for certification. The issue is
determinative of the litigation; important public policy issues
are at stake; and little authority guides our decision. Moreover,
neither the casinos nor Hakimoglu, with all their resources,
require immediate resolution of the matter. Yet, alas, New
33
Jersey lacks a certification procedure, and still we must
"predict."0
VI. CONCLUSION
The majority fairly observes that this case is a
difficult one and that reasonable arguments support either side.
Nevertheless, I believe that the better arguments should lead us
to predict that New Jersey would find a cause of action here,
subject to the defense of contributory fault. The New Jersey
Supreme Court has been highly hospitable to recognizing causes of
action, even in areas where the legislature has acted, for
foreseeable injuries. The four factors the court uses for
evaluating whether a duty exists -- (1) the relationship of the
parties; (2) the nature of the risk; (3) the opportunity and
ability to exercise care; and (4) the public interest -- all
point toward finding a cause of action here. And the policy
objections of the majority and the litigants either miss the
point or are overstated. For all of the foregoing reasons, I
believe the New Jersey Supreme Court would recognize a cause of
action, in tort, allowing patrons to recover gambling debts from
casinos that serve them alcohol after they are visibly
intoxicated. I therefore respectfully dissent.
0
In order to bring this proposal to the attention of the
appropriate New Jersey authorities, I request that the Clerk mail
copies of this opinion, referencing Part V of the dissent, to the
Chief Justice of the New Jersey Supreme Court, the Director of
the Administrative Office of New Jersey Courts, the Chair of the
Judiciary Committees of the New Jersey House and Senate, and the
Attorney General of New Jersey.
34