|The following article was
originally published in Casino
Executive and is presented in Gaming floor with permission of the author.
Professor Rose can be reached at his web site: www.GamblingAndTheLaw.com
Attempted Robbery By Lawsuit
Woody Guthrie said: "Some rob you with a six-gun, some with a fountain
But, you do not usually find someone trying to do both.
On Dec. 21, 1998, Mark A. Merrill robbed a bank in Peotone, Illinois.
later, he held up the First National Bank of Illinois in Mokena. He
make off with almost $22,000. But he did not get far.
Merrill pleaded guilty to the two bank robberies in March 1999. In August,
was sentenced to serve 63 months in prison.
Now, if you are sitting in federal prison for more than five years,
you have a lot
of free time to think about how you got there. Whose fault is it anyway?
The answer is obvious: Donald Trump!
In February, 2000 Merrill filed suit against Trump, the Trump Casino
Indiana, and its manager, for $2.1 million. Merrill alleges that if
it were not for
that darned casino encouraging his compulsive gambling, he never would
robbed those two banks.
Talk about being in denial!
Frivolous lawsuits are fun to read about, but they are a nuisance to
overburdened judicial system and to the companies that have to pay
Unfortunately, in the coming years, nuisance suits against casinos
going to grow more numerous.
Potential plaintiffs often see casinos as the ultimate deep pocket.
Not only do
casinos have lots of cash, but they do not get a lot of sympathy from
In the U.S., anyone can file a lawsuit against anyone else for any reason,
no reason at all, with virtually no risk. Most other countries follow
Rule," which allows a judge to make a party pay dearly for bringing
suit. Under the "American Rule," the losing party does not have
to pay the
winner's attorneys fees.
A plaintiff on his own or with a lawyer on a contingency fee can roll
with the legal system and maybe get a jackpot verdict. At the very
least he can
force a company to spend time and money getting the case thrown out.
The law has made a little progress in containing the worst misuses of
Anyone on California's "Vexatious Litigant List" cannot file a lawsuit
first clearing it with a judge. But to make the list, you have to be
outrageous: Like the convict who sued his prison cafeteria for serving
Prisoners are a major source of lawsuits and appeals. They have plenty
on their hands and easy access to law libraries.
What does a casino lawyer do with a case like Merrill v. Trump?
The first step is checking to see if the plaintiff has made any procedural
mistakes. Defense attorneys look for these first, because if they do
immediately, they may have accidentally waived away their defense.
A common mistake made by non-lawyers is filing suit against entities
not actually exist. For example, a government official who felt he
libeled by an article in Fortune magazine, sued the magazine and sent
papers to the Time-Life Building in New York. The case ended up in
Supreme Court, because although the address was correct, the defendant
technically did not exist. There was no Fortune magazine, only a company
known as Time-Life, Inc., doing business as "Fortune" magazine.
If Merrill's suit survives to the point where it will be judged on the
casino's lawyers will attempt to have the case quickly dismissed. Even
the lawyers may be getting paid by the hour, no one likes to spend
years on a
case that will eventually be thrown out.
The casino fears not only the cost and trouble, but also the remote
that the case may actually get to a jury. Jurors almost always try
and do their
best, but there are occasional travesties, like the O.J. Simpson criminal
Trump's lawyers will file a motion to dismiss for failure to state a
job is to analyze the plaintiff's complaint and point out its weaknesses
judge. Merrill's suit boils down to the claim that he discovered he
compulsive gambler, that he asked the Trump Casino to bar him and that
casino instead encouraged him to gamble by offering incentives, including
to Las Vegas.
I expect their arguments will go as follows:
The last is the killer argument. Merrill claims he told the casino he was
There is no statute, regulation or prior case in Indiana requiring casinos
to bar compulsive gamblers.
Even if the judge finds the casino should have put Merrill's name on a
"Keep Out" list, this does not give him the right to sue. A few other states
do require lists of self-excluded players and have fined casinos for failing
to put someone on the list. But even these states have not said that a
person can sue a casino for being left off the list.
Even if the casino had a duty to keep Merrill out and he has the right
to sue for breach of that duty, the casino did not cause him to rob any
compulsive gambler. Even if true, there was no way the casino could
that allowing him to gamble would result in bank robberies.
Further, the law still treats human beings as having free will. It was
choice to hold up two banks. In the language of the law, his criminal
the chain of causation.
If Merrill's case makes it all the way to trial, he will still have
a tough time
proving the facts he is alleging. After all, who is going to believe
Trump's Indiana floating casino would comp a player to a trip to Las
The last thing Trump would want is his patrons going there -- Trump
casinos in Nevada.
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