Caesars Riverboat Casino, LLC v. Kephart

CRONE, Judge,

dissenting.

In this appeal, we consider as a matter of first impression for this Court whether a casino-a gambling enterprise that owes its existence to, is regulated by, and is a source of revenue for the State of Indiana-has a common law duty to refrain from enticing to its premises a known pathological gambler who has not requested that she be removed from the casino's direct marketing list or exeluded from the casino. The majority concludes that no such duty exists. I respectfully disagree.

Kephart's counterclaim against Caesars sounds in negligence. "To make a successful negligence claim, a plaintiff must establish three elements: (1) a duty of care owed by the defendant to the plaintiff; (2) a breach of that duty; and (3) an injury proximately caused by the breach of that duty." Clark v. Aris, Inc., 890 N.E.2d 760, 763 (Ind.Ct.App.2008), trans. denied. "Duties which may be the bases of negligence actions may arise by operation of the common law or by statute." Dep't of Natural Res. v. Morgan, 432 N.E.2d 59, 62 (Ind.Ct.App.1982), trans. denied.

Caesars' motion to dismiss is premised on its assertion that it owed no duty to Kephart. In Stulajter, 808 N.E.2d 746, the principal case on which Caesars relies, the plaintiff, "a self-described compulsive gambler with a gambling alleged that the casino at which he lost approximately $70,000 "breached its statutory duty by sending him marketing materials and admitting him ... after he placed himself on [its] voluntary self-exclusion list." Id. at 747. The trial court granted Harrah's motion to dismiss, and Stulajter appealed.

Because the Stulgiter court's analysis addresses concepts mentioned below, I quote from it at length:

Stulajter claims in his complaint that he has a private right of action against Harrah's for its alleged violation of a statutory duty to maintain and honor the self-exclusion list required by Indiana gaming regulations. Thus, the threshold question is whether Stulajter has a right to bring a private cause of action under these circumstances.
*129To determine whether an individual has the right to a private cause of action for the violation of a statute, a court must first look at legislative intent. We have consistently held that a private cause of action will not be found where the legislature has expressly provided for enforcement of the statute.
In this case, the statutes that Stu-lajter claims Harrah's violated involve the regulation of riverboat gambling and expressly delegate authority for enforcement of the statutory provisions to the Indiana Gaming Commission (Commission). The Indiana legislature created the Commission and empowered it to adopt rules for the regulation of the gaming industry. The Commission is charged with providing for the prevention of practices detrimental to the public interest and providing for the best interests of riverboat gambling. IC 4-38-4-2(8). IC 4-33-4-2(5) authorizes the Commission to impose penalties for noneriminal violations of this article. IC 4-83-4-3(a)(5) specifically includes the levy and collection of penalties for noncriminal violations of statute as one of the Commission's mandates. That statute also requires the Commission to create a voluntary exclusion program, in which a person may agree to refrain from entering any establishment under the Commission's jurisdiction. IC 4-33-4-3(ce) sets out voluntary exelusion program requirements and provides an owner of a facility under the jurisdiction of the commission shall make all reasonable attempts as determined by the commission to cease all direct marketing efforts to a person participating in the program.["] IC 4-33-4-3(c)(6) (emphasis added).[8]
Furthermore, the Commission has created rules and regulations for the gaming industry, which are included in Indiana Administrative Code Title 68. Article six specifically establishes rules for exclusion and eviction from a casino. See Inp. Apum. Cop® tit. 68, r.6-1-1 et seq. (2002); Inp. Apmin. Copm tit. 68, r.6-2 et. seq. The general provisions section states ["][elach riverboat licensee shall have in place criteria for evicting persons and placing persons on its evietion list ... the eviction criteria shall include the following behavior ... (5) A person requests that his or her own name be placed on the riverboat licensee's eviction list.["] 68 IAC 6-2-1.
Stulajter claims that the statutes give rise to a private cause of action in this case because the harm is to an individual and not the public at large. We disagree with Stulajter's assertion that a private individual has the right to bring a cause of action for the failure to comply with the self-exelusion list requirement because the harm is a private injury instead of a general public injury. Appellant's Reply Brief at 6. The duty to determine the requirements of and enforce the voluntary exelusion program rests with the Commission. IC 4-83-4-S(a)(5); IC 4-83-4-3(c) Therefore, proper enforcement of IC 4-33-4-3 is through the Commission and not a private cause of action. If the legislature intended to create a right to a private cause of action under the Commission rules for riverboat gambling, it could have included such a provision. Because it did not do so, we conclude that Stu-lajter does not have the right to bring a private cause of action based on a violation of the self-exclusion program rules. If Harrah's is in violation of any of the stated statutory provisions, it must answer to the Commission, not a private *130citizen claiming harm from the alleged violation.
Gaming is a regulated industry. The legislature created the Commission and gave it the power to enact comprehensive regulations governing the operation of gaming facilities in Indiana and the power to enforce the regulations and penalize noncompliance. The legislature has not enacted provisions that make a casino operator liable for failing to find and evict a patron on its self-exclusion list before that patron gambles money in its casino. Instead, the legislature expressly provided that the standard of reasonableness for adherence to provisions of a voluntary exclusion program was to be determined by the Commission. See IC 4-33-4-3. We conclude that Indiana's gaming statutes and regulations do not create a private cause of action to protect compulsive gamblers from themselves.
Our conclusion today comports with the court's opinion in Merrill v. Trump Indiana, Inc., 320 F.3d 729, 732 (7th Cir.2008), in which a federal court applying Indiana law determined that a casino operator does not owe a duty to protect compulsive gamblers from themselves. The court noted that Indiana law does not recognize the existence of a duty between a tavern proprietor and its patrons and stated, ["]Indiana law does not protect a drunk driver from the effects of his own conduct, and we assume that the Indiana Supreme Court would take a similar approach with compulsive gamblers.["] Id.

Id. at 748-49 (bracketed quotation marks added) (some citations omitted).

In this appeal, Caesars asserts that

Kephart's claim here is even less persuasive than Stulajter's unsuccessful claim, because Kephart does not even allege that she placed herself on a voluntary exclusion list-in fact, it is clear from her Counterclaim that she never did. Even if she had made the request, she still would have no claim for failing to abide by its statutory obligations.

Appellant's Br. at 7 (citations omitted). Caesars fails to acknowledge, however, that Kephart's counterclaim is not based on an alleged breach of a statutory duty, but rather on an alleged breach of a common law duty9 The statutes regulating gambling do not specifically preclude the existence of a common law duty; in other words, the legislature has not specifically granted casinos immunity from common law tort claims.10 Consequently, I do not find Stulajter persuasive, let alone controlling, as Caesars also urges. See, eg., Picadilly, Inc. v. Colvin, 519 N.E.2d 1217, 1219 (Ind.1988) (disagreeing with tavern's assertion that "absent a violation of the statute prohibiting the furnishing of alcoholic beverages to intoxicated persons, there could be no independent common law lability for injuries caused by a customer's intoxication": "Rather than preempting the common law, [Indiana's dram shop] statutes designate certain minimal duties but do not thereby relieve persons from otherwise exercising reasonable care.").

Our supreme court has recognized that "[t]he strength and genius of the common law lies in its ability to adapt to the chang*131ing needs of the society it governs." Brooks v. Robinson, 259 Ind. 16, 22-23, 284 N.E.2d 794, 797 (1972). In determining whether a common law duty exists, courts must balance three factors: "(1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and (8) public policy concerns." Estate of Heck, 786 N.E.2d at 268 (citing Webb, 575 N.E.2d at 996). "Whether the defendant must conform his conduct to a certain standard for the plaintiff's benefit is a question of law for the court to decide. Courts will generally find a duty where reasonable persons would recognize and agree that it exists." Id. (citation omitted).

Before considering the three so-called Webb factors for purposes of this case, it is important to note that in Merrill, 320 F.3d 729, cited approvingly in Stulajter, the Seventh Circuit Court of Appeals rejected a compulsive gambler's statutory tort claim against the defendant casino11 and then considered his argument that the casino "owed him a duty of care under common law." Id. at 732. The court stated,

We can find no Indiana case addressing the extent of the duty owed by casinos to their patrons.[12] Indeed, it appears that no court has addressed the specific issue whether casinos can be sued in tort when they fail to evict a gambler who requests his own exclusion.
Courts elsewhere that have addressed the liability of casinos to injured plaintiffs have imposed on casinos no higher duty to their patrons than any on other business. Under Indiana law, a business owes its invitees a duty to take reasonable care for their safety. Merrill has never alleged in district court that [the casinol had not taken reasonable care for his safety or that he ever felt unsafe on the premises.
The closest analogy to Merrill's situation is that of a tavern's liability to exercise reasonable care to protect its patrons. In Indiana, a tavern proprietor serving alcohol can be held liable, under certain conditions, if an intoxicated patron injures another patron or a third party. But a patron who drives while intoxicated, causing his own injuries, cannot recover from the tavern that served him alcohol. Essentially, Merrill thinks that the casino should be held responsible for the destructive effects of his 1998 relapse into gambling. But Indiana law does not protect a drunk driver from the effects of his own con*132duct, and we assume that the Indiana Supreme Court would take a similar approach with compulsive gamblers.

Id. at 738 (citations omitted). Given that the court did not undertake a full-fledged Webb duty analysis, I do not find Merrill persuasive here.

A. Relationship Between the Parties

"In determining whether a relationship exists that would impose a duty, we must consider the nature of the relationship, a party's knowledge, and the cireumstances surrounding the relationship. A duty of reasonable care is not owed to the world at large, but must arise out of a relationship between the parties." Bowman, 853 N.E.2d at 990 (citation and quotation marks omitted). The facts alleged in Kep-hart's counterclaim, which we must accept as true for purposes of this appeal, indicate that Caesars, knowing Kephart to be a pathological gambler, offered her "enticements to gamble, such as free hotel rooms, meals, limousine transportation, and alcohol[.]" Appellant's App. at 71. Kephart succumbed to Caesars' enticements and was admitted to the casino. Caesars then issued her six counter checks totaling $125,000 "without obtaining sufficient information to know whether [she had] sufficient funds to cover the amounts of the checks[.]" Id.

Contrary to Caesars' suggestion in its reply brief, its relationship with Kephart is not akin to that of a retail store and a consumer who "spen[t] too much money." Appellant's Reply Br. at 10. A more fitting analogy is that of a tavern that entices a known alcoholic with free food and then allows him to run up a substantial bar tab without regard for his ability to pay.13 Caesars was aware of Kephart's gambling addiction, lured her into its casino with complimentary transportation, lodging, food, and drinks, let her gamble away $125,000 in borrowed funds without investigating her creditworthiness, and then sought to triple its take by suing her for treble damages plus attorney's fees.14 I would conclude that the unsavory cireum-stances surrounding this relationship support the imposition of a duty in this case.

B. Foreseeability of Harm

Our supreme court has stated that "[ilm-position of a duty is limited to those instances where a reasonably foreseeable victim is injured by a reasonable foreseeable harm." Webb, 575 N.E.2d at 997. Here, Caesars enticed a known pathological gambler from two states away to its casino and issued $125,000 in counter checks to feed her gambling addiction without checking her credit. Given that "[clasinos and other gambling enterprises do not go into business to lose money{,]" it is reasonably foreseeable-indeed, as the majority acknowledges, predictable-that Kephart would be injured by Caesars' actions. Schrenger, 825 N.E.2d at 883 n. 7. Consequently, I would conclude that this factor, too, supports the imposition of a common law duty of care.

C. Public Policy

In Williams v. Cingular Wireless, 809 N.E.2d 473 (Ind.Ct.App.2004), trans. de-mied, this Court observed,

*133"Duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of public policy which lead the law to say that the plaintiff is entitled to protection." Various factors play into this policy consideration, including convenience of administration, capacity of the parties to bear the loss, a policy of preventing future injuries, and the moral blame attached to the wrongdoer.

Id. at 478 (quoting Webb, 575 N.E.2d at 997).

If Caesars knew that Kephart is addict, ed to gambling, as we must assume for purposes of this appeal, it would have been a relatively simple matter to exclude her from its direct marketing efforts and from the casino itself, as it is already required to do with those who participate in the voluntary exclusion program described in Indiana Code Section 4-85-4-2. It stands to reason that Caesars has a substantially greater capacity than Kephart to bear the loss at issue, and it also stands to reason that society would favor a policy preventing future injuries like those allegedly suffered by Kephart.

From a moral standpoint, Caesars' predation and prosecution of a pathological gambler is repugnant, although it is not the only blameworthy entity in this case:

Historically, the State of Indiana has prohibited gambling. In 1988, following voter approval, the Indiana Constitution was amended deleting the general prohibition against lotteries and authorizing lotteries conducted by the State Lottery Commission. At its next session, the legislature proceeded to authorize horse race gambling. Then, in 19983, a special session of the General Assembly approved riverboat casinos as a lawful gambling activity.

Am. Legion Post No. 113 v. State, 656 N.E.2d 1190, 1192 (Ind.Ct.App.1995) (citations omitted), trans. denied (1996). Riverboat casinos such as Caesars are taxed at either a flat rate of 22.5% of adjusted gross receipts from gambling games or graduated rates ranging from 15% of the first $25,000,000 of adjusted annual gross receipts to 40% of adjusted annual gross receipts exceeding $600,000,000. Ind.Code §§ 4-38-13-1, -1.5.15 Casinos are required to remit these taxes to the Department of State Revenue "before the close of the business day following the day the wagers are made." Id. Given the apparent size and steadiness of the revenue stream generated by riverboat casinos, it seems clear that both the casinos and the State of Indiana share a common interest in gamblers-pathological or otherwise-losing as much money as quickly as possible.16 One wonders if Indiana's legislators-and, more importantly, their constituents-have any qualms about balancing the State's budget on the backs of gamblers, especially those who are least able to resist and/or afford gambling.17 I would conclude that *134public policy favors imposing a common law duty on Caesars in this case.18

D. Balancing of Duty Factors

In my view, all three factors militate in favor of imposing a duty on Caesars to refrain from enticing to its casino known pathological gamblers who have not requested that they be removed from the casino's direct marketing list or excluded from the casino. To hold otherwise would be to conclude that there is no level below which a casino (and thus the State of Indiana) may not go in enticing patrons and encouraging their reckless behavior.19 I believe that Hoosiers would expect more from their government and the businesses that operate here. Therefore, I would hold that Caesars does have such a duty and that the trial court properly denied its motion to dismiss Kephart's counterclaim. Having reached this conclusion, I believe that three additional considerations are worth mentioning.

First, to the extent Caesars argues that Kephart may not recover "economic losses alone, without any claim of personal injury or damage to other property" in a tort action, Appellant's Reply Br. at 9 (citation and quotation marks omitted), I note that Kephart has in fact alleged non-economic injuries, including emotional distress.20

Second, as for Caesars' argument that "[alllowing Kephart's claim to go forward would have the perverse result of encouraging compulsive gamblers not to participate in the voluntary exclusion program{,]" Appellant's Reply Br. at 11, I emphasize that a casino would owe a duty only to pathological gamblers of whom the casino has knowledge, not to other members of the public at large.

Third, I note that the viability of Kep-hart's counterclaim will not affect the viability of her affirmative defenses to Caesars claim for payment of the counter checks, including incompetency, impaired capacity due to intoxication, breach of the covenant of good faith and fair dealing, duress, and unconscionability.

8. This paragraph is now codified as Indiana Code Section 4-33-4-3(c)(5).

. As such, it is tempting to find Caesars' argument waived.

. If the legislature believes that casinos are free to exploit the most vulnerable among us for economic and tax gain, then they should explicitly indicate that is the public policy of our state. In the absence of such a declaration, I believe that the common law affords some minimum level of protection.

. The gambler in Merrill wrote to the casino in 1996, "asking that he be evicted from it if he ever showed up to gamble." 320 F.3d at 731. In 1998, Merrill entered the casino and sustained "substantial gambling losses{,]" after which he sued the casino under several different theories. Id. at 730. The district court dismissed some claims and entered summary judgment against Merrill on his statutory and common law tort claims. On appeal, Merrill argued that "Indiana statutory provisions and administrative regulations impose[d] a duty on [the casino] to exclude gamblers who ask to be placed on the casino's eviction list." Id. at 732. The Seventh Circuit noted that in 1998, when Merrill gambled at the casino, "no statute or regulation explicitly obligated Indiana casinos to honor self-eviction requests." Id. The Commission did not implement a regulation to this effect until 2000. Id. The court then determined that even if the regulation had been effective in 1998, "[gliven the extent of gambling regulation in Indiana, ... the Indiana Supreme Court would not conclude that the legislature intended to create a private cause of action." Td.

12. The lack of Indiana cases on this topic is hardly surprising, given that riverboat casinos (and thus actions for collection of casino gambling debts) were not legalized until 1993. Schrenger, 825 N.E.2d at 882-84. As more and more states legalize gambling to raise revenue, one may anticipate that the common law in this area will continue to evolve.

. It is interesting to note that the Indiana General Assembly has criminalized the sale of alcoholic beverages to known "habitual drunkards." See Ind.Code §§ 7.1-5-10-14 (prohibiting such sales); 7.1-5-1-8 (setting criminal penalty as a class B misdemeanor).

. It is estimated that "27 percent to 55 percent of all casino revenues come from just pathological gamblers[.]" John Warren Kindt, "The Insiders" for Gambling Lawsuits: Are the Games "Fair" and Will Casinos and Gambling Facilities be Easy Targets for Blueprints for RICO and Other Causes of Action?, 55 Mercer L.Rev. 529, 545 (Winter 2004) (footnote omitted).

. The graduated tax rates apply to casinos that operate under a "flexible scheduling plan," pursuant to which they may "conduct gambling operations for up to twenty-four (24) hours per day." Ind.Code § 4-33-6-21. The record does not indicate whether Caesars operates under a flexible scheduling plan.

. Indiana Code Section 4-33-4-3(a)(1)(A) provides that the Commission shall adopt rules that it "determines necessary to protect or enhance ... [t]he credibility and integrity of gambling operations authorized by this article." Given that people are more likely to gamble if they believe that a game is conducted honestly, one may conclude that the legislature's emphasis on "credibility and integrity" is not purely altruistic but instead is directed toward maximizing profits for the casinos and thus tax revenues for the State.

. One also wonders if Indiana's gaming regulations-and the Commission, which is responsible for enacting and enforcing them-*134offer sufficient disincentives to deter the insidious conduct allegedly performed by Caesars in this case.

. In arguing to the contrary, Caesars makes much of the fact that casinos are a heavily regulated industry. These regulations are designed primarily to ensure an accurate accounting of a casino's gambling revenues and thus to protect the State's financial interests, as opposed to the interests of individual gamblers.

. The majority asserts that "Kephart has a responsibility to protect herself from her own proclivities and not rely on a casino to bear sole responsibility for her actions." Slip op. at 15. I believe that Kephart's ability to protect herself should be considered only in determining comparative fault, not in determining whether Caesars owes a duty to Kephart in the first instance. See City of Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222, 1244 (Ind.2003) ("'Under comparative fault, the trier of fact can allocate fault to multiple contributing factors based on their relative factual causation, relative culpability, or some combination of both.").

. To the extent Caesars suggests that it did not breach any duty of care or proximately cause Kephart's alleged damages, I observe that these issues were not the bases for its motion to dismiss and may be litigated on summary judgment or at trial.