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Casino wins compulsive gambling appeal

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Casinos don't have a common law duty to protect compulsive gamblers from themselves, and aren't required to refrain from trying to entice those people into their establishments, the Indiana Court of Appeals ruled today in a matter of first impression.

In a 2-1 decision in Caesars Riverboat Casino v. Genevieve M. Kephart, No. 31A01-0711-CV-530, the majority decided that a Tennessee woman couldn't recover from a private negligence action against the southern Indiana riverboat casino she'd visited in March 2006. While at the casino that had enticed her with a free hotel room, drinks, and meals, Kephart lost in a single evening $125,000 that she had borrowed from the casino. Six counter checks were returned for insufficient funds and Caesars later sued to recover that money and treble damages. But Kephart filed a counter-claim alleging that Caesars took advantage of her condition as a pathological gambler, and that it shouldn't have offered her the enticements in the first place and was responsible for damaging her quality of life in order to unjustly enrich itself.

This decision reverses a ruling from Harrison Circuit Judge H. Lloyd Whitis, who'd denied Caesars' motion and appeals to dismiss the counter-claim based on its legal sufficiency. Judge Paul Mathias authored the 17-page majority opinion with a concurrence from Judge Carr Darden, while Judge Terry Crone wrote his own 11-page dissent.

The majority analogized this situation to that of a compulsive shopper, noting that department stores have no common law duty to refuse sales or services to someone known to be a compulsive shopper. Judges also found that marketing to potential patrons isn't reckless and that Kephart's own behavior and foreknowledge of possible risks in going to the casino to gamble tipped the balance in the casino's favor.

"While Caesar's actions in allowing her to write six checks totaling $125,000 are extremely concerning and should be examined.... Kephart has a responsibility to protect herself from her own proclivities and not rely on the casino to bear sole responsibility for her actions," the majority wrote. "One may argue that the statutory framework does not provide enough protections for compulsive gamblers, but that argument is more properly addressed to the (Indiana Gaming) Commission or to the General Assembly."

Judge Crone disagreed, writing in his own opinion that a common law duty should be imposed because of the casino's conduct in luring her to the casino with freebies. As it likely knew about her condition, the casino could have easily excluded Kephart from any direct marketing efforts and from the casino itself because of a statutory voluntary exclusion program described in Indiana Code Section 4-35-4-2, the judge determined. But the casino didn't do those things.

"One wonders if Indiana's legislators - and, more importantly, their constituents - have any qualms about balancing the State's budget on the backs of gamblers, especially those who are least able to resist and/or afford gambling," he wrote. "In my view, all three factors militate in favor of imposing a duty on Caesars to refrain from enticing to its casino known pathological gamblers who have not requested that they be removed from the casino's direct marketing list or excluded from the casino. To hold otherwise would be to conclude that there is no level below which a casino (and thus the State of Indiana) may not go in enticing patrons and encouraging their reckless behavior. I believe that Hoosiers would expect more from their government and the businesses that operate here."

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  1. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

  2. As an adoptive parent, I have to say this situation was as shameful as it gets. While the state government opens its wallet to the Simons and their friends, it denied payments to the most vulnerable in our state. Thanks Mitch!

  3. We as lawyers who have given up the range of First amendment freedom that other people possess, so that we can have a license to practice in the courts of the state and make gobs of money, that we agree to combat the hateful and bigoted discrimination enshrined in the law by democratic majorities, that Law Lord Posner has graciously explained for us....... We must now unhesitatingly condemn the sincerely held religious beliefs of religiously observant Catholics, Muslims, Christians, and Jewish persons alike who yet adhere to Scriptural exhortations concerning sodomites and catamites..... No tolerance will be extended to intolerance, and we must hate the haters most zealously! And in our public explanations of this constitutional garbledygook, when doing the balancing act, we must remember that the state always pushes its finger down on the individualism side of the scale at every turn and at every juncture no matter what the cost to society.....to elevate the values of a minority over the values of the majority is now the defining feature of American "Democracy..." we must remember our role in tricking Americans to think that this is desirable in spite of their own democratically expressed values being trashed. As a secular republic the United States might as well be officially atheist, religious people are now all bigots and will soon be treated with the same contempt that kluckers were in recent times..... The most important thing is that any source of moral authority besides the state be absolutely crushed.

  4. In my recent article in Indiana Lawyer, I noted that grass roots marketing -- reaching out and touching people -- is still one of the best forms of advertising today. It's often forgotten in the midst of all of today's "newer wave" marketing techniques. Shaking hands and kissing babies is what politicians have done for year and it still works. These are perfect examples of building goodwill. Kudos to these firms. Make "grass roots" an essential part of your marketing plan. Jon Quick QPRmarketing.com

  5. Hi, Who can I speak to regarding advertising today? Thanks, Gary

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