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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. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  2. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  3. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  4. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  5. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

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