*1 сonstructive, notice, charged obtaining knowledge of all facts had means of actual or use."). which he did not showing recited in such records encum- brances, non-payment purchase- or the From our review of record before omitted). (citation money." "A record Id. us, Bridge designat- we conclude that Bay provide the chain of title does not outside it establishing ed evidence that was a bona purchasers to bona fide for value." notice value, and Kumar purchaser fide failed Smith, (quoting Szakaly Id. at 648-49 v. designate any evidence that would cere- (Ind.1989)). genuine ate a issue of material fact on this Therefore, properly issue. the trial court Kumar failed to record his tax deed granted Bay Bridge's motion for summary required by as section 32- Code judgment complaint quiet on its title. 21-4-1, and it remained unrecorded until Affirmed. Bay Bridge complaint after filed its Therefore, Bay Bridge title. did not quiet BAKER, C.J., BROWN, J., concur. notice of inter have constructive Kumar's Key in the real at est estate issue.3 See ("Constructive
bank,
notice is a deed or mort when
gage properly acknowledged placed statute[.]"). required by
on the record as notice, regard prior With to actual CASINO, RIVERBOAT CAESARS Bay purchasing property, Bridge re- LLC, Appellant-Plaintiff- search, quested a title which "found of Defendant, Counterclaim record no no certificate of tax pendens, lis sale, deed, any no tax nor other record KEPHART, Appellee property
interest of Atul Kumar in the Genevieve M. purchased Bay Bridge." Appellant's -Defendant-Counterclaimant. Moreover,
App. p. Kumar 80. did No. 31A01-0711-CV-530. designate any evidence to the trial court Appeals of Indiana. Court had Bay Bridge which would establish actual notice of his claimed interest March 2009. ("Notice property. See id. is actual when Rehearing May Denied 2009. directly personally notice been [has] given person to be notified. Addi-
tionally, may implied actual notice be person
inferred the fact unpersuaded by argument Reply Appellant person 3. We are "A Kumar's Br. of Bay Bridge had constructive notice of the charged searching with the the rec tax sale because the of the tax sale records particular property ords of tract of is not on County were available in the Lake Court whiсh notice of adverse claims do not essentially Clerk's office. Kumar dismisses title; because, appear in the chain of other the fact that his failure to record his tax deed wise, recording prove statute would years litiga- for over four has resulted in the snare, protecti on." Keybank, instead of a states, inaccurately tion at issue. Kumar Moreover, "an otherwise val N.E.2d at 327. have ameliorated the "[wJhile situation id instrument which is ... recorded out of the somewhat if Kumar had recorded his Tax involved, operate title chain of does not constructive Bay Bridge Deed before became this should not affect the outcome of this matter." notice[.]" *3 Price,
Gene F. Steven P. Langdon, Todd, LLC, Frost Brown IN, Albany, New Attorneys Appellant. dam- emotional, P.C., mental, psychological Law, Noffsinger Noffsinger, Terry relation- strained destroyed ages; Attorney Appellee. and/or
Evansville, IN,
friends;
members
family
ships with
OPINION
or other
doctor, hospital, pharmaceutical,
life
quality of
loss of
expenses;
medical
MATHIAS, Judge.
life;
expenses
and other
enjoyment of
("Cae-
Casino, LLC
Riverboat
Cаesar's
yet
to her.
known
sar's")
Court
in Harrison Cireuit
filed suit
the counter
to dismiss
moved
Caesar's
("Kep-
M.
alleging that Genevieve
12(B)(6) and
to Trial Rule
pursuant
claim
hart")
to cover
provide
funds
failed
*4
motion. Cae
denied that
trial court
at Caesar's
gambling
while
checks written
that
requesting
filed a motion
sar's
al-
Kephart countersued
establishment.
interlocutory
for
certify its order
court
trial
advantage of her
took
that Caesar's
leging
granted
court
The trial
app
unjustly
condition
pathological gambling
eal.2
accepted in
itself,.
subsequently
and we
request
Rule
filed a Trial
Caesar's
enrich
terlocutory jurisdiction.
12(B)(6)
counterclaim.
on
motion
and
motion
denied
The trial court
Caesar's
of Review
Standard
Concluding
appeals.
Caesar's
Trial
under
A motion to dismiss
provide
law does
Indiana's common
12(B)(6)
legal
sufficien
only
tests
Rule
negli-
cause of action
Kephart
private
support
facts
not the
complaint,
of the
cy
in the form
against Caesar's
gence
Hays, 867 N.E.2d
Thompson v.
ing it.
counterclaim,
reverse.
we
denied.
trams.
654,
(Ind.Ct.App.2007),
History
Facts and Procedural
complaint
only
mаy
look
The court
in the
2006,
to other evidence
18,
visited Cae-
not look
March
and
On
dismiss should be
hotel
Id. A motion to
offered her a free
record.
sar's after Caesar's
in the com
room, drinks,
only
alleged
at the
if "facts
granted
and meals. While
$125,000
supporting
relief
casino,
incapable
and lost
are
Kephart gambled
plaint
Godby
of six
of cireumstances."
evening through the use
under
set
single
in a
(Ind.Ct.
Whitehead,
N.E.2d
to her
Cae-
provided
checks
counter
will review
trans. denied. We
App.2005),
sar's.
a motion to dismiss
ruling on
a trial court's
re
checks were
Subsequently, Kephart's
N.E.2d at 656.
122 Section However against Caesar's. claim per where, reasonable general, duty lability for the landowner subjects that it agree it and recognize sons (Second) of Restatement harm. physical v. Fos Co. Gariup Construction exists." counter- (Ind.1988) (1965). § 1224, 1227 Torts
ter, N.E.2d physi- any direct allege claim, she does Keeton, Prosser & J. Prosser (quoting W. improvement a condition from cal harm (5th at 359 Torts on & Keeton asserts rather but premises, upon Caesar's the law ed.1984)). whether To determine mental, emotion- caused that Caesar's part on the obligation any recognizes Therefore, distress. al, psychological a cer its conduct conform Caesar's distinguish- 343 is Section believe we plaintiff benefit for the standard tain Jarvis, able. Webb law. question is a (Ind.1991). To determine 992, 995 N.E.2d to look for us instructive also It is (1) the exists, must look
if a we goods sell who owners business to other (2) the parties, relationship between ex order public and services harm to foreseeability of reasonable it is While to invitees. their duties amine con policy public injured, person patrons owe owners that such clear compo examine each Id. We will cerns. risks while physical from protect them in turn. nent have not discovered premises, we on imposes state any case law the Parties Relationship between A. Kep- that which duty such as an additional *6 the rela Kephart argues For on Caesar's. impose to hart seeks a that of is parties the tionship between no com have stores department example, To deter proprietor. invitee business goods tо sell to duty refuse mon law exists, we relationship a mine whether shopper. compulsive to a known services relationship, the the nature of must look to may have shopper a that such The fact circum and the knowledge, party's a become funds used will the borrowed relationship. the surrounding stances a third- own or store's to the indebted Co., 694 Pipeline E. Downs v. Panhandle pur the company for card eredit party 1198, (Ind.Ct.App.1998), 1203 N.E.2d respon store's department not chase is care duty "A of reasonable trans. denied. compulsiveness if the invitee's sibility, even must large, at but to the not owed world is rela that Caesar's We believe is known. relationship between of a arise out the same. much Kephart is tionship to v. Bowman ex rel. Bowman parties." (Ind.Ct.App. Foreseeability 984, B. N.E.2d 990
McNary, 853 rela 2006). that the has Kephart duty only a impose willWe at trip gamble to on her tionship is based victim foreseeable reasonably a where invitation. upon casino Caesar's Caesar's harm. reasonably foreseeable by a injured duty of 997. "The Webb, at Meads, 575 N.E.2d 569 Burrell v. cites to course, not, owed of (Ind.1991), propo- care is 637, 639 reasonable N.E.2d to those who but rather large, the world like Caesar's a business owner sition being foreseen reasonably be might to use invitees duty to its business owes of by the breach injury subject while protection for their care reasonable Inc., 489 Beverage, Faygo v. Thiele duty." premises. on the landowner's they are An in (Ind.Ct.App.1986). 574 N.E.2d Burrell court's to the refers Then she and an duty aof the existence into quiry (Second) of the Restatement adoption are concerned cause proximate into inquiry support 348 Torts Section
123
telephone pole
placement
& tion with its
factors. Prosser
exactly the same
roadway.
near a
look
Keeton,
inquiries
Both
supra,
challenged con-
consequences of the
to the
However,
of cases follows a
majority
by the
been foreseen
that should have
duct
narrowly
more
thought
second line of
it.
engaged in
actor who
and focuses on the
inquiry
defines
facts of the situation
deter
particular
handed down
v. Jarvis was
Since Webb
In NIP
foreseeability
duty.
mine the
concept
court in
supreme
Sell,
(Ind.Ct.App.
329
v.
SCO
duty
developed
has
forеseeability
as to
1992),
portion
the traveled
a motorist
left
The first has
thought.
lines of
into two
utility pole.
and struck a
Our
of a road
a broad definition
sought
apply
this
court concluded that
in some cases
the broad
foreseeability that considers
situa
reasonably
be a
foreseeable
harm involved without
type
plaintiff
Sell,
however,
tion,
the facts of
such
under
the actual occur
to the facts of
regard
reasonably foreseeable.
a situation
was
Grubbs, 672
Goldsberry v.
rence. See
analysis focused on the
Id. at 834. Our
trans.
(Ind.Ct.App.1996),
N.E.2d
situation,
particular
particular facts
denied;
Cingular
v.
see also Williams
Id. Other cases
general
not on
concerns.
Wireless,
(Ind.Ct.App.
NE.2d 473
analysis to
the Sell court's
have followed
2004), trans. denied.
v.
foreseeability.
eg.
determine
See
State
Cornelius,
(Ind.Ct.App.
N.E.2d 195
GTE,
Goldsberry,
plaintiff
sued
1994);
Staggs,
Indiana Limestone Co.
others,
negligent place-
among
alleging
(Ind.Ct.App.1996).
Our
duty foreseeability
dressed the
of
but
issue
general
rule in sports injury
indirectly
did
the issue
in Estate
address
that, "voluntary participants
cases is
Stoffer,
Heck ex rel. Heck
786 N.E.2d
of
sports
.
activities
cannot
recover
(Ind.2003).
case,
In
the court
injury unless it can be established that the
specific
looked to the
facts to determine
participant
other
intentionally
either
whether the harm
indeed foreseeable
was
injury
caused
engaged
conduct so
specifically
but
to take a nar
"decline[d]
totally
reckless as to be
outside the range
foreseeability
row view Webb's
of harm
ordinary activity
sport."
involved
prong[.]"
Id. at 269. The court deter
Moser,
(Ind.
Mark v.
parеnts
fugitive
mined that the
Mark,
Ct.App.2001). In
that "it
we held
police
to an
owed
officer who was
question
the determination of
fugitive
shot
to exercise reasonable
court,
whether
the injury-causing
ordinary
storage
care in the
and safe
event
reasonably
was
inherent or
fore
keeping of
parents' handgun
used in
part
seeable
game[.]"
Id. at 420.
genuine
the crime and
issue of
material fact existed as to whether the
Bowman
ex
McNary,
rel. Bowman v.
parents breached that duty. This would
3. The ing activity Bowman court also held even in a be conscious of his or her sporting activity, liability might misconduct; attach for in- (2) by motivated indifference juries by safety caused the co-participant reckless conduct of a the co-partici- or participant. Bowman determined that "reck- pants; know that his or her conduct requires participant sport- lessness that a in a subjects co-participant co-participants or to reasoning comfortably gamblers, compulsive otherwise, This extends to For or Beyond being before us. foresee- just shoppers, compulsive the case as for or other- able, knowledge it is common that more wise, marketing by a vendor is not reck- money by patrons lost than is won at less conduct.
any casino. Common sense tells a reason-
Policy
C. Public
gamblers, compulsive
and all
person
able
otherwise,
usually
that "the
house
"Duty is not sacrosanct in it
wing." It is also foreseeable that market-
self,
only
but is
expression
the sum
the casino
lead an
ing
individual
total of
public poli
those considerations of
gamble
lose
the casino.
cy
say
which lead the
casino,
plaintiff
Webb,
protection."
is entitled to
patron wagers
"When a
at a
he is
casino,
wager and lose the amount at issue. We are speech guaranteed by commercial free as sympathetic also to the fact that Indiana Code However, First Amendment. Caesar's raised 34-24-3-1(1999) may section authorize Cae- no First Amendment defense and we will damages attorney sar's to recover treble and speech implica- therefore not address the free fees for the checks that were dishonored. marketing. tions of a restriction on casino However, regulation we believe that of this Indiang 1-12 controls revoke, Administrative Code to power The operations. their complimentary use conditions on the casinos place or how restrict suspend, marketing purposes. for with Commis- or tokens chips licenses rests gaming § The Com- statutory 4-83-4-8. frame may argue Ind.Code that this sion. One fines and take impose may also enough protection mission provide does not work com- argu necessary to ensure but that compulsive gamblers, for other actions Id.; 68 law. gaming Indiana's pliance addressed to the properly more ment is 13-1-21(b). TA.C. Assembly.5 General or to the Commission and power having to In addition regulate gaming and duty to administer Balancing Duty Factors D. of ordered to Indiana, is also the Commission Kephart and relationship The between preventing purpose rules for adopt Heck, Sell not remote. Under is Caesar's public are detrimental
practices that quite foresee- Goldsberry, the harm is and the best inter- for "providing interest and However, able, the bi- predictable. indeed § 4-83-4- gambling." Ind.Code ests [] foreseeability of the harm associat- lateral 2(8). required is further The Commission support does gambling ed with "imposing penalties adopt rules for duty on of a common law establishment article." Ind. of this noneriminal violations opportuni- small The part Caesar's. 4-83-4-2(5). § Code likelihood of and the substantial ty to win authority, of its the Com In the exercise act and implicit gambling in the losing is implemented established mission reasonably equally foreseeable to Ind.Code voluntary program. exclusion alike. See and to the the casino 4-33-4-3(a)(9). also Commission Moreover, Schrenger, telephone number a toll-free established operators compul- marketing casino of com and treatment prevention for the conduct. is not reckless gamblers sive in each river posted be pulsive ticket and uses and on each admission boat importantly, public policy does not Most revenues to combat portion gaming imposition of a unilateral support the § 4-33- gambling. Ind.Code compulsive protect compulsive gamblers on casinos 4-12.2; § 4-838-12-6. Casino Ind.Code marketing casinos' activities from the through complimen marketing, directly or Assembly has made hosting. The General items, by the tary regulated Commission legalize gam- decision to public policy 4-83-4-3 аnd 68 in Indiana section Code statutory regu- up and has set bling 1-12-1 et Indiana Administrative Code how casinos do latory govern framework to 4-83-4-3 re section seq. Code business in Indiana. promulgate the Commission quires that, if to assume under Even we were operators to require rules that casino counter- presented the facts attempts, as deter make all reasonable claim, does indeed owe Caesar's Commission, to cease all mined gamblers beyond that which is compulsive person partic to a marketing direct efforts invitee, Kep- other business program. 68 owed in the self-exclusion ipating currently eight do not vania. Another states regulations in states that cur- 5. A review of program problem have a self-exclusion iwelve have rently allow reveal Colorado, Delaware, regulation providing for a self- legislation or gamblers: compulsive list; Indiana, Florida, Illinois, Island, Loui- Mexico, Oklahoma, Towa, exclusion *10 New Rhode Missouri, siana, Maine, Michigan, Mississippi, Dakota, Virginia. and West South York, Nevada, Pennsyl- Jersey, New New and tips hart's own behavior the balance of Although we have supra held that section Despite factors. knowledge of her 348 is distinguishable because Kephart was proclivity towards compulsive gambling, not physically by harmed a condition on or Kephart took no action to cut off her ties improvement estate, to real implicit in see- with Additionally, casinos. Kephart only tion 348 is a responsibility on the part of decided seek treatment losing after invitees to take reasonable measures to large money amount of that she could not discover or dangers realize and to protect pay back. While Caesar's actions in allow- against themselves dangers. those Kep- ing her to write six checks totaling hart actually knew the dangers involved in $125,000 are extremely concerning and gambling and could easily have protected should be by examined the Commission against herself those dangers but appar- under Indiana 4-83-4-2(8), Code section ently chose not to do so. Kephart has a responsibility protect In this regard, Kephart have, could but herself from proclivities her own and not failed to participate in the self-exclusion rely on a casino to bear responsibility sole program by established the Commission, for her actions. through which compulsive gamblers can argued has that the Restate- voluntarily exclude themselves from casi (Second) ment applies Torts section 343 nos and casinos are called upon to make to Caesar's under pleaded the facts in her their best efforts to avoid marketing to counterclaim. Appellant's Br. p. 6. The them prevent and to them from entering Restatement provides, section 343 in perti- and gambling at the casinos. Stulajter part, nent that: tells us that that solution, likely no possessor A of land subject to liability solution, other will perfect be a solution to for physical harm caused to his invitees gambling abuses. But in a heavily-regu by if, a condition on if, the land only but lated industry like gaming, the issues he by Kephart's raised counterclaim are most (a) knows or exercise of reasonable properly directed to the Indiana Gaming care condition, would discover Commission and to the General Assembly, and should realize that it involves they where can be considered as matters invitees, unreasonable risk to public policy which are the sole and (b) expect should they that will not dis- proper province of the legislative branch of cover or realize the dangers, or will government.6 protect it, against themselves fail legalization The and regulation gam- (ec)fail ing is not that different in concept than the to exercise reasonable care to
protect them against the danger. legalization regulation of alcohol sales Inc., In Taveras v. Resorts Int'l. Hotel notable recognition court's No. 07-4555, 4372791, *5, 2008 WL Slip op. State expressly had absolved casinos from (D.N.J. 19, 2008), liability Sept. failing the court to exclude self-excluded determined there was no common law persons contrast, gambling. required the compulsive casinos to restrain regulatory Indiana's already framework gamblers. recognized It majority place provides subject casinos shall be authority disciplinary support finding does not action under 68 LA.C. 13 for fail- a common ing duty. comply requirements Taveras court also determined related to Jersey's that based on "extraordinary[,] New others, persons, self-excluded among pervasive "knowingly refusing to withhold direct mar- gaming regulations, and intensive" appear deliberately that the State keting, cashing, check privileges." and credit impose chose not to duty. 6-3-4(e)(2). such a Id. Also 68 LA.C. *11 against Caesars counterclaim Kephart's le- regulated are which consumption, make a suc "To negligence. sounds and admin- Assembly General gally by claim, must plaintiff negligence cessful Tobacco Alcohol and istratively by (1) of three elements: establish Indeed, this observation Commission. plaintiff; by the defendant owed care exten- straightforward ato brings us back (3) injury duty; and of that a breach by the forth put first analogy of sion the breach of caused proximately ago years more than five Circuit Seventh Aris, Inc., N.E.2d v. duty." Clark in Merrill. trans. denied. (Ind.Ct.App.2008), Conclusion negli of the bases may be "Duties which reasons, the facts these For all of of by operation may arise actions gence "are in Kephart's counterclaim alleged Dep't byor statute." the common undеr set relief supporting capable 59, 62 Morgan, Natural Res. N.E.2d at Godby, 837 of cireumstances." trans. denied. (Ind.Ct.App.1982), duty obli no commonlaw There is 149.7 premised dismiss is motion to Caesars' to refrain operator a casino gating duty to that it owed no on its assertion gamblers or contact to entice attempting N.E.2d Stulajter, 808 Kephart. compul are know it knows or should relies, case on which Caesars principal dismiss motion to gamblers. Caesar's sive compulsive "a plaintiff, self-described 12(B)(6) should therefore Rule under Trial al gambling awith by the trial court. granted have been he lost the casino which leged that Reversed. $70,000 its statu "breached approximately marketing mate sending him
tory duty by placed ... he admitting him after rials J., DARDEN, concurs. voluntary self-exclusion himself on [its] CRONE, J., separate dissents with granted The trial court Id. at 747. list." opinion. dismiss, Stulajter motion to Harrah's appealed.
CRONE, dissenting. Judge, analysis Stulgiter court's Because a matter we consider as appeal, In this below, I concepts mentioned addresses whether impression for this Court of first length: it at quote from enterprise that owes a cаsino-a complaint Stulajter claims his is a to, regulated by, and its existence against right of action private has a he the State revenue source its violation Harrah's for duty to re- a common law Indiana-has maintain and honor statutory duty to enticing premises its a known frain from by Indiana required list request- self-exclusion who has not pathological gambler Thus, thresh- regulations. removed from the casino's ed that she be Stulajter has is whether question old from the marketing list or exeluded direct cause of action bring private right no majority concludes casino. circumstances. under these disagree. I respectfully exists. such checks, including incompetency, im- agree Judge Crone's dissent in We counter capacity, of the covenant opinion paired are limited to breach in this our observations duress, dealing, and are not intended and un- Kephart's counterclaim fair good faith and right affirmative to assert conscionability. limit payment of the claim for to Caesar's defenses *12 To determine whether an individual gaming industry, which are included in right has the private to a cause оf action Indiana Administrative Code Title 68. for the statute, violation of a a court Article six specifically establishes rules must first look at legislative intent. We for exclusion and eviction from a casino. have consistently held that private Inp. Apum. Cop® See tit. r.6-1-1 et cause of action will not be found where Inp. Apmin. Copm seq. (2002); tit. legislature the has expressly provided r.6-2 et. seq. general provisions for enforcement of the statute. section states ["][elach riverboat licensee case, In this the statutes that Stu- shall have in place criteria for evicting lajter claims Harrah's violated involve persons and placing persons on its evie- regulation the of riverboat gambling and tion list ... the eviction criteria shall expressly delegate authority for enforce include the following behavior ... A ment of the statutory provisions to the person requests that his or her own (Commis Indiana Gaming Commission name be placed on the riverboat licen- sion). The legislature created see's eviction list.["] 68 IAC 6-2-1. the Commission empowered it to Stulajter claims that the statutes give adоpt rules for regulation of the rise private to a cause of action in this gaming industry. The Commission is case because the harm is to an individual charged with providing for preven and not the public at large. We dis- tion of practices detrimental to pub agree with Stulajter's assertion that a lic interest and providing for the best private individual has right to bring interests of riverboat gambling. 4- IC a cause of action for the failure to com- 38-4-2(8). 4-33-4-2(5) IC authorizes ply with the self-exelusion list require- the Commission to impose penalties for ment because the harm is a private inju- noneriminal violations of this article. IC ry instead of general public injury. 4-83-4-3(a)(5) specifically includes Appellant's Reply at 6. levy and The duty collection penalties for non Brief to determine the requirements criminal violations of statute as one of enforce the voluntary the Commission's exelusion program mandates. That stat rests with the ute also requires Commission. the Commission IC 4-83-4- to cre ate a voluntary exclusion program, S(a)(5); 4-83-4-3(c) IC Therefore, proper which a person may enforcement agree to of IC refrain 4-33-4-3 is through entering any establishment Commission under and not a pri- jurisdiction. Commission's vate cause of action. IC 4-33- If legislature 4-3(ce) sets out voluntary intended to create a right private to a exelusion pro gram requirements cause of provides action under the Commission rules an owner of a facility under for riverboat gambling, it could jurisdiction of the commission shall have included such provision. Because make all reasonable attempts as deter it did so, not do we conclude that Stu- mined by the commission to cease all lajter does not have the right to bring a direct marketing efforts to a person par private cause of action based on a viola- ticipating in the program.["] IC 4-33- tion of the self-exclusion program rules. 4-3(c)(6) added).[8] (emphasis If Harrah's is in violation Furthermore, the Commission has statutory stated provisions, it must an- created rules and regulations for the swer to the Commission, private not a 8. This paragraph is now codified as Indiana Code 4-33-4-3(c)(5). Section *13 (bracketed marks quotation Id. at 748-49 alleged the from claiming harm citizen omitted). added) (somе citations
violation. that asserts Caesars appeal, In this industry. The regulated a Gaming is per- less is even here claim Kephart's and the Commission created legislature unsuccessful Stulajter's than suasive comprehen- to enact power the gave not even does claim, because operation the governing regulations sive on a volun- herself placed she allege that the and Indiana facilities gaming clear fact, it is list-in exclusion tary regulations the to enforce power never she that her Counterclaim from legislature The noncompliance. penalize request, the made had if she Even did. amake that provisions enacted not has failing claim for no have still would she to find failing for liable operator casino statutory obligations. by its abide to on its self-exclusion patron a and evict omitted). (citations Br. at 7 Appellant's money gambles patron that before list however, acknowledge, to fails Caesars ex- Instead, legislature the casino. its based is not counterclaim that the standard provided pressly duty, statutory aof breach on an provi- adherence of a com reasonableness alleged breach rather on but program voluntary regulating exclusion statutes duty9 The sions of mon law the preclude specifically Commis- not do be determined towas in other duty; law a common conclude existence 4-33-4-3. We IC See sion. specifically not has words, legislature regu- statutes that Indiana's common from immunity casinos granted cause private create not lations do I do not Consequently, claims.10 tort law gamblers compulsive protect action control let alone Stulajter persuasive, find from themselves. See, Pi eg., urges. also as Caesars ling, comports with today Our conclusion 1217, Colvin, N.E.2d 519 v. Inc. cadilly, Trump v. in Merrill opinion court's tavern's (Ind.1988) with (disagreeing 1219 (7th Inc., 732 Indiana, F.3d of the a violation that "absent assertion apply- court Cir.2008), a federal in which of alco furnishing prohibiting statute a casino determined Indiana law ing persons, to intoxicated beverages holic duty protect not owe common does independent operator no could be there themselves. gamblers compulsive a cus caused injuries lability for law law does Indiana than noted that "Rather court intoxication": tomer's law, [Indiana's the existence common recognize not preempting min certain pa- designate and its shop] statutes proprietor a tavern dram between per relieve thereby do not but imal duties does stated, law ["]Indiana trons exercising reasonable from otherwise sons from the effects a drunk driver protect care."). conduct, assume and we of his own recognized take court has supreme Court would Supreme Our common of the genius gam- strength compulsive "[t]he approach similar chang- adapt to ability to in its lies law
blers.["]
policy public
is the
argu-
such,
indicate
explicitly
find Caesars'
tempting it is
9. As
a declara-
of such
absence
In the
state.
our
ment waived.
affords
tion,
law
common
that the
I believe
are
that casinos
legislature believes
If the
protection.
level of
minimum
some
among us
vulnerable
exploit the most
free to
they
gain, then
should
and tax
economic
can be sued
tort
casinos
issue whether
governs."
society it
needs
ing
fail to evict a
who
they
22-23,
when
Robinson,
259 Ind.
Brooks
(1972). In determin
exclusion.
his own
requests
N.E.2d
exists,
a common
ing whether
that have addressed
elsewhere
Courts
"(1) the
factors:
three
must
courts
balance
injured plain-
liability of casinos
(2) the
parties,
relationship
between
higher
on casinos no
imposed
tiffs have
*14
harm to the
foreseeability of
reasonable
other
than
on
duty
patrons
to their
con
public policy
and
injured,
person
law, a busi-
Indiana
Under
business.
Heck,
at 268
786 N.E.2d
Estate
cerns."
duty to take
invitees a
ness owes its
996).
Webb,
at
"Wheth
(citing
safety. Merrill
care for their
reasonable
conduct
conform his
must
er the defendant
that
in
court
district
has never
plaintiff's
for the
standard
to a certain
not
taken reasonable
had
[the casinol
court to
for the
a
of law
question
benefit
safety or that he ever felt
for his
care
duty
a
find
generally
will
Courts
decide.
premises.
on the
unsafe
recognize
persons would
reasonable
where
(citation
Id.
that
it exists."
agree
analogy to Merrill's situa-
The closest
liability to
omitted).
a
exer-
tion is that of
tavern's
protect
pa-
cаre to
its
cise reasonable
three so-called
considering the
Before
Indiana,
proprietor
a
In
tavern
case, it is
of this
purposes
factors for
Webb
trons.
liable, under
can be held
serving alcohol
Merrill,
in
320 F.3d
that
to note
important
conditions,
pa-
if an intoxicated
certain
Stulajter,
in
729,
approvingly
cited
a third
patron
another
or
injures
tron
rejected
Appeals
Court
Seventh Circuit
patron
while
But a
who drives
party.
statutory tort
compulsive gambler's
a
intoxicated,
injuries,
causing his own
casino1
the defendant
against
claim
that
from the tavern
cannot recover
the ca
argument that
his
then considered
Merrill
Essentially,
him alcohol.
com
served
duty of care under
him a
"owed
sino
should be held
the casino
thinks
stated,
The court
Id. at 732.
mon law."
effects of
the destructive
responsible for
addressing
case
can find no Indiana
We
But
gambling.
into
relapse
his 1998
by casinos
owed
the extent
a drunk
Indeed,
appears
protect
does not
Indiana law
patrons.[12]
to their
con-
of his own
from the effects
specific
driver
addressed the
that no court has
regulation
effect until
implement
to this
not
a
the casino
gambler in Merrill wrote to
11. The
1996,
if
"asking
from it
then determined
that he be evicted
Id. The court
in
2000.
gamble."
F.3d at
up to
regulation
he ever showed
effective
if the
had been
even
entered the casino
Merrill
gambling regula-
"[gliven the extent of
losses{,]"
gambling
af-
"substantial
sustained
Indiana,
Supreme
...
the Indiana
tion in
under several
he
the casino
ter which
sued
legislature
that the
would not conclude
Court
The district
Id. at 730.
different theories.
private cause of action."
create a
intended to
and entered
some claims
court dismissed
Td.
against Merrill on his
summary
judgment
tort claims. On
statutory and common law
topic
on this
Indiana cases
12. The lack of
statutory
argued
"Indiana
appeal,
Merrill
hardly surprising, given that riverboat casinos
regulations im-
provisions and administrative
gam-
(and
of casino
actions for collection
thus
to exclude
pose[d]
casino]
on [the
debts)
legalized until 1993.
bling
were
placed
the casino's
gamblers
to be
on
who ask
As more
Schrenger,
N.E.2d at 882-84.
The Seventh Cir-
Id. at 732.
eviction list."
legalize gambling to raise
states
and more
gambled
when Merrill
cuit noted that
revenue,
anticipate
common
that the
one
casino,
explic-
regulation
"no statute
will continue to evolve.
area
law this
self-
obligated
to honor
itly
Indiana casinos
did
requests."
The Commission
Id.
eviction
ting analogy
is that of a tavern that entices
duct,
and we assume
a known alcoholic
free
food and then
Supreme
ap-
Court would take
similar
him
up
allows
to run
a substantial bar tab
compulsive gamblers.
proach with
regard ability
pay.13
without
his
(citations omitted).
at 738
Given
Caesars
was aware
full-fledged
the court did not undertake a
addiction,
her
lured
into its casino with
I
duty analysis,
do not find Merrill
Webb
complimentary
transportation,
lodging,
persuasive here.
food,
drinks,
gamble away
let her
$125,000 in
funds
borrowed
without inves
Relationship
A.
Between the Parties
tigating
creditworthiness,
and then
determining
relationship
"In
whether a
sought
triple
by suing
its take
her for
impose
duty,
exists that
we must
damages
treble
plus attorney's fees.14 I
relationship,
consider the nature of the
would conclude that the unsavory cireum-
*15
party's knowledge, and the cireumstances
surrounding
stances
this relatiоnship sup
A
surrounding
relationship.
duty of port
imposition
of a
in this case.
reasonable care is not owed to the
world
Foreseeability
B.
of Harm
large,
relationship
but must arise out of a
supreme
Our
court has stated that "[ilm-
Bowman,
parties."
between the
853
position of a duty is limited to
in-
those
(citation
quotation
N.E.2d
at 990
stances where a reasonably foreseeable
omitted).
marks
alleged Kep-
facts
injured by
victim is
a reasonable foresee-
counterclaim,
hart's
which
accept
we must
Webb,
able harm."
Contrary to Caesars' suggestion in its Policy C. Public reply brief, relationship its Kephart not akin to that of a retail store and a Wireless, v. Cingular Williams 809 "spen[t] consumer money." who too much N.E.2d 473 (Ind.Ct.App.2004), trans. de- Appellant's Reply mied, Br. at 10. A more fit- observed, this Court interesting 13. It is pathological to note that the Indiana gamblers[.]" John Warren Assembly General Kindt, has criminalized the sale of Gambling "The Insiders" Lawsuits: for beverages alcoholic to known "habitual Are the Games "Fair" and Will Casinos and §§ drunkards." See Ind.Code 7.1-5-10-14 Gambling Easy Targets Facilities be Blue- sales); (prohibiting (setting such 7.1-5-1-8 Action?, prints RICO and Other Causes misdemeanor). penalty criminal as a B class (Winter 2004) 55 Mercer L.Rev. 545 (footnote omitted). percent It is estimated per- that "27 to 55 cent just of all casino revenues come from itself, against authorizing but is bition lotteries and "Duty is not sacrosanct of the sum total of only expression Lottery lotteries conducted the State public policy those considerations session, Commission. At its next say plain- that the lead the law to which legislature proceeded to authorize horse protection." tiff is entitled to Various gambling. Then, race a special consider- play policy factors into this session of the General Assembly ap- ation, including of adminis- convenience proved riverboat casinos as lawful tration, parties to bear capacity activity. loss, preventing future policy State, Legion Am. Post No. 113 v. injuries, and the moral blame attached (cita (Ind.Ct.App.1995) N.E.2d wrongdoer. (1996). omitted), denied tions trans. Riv Webb, (quoting Id. at 575 N.E.2d at erboat such are casinos as Caesars taxed 997). adjusted at either a flat rate of 22.5% of addict, If Caesars knew gross receipts gambling games gambling, ed to as we must assume for graduated ranging rates from 15% of the purposes appeal, of this would have been $25,000,000 adjusted gross first annual relatively simple matter exclude receipts adjusted gross to 40% of annual marketing direct efforts and from from its *16 $600,000,000. receipts exceeding Ind.Code itself, already required as it is the casino 4-38-13-1, §§ required -1.5.15 are Casinos participate to do those who in the to remit taxes the Department these to of described in voluntary program exclusion the State Revenue "before close of the Indiana Section 4-85-4-2. It stands Code day day following wagers business substantially to reason that has a Caesars are made." apparent Given the size greater Kephart than to bear the capacity gen and steadiness of the revenue stream issue, loss at and it also stands to reason society policy prevent- casinos, that would favor a erated riverboat it seems clear ing injuries allegedly future like those suf- that both the casinos and the State of by Kephart. fered in gam share common interest blers-pathological otherwise-losing as standpoint, pre- Frоm a moral Caesars' possible.16 much money quickly as One prosecution pathological dation and legislators-and, if wonders Indiana's repugnant, although it not more importantly, their constituents-have only blameworthy entity this case: any qualms balancing about State's Historically, of Indiana the State has on budget gamblers, especial the backs of In prohibited gambling. following ly those who are least able to resist approval, the Indiana voter Constitution and/or deleting general prohi- gambling.17 was amended afford I conclude that would graduated apply gambling operations 15. The tax rates to casinos authorized this ar- operate scheduling people likely that under a "flexible ticle." Given that are more to plan," pursuant they may which to "conduct they gamble game if believe that is con- gambling operations up twenty-four honestly, ducted one conclude that the per day." legislature's emphasis "credibility hours Ind.Code 4-33-6-21. on and in- tegrity" purely is not altruistic but instead is The record does not indicate whether Caesars operates scheduling plan. maximizing prоfits under a flexible directed toward for the casinos and thus tax revenues for the State. 4-33-4-3(a)(1)(A) 16. Indiana Code Section provides adopt reg- if Commission shall One also wonders Indiana's Commission, necessary protect which rules that "determines ulations-and is re- enacting enforcing credibility integrity sponsible or enhance ... them- [t]he has in fact non-economic imposing a common favors public policy including emotionaldistress.20 injuries, case.18 in this duty on Caesars Second, argument as for Caesars' Duty Balancing Factors D. go claim to forward "[alllowing Kephart's perverse have the result of encour- view, all factors militate my three partici- aging compulsive gamblers not duty on imposing a Caesars favor of pate voluntary program{,]" in the exclusion enticing to its casino known refrain from Reply emphasize Br. at I Appellant's have not re gamblers who pathological duty only would owe a that a casino they be removed from quested of whom the casino pathological gamblers or excluded marketing list casino's direct not to other knowledge, has members To hold otherwise would from the casino. public large. no that there is level below be to conclude (and thus the State of a casino which Third, viability Kep- I note that the Indiana) may go enticing patrons not affect the hart's counterclaim will via- encouraging their reckless behavior.19 bility affirmative defenses to of her Cae- expect that Hoosiers would more I believe payment sars claim for of the counter and the government from their businesses checks, including incompetency, impaired Therefore, I would operate here. intoxication, capacity due to breach of the hold that does have such Caesars good dealing, faith and fair covenant properly and that the trial court denied its duress, unconscionability. Kephart's counterclaim. motion to dismiss conclusion, I believe Having reached this considerations are three additional *17 mentioning.
worth
First, argues to the extent Caesars not "economic
Kephart may recover losses
alone, injury of personal without claim to other in a tort damage property" (citation
action, Reply Br. at 9 Appellant's omitted), I quotation marks note only tect should be сonsidered in de- herself to deter the offer sufficient disincentives insid- allegedly performed by fault, ious conduct Caesars termining comparative not in determin- ing in this case. Caesars owes a whether City Gary in the first instance. See ex rel. arguing contrary, 18. Caesars makes King Corp., v. Smith & Wesson heavily much the fact are a that casinos (Ind.2003) ("'Under comparative regulations regulated industry. are de- These fault, the trier of fact can allocate fault to signed primarily to ensure an accurate ac- contributing multiple factors based on their counting of a casino's revenues and causation, culpability, relative relative factual interests, protect financial thus to State's both."). or some combination of gam- opposed individual to the interests of blers. suggests 20. To the extent Caesars that it did any duty proximately of care or majority "Kephart has a not breach asserts alleged damages, I cause observe protect responsibility to herself from her own rely proclivities and on a casino to bear not were the bases for its these issues litigated motion to dismiss and be on responsibility Slip op. for her actions." sole Kephart's ability pro- at 15. I believe that summary judgment or at trial.