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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. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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