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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. 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

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