Hakimoglu v. Trump Taj Mahal Associates

Conclusion at a much were taxed balances account lants’ the case have been than would rate lower above, will we reasons detailed For the years several later. been made payments had judgment of De- district court’s affirm the consequences tax Furthermore 23,1994, order in favor of ICI its cember of a simply part were payments accelerated appellants sum- granting January of rates of including picture investment larger liability, dis- and we will mary judgment on did concluded district court return which the order of appeal as moot ICI’s miss or appellants had suffered that not establish that the order January to the extent a result of loss as any financial would suffer damages. summary judgment denied ICI payments. of acceleration they Second, contended that appellants and transactions management fees

incurred But ICI of the breach.

costs as a result appellants “can that

presented evidence under options [the]

plicate the investment incurring transaction material

DEC without court credited Op. 6. The district

costs.” “I cannot that testimony and concluded HAKIMOGLU, Appellant, Ayhan likely than not true it is more ... that find either material now incur plaintiffs will that v. Op. management fees.” costs transactions ASSOCIATES; MAHAL TAJ TRUMP certainly finding district court’s at 6-7. The Trump; Mahal, Inc.; Taj Trump Donald supported the record. Corporation; Taj Trump Mahal expert did appellants’ significantly, Most Corporation. TM/GP the risk involved take account not into plan. The money in an unfunded keeping HAKIMOGLU, Appellant, Ayhan “[a]ny pointed out that evalua district court plan unfunded interest of tion one’s v. the fact give ... some consideration

must CORP. REGENCY BOARDWALK that participant a risk to the that there is his the value of no funds and there will be 95-5022, 95-5087. Nos. adjusted to plan should interest Appeals, States United Op. The failure at 6. risk.” reflect that Third Circuit. only all not called into account take the risk question, into but appellants’ projections July Argued damages because denying a reason itself 20, 1995. Nov. Decided damaged they were that a conclusion light speculation.7 insupportable rest on factors, say that we cannot all of these appellants that conclusion

district court’s damaged was they prove that were

failed to Educ., v. Board clearly Oberti erroneous. Cir.1993).8 (3d Thus, 1204, 1220 we 995 F.2d relief entitled to were

cannot find

in this case.9 wronged situations that in some Thus, 9.We argument realize reject appellants’ we damages without findings. may adequate plaintiff recover nominal failed to make district court Piphus, e.g., Carey injury. See proof actual expressed that ICI’s above 8. The conclusion 1042, 1054, 247, 266, 98 S.Ct. 435 U.S. participants’ security of the concern about accounts however, reason, (1978). We see no L.Ed.2d 252 plan justify its did not DEC regard we do principle as apply that here plan, not mean that does termination security appellants to vindicate seek right which ain dam- cannot be considered factor special protection. worthy of such ages calculation. THE

OPINION OF COURT ALITO, Judge: Circuit presents question This case patron may under New law casino recover from a casino for losses by serving caused the casino’s conduct in beverages alcoholic patron to the and allow- ing patron gamble continue after becomes obvious that the is intoxicat- ed. case, plaintiff Ayhan

The in this Hakimo- glu, separate filed two actions the United States District Court for the District of New Jersey against defendants associated with City Invoking two Atlantic casinos. the dis- diversity jurisdiction, trict court’s his com- plaints alleged “in- that the defendants had tentionally maliciously enticed him” to gamble at the casinos on numerous occasions by providing beverag- him with free alcoholic amenities; gam- es and other that while he beverages bled he was served free alcoholic intoxicated; until he became that after he “visibly obviously became intoxicated” permitted the defendants “invited and him to gamble in continue to that condition” for lengthy periods; consequently and that he incurred “substantial losses.” As- serting negligence, claims for intentional and conduct, enrichment, unjust malicious he sought compensatory punitive to recover damages, as well as other relief. cases, In both the district court dismissed (argued), Michael M. Mustokoff Ronald F. plaintiffs claims for failure to state a Kidd, Duane, Cavenagh, Teresa N. Morris & granted. claim on which relief could be The PA, Heckscher, Philadelphia, Appellant. published opinion court issued a detailed case, Hakimoglu Taj Trump Mahal one Quinn Lloyd (argued), D. Le- Gerard W. Assoc., (D.N.J.1994), F.Supp. and it venson, Perskie, Niedelman, Cooper, April, opinion Although relied on this in the other. Levenson, Wagenheim City, Atlantic & New gambling- the defendants’ counterclaims for Associates, Jersey, Taj Trump Mahal completely adju related debts had been Mahal, Inc., Trump Taj Trump, Donald dicated, entry the court directed the of final Trump Taj Corporation, Mahal Cor- TM/GP judgment plaintiffs on the claims under Fed. poration. 54(b). plaintiff appealed R.Civ.P. cases, appeals both and the were Hollingshead (argued), Joy consolidat Robert L. M. Hardin, Szueh, ed. Sperling, Pitney, Kipp &

Morristown, Jersey, for Boardwalk Re- New appeal predict Our task this is to wheth- gency. Supreme er the Court of New would

recognize claims such as those asserted BECKER, NYGAARD, plaintiff. Unfortunately, Before: must make ALITO, Judges. prediction specific guidance Circuit without (D.N.J.1989), argues force F.Supp. courts, for neither Jersey appellate Jersey Supreme Court fully that Jersey nor the of New Supreme Court case. like those recognize claims ques- Division addressed Appellate opinion of the contrast, published By closely any us or before now tion before cases now of the in one law, court like district Jersey If New question. related Bay in Tose v. Greate opinion and the states,1 to permitted us us some other that Inc., F.Supp. and Casino Hotel Supreme to the at issue question certify the (3d (D.N.J.1993), F.3d 1227 aff'd, 34 n. 8 do so would seek to Jersey, we Newof Court opposite the Cir.1994), out persuasively set both difficult here, question is the however, law, ease.3 Jersey New important. and certification, there- and not such allow does way New the Although not clear which it is the what relegated predicting to are fore we rule on this Jersey Supreme Court would if it Jersey would do Newof — Supreme Court court conflicting district the question as question.2 with this — were confronted to us more it seems opinions illustrate Supreme Court Jersey New likely that the pre- this required to venture we are While that as recognize claims such those not would to recognize the need we and while diction reaching con- plaintiff asserted. the guidance the opinion for published a issue that, except clusion, significant we find circuit, under- we in the district courts minors, Jersey New involving cases unlikely to here is that our decision stand liability of “the extended have not courts lasting prece- not should have —and have — inju- beyond beverages of alcoholic servers expect claims that significance. We dential ac- driving, barroom drunken ries related to in this plaintiff advanced as those such Hakimoglu, brawls.” barroom cidents through the way up their work will case regu- state The intense F.Supp. 632. at Jer- that the New system and Jersey court because, as important is also of casinos lation a provide will definitive courts sey appellate in this case: court observed district For this us. question before to the answer dram-shop liabili- [extending common law argu- chief most of the and because reason a fully regulated, without so ty into an area question sides of on both ments intent, pre- a is not legislative glimmer of published in excellent set out already been tort of common law dictable extension find it not do opinions, we court district foreshadowed not been principles, and lengthy engage in discussion necessary a to Aboud, courts. by the New Corp. v. opinion GNOC here. things, the district among that 9; argued, Const., IV, other Del.Sup. See, sec. e.g., art. Del. jurisdiction over exercised not have court should 41(a)(ii). Ct.R. lay exclu- within because it the counterclaim join V of Judges section Nygaard and Alito Con- state Casino primary jurisdiction of sive Dissent, enthusiastically en- Judge Becker’s argument, as rejected this We Commission. trol therein. his recommendations dorse regarding the denial contentions aswell Tose’s to expressly We declined motion. new trial Bay, we did decide appeal Greate 3. On supreme would court state predict Bay us. See Greate now before question that is on a stated claim counterclaim that hold Tose’s n. 7 34 F.3d Hotel & Casino at granted. See 34 F.3d could be which relief case, Cir.1994). sued (3rd the casino In that "[Wjhile we do not did observe: debts, n. 7. We responded Tose Tose for argu- ruling point, a reasonable a on make to the claims similar a counterclaim with a a casino owes common judge whom that court to can be made The district ment plaintiff here. ruled, gam- prevent initially accor- him from assigned to case was law a Aboud., allegations plaintiff's that Id. he is bling dance with it knows intoxicated.” when granted could be presented which question relief stated a claim not decide the comment did reas- case was later law. The case; under New interpret it as inconsis- nor do in this judge, that signed district to different appeal. com- holding We in this tent with our go trial judge the counterclaim allowed argument can be agree "a reasonable pletely that doctrine, in his but the law-of-the-case based on contrary the one support of result made” in expressed his reservations opinion he published However, predict whether forced we reach. F.Supp. 1317 n. concerning See 819 Aboud. accept Supreme jury, and to a tried was 8. The counterclaim not. predict that it would argument, we that de- appealed district court's lost. Tose Tose trial, and casino for new of his motion nial omitted). (footnote years might brought up to two after the And F.Supp. at 633 concerning plays of which events court noted Tose: the district could have rea- no casino dealer or server of areas covered [considering the breadth Although sometimes to recollect. son regulation, it would seem by statute and games videotaped us- highstakes table public policy indeed the if it were cameras, tapes from ing such surveillance impose liability on casinos Jersey to hun- multiple amount to cameras would gamble, allowing patrons to intoxicated per day that are of films dreds hours enacted. The policy would have been if routinely recycled than retained rather regulated gaming the minutiae of State has days. thirty reported no incident is within expressly rules and alcohol service Jersey Supreme has ex- The New Court serving of free drinks to permitted the pressed reliability of evi- concern for the Surely it patrons gambling at the tables. effects, ... dence of intoxication and its cog- unaware that the could not have been reliability largely absent after- and such many gamblers functioning of nitive gaming the-fact in the casino environment. by drinking or of the conse- impaired be persons impaired so quences permitting of F.Supp. at 876 gamble. many and of the others For these reasons n. F.Supp. at 1317 819 opinions in mentioned the district court by predict influenced the difficult that the New are also this case and we We proof permit causation that would problems Jersey Supreme of and would not Court by recognition covery of claims such as those asserted result from the on claims such as Accordingly, here. As the district court affirm plaintiff those involved here. aptly put plaintiffs it: judge in this case court’s dismissal of the district cases, claims both and we remand to the dram-shop enlargement of doctrine [the proceedings district court for further on the liability] gambling losses could to casino defendants’ counterclaims. metaphysical problems of present almost causation, gamblers proximate since sober BECKER, Dissenting. Judge, Circuit big, gam- play yet lose intoxicated can well big, pre- under the can still win and blers hand, Ayhan Hakimoglu played his odds, “the house vailing rules and house being lost. Now we are asked to make our gamblers any- lose” win and the will will Sitting diversity, pre- own bet. we must way typical transaction. highest dict how the court of New Hakimoglu, F.Supp. (quoting at 636 876 Signal, would rule. See Robertson v. Allied 8). Bay, at 1233 n. More- (3d Cir.1990). 34 F.3d Inc., 360, Greate 914 F.2d 378 As the over, out, majority points pre- we must make this guidance

such a cause of action could fabricated diction with little dram-shop than a action law. But that is an incident —and a flaw—of greater with ease diversity jurisdiction. involving personal injury, regime since in the acci- I be- Jersey Supreme of the accident is lieve that Court dent case the occurrence action, tort, recognize evi- would a specific notable event reliable usually allowing patrons gambling alcohol content is to recover debts dence of blood case, obtained; gambling in the loss on the from casinos that serve them alcohol after hand, dram-shop negligence visibly prediction claim other intoxicated.1 theory Hakimoglu 1. In addition to the tort has The district court seemed to doubt the existence ” position may pursued, have a in his of this "so-called ‘contract’ because gambler's obvious intoxi claim in contract. The cation, mutuality.” Hakimoglu Trump "there is no v. might argue, one voided Associates, 625, Taj F.Supp. Mahal 876 633 n.7 Sauter, See, e.g., Feighner v. 259 contract. (D.N.J.1994). patron negotiate does not "The 1071, 583, 590, (App. N.J.Super. 1075 614 A.2d casino," relationship the terms of his with the rescission, Div.1992) (listing grounds for contract explained, "nor can the or the casi- intoxication); Presbyteri including Onderdonk v. odds, vary game, the rules of the or the 171, 183, Jersey, 85 N.J. 425 Homes Newof Id.; payoffs.” Bay see also Tose v. Greate Hotel (1981) (every has “im A.2d plied contract Casino, Inc., F.Supp. 1317 n. 8 dealing”). good faith and fair covenant Henningsen v. Mo- standing in New biles. See long trends is founded Bloomfield tors, Inc., action, N.J. causes of recognizing new Jersey law Moreover, recent cases show its the court’s by legislation. pervaded in areas liability expand continuing willingness to tort view, my See, Weinberg e.g., variety of contexts. in a likely a cause of create especially (1987) 469, 524 A.2d 366 Dinger, 106 N.J. profits from con- where a defendant action companies duty of care on water (imposing a injury, causing the foreseeable duct pressure for fire- adequate water to ensure care, of due ability, in the exercise Indus., Safety Light T E Inc. v. fighters); & itself. injury at small cost to prevent such Corp., N.J. A.2d factors, presents these case Because (recognizing a cause of the owner action majority’s by the unpersuaded I am previous property against a contaminated judgment of arguments, I would reverse allegedly the contamina- who caused owner on the for trial court and remand the district Realtors, tion); Lazo Hopkins v. Fox & a crucial to underscore I also write merits. (imposing a A.2d 1110 N.J. majority: as New by the point mentioned open safety care for the of visitors procedure, we are no certification Jersey has houses); Gregor, Dunphy v. important policy with make state forced (1994) bystander liabili- (expanding A.2d 372 suggest guidance. therefore little fiancee). Most relevant for ty to include a and its own interests Jersey, to serve New Jersey Supreme the purposes, our New ours, provision. a certification enact liability on consistently imposed has Court drinking- for providers of alcohol foreseeable I. injuries though the sale of al- related —even intensely regulat- Jersey beverages has been the course of New coholic predicting In See, e.g., Rappaport v. many years. trends in for law, policies on and ed must focus (1959) Nichols, 188, 1 156 A.2d Jersey.2 31 N.J. jurisprudence of New damages for and Corp., (recognizing action death v. Pharmaceutical McKenna Ortho minor). (3d Cir.1980) (in to tavern that sold alcohol 657, evaluating against 662 622 F.2d tort lia- imposed law court has common law, must be The precedents “relevant state state and restaurateurs bility upon tavern owners the broad eye toward with scrutinized persons furnishing alcohol to intoxicated adjudications for those policies that informed injury through subsequently cause who which to the doctrinal trends 976, 101 driving. v. Olde denied, See Soronen evince”), S.Ct. drunk 449 U.S. cert. Milford (1966) Inn, Inc., 582, A.2d 630 (1980). Jersey 46 N.J. 218 387, The New L.Ed.2d 237 66 patron’s shop liability to (extending dram in long a leader has been Supreme by Lee v. injuries), part in example, it was liability. own tort For expanding modified Restaurant, A.2d 503 127 603 the doc Kiku N.J. to announce the first courts one of law, (1992). Jersey Importantly, under New liability, it to automo- applying of strict trine abrogate Act did not 1993) ("[B]ecause the Casino every aspect and that Control (D.N.J. of the rela- defenses such law contract traditional common and the casino tionship between the However, state[,] Hakimoglu is little See id. minutely regulated there as intoxication. sense.”). hence press But claim and the usual a contract of contract in has declined freedom play, question. whether patron retains the choice decide the we do not Thus, this situation much to bet. how Nevada, only other state Precedent Pur- contracts. from most sales different little help, legal, provides no gambling is casino which example, dryer, forms a con- chasing a hair recognize liabili- dram Nevada does not though price and the charac- is set even tract Inc., City Nugget, v. ty all. See Hamm Carson heavily regulated. good On of the teristics The federal 450 P.2d 85 Nev. legally keep able to is the other basis casino what authority virtually complete over Moreover, government has money gambler’s after he loses? reservations, James see American Indian Native gambling relation- regulation pervasive of the Belliveau, Gambling Indian Under The Casino J. nullify New nature. ship not its contractual does Narragansett Regulatory Tribal Sov- Gaming Act: credit Jersey have held that courts Law, Gambling ereignty Rhode Island Versus the casino forms contract between markers (1994), Hotel, is no but there U.L.Rev. 389 Suffolk patron, v. Sands see Lomonaco the N.J.Super. Div.1992), (Law this area. federal law in A.2d 634 affirmed. Id. Because Tose served while intoxicated defendant was person who was trial, tavernkeeper even for sue the lost his we did not need to decide himself can 2A:22A- damages his car. See N.J.S.A. Jersey recognize would 5(a). Additionally, the court has extended of action. Id. at 1232 n. 7. hosts, though they, liability to social owners, profit from the do unlike tavern II. say little sense to It “makes transaction. is under a defendant] licensed [a principles Analysis of this case under the care, immunity give to a social exercise but supports tort the conclu- law wrongful guilty of the same may be host who Jersey’s and Tose that New sions of Aboud merely he is unlicensed.” conduct recognize Hakimoglu’s highest court would Rand, N.J.Super. 356 A.2d v. Linn Hopkins Lazo cause of action. In v. Fox & Gwinnell, (1976); Kelly N.J. accord Realtors, (1993), A.2d 1110 (1984) (extending Court set out its hosts). shop liability to social duty, determining when a tort standard for Jersey cases to address only two New negligence, and thus a cause of action issue, from a federal district present both inquiry, “ultimately question exists. The court, predicted that New (1) fairness,” requires weigh the court to of action. GNOC recognize this cause (2) relationship parties; the nature of (D.N.J. Aboud, F.Supp. 644 Corp. v. risk; opportunity ability 1989), opined Judge that “New Cohen care; public interest exercise strong unambiguously communicated a proposed Id. These factors solution. potential of exces- noxious policy against the support a cause of action this case. consumption the twin contexts alcohol sive liability and statu- law dram of common First, relationship parties argues regulation of casino alco- tory/administrative Casinos, liability. per- strongly for casino Id. at 653. In ex- beverage service.” holic institution, for-profit make haps the ultimate shop liability to the defendant tending dram Gambling money patrons’ losses. their casino, explained that its decision the court are the casino’s business. The casino losses public policy “merely furthering the

was therefore, in gambler, are linked an and Act and underlying the Control goals Casino relationship much like immediate business regulations promulgated thereunder.” shop liability sprang— that from which dram Id. at 654.3 patron. Rappaport, the tavern and the Then, Bay And in v. Hotel Tose Greate 188, 156 A.2d at 1. Like the 31 N.J. (D.N.J.1993), Inc., Casino, F.Supp. owner, control over the tavern the casino’s Aboud, court, following held that the district patron places environment into which flowing liable for losses the casino could be himself, ability open and its to or close patron to allowing an intoxicated from its imposes some spigot, alcohol on the casino subsequently at 1321-23. Tose gamble. Id. pa- responsibility toward that concomitant rejected jury, his case to a which tried his must make tron. Just as the tavern owner Casino, Bay And Inc. v. Hotel claim. Greate patron drinking does not cause her Cir.1994). sure that (3d 1227, On 34 F.3d others, should to hurt himself or the casino mainly question on the appeal, focused which its alcohol service does lead its ensure that Commission had the Casino Control through patron to hurt himself excessive gamblers’ jurisdiction over primary exclusive casinos, judgment gambling. for the against claims (essentially actually the intoxicated holding broader than serve 3. The of Aboud is sum, theory), liability stop dram-shop for failure to necessary Hakimoglu: "In a casino has for (essentially theo- knowingly permitting him from an invitee duty an to refrain from may practical obviously ry). terms there be little gamble patron While to where that is invitee two, doctrinally I think visibly the influ- difference between under intoxicated and/or continuing liability proper is for that the issue Id. at 655. This ence of a narcotic substance.” events, Hakimoglu present scope At all does not interesting question serve. about the raises the gambling. failing stop continuing him from liability a claim for putative liability: is it Second, essentially appro that tort Court has made clear the nature of the risk — priate liability (possibly in addition foreseeability points to casino basis a test —also 1), theory, supra if casino to to a contract see n. liability. come to the Gamblers occurs, alcohol; physical damage when the losses supplies free gamble; the casino See, e.g., Express People natu- are foreseeable. the casino. Losses are the odds favor Airlines, intent, result, Corp., v. Rail if of this situation. Inc. Consolidated ral not (1985) 246, 495 consump- (allowing N.J. A.2d 107 airline Unacceptable losses due to alcohol damages in when certainly foreseeable. to recover economic tort tion are required defendant’s tank car accident it to foreseeability explains inap factor offices). vacate its contrary authority. plicability of The New Finally, presence foreseeability recent limitations of Court’s read, fairly complaint recognizing shop liability, all turn on a buts the casinos See, liability in this lead unfair and foreseeability. e.g., Lombardo v. case would lack of (App. extreme results. A restaurant located near a Hoag, N.J.Super. 634 A.2d 550 liable, denied, Div.1993), ar- 135 N.J. 640 casino would be held casinos certif. gue, if it alcohol to a who (rejecting passenger served A.2d 850 intoxicated, casino, driving entered the stop of vehicle from became owner This, money. they imply, un- duty would lost would be imposing such an “overbroad may potential liability fair. That be so. But because foresee- open box of a Pandora’s ability lacking hypothetical, v. the casinos’ responsibility problems”); Jensen Inn, Inc., analogy present to the case does not Schooley’s 216 N.J.Su Mountain scrutiny. The restaurant and its (App.Div.) de withstand per. 522 A.2d 1043 certif. (1987) (tavern customer, nied, hypothetical, the casinos’ do 108 N.J. posture in a similar to a casino and its for intoxicated customer’s death stand not liable tree, fell, gambling patron. The restaurant is not top of after he climbed to Walker, river); business and does not necessar- Griesenbeck drowned dining patron would (App.Div. ily know whether the N.J.Super. 488 A.2d 1038 involved, denied, gambling. The there- 1985), 501 A.2d later be loss certif. (no fore, fairly rationally against is too remote to cause of action social By injuries restaurant accountable. con- physical from a fire at hold the host for trast, gambling setting in a with as the guest’s occurred after the casino residence which intoxicated). activity, difficulty in fore- primary there is no guest returned engage in that seeing patron that will foreseeability explains why also Lack high activity and the chance that he will legislature Jersey courts and have intoxi- financial losses under a state of suffer liability extended for tavern owners never cation. (as casinos) opposed to be- and social hosts damage. opportunity factor —the and abil- injuries property The third yond physical Griesenbeck, 141, suggests ity care —further liabili- N.J.Super. at 488 to exercise 199 See degree than ty greater a much (App.Div.1985) (observing that here. To A.2d at 1043 owners, readily liability operators casino can extended for tavern the court has never against type of liabili- beyond injuries protect related to themselves of alcohol servers most ty sought imposed to be here. Unlike driving, accidents and bar- drunk barroom owners, brawls); social 2A:22A-1 et tavern restauranteurs room see also N.J.S.A. hosts, generally huge staffs and (codifying liability physical for casinos seq. sophisticated cameras. Gam- injury property damage for “licensed surveillance server[s]”).4 Casinos, blers, rollers, constantly high beverage particularly are alcoholic dealer, persons, pit hand, large by a floor plainly can foresee and monitored the other cameras, boss, patrons they help hidden and sometimes even unacceptable from losses Jersey Casino Control officials of the New get drunk. And the New liability directly. nothing to limit casino casinos are not “licensed alcoholic 4. Because act, beverage this law does server[s]” under 298 frame- regulatory elaborate Tose, prehensive F.Supp. at 1320. See Commission. reflecting a industry, crossed, for casino casino need work line

When the to order be restrained that more concern casinos serve alcohol.5 only to refuse to 5:12-1 public. See N.J.S.A. protect position in a course, is also Of City Margate, 86 190; Knight v. also see But getting drunk. by not exercise to care 833, A.2d 836-37 N.J. my argument. New undermine this does not op- regulates the typically The Act if the intoxicat- clear that has made the individual penalizing rather than erators himself, may he injuries to person sues ed casinos, instance, rather than gamblers. For contributory negligence. charged with when liable underage gambler, held an Kiku, A.2d at 503. N.J. 5:12- N.J.S.A. casino. See the latter enters not a negligence is contributory Imposing Public 119; Law & Department also see shop underlying dram policy from the retreat N.J.Super. Regency, Safety v. Boardwalk rather, explained as an best liability; it is (holding (App.Div.1988) A.2d 206 among all loss fairly apportion the effort to underage two responsible allowing casino See Fisch responsibility. some who bear 374, 387, gamble). Bellshot, persons A.2d to N.J. by lim- (1994) (“[Pjublic served policy best Act, New passed the itWhen liability through iting a licensee’s recognized that casinos—with legislature negligence comparative application dispro- of wealth —have their concentration liability alto- eliminating such than rather process. political over portionate power ensures, from holding also gether.”). This Soto, N.J.Super. at See Petition of deterrence, par- that both standpoint of expressed in the As at 1093-94. steps harm take to avert position ties in a policy pronounced Act, Jersey’s it is New it. prevent strictness “with the utmost regulate casinos proposed in the interest Finally, public and trust public confidence the end that New to the conclusion leads solution also regu- honesty integrity of the State’s action. cause of recognize this Jersey would (em- Id. machinery can be sustained.” latory Jersey has exer history, New Throughout its added). background The historical phasis types of various over control cised strict recognizes im- reveals F.Supp. at 1319. gambling. See gam- protecting public interest portant provision or Indeed, only by a constitutional Jersey’s perspective, From blers. gambling be any type can amendment protect gamblers quiring casinos state, subject to lawfully conducted service flowing from their excessive losses N.J. control.” approved “restrictions public be in the probably also alcohol would VII, IV, In an environ Const., par. § Art. interest. regarded as has been ment where evil,” general the state’s activity rife with “an objection my posi- plausible The most sur be no gambling should ban on casino generally seek negligence of that torts tion is Soto, N.J.Super. 236 prise. See Petition compensate of destruction the to deter (App.Div.1989), 303, 314, 1094 565 A.2d argu- wealth, tort in this case while the 3216, 110 937, 110 denied, S.Ct. 496 U.S. cert. words, a In ably merely allocative. other 664 L.Ed.2d negli- redress tort would typical economic factory, causing a down a gence that shut city’s welfare struggling Concern for in this case while production, loss in casino Jersey to allow citizens drove New money casino coaxes controls, alleged tortfeasor in Atlantic strict operations, with it. Soci- and then retains from F.Supp. at 1319. City. 819 just off; parties no different ety is worse a com- Act establishes 1977 Casino Control "wake-up might call.” serve as a Hakimoglu pursues fusal serve theory Again, that on the Aboud, pre- (based liability), theory how- the casino articulated in On the broader ever, serving stop only sumably keep might need a would casino obviously and patron visibly after he became alcohol drunk gambling, if he become even had from him need to bar It would not intoxicated. elsewhere. hopefully though the re- gambling, from further

299 regulations. or its Control Act Rath- But allocative economic Casino wealth. possess the action, er, causes of torts, acts of conver all involve common law for intentional at least sion, Jersey Supreme law. stranger to New the New which believe See, v. Airlines e.g., Atlantic Northern recognize. (1953);

Schwimmer, 298, A.2d 12 N.J. 96 652 Second, legislative regu- argument Jewelers, 279 v. Echo Bloom & Co. Charles precludes this common law lation of casinos (App.Div. 652 A.2d 1238 N.J.Super. New Jer- misapprehends of action both cause Marzulli, 1995); N.J.Super. v. 230 Lombardi own sey jurisprudence and overstates its Div.1988). (Law 205, 553 A.2d scope preemption argument, force. reasons, foregoing application all the For majority opinion, bulk of the which forms the 296-97, criteria, supra Hopkins see Jersey jurisprudence mistakes New view- action recognize this cause of counsels tous through ing this the lens federal issue law, particularly when under New including interpretive assumptions, background of New Jer- analyzed against the this great legislative bodies. If deference sey tort doctrine. law, presented an of federal a case issue might legis- extensive federal court view the III. regulation precluding of casinos as it lative majority and the arguments of the recognizing this cause of ac- properly from a re compel do not different district court fundamentally many might tion. But factors arguments, largely drawn sult. These supreme court would inter- affect how a state Tose,6 in rest on two Judge Irenas’s footnote reiterate, To pret and make the law. Zoby, v. that Miller main assertions: predict requires us to what case (App.Div.), N.J.Super. presented do if Court would denied, A.2d cert. Robertson, 914 F.2d with this situation. See Aboud; (1991), that the undermined at 378. regulation legislative intense above, view, my explained New Jer In finding the court from this cause precluded case, jurisprudence from that of sey’s differs present Judge Siman- action. In the likely recog assertions, Hakimoglu federal on both see courts: dle relied Associates, Hopkins F.Supp. Trump Taj Mahal a cause of action when nize (D.N.J.1994), major 625, 630-31, where, and the present, factors are legislative ity most of its stock places regulation, federal legislative extensive argument. Both of “scope preemption” Jersey’s high court would not. New courts are incorrect. historically these liability, assertions that tort has made clear matter, squarely its judicial falls baili First, Appellate Divi- is untrue that agree the issue do not “[W]e wick. Zoby Aboud. undermined sion’s decision only appropriate case is addressed implied Zoby, court denied Determination of legislative resolution. violating against casino for credit action negligence cases tradi scope of But this Id. A.2d at 1104. regulations. judiciary.” tionally a function of been Zoby as carefully distinguished court in Tose 1226; Gwinnell, A.2d at N.J. at implied right availability of an involving the 439, 625 A.2d at Hopkins, N.J. at accord Act— under the Casino Control of action (“[DJetermining scope the of tort liabili very from the analytically a different issue responsibility of ty traditionally been the liability. of common law tort applicability courts.”). Dunphy, the court’s most In the n. 7. Like the Bay, 34 F.3d at 1232 Greate liability, the expansion of tort bar, recent nor was neither Aboud Tose case at the stated: implied of action under cause based by acknowledged bound that he was Aboud complicated procedural posture the Tose who

6. The case, disagree- sounding for sides of his as a board both but noted case served as the law of Rodriguez, Judge the case to whom this debate. case in a footnote. ment with that originally assigned, Aboud. elected follow was F.Supp. at n. 8. Irenas, Judge reassigned to case was then driving kill others drunk settings, tinued to serve in numerous recognized, We have out, majority points liability- accidents. As principles of tort that traditional closely regulates casino Act areas in which Control to address Casino adapted can be casinos, like the operation. particular, of action and the In recognition of a cause taverns, visibly permitted novel to serve care are both are not imposition of a obviously persons. intoxicated and controversial. 5:12-103(d) (f)(2); 13:2- N.J.A.C. & N.J.S.A. (citations 109, 376-77 at 642 A.2d at 23.1(b). majority The other act on which omitted). Al- preemption, the Licensed scope for leans Jersey explained, the New Su As Act, Beverage N.J.S.A. coholic Server long hospitable to the preme Court has been liability physi- imposes seq., 2A:22A-1 et drinking-related liability for recognition of injury licensed alco- property when cal and Soronen, 582, See, e.g., at injuries. N.J. casinos) (not including beverage holic servers (extending shop liabili at 630 dram 218 A.2d already persons. Under intoxicated serve Gwinnell, injuries); ty patron’s own of this lacu- majority’s approach, because (extending 476 A.2d at N.J. na, for deaths not be liable casinos would hosts). shop liability to social dram it nevertheless by gambler caused liability scope of willingness to define the gambler is obvi- continues to serve after the conduct at issue is exists even where acts, passing In these two ously intoxicated. regu subject legislative or administrative thought of this legislature must have See, Kiku, e.g., 127 N.J. at lation. yet provision for it. possibility, and made contributory negligence (creating A.2d at 503 however, case, that a host is It be the cannot against restau shop action defense injuries guest sustained that his liable regulation of despite legislative intense rant party while casinos drinking at a dinner after restaurants, alcohol, of dram and codification driving liability for drunk are absolved shop liability). accidents, parties, under New even to third Indeed, authority cited even the argument scope preemption law. The firm efforts of casinos as “indicative of the well. flawed for this reason as is thus liability of Jersey courts to limit the injuries” plaintiffs of alcohol for a server IV. supreme court is acknowledges that the state policy for job to make While our is not In recognize new causes of action. free to (and careful not to we should be Lombardo, N.J.Super. at accidently by interpreting New do so deci the court reversed the trial court’s assumptions legislative defer- law under liability. doing sion to extend dram share), policy rationales ence it does not so, generally not consid it noted “that it is would, fact, high court in guide the state’s a trial court to create an the function of ered of action. The appraising putative rule of law. Such exception to an established problems to court enumerated seven district for the Su generally a function is reserved action. I will set recognizing this cause of legislature.” Id. at preme or the objections omitted). and rebut these below. (citations out empha To 634 A.2d 550 what again, our task here is determine size objection essentially that the The first a trial Court —not such, gambler, had no inhibi aggrieved Penn do in this situation. See court —would Hakimo tions that alcohol could overcome. sylvania Corp. Caterpillar Glass Sand objec F.Supp. at 636. The second glu, 876 (3d Co., F.2d Cir. Tractor risk, seeking got gambler, tion is that 1981). objec just he came for. Id. These two what point; hence I Moreover, to state the same jurispruden- tions seem given federal that, together. point argu- them assumptions, scope preemption deal with tial not, got much explain, the inhibitions or As I will ment is overstated. patrons, of for. Tavern more than he came argument would lead logical extension of course, drink, if injury results come to but namely, absolving casi- an result: to absurd they they that hurt them- they become so drunk liability patrons have con- nos for when difficult Hakimoglu and his losses seems less else, shop liabili- and dram selves or someone determining of cancer in true, Judge the causation surely than as ty It is attaches. malpractice and toxic tort many medical observed, gamblers can that sober Simandle a ba- Regardless, it does not furnish win cases. gamblers can big and intoxicated lose ante, that New However, sis on which to conclude gambling is a form of ex big. away recognizing a cause of shy favor the casi- would the odds consumption because People Express Airlines v. Con- words, wins action. See the casino In other because no. Rail, 246, 254, run, statistically the is solidated long in the (explaining that an “asserted consuming patron is paying gamble. to out, crystalline inability to fix formulae for recov- dining good like someone a nondurable ery differing future cases Alco- on the facts of drinking liquor. taking a vacation —or justify rejec- simply in- does not the wholesale hol, judgment lowering by impairing cases”). hibitions, recovery in all patron to consume tion of can lead the if As he would he were sober. more than easy acknowledge always that it is not itself, consumption drinking excessive with gambler a is intoxicated. determine when gambling can the form of alcohol-induced a motion But this matter is before us on injury just ask the quite severe — 12(b)(6), and we must under Fed.R.Civ.P. house is foreclos- spouse gambler of a whose pleaded facts as true. Aid take the well from their schools kids withdrawn ed and (mis)conduct do, alleged when we family’s sav- gambler lost because the casinos, i.e., they continued to defendant damage wrought can ings. And visibly gambler intoxicated who was serve a than even the most This is more instant. dollars, losing should be sufficient millions person bargains for. uninhibited relief under the federal to state a claim for pin medal on the I do not mean to a third, objection is that rules. also related Hakimoglu, especially one such as gambler, responsible cannot interfere with alcohol doing when he par- knows full well what he is requires no who because big. with, casino and loses goes repeatedly latter begin ticular Id. To skill. him and jury may sympathy have no wrong. Although The is part of this assertion contributorily negligent, or find the ability, find him require particular machines no slot all, at as it did the Tose casino not liable games require skill count- many others do jury: question But that is a strategic case. making choices. ing cards and the result of the casino’s (discussing whether as n. 9 F.Supp. at 1319 odds). (mis)conduet, ability lost his counting improves a bettor’s how card judgment as to wheth- a reasonable whole, to make is also beside As a this assertion view, my an individu- continue. In such game er to gambler plays if a point. Even al, time, appears to be within skill, at such a have a critical quiring alcohol can Jersey jurisprudence pro- stop class that judgment when to on his about effect tects. playing. objection fifth is The district court’s objection problems is that

The fourth open the flood- recognizing this tort could cau- regarding proximate proof principally — Hakimoglu, 876 claims. gates to fraudulent evalu- confound fact-finders sation —would claim, shop typical A dram F.Supp. F.Supp. Hakimoglu, 876 ating claims. such argue, follow an accident at will concern defendants again, the relevant at 636. Once called, the blood police will be not, suggest, which casinos as the here of the driver examined alcohol content his odds of gambler reduces the intoxicated not al- But that “pru- witnesses interviewed. inability play winning of his Many claim— Rather, ways the case. dently.” the issue is whether recognized by with- ability gambler’s impairs the intoxication investiga- prerequisite prompt any when his out stop gambling determine when of the blue” from filed “out he can tion —are grow beyond a level which losses Moreover, vantage point of the defendant. proof the nexus between And afford. ex- Hakimoglu’s are both such as high lawsuits roller such status of intoxicated In Jersey.” Id. gambling in New risky, and casino pursue quite tremely costly.to deter- except undermining its sufficient them addition to not undertake lawyers will objection also misses argument,8 losses are substantial. this where rence the rare case therefore, un- authority policy is “floodgates” argument, legal The point. high rollers who convincing. And since commission have of the casino choices surely drinking big are losing and are both bearing on how losses, the of their law, at the time Court, might identified matter of common as a concentrated on cameras can be surveillance regulate this situation. choose specially marked tapes can them and reasons, I am foregoing For all of the words, the casinos preserved. other Jersey Supreme Court that the New satisfied protect themselves. can recognize Hakimoglu’s cause of action. objection that sufficient deter- The sixth cannot already because casinos rence exists V. by into drunk markers entered enforce credit evidence, as the is its own best This case remedy in the marker situa- patrons. Id. A observes, utility majority of the of a certifica- however, tion, nothing to deter losses does urge New procedure; respectfully I Jer- tion here, when, loss in as many cases adopt The lack of a certification sey to one.9 objection on credit. question was not disadvantages procedure both against over deter- restyled as one could be judiciary. Especially in and the federal (and inefficiency), corresponding its rence authority gov- this little cases such as where torts. always potential problem for which is result, litigants left to watch are erns the gain and much to little to If casino had Meanwhile, spin court the wheel. the federal if, might say, its behavior —as lose from by high-rolling judges, no means federal large recoveries for Jersey law allowed bunch, position put in the uncomfortable are injuries in a casi- physical sustained minor effect, making choice.10 In steps to overly zealous might take no—it policy, in important state forced to make occurrence. Overdeterrence prevent this principles. of basic federalism contravention here, however, likely problematic not to be Sloviter, Judge A Federal Dolores K. only up liable the casinos would be Through Diversity Jurisdiction Views gained by their had to the amount Federalism, Lens 78 VaL.Rev. gain They have much to tortious conduct. (1992). possibility that federal courts continuing to serve and little to lose from may interpretive assumptions that dif- make were if this tort gamblers, even intoxicated further those of the state court fer from anything, underdeterrence If recognized. process. like New complicates this States biggest problem: remain the probably would procedures face Jersey lacking certification percentage of cases will only in some misanalyze federal courts will the threat that money their claim and win losers law, already open to varied inter- the state’s back.7 inadvertently viewing it by pretations, argues Finally, the district juris- federal through the lens of their own cause of ac- recognize not court should assumptions. prudential regulators Jersey’s casino tion because New by the lack of a certi- The mischief created such casino to refund required have never “a by procedure was demonstrated fication an intox- gaming allegedly incurred losses catalogued some of Judge when she years of Sloviter any in sixteen icated time Nygaard expressed gam- Judges Alito have their 9. analysis economics of a For more tort, agreement recommendations contained with the bling between and the connection Hallam, Note, alcohol, part my opinion. Rolling in this Jeffrey see C. Recover Gamblers the Dice: Should Intoxicated Losses, Their Nw.U.L.Rev. am, say, to make needless to not the first See, McKenna, e.g., F.2d at this observation. ("Although have characterized as- in the some deterrence 8. How can there be sufficient crystal-ball gazing, signment speculative has been nonmarker situation when enforcement decline.”). may it a task we nonetheless totally lacking?

303 missteps interpreting Long Range in Plan for the Federal Courts. the Third Circuit’s Pennsylvania, lacks a Recommendation 8 of that Plan states: the law of which also “The encouraged adopt procedure: certification states should be certifi- procedures, they cation where do not cur- guessed wrong questions on [W]e (both exist, rently which federal court under in of arbitration clauses auto- the breadth appellate) trial and could submit novel or (we predicted policies mobile insurance questions supreme difficult state law to state they disputes extend to over the would not Long Range courts.” on Plan- Committee coverage [Myers entitlement v. State ning, Judicial Conference of the United (3d Co., F.2d 705 Farm Ins. 842 Cir. States, Proposed Long Range Plan for the 1988)], they [Brennan but do General (March 1995).13 Federal Courts 32 Certifica- Corp., Accident Fire & Assurance 524 Life panacea, delay tion is not a and can inflict on (1990)], Pa. A.2d 580 the availabil- 574 Yonover, Kinder, litigants. See Geri A Gent- ity damages consortium for un- loss of Reining Certification, ler Erie: in the Use of (we predicted married cohabitants (1994). 47 Ark.L.Rev. 305 But this is an available) they would be v. United [Bulloch argument exercising authority wise- (D.N.J.1980) States, ], F.Supp. 1078 ly denying altogether. it —not they are not v. Morton [Leonardis but Co., N.J.Super Chem. Fifty-four percent of United Circuit States ], (App.Div.1982) “unreasonably and the judges survey responding to the indicat- AJS dangerous” products liability standard they “very “willing” willing” ed were or (we predicted cases the Restatement would certify questions, Report, supra, at AJS Co., apply) v. Kramer-Trenton [Beron eighty percent supreme of state court (E.D.Pa.1975), F.Supp. aff'd, 538 justice they “willing” “very said were or will- (3d Cir.1976) ], it [Azza F.2d 318 but does ing” questions. Report, to answer these AJS Inc., Co., rello v. Black Bros. 480 Pa. supra, Ninety-five percent at 46. of the (1978) ]. A.2d Judges ninety per- United States Circuit Judges cent of the District United States Sloviter, 1679-80.11 78 Va.L.Rev. at “very were either satisfied” or “somewhat Jersey, failing adopt a certifica- process satisfied” with the certification procedure, minority. tion a small At most recent Id. at 42. their certified case. courts, present, forty-three supreme state satisfaction, eighty-seven In terms of overall Rico, resort in Puerto the court of last percent justices of the state court said Appeals the Court of of the District of Co- “very or were either satisfied” “somewhat questions of law lumbia can answer certified satisfied” with their most recent certification from federal circuit courts. See American experience. at 43. Id. (“AJS”), Society Judicature Certification of drafting a forum for a Questions of Law: Federalism in Practice While this is not (1995).12 statute, I that a Granting power certification certification believe federal 15-17 certify ques- supported by judiciary’s the federal court should be authorized to is also vary examples difficulty pre- Report”]. our "AJS The states [hereinafter 11.For additional authority law, widely on whether the source of this dicting state and a call for the State statute, rule, provision, or a constitutional Pennsylvania adopt procedure, certification the three. Id. The states also combination of Smetanka, Certify L. To Predict or To see Stella accept- considerably differ ing on their standard for Proposal Questions Unresolved State Law: A questions. require Eleven certified states Pennsylvania Federal Court to the for Supreme Certification question that the certified litigation; twenty-six be determinative of the Court, (1995). Temp.L.Rev. par- states, Rico, and the Puerto ticular, the Third Circuit’s Smetanka describes require only ques- District of Columbia assessing scope Pennsylvania’s troubles in determinative; may be others re- tion six employment public-policy exception to at-will appear quire that be—or to be—no control- there Geary Corp., the wake of v. United States Steel ling precedent authority. Report, supra, AJS Pa. 319 A.2d 174 For recent at 18-20. examples difficulty, of this see Borse v. Piece Inc., (3d Cir.1992), Shop, 963 F.2d 611 adopted Goods 13. Recommendation 8 was the Judi- Calgon Corp., long part approved and Smith v. (3d Cir.1990). Carbon F.2d 1338 cial Conference as of the range plan September (1) the state court when: to the of law tion individually TAFT, and as Teel may Jeanette importance; one of issue is children, minor guardian ad litem for litigation; and state determinative Taft, Kimberly Taft; Onte Taft and Onte controlling precedent provide does not law Harry Taft, minor; minor; Kimberly court could resolve the federal through which Teel, Sr., guardian litem minor ad for as for certifi- is a textbook case the issue. Jr., children, Harry Teel, and Shamesa of issue is determinative cation. The Teel, Jr., minor; Teel; Harry Shamesa are public policy issues important litigation; minor, Plaintiffs-Appellants, Teel, authority guides our deci- stake; and little Moreover, casinos nor neither sion. resources, require VINES, Deputy of Pitt Terry all their Hakimoglu, with Sheriff Deputy Yet, County, position as Sher- in his of the matter. resolution immediate Troy capacity; iff in his individual and proce- alas, Jersey lacks a certification New ca- Boyd, and individual in his official dure, “predict.”14 we must and still pacity officer as a law enforcement Greenville; City Tim of and for the VI. CONCLUSION Peaden, and in his official individual this case majority fairly observes that capacity as a law enforcement officer argu- Greenville; Johnny that reasonable City one and difficult of and for Nevertheless, I Craft, ca- support either side. in his official and individual ments pacity lead a law enforcement officer arguments should the better believe Benny Greenville; City of and Jersey find a would predict that New us to Dobbs, ca- in his official and individual here, defense of subject to the of action pacity enforcement officer as a law Jersey Su- contributory fault. New Greenville, City Defen- of and for hospitable to highly has been preme Court dants-Appellees, action, in areas recognizing causes of acted, for foresee- and legislature has where the the court uses The four factors injuries. able County Vanderford, Billy of Pitt L. Sheriff (1) evaluating exists — capacity in his as Sheriff and in his (2) the nature of parties; relationship of the Greenville; City capacity; individual ability risk; opportunity Nancy Jenkins, Mayor, in her official care; public interest —all exercise capacity; Hin Charles and individual action here. finding a cause point toward City Greenville, Police, man, Chief majority objections of the policy And capacity; Kevin M. Smelt in his official point litigants either miss City zer, of the of Green Police Officer reasons, foregoing capac of the For all ville, overstated. his official and individual Supreme Jersey ity, I believe Defendants. tort, action, in recognize a cause No. 94-2293. gambling debts allowing patrons to recover Appeals, States Court United after them alcohol that serve casinos Fourth Circuit. re- therefore visibly intoxicated. I they are Argued May spectfully dissent. 16, 1995.

Decided Nov. Granted; Opinion Rehearing In Banc Jan. Vacated Office of New Jer- of the Administrative Director bring proposal to the attention 14. In order to authorities, Courts, Judiciary Commit- appropriate sey the Chair of the opinion, Senate, copies of this quest referencing the Clerk mail House tees of the dissent, the Chief Part V of the Jersey. Attorney General of New Supreme Court, of the New Justice

Case Details

Case Name: Hakimoglu v. Trump Taj Mahal Associates

Court Name: Court of Appeals for the Third Circuit

Date Published: Nov 20, 1995

Citation: 70 F.3d 291

Docket Number: 95-5022, 95-5087

Court Abbreviation: 3rd Cir.