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. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.