October 3, 2010

Man Cannot Sue Casino for Gambling Losses

Category: Claims & Defenses | Author: | Share:

September 30, 2010

On September 30, 2010, the Indiana Supreme Court issued an opinion on a topic that I would have never anticipated would arise — whether a person can sue a casino for knowingly enticing and encouraging a pathological gambler to gamble. In Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120 (Ind. Ct. App. 2010), Case No. 31S01-0909-CV-403, the Court said, “No.” The most interesting aspect of this case is not the Court’s conclusion, but how it came to that conclusion.

In this case, a gambler visited a casino and lost $125,000.00 through the use of six counter checks provided to her by the casino. The checks were returned for insufficient funds and the casino filed suit for payment of the checks, treble damages, and attorney fees. The gambler counterclaimed, alleging that Caesars knew of her pathological addiction to gambling and took advantage of the addiction for gain. The casino moved to dismiss the gambler’s counterclaim under Trial Rule 12(B)(6), but the trial court denied that motion. In an interlocutory appeal, the Indiana Court of Appeals reversed the trial court’s decision and the Indiana Supreme Court granted transfer.

The Court noted both that the gambler’s counterclaim sounded in negligence and that there was a question over whether the casino owed a duty to the gambler. However, the Court chose not to answer that question, instead finding that the Legislature has abrogated the common law. It based this decision on language within the statutes governing riverboat casinos. Those statutes stated that the General Assembly intended to strictly regulate “facilities, persons, associations, and gambling operations,” and granted jurisdiction and supervision over “[a]ll persons on riverboats where gambling operations are conducted” to the Indiana Gaming Commission. These powers included “investigating violations, conducting hearings, adopting rules, levying and collecting penalties for noncriminal violations, and adopting a voluntary exclusion program for gamblers.” Based on these statutes, the Court concluded that the Legislature had covered the entire subject of gambling. Because of this broad coverage of the subject of gambling, “the statutory scheme and Kephart’s common law claim are so incompatible that they cannot both occupy the same space.”

This case will provide a blueprint to others who are either seeking to abrogate the common law in a particular area or who are arguing over whether the common law has been abrogated. It will also be interesting to see whether litigants will have occasion to argue that any other aspect of the common law survives the enactment of this statutory scheme.


  1. Riverboat casinos owe no common law duty to prevent a known gambling addict from gambling in its casino.

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