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Justices hear compulsive gambling arguments

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State gaming regulations prohibit a compulsive gambler from even filing a lawsuit against a casino, a New Albany attorney told the Indiana Supreme Court today.

Justices are considering a case that asks whether casinos have a common law duty to protect compulsive gamblers from themselves, and whether casinos are required to refrain from trying to entice those people into their establishments. The case is Caesars Riverboat Casino LLC v. Genevieve M. Kephart, No. 31A01-0711-CV-530, and today's arguments follow a split Indiana Court of Appeals decision from earlier this year where the majority decided the gambler couldn't recover from a private negligence action against the riverboat casino. Judge Terry Crone dissented because he believed the common law duty should be imposed because the casino likely knew of her condition.

The Nashville, Tenn. woman had filed a private negligence claim against the Ohio River casino she'd visited in March 2006, when she lost $125,000 that had been borrowed from the casino in a single night. She claimed the casino knew about and took advantage of her compulsive gambling history, enticing her with free meals and drinks, hotel rooms, transportation, and entertainment to get her in to gamble.

In arguing before the state's highest court this morning, Caesars' attorney Gene Price from New Albany told justices that the state's extensive gaming regulation set up through the Indiana Gaming Commission provides the only relief Kephart is entitled to, and she shouldn't be allowed to proceed with her claim.

Kephart's attorney, Terry Noffsinger of Evansville, argued that private causes of action are not precluded by the state's regulatory scheme. He said the law is meant to protect those who are sick, and that this type of behavior shouldn't be considered "marketing" allowed by the state statute and gaming regulations.

Justice Robert D. Rucker wondered about how a new policy might go past the compulsive gambler to impact cases involving intoxicated gamblers, or even compulsive shoppers who buy too much at stores and then say the establishment should have known better. He and other justices asked about the comparisons to Indiana's dram shop law, which says that bartenders have a duty to not serve intoxicated patrons or alcoholics. They also wondered if the casino regulation would extend to food poisoning or a slip and fall, which Price said it wouldn't.

When Justice Brent Dickson asked about whether casinos had any duty to provide reasonable care to customers, Price responded," It has a duty to obey the regular framework, and there are steep fines associated with that. That's where the remedy lies here for Ms. Kephart."

The case is one of first impression nationally, as there is no existing caselaw resulting from compulsive gamblers who were victorious on claims that a casino wrongly targeted them, Noffsinger said in response to a question from Justice Rucker. One federal District court in New Jersey held this, but the 3rd Circuit Court of Appeals later overturned it, Justice Rucker said.

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  1. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

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