Christie Farrell Hays - Trial Skills

8/4/2019 Christie Farrell Hays - Trial Skills

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ITS NOT A CRAP SHOOT!TRIAL SKILLS

Thomas C. HaysLewis & Wagner LLP

501 Indiana Avenue, Suite 200Indianapolis, Indiana 46202

(317) [email protected]

Kevin P. FarrellCline Farrell Christie Lee & Caress PC

951 N. Delaware StreetIndianapolis, Indiana 46202

(317) [email protected]

Lee C. ChristieCline Farrell Christie Lee & Caress PC

951 N. Delaware Street

Indianapolis, Indiana 46202(317) 488-5500

[email protected]


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TABLE OF CONTENTS

1. Caesars Riverboat Casino, LLC v. Kephart Page 3

2. Evans v. Buffington Harbor River Boats, LLC Page 4

3. Merrill v. Trump Ind., Inc Page 5

4. JPMorgan Chase Bank, N.A. v. Desert Place, Inc Page 6

5. Romanski v. Detroit Entertainment, LLC Page 6

6. State v. Gallagher Page 8

7. Payton v. Boomtown Casino Page 9

8. Stulajter v. Harrahs Ind. Corp. Page 10

9. Fioretti v. Aztar Ind. Gaming Co. Page 10

10.Donovan v. Grand Victoria Casino & Resort, L.P. Page 11

11. Vinson v. Casino Queen, Inc. Page 13

12. Conder v. RDI/Caesars Riverboat Casino, Inc. Page 14

13. Soloman v. Blue Chip Casino Page 15

14.Earls v. Belterra Resort, Ind. LLC Page 15

15.Harkins v. Riverboat Services, Inc. Page 16


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ITSNOTACRAPSHOOT!TRIAL SKILLS

Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120 (Ind. 2010):

The defendant casino, knowing of plaintiffs gambling addiction, offered her free

transportation from Tennessee to its Indiana location, as well as free room, food, and alcohol.

The casino sought plaintiffs payment of the checks while plaintiff claimed the casino unjustly

enriched itself by preying on her gambling addiction. Plaintiff claimed damages for past,

present, and future mental, emotional, and psychological injury; destroyed and/or restrained

relationships with family members and friends; doctor, pharmaceutical, and other medical

expenses; and loss of quality of life. The court looked to the Indiana legislature, stating that they

intended pathological gamblers to take personal responsibility to prevent and protect themselves

against compulsive gambling. The legislature did not require casinos to identify and refuse

service to pathological gamblers who did not self-identify. The Supreme Court of Indiana found

that there existed an unmistakable implication the Legislature had abrogated any common law

claim that casino patrons might otherwise have against casinos for damages resulting from

enticing patrons to gamble and lose money at casino establishments. Thus, the trial court had

erred in denying Caesars motion to dismiss plaintiffs counterclaim for failure to state a claim

upon which relief can be granted.


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Evans v. Buffington Harbor River Boats, LLC, 799 N.E.2d 1103 (Ind. Ct. App. 2004):

Plaintiff arrived at the defendant casino at 1:00 a.m. and attempted to leave at 3:00 a.m.

but had to wait in line for the valet company to give back her keys. Eventually, a valet parking

attendant gave her the keys to her car so that she could retrieve it herself. To get to her car,

plaintiff walked along a concrete band that went through a row of shrubs and ended at a retaining

wall which dropped 30 inches into the parking lot. Plaintiff fell when she attempted to step onto

the parking lot surface, injuring her knee and requiring surgery to correct the fracture of her tibia

plateau. The trial court found that plaintiff suffered damages of $100,000 but that she was 45%

at fault for her own fall. 20% fault was assigned to the casino and 35% assigned to the valet

company, meaning plaintiff received $55,000 for her injuries.

Plaintiff appealed and asserted that the jury considered extraneous prejudicial information

which tainted the verdict. Plaintiff wanted a new trial based on the alternative juror bringing

about information that the jury considered potentially improper factors when deciding damages,

including that the plaintiffs attorney drives a nice Mercedes and therefore the award for the

plaintiff should be kept relatively small because the lawyer did not need any more money.

However, the Court found that none of the allegations referenced drug or alcohol use by a juror

nor did they refer to an outside influence improperly brought upon a juror. These alleged

comments did not add to facts specific to the case and did not constitute application of special

knowledge to apply the facts.

Plaintiff also argued that giving her husband zero damages for a loss of consortium claim

was improper. However, the Court found that the evidence could support a jury determination

that the husband suffered no compensable damages. The Court gives heavy discretion to the jury,


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and this issue was affirmed with the trial court. As a result of the case, the damages remained the

same, where the casino was liable for $20,000 and the valet service was liable for $35,000.

Merrill v. Trump Ind., Inc., 320 F.3d 729 (7th

Cir. 2003):

Plaintiff was a compulsive gambler who was serving time in a federal prison during this

case. He was in prison for bank robberies, which he claimed stemmed from his gambling debts.

Two years before the incident, plaintiff attended counseling for gambling addicts in Peoria,

Illinois and part of the program included his counselor to contact casinos and put plaintiff on

their eviction list to keep him off their premises. Plaintiffs counselor did just that with the

defendant casino in this case. However, two years after counseling, plaintiff relapsed and

returned to gambling at the casino. Plaintiff alleged a cause of action for fraud, strict liability,

breach of contract, intentional and reckless disregard for others safety, negligence, and breach of

the implied covenant of good faith and fair dealing. The trial court found that the casino never

promised to honor plaintiffs self-exclusion request so no contract existed and the casino

engaged in no negligent or wanton misconduct.

Plaintiff appealed, but the Seventh Circuit upheld the trial court. The Seventh Circuit held

that under Indiana tort law, to be liable for willful and wanton misconduct, a defendant must

know that injury is probable or likely, as opposed to possible. However, in this case, the casino

did not know that the plaintiff would sustain losses as a result of gambling or that such losses

were probable or likely, barring the plaintiffs willful and wanton misconduct claim against the

casino based upon the casinos alleged failure to eject plaintiff from casino or prevent him from

gambling.


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JPMorgan Chase Bank, N.A. v. Desert Place, Inc., 882 N.E.2d 743 (Ind. Ct. App. 2008):

Gerry Gilliatte, owner of the Gilliatte Construction Company, played high-stakes games

at the defendant casinos in Las Vegas. Gilliatte gave markers to the casinos that were blank

checks secured by his personal and company bank accounts. He went to these casinos at least

once a year and accumulated hundreds of thousands of dollars of debt. After the casinos many

attempts to recover the debts, Gilliatte died and Chase Bank covered his debts, but his

construction company claimed the withdrawals were unauthorized. Plaintiff bank brought an

action against Las Vegas casinos, defendants, alleging that they engaged in fraudulent

misrepresentation or negligent conversion by cashing markers secured by an unauthorized

business account. The Marion Superior Court granted casinos motion to dismiss for lack of

personal jurisdiction and on grounds of forum non conveniens, and bank appealed.

The Indiana Court of Appeals found that the casinos actions, in cashing the Gilliattes

markers that were secured by a business account that he was not authorized to use, and making

phone calls, sending emails, and mailing letters to Gilliatte, his family, and his attorney, as well

as engaging in promotional and debt collection efforts targeting thousands of Indiana citizens,

created a substantial connection with the forum sufficient to establish personal jurisdiction in an

action by the plaintiff bank.

Romanski v. Detroit Entertainment, LLC., 428 F.3d 629 (6th Cir. 2008):

Plaintiff, a seventy-two year old woman, was playing slot machines the defendants

casino when she found a five cent token unattended to in a slot machine tray. The token was not

hers, but she noticed no chairs around the slot machine and picked up the five cent token for

herself. Four casino employees proceeded to surround her and asked plaintiff to accompany her


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to the casinos small, windowless security office or interview room. Plaintiff was told she

had engaged in a practice disallowed by the casino known as slot-walking. However, plaintiff

could not have known this because the casino did not post this policy anywhere. It is undisputed

that plaintiff therefore did not have notice of this policy. One of the defendant security officers

claimed she was a police officer, had a badge, and appeared to have handcuffs. Plaintiff was

added to the defendant casinos eviction list for six months. While the defendant security officers

detained plaintiff, they did not allow her to eat lunch, they watched her as she went to the

bathroom, and falsely told plaintiffs friends that she had stolen from the casino.

The Sixth Circuit Court of Appeals affirmed the findings of the trial court, holding that

the jury instruction that the plaintiff, as the finder of the five cent token left in a slot machine,

had superior title to the token than did the casino was not confusing, misleading, or prejudicial,

especially in light of the insignificance of the five cent token and the casinos decision to deal

with the situation by dispatching a team of security personnel to detain and interrogate the

plaintiff.

The court also found the punitive damage award of $600,000 to the plaintiff, who was

detained and interrogated, forced to endure the indignity of having a security officer stand guard

outside her restroom stall, and was ejected from the casino to the outdoors in hot and humid

weather, after having taken a five cent token from one slot machine, would satisfy the demands

of the due process clause. As a result, the plaintiff would be given the option of agreeing to remit

$275,000 and accept a $600,000 punitive damages award or proceed with a new trial on

damages. The award was 60% of the casinos daily intake and was within the ballpark of

punitive damages awarded in other civil rights cases against corporate defendants. (See relevant

attached article as well seems to be an ever-increasing problem across all casinos).


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State v. Gallagher, 274 N.J.Super. 285 (N.J. 1994):

Defendant took part in a criminal scheme to rig slot machines where an expert who used

to work in casinos would pry open the front plate of a machine, insert spacers, and manipulate

the machines spinning wheels using two thin wires. Another person would be the lookout of

the group while a few others would serve as blockers to obstruct other casino patrons and

security personnel from seeing the activity taking place. After a jackpot was hit, the expert,

lookout, and blockers would leave the area, leaving only one person, the claimer, to obtain the

jackpot winnings from the casino.

Claimers were not a permanent part of the criminal organization because they had to

identify themselves to the casino to obtain the jackpot. As a result, claimers were constantly

being recruited and were paid a percentage of the jackpot. It was difficult to find willing

outsiders to act as claimers because the organization wanted someone trustworthy and willing to

perform their one-time services. After the group had run out of casinos in Las Vegas to

perform their scheme, often doing twelve jackpot operations per week, they decided to head to

Atlantic City. Here, the defendant was in charge of recruiting claimers to perform the task of

making sure trustworthy claimers were hired for the operations. Defendant was identified as a

principal member of the crime organization and convicted of numerous criminal offenses.

The main issue in this case evolved around defendants decision to represent himself

through the trial process. After defendant was given all the warnings of representing himself, he

chose to continue self-representation with the help of stand by counsel appointed by the court.

The deputy attorney general began complaining that the defendant was calling his office and

filed incorrect motions. Eventually, the trial court revoked its prior order allowing defendant to

represent himself and defendant appealed.


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The court found that pro se defendants failure to meet the superior courts expectations

regarding filing of motions, although a legitimate subject of concern, did not justify revocation of

his right of self-representation. They added that his technical knowledge of the law was not

relevant to an assessment of his knowledge and a voluntary exercise of his right to defend

himself. The case was reversed and remanded for further proceedings, while defendant was

legally allowed to represent himself.

Payton v. Boomtown Casino, 61 So.3d 969 (Miss. Ct. App. 2011):

Plaintiff was playing a slot machine when he hit a combination of three Blazing Red

777s. This placed the machine into bonus mode that would allow plaintiff to compete for a

progressive prize of from $5 to $2.2 million. The bonus round music started playing, but the spin

bonus game button was not lit. Plaintiff tried to take his bonus spin, but the machine locked up.

Plaintiff appealed the decision of the circuit court which upheld a decision of the Mississippi

Gaming Commission (Commission) denying plaintiffs argument that his due-process rights

were violated because he was not allowed to participate in the jackpot. The Commission ruled

that plaintiff was entitled to $20 rather than a prize up to $2.2 million. His argument on appeal is

a botched investigation by the Commission denied him due process of law and a chance at the

jackpot.

The Commission noted that slot machine players are unaware of the fact that the spinning

reels are simply for entertainment, as the outcome of the game is determined by the computer

program of the machine long before the reels spin and stop. The investigator for the Commission

found that plaintiffs spin would have won him 80 credits, or $20. Plaintiff claims that the

Commission destroyed necessary evidence to find the real amount plaintiff deserved, interfering


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with his due process claim. This court found that plaintiff received due process, as he was given

a notice and an opportunity to be heard at a two-day hearing. The court upheld the Commissions

decision and all costs were assessed to the plaintiff.

Stulajter v. Harrahs Ind. Corp., 808 N.E.2d 746 (Ind. Ct. App. 2004):

Patron was a self-described compulsive gambler with a gambling addiction. He

eventually placed himself on the casinos voluntary self-exclusion list, but argued the casino

continued to send him marketing material directed toward persuading him to visit its casino.

Patron then visited the casino on multiple occasions to gamble and lost approximately

$70,000.00. Casino patron brought action against casino operator, alleging that operator

breached its statutory duty by sending him marketing materials and admitting him to its casino

after he placed himself the self-exclusion list.

The Indiana legislature required the Indiana Gaming Commission (Commission) to

create a voluntary, in which a person may agree to refrain from entering any establishment under

the Commissions jurisdiction. I.C. 4-33-4-3(c) sets out voluntary exclusion program

requirements and provides that 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. The Court of Appeals held that the patron did

not have a private right of action against casino operator for its alleged violation of statutory duty

to maintain and honor the self-exclusion list.

Fioretti v. Aztar Ind. Gaming Co., 790 N.E.2d 587 (Ind. Ct. App. 2003):Defendant operated a riverboat casino in Evansville, where Plaintiff and his mother

gambled. On the particular occasion that the lawsuit stemmed from, Plaintiff was summoned to


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the upper floor of the casino, where he was arrested for stealing coins and was placed in

handcuffs. Plaintiff filed a claim against the casino, seeking damages for battery, intentional

infliction of emotional distress, and negligence alleging that the trooper twisted his arm during

the arrest. He alleged that the casino was liable, as the trooper was an employee or agent of the

casino. The trial court granted the casino summary judgment, finding that the trooper was

neither an employee nor an agent of the casino.

The Court of Appeals, in using a seven-factor test, determined the trooper was not an

employee or agent of the casino because the casino did not have control over the trooper nor was

there any evidence of an agency relationship between the two. The court held that while casinos

are responsible for the salaries, benefits, and equipment of officers assigned to the riverboats,1

they are still not viewed as employees of the casino under the law.

Donovan v. Grand Victoria Casino & Resort, L.P., 934 N.E.2d 1111 (Ind. 2010):

Grand Victoria Casino & Resort, L.P. (the casino) owns and operates a riverboat casino

located in Rising Sun, Indiana. Plaintiff supplements his income by playing blackjack in casinos

and is a self-described advantage player who taught himself a strategy known as card

counting that he employs when playing blackjack. For a time, the casino allowed Plaintiff to

play blackjack and card count if he wagered no more than $25 per hand. However, sometime

later the director of table games advised Plaintiff that the casino had decided to ban him from

playing blackjack, though he would still be allowed to play other casino games. Plaintiff

indicated that he would not comply with the casinos request, and was evicted and placed on the

list of excluded patrons.

1 68 I. A. C. 1-14-2.


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Plaintiff filed suit against the casino, alleging breach of contract and seeking a

declaratory judgment that the casino could not exclude him from playing the game of blackjack

for counting cards. The trial court granted summary judgment in favor of the casino on both

counts. The Court of Appeals affirmed summary judgment for the casino on the breach of

contract claim, but it reversed summary judgment on the exclusion issues, holding that the

Plaintiff was entitled to a declaratory judgment that the casino had no right to exclude him from

blackjack. The court reasoned that Indiana has implemented a comprehensive scheme for

regulating riverboat gambling of which partially abrogates a casinos common law right of

exclusion.

In looking to sound public policy reasons in support of the common law rule of

exclusion, the Indiana Supreme Court reversed the Court of Appeals. Although the Indiana rules

contain numerous provisions prohibiting certain conduct by patrons playing the game of

blackjack, the mental exercise of counting cards is not expressly prohibited. See 68 I.A.C. 10-2-

14. Moreover, the Indiana Gaming Commission (IGC) rules do not preclude a casino

licensee or operating agent from evicting a person from its casino gambling operation for any

lawful reason. 68 I.A.C. 6-1-1(d) (emphasis added).2

2 Specifically, the IGC requires: (a) each riverboat licensee shall maintain a list of evicted persons. Such list shall becomprised of persons who have been barred from a riverboat gaming operation for reasons deemed necessary by theriverboat licensee.

The court stated that the mere fact that

IGC regulations do not expressly compel the expulsion of card counters from casino facilities

. . . .

(c) Each riverboat licensee shall have in place criteria for evicting persons and placing persons on its eviction list.At minimum, the eviction criteria shall include the following behavior:(1) cheating at a gambling game.(2) theft.(3) disorderly conduct.(4) Conduct that would lead the riverboat licensee to conclude that the person is a threat to the safety of otherpassengers, the licensees employees, or employees and agents of the commission.(5) A person requests that his or her own name be placed on the riverboat licensees eviction list.

68 I.A.C. 6-2-1.


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does not confer upon a patron an affirmative right of access to a casinos facilities. Moreover,

the court reasoned that Indianas Legislature chose to legalize riverboat gambling to benefit the

people of Indiana by promoting tourism and assisting economic development, I.C. 4-33-1-2,

not to ensure maximum participation by casino patrons. Relying on public policy, the court

noted that discouraging card counting enhances a casinos financial success and directly furthers

the legislatures express objective of promoting tourism and assisting economic development.

Two justices dissented, stating that permitting a casino to restrict its patrons only to those

customers who lack the skill and ability to play such games well intrudes upon principles of fair

and equal competition and provides unfair financial advantages and rewards to casino operators.

Vinson v. Casino Queen, Inc., 123 F.3d 655 (7th Cir. 1997):

Plaintiff, a mother of an underage gambler, brought an action against Casino Queen

(casino) under Illinois Loss Recovery Act to recover losses in the amount of $77,200 allegedly

incurred by her underage son. Plaintiff argued that because her son was underage, the gambling

at issue was not carried out according to the provisions of the Riverboat Gambling Act and

consequently the gambling losses created by this unauthorized gambling were fully recoverable

under the Loss Recovery Act. In a motion for summary judgment, the casino argued that every

game that took place aboard its riverboat casino was authorized and governed by the Riverboat

Gambling Act and therefore exempted from the coverage of the Loss Recovery Act.

The court held that because the Loss Recovery Act specifically exempts gambling

games conducted on riverboats when authorized by the Riverboat Gambling Act, the legislature

intended the exemption to be tied to the gambling games themselves rather than to whether

the specific persons or wages at issue ran afoul of the Riverboat Gambling Act. The fact that


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[her underage son] improperly participated in a game of twenty-one does not violate the games

exemption from the Loss Recovery Statute. In so holding, the court looked to the public policy

behind the Act stating that if this Court allowed [the mother] to recover . . . after a minor has

presented fraudulent identification, then would we not also have to allow other plaintiffs to bring

an action . . . for every losing lottery ticket that was successfully, but illegally, purchased by

persons under the age of 18?

Casinos and the Jones Act

Conder v. RDI/Caesars Riverboat Casino, Inc., 918 N.E.2d 759 (Ind. Ct. App. 2010):

Plaintiff was employed by the defendant casino as a table games dealer. In 2003, plaintiff

was repeatedly bitten by fleas during the course of her employment and was required to take

large steroids to treat them, which allegedly caused her to have a heart attack. The casino where

the plaintiff was employed was a riverboat casino that had been moored to a dock since 2002 and

had not transported passengers, cargo, or equipment since that time either. In 2005, plaintiff filed

suit against the casino seeking compensation for her injuries based on the Jones Act or, in the

alternative, pursuant to Indiana workers compensation laws as a seaman pro hac vice a

Sieracki seaman. The casino filed a motion to dismiss the claim under Trial Rule 12(B)(1).

The Court of Appeals of Indiana found that the plaintiff in this case was not exposed to

the special hazards and disadvantages to which they who go down to sea in ships are

subjected. For this reason, plus the fact that the vessel had been moored by cables and the

owner intended that it remain stationary for the foreseeable future, the Court found the riverboat

was not a vessel that the Jones Act intended to protect. Also, the Court found that plaintiff is not

entitled to relief as a Sieracki seaman because she was not engaged in maritime employment,


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which includes those workers on the situs who are involved in the essential elements of loading

and unloading. Also, the riverboat casino is not a navigating vessel as required by the Sieracki

doctrine. As a result, the plaintiff was not entitled to relief under either claim, and the casinos

motion to dismiss the claim was granted.

Soloman v. Blue Chip Casino, 772 N.E.2d 515 (Ind. Ct. App. 2002):

Former casino boat employees brought negligence actions pursuant to the Jones Act

against their former employer, Blue Chip Casino (the casino) after they were injured in

separate accidents at work on the boat. In order to qualify under the Jones Act, a plaintiff must

show that her duties contributed to the function of a vessel or to the accomplishment of the

vessels mission. Although the requirement is not expressly stated in the Act, the United

States Supreme Court has long required that the injury occur through the employees relationship

to a vessel on a navigable body of water. Swanson v. Marra Brothers, 328 U.S. 1 (1946). In

determining whether a body of water is navigable, courts have stated that navigable means if

it is one that, by itself or by uniting with other waterways, forms a continuous highway capable

of sustaining interstate or foreign commerce. The court held that although the casino was

located in a body of water that eventually connected to Lake Michigan, because the opening into

the Lake was too narrow, the body of water was not navigable for purposes of the Jones Act.

Therefore the court affirmed the dismissal of the employees claims against the casino.

Earls v. Belterra Resort, Ind. LLC, 439 F. Supp. 2d 884 (S.D. Ind. 2006):

An employee brought an action under the Jones Act to recover for injuries she suffered

while employed on the Belterra Resort and Casino (the casino). The employee argued that she


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was a seaman for the purposes of the Act, and should be compensated. The casino moved for

summary judgment on the grounds that the casino boat was not a vessel under the Jones Act.

In determining whether the casino boat was a vessel, the court noted that the casino was a

vessel capable of cruising but [was] not intended to be used to transport persons or cargo. The

court also emphasized that the casino boat had not been moved in over two and one-half years at

the time of the employees injury, and it had not moved since.

In holding that the casino boat was not a vessel, the court recognized that the boat was

a watercraft capable of maritime transportation, but also noted that structures may lose their

character as vessels if they have withdrawn from the water for an extended period of time.

Therefore, because the casino boat had been moored for nearly two and one-half years when the

employee suffered her injury, she was not considered a seaman under the Jones Act.

Harkins v. Riverboat Services, Inc., 385 F.3d 1099 (2004):

Several employees on the Showboat Mardi Gras Casino (the casino) brought overtime

and retaliatory discharge claims under the Fair Labor Standards. In order for the employees to

be successful on these claims, they had could not be considered seamen under the Jones Act.

In order to determine whether they were seaman depended upon whether the employees were

hired to do primarily maritime-type work on the casino. The employees argue that because the

casino was docked 90% of the time, their lives differ only slightly from that of ordinary casino

workers.

The court distinguished between employees who are responsible for the casino boats

safety and efficient operation and maintenance, from that of a croupier, cashier, bouncer, dealer,

waiter, or entertainer (all of whom would not be considered seamen). Here, the employees


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were responsible for scraping the barnacles off [the casinos] hull, keeping the engines in repair,

and preventing fires. The court concluded that the employees were members of the ships crew,

thus were seamen even during the intervals in which the ship was moored. The court noted that

the important question to ask was whether the plaintiffs spend their time performing duties that

are necessary to the operation of the [casino] because it is a ship or because it is a casino.

Therefore, because the employees fell under the former, they were considered seamen.

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Christie Farrell Hays - Trial Skills