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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. Ah yes... Echoes of 1963 as a ghostly George Wallace makes his stand at the Schoolhouse door. We now know about the stand of personal belief over service to all constituents at the Carter County Clerk door. The results are the same, bigotry unable to follow the directions of the courts and the courts win. Interesting to watch the personal belief take a back seat rather than resign from a perception of local power to make the statement.

  2. An oath of office, does it override the conscience? That is the defense of overall soldier who violates higher laws, isnt it? "I was just following orders" and "I swore an oath of loyalty to der Fuhrer" etc. So this is an interesting case of swearing a false oath and then knowing that it was wrong and doing the right thing. Maybe they should chop her head off too like the "king's good servant-- but God's first" like St Thomas More. ...... We wont hold our breath waiting for the aclu or other "civil liberterians" to come to her defense since they are all arrayed on the gay side, to a man or should I say to a man and womyn?

  3. Perhaps we should also convene a panel of independent anthropological experts to study the issues surrounding this little-known branch of human sacrifice?

  4. I'm going to court the beginning of Oct. 2015 to establish visitation and request my daughters visits while she is in jail. I raised my grandchild for the first two and half years. She was born out of wedlock and the father and his adopted mother wantwd her aborted, they went as far as sueing my daughter for abortion money back 5mo. After my grandchild was born. Now because of depression and drug abuse my daughter lost custody 2 and a half years ago. Everyting went wrong in court when i went for custody my lawyer was thrown out and a replacment could only stay 45 min. The judge would not allow a postponement. So the father won. Now he is aleinating me and my daughter. No matter the amount of time spent getting help for my daughter and her doing better he runs her in the ground to the point of suicide because he wants her to be in a relationship with him. It is a sick game of using my grandchild as a pawn to make my daughter suffer for not wanting to be with him. I became the intervener in the case when my daughter first got into trouble. Because of this they gave me her visitation. Im hoping to get it again there is questions of abuse on his part and I want to make sure my grandchild is doing alright. I really dont understand how the parents have rights to walk in and do whatever they want when the refuse to stand up and raise the child at first . Why should it take two and a half years to decide you want to raise your child.The father used me so he could finish college get a job and stop paying support by getting custody. Support he was paying my daughter that I never saw.

  5. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

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