ILNews

Transfer sought in compulsive gambling case

Back to TopCommentsE-mailPrintBookmark and Share

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."

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

ADVERTISEMENT