Mark Merrill robbed banks in December 1998 and January 1999 and for that activity he was convicted and is now serving time at a federal prison in Florida. But this is not a criminal case dealing with the robberies: it’s a civil suit, under our diversity jurisdiction, alleging that a riverboat casino didn’t do what it was supposed to do to prevent Merrill from gambling. His substantial gambling losses fueled a need for money, and although his complaint doesn’t come right out and say it, Merrill’s present predicament can be traced to his need for cash to cover his gambling tab.
Trump Indiana operatеs a riverboat casino on the shore of Lake Michigan in Gary, Indiana. We recently noted some of the political machinations that led to the licensing of the casino in the mid-1990’s.
See Mays v. Trump Indiana, Inc.,
In 1998, Merrill relapsed and returned to gambling at the casino. And now, as we said, he’s serving federal timе for bank robbery.
Merrill’s complaint alleged causes of action for fraud, constructive fraud, strict liability, breach of contract, intentional and reckless disregard for othеrs’ safety (willful and wanton misconduct), negligence, and breach of the implied covenant of good faith and fair dealing. The district court dismissed the constructive fraud and strict liability claims on a Rule 12(b)(6) motion and, a year later, granted summary judgment for Trump on all other counts. The court concluded that Trump never promised to honor Merrill’s self-exclusion request аnd so no contract existed between Trump and Merrill. The court further found that, because Trump owed no statutory or contractual duty to Merrill, it did not act negligently or engage in willful and wanton misconduct.
On appeal, Merrill does not contest the district court’s finding that he and Trump did not have a contract. He challenges only the grant of summary judgment on his tort claims. Merrill argues that the court erred in holding that Trump had neither violated a duty of care nor engaged in willful and wanton misconduct when it allowed Merrill to gamble in its casino. We review а grant of summary judgment
de novo. Trustees of the AFTRA Health Fund v. Biondi,
In Indiana, the existence of a tort duty is a question of law.
Benton v. City of Oakland,
A defendant is not liable for negligence unless it owes a duty of care to an injured plaintiff.
Webb v. Jarvis,
Indiana regulations do require cаsinos to maintain an eviction list, including individuals who request to be excluded, and to prohibit entry to those on the list: “Each riverboat licensee shall maintain a list of evicted persons .... At minimum, the eviction criteria shall include ... [a] person [who] requests that his or her own name be placed on the riverboat licensee’s eviction list.” Ind. Admin. Code tit. 68, r. 6-2-1 § 1(c)(5) (2002). But this is a recent аmendment, implemented in 2000. In 1998, when Merrill’s relapse occurred, no statute or regulation explicitly obligated Indiana casinos to honor self-eviction requests.
Even if the amended regulation applied, however, it is by no means certain that the regulation would sustain a cause of action against Trump. Trump is required by regulation to maintain an exclusion log and to add to that list individuals who request to be put on it. But Trump’s obligation to follow regulations promulgated by the Indiana Gaming Commission does not automatically translate into a duty of сare owed to compulsive gamblers. At most, the rules impose upon Trump a duty to the state through the gaming commission, not to a self-requesting evictee.
If Trump violates regulatiоns, it must answer to the gaming commission— the current rules provide for administrative and disciplinary hearings, as well as sanctions against casinos, including fines and rescindment of licenses. Ind. Admin. Code tit. 68, r. 13-1-1
et seq.
But neither the regulations nor the statute expressly creates a private cause of action against nonconforming casinos. When a statute is silent regarding the impositiоn of civil liability, the Indiana Supreme Court looks to legislative intent to determine whether a private cause of action exists.
Vaughn v. Daniels Co., 777
N.E.2d 1110, 1134 (Ind.2002). As the district court noted, the statutory provisions аnd administrative rules surrounding gambling are voluminous, and although the legislature was silent regarding civil liability, it specifically created administrative penalties to be enforced through the gаming commission. Given the extent of gambling regulation in Indiana, we conclude that the Indiana Supreme Court would not conclude that the legislature intended to create a private cause of action.
See Hakimoglu v. Trump Taj Mahal,
But Merrill also argues that, even in the absence of a statutory duty, Trump owed him a duty of care under common law. We can find no Indiana case addressing the extent of the duty owed by casinos to their patrons. 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 thеir patrons than any on other business.
Lundy v. Adamar of N.J., Inc.,
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.
E.g., Paragon Family Restaurant v. Bartolini,
Merrill’s last argument is that the court erred in granting Trump summary judgment on his willful and wanton misconduct claim. In Indiana, a defеndant engages in willful and wanton misconduct when it consciously acts or refuses to act knowing, or with reckless disregard to the probability, that injury will result to the plaintiff from its conduct or from its failure to take steps to avoid an impending danger.
Withan v. Norfolk and W. Ry. Co.,