News Update: Justices rule in favor of casinos

Back to TopE-mailPrintBookmark and Share

The Indiana Supreme Court has given state casinos a double win, strengthening their rights by saying they can exclude card-counters and that problem gamblers can’t recover damages stemming from gambling losses as long as the casinos are following state regulations.

A pair of split decisions Thursday afternoon came in the highly watched appeals of Caesars Riverboat Casino v. Genevieve M. Kephart, No. 31S01-0909-CV-403, and Thomas P. Donovan v. Grand Victoria Casino & Resort, No. 49S02-1003-CV-00124.

While casinos triumphed in the dual rulings,  the state’s top jurists disagreed on how the two appeals should be resolved when it comes to the intersection of common-law rights and state gambling statutes. In one case, the court decided legislators overrode a gambler’s common-law right to recover damages because of the regulatory scheme on the gaming industry. But in the other case, the justices found that casinos’ common-law right as a business to exclude certain patrons trumps those same state regulations.

In Donovan, the Grand Victoria Casino and Resort at Rising Sun in 2006 banned Thomas P. Donovan, a retired computer programmer from Indianapolis who’s won about $65,000 playing blackjack since 1999. He sued on grounds that the casino had breached a contract and the trial court in Marion County granted summary judgment to the casino. The Court of Appeals reversed on the exclusion issue and held Donovan was entitled to a declaratory judgment that the casino couldn’t exclude him for counting cards.

The case drew statewide attention, including an opinion from Gov. Mitch Daniels during a commencement speech where he rooted in favor of Donovan because it appeared he used his intelligence and skill to win rather than luck.

But in its ruling Thursday, the Supreme Court held that businesses have a common-law right to exclude a visitor or customer, subject only to civil rights laws.

"This long-standing common law right of private property owners extends to the operator of a riverboat casino that wishes to exclude a patron for employing strategies designed to give the patron a statistical advantage over the casino," Justice Frank Sullivan Jr. wrote for the majority.

Justice Robert D. Rucker didn’t participate in the case, leaving only the four justices to decide it. Justice Brent Dickson was the sole dissenter, criticizing the court’s common-law analysis that differed from the other casino case issued the same day. He said the casinos exist in Indiana only by the recent permission of the General Assembly, and that they have a common-law duty to serve the general public.

"Permitting a casino to restrict its patrons only to those customers who lack the skill and ability to play such games well intrudes upon principles of fair and equal competition and provides unfair financial advantages and rewards to casino operators," he wrote.

Justice Dickson said the court should use the same common-law rationale as it outlined in its separate Kephart decision, in which he also dissented.

The Kephart case is out of Harrison Circuit Court and involved a Tennessee woman who lost $125,000 in a single night of gambling at what is now known as Horseshoe Southern Indiana casino along the Ohio River. The casino sued to recover the money it had lent it her, and Genevieve Kephart counter-sued on a claim that the casino had a common-law duty to protect her because it knew of her pathological gambling history and it used that to entice her with free meals and rooms, provided a car to drive her from Tennessee to Indiana to gamble and lent her credit to support her habit. The trial court declined to dismiss the case on that issue and the Court of Appeals reversed. The justices granted transfer.

In a 4-1 decision authored by Justice Rucker, the court ruled that problem gamblers have the responsibility to look after themselves and casinos can't be expected to protect them if they don't – one of those options used in this case was a voluntary exclusion program allowing compulsive gamblers to place their names on a list of patrons to be banned from casinos.

“In this case, not only does the statutory scheme cover the entire subject of riverboat gambling, but the statutory scheme and Kephart’s common law claim are so incompatible that they cannot both occupy the same space,” Justice Rucker wrote. “The existence of the voluntary exclusion program suggests the legislature intended pathological gamblers to take personal responsibility to prevent and protect themselves against compulsive gambling. To allow Kephart’s claim to go forward under the common law would shift primary responsibility from the gambler to casino.”

Chief Justice Randall T. Shepard and Justice Sullivan concurred while Justice Theodore Boehm concurred in result and offered an analysis of a nearly 20-year-old standard used to reach the decision, saying that the three-part test detailed in Webb v. Jarvis, 575 N.E. 2d 992, 995 (Ind. 1991), causes more confusion than light.

In his dissent, though, Justice Dickson described the result of this case as particularly disturbing because it goes against long-established common-law rights and he disagreed with how the majority used an “implied abrogation” standard for Kephart but came to a different decision in Donovan.

“Nowhere in Indiana’s statutory system of gambling regulation is there any provision that expressly or unmistakably abrogates Indiana’s common law requiring business operators to exercise reasonable care for the safety of their customers and subjecting them to accountability in damages for failing to do so,” he wrote.


Sponsored by
Subscribe to Indiana Lawyer
  1. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.