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Transfer sought in compulsive gambling case

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Arguing that common law should protect anyone intentionally harmed by someone else, an Evansville attorney is asking the Indiana Supreme Court to consider a case of first impression in which he contends a compulsive gambler was targeted and taken advantage of by a casino, resulting in her loss of $125,000 in a single night.

"Harming another. Intentionally. Blessed by the government. Can this be true?" attorney Terry Noffsinger writes at the start of his 14-page transfer petition in Caesars Riverboat Casino v. Genevieve M. Kephart, No. 31A01-0711-CV-530, which was filed Thursday before the state's highest court.

An Indiana Court of Appeals panel decided the case in March and later denied a rehearing request in May. The appellate judges determined that 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. That decision reversed 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. Judges Paul Mathias and Carr Darden made up the majority, while Judge Terry Crone dissented.

The case dates to March 2006, when the Tennessee woman alleged she was enticed by the Indiana riverboat casino with a free hotel room, drinks, and meals, and ultimately allowed to borrow $125,000 from the casino in a single night. Kephart's six counter checks were returned for insufficient funds, and Caesars later sued to recover that money and treble damages. But Kephart filed a private negligence counter-claim that alleged Caesars took advantage of her condition as a pathological gambler, 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.

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.

But 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.

In his transfer request, Noffsinger points to Judge Crone's rationale as a basis for why the justices should accept the case. He also notes this case presents a novel issue of great public importance and that the appellate panel has created an unconstitutional immunity that violates both state and federal constitutions.

"In its opinion, the majority opined that because the legislature had legalized casino gambling, and the Indiana Gaming Commission had promulgated certain rules ... that required casinos to 'cease all direct marketing attempts' to a person participating in the self-exclusion program, it had provided certain protections," Noffsinger wrote, pointing out this holding puts the burden on victims who suffer from psychological issues outside their control. "Legalized gambling, and other problems it brings with it, are not the issues in this case. What must be remembered is that granting transfer and reversing the (COA's) opinion does not give Kephart a 'win.' She must yet prove the allegations in her counterclaim .... What she is asking for is her day in court to present her case."

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  1. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  3. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  4. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  5. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

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