Hakimoglu v. Trump Taj Mahal Associates

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Precedential or Non-Precedential: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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Recommended Citation
"Hakimoglu v Trump Taj Mahal" (1995). 1995 Decisions. Paper 293.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/293

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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. at
1317 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 at

1233 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