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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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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