Merrill v. Trump Indiana, Inc.

• Decision Date: 26 February 2003
• Docket Number: No. 02-2523.,02-2523.
• Parties: Mark MERRILL, Plaintiff-Appellant, v. TRUMP INDIANA, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

320 F.3d 729

Mark MERRILL, Plaintiff-Appellant, v. TRUMP INDIANA, INC., Defendant-Appellee.

No. 02-2523.

United States Court of Appeals, Seventh Circuit.

Submitted February 11, 2003.¹

Decided February 26, 2003.

Mark Merrill, Coleman, FL, pro se.

James D. Wilson, Shefsky & Froelich, Chicago, IL, for Defendant-Appellee.

Before EASTERBROOK, ROVNER, and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

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 operates 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., 255 F.3d 351 (7th Cir.2001). Mr. Merrill, by his own admission, is a compulsive gambler. Like East and West, this is a twain that should never meet. But it did.

According to the third version of Merrill's complaint, which seeks over $6 million in damages, he entered a clinic for compulsive gamblers in Peoria, Illinois, in 1996. The clinic soon became his "guardian/custodian/trustee in all matters pertaining to the recognition and treatment of the symptoms and underlying causes of [his] addictive and compulsive behaviors ...." Acting in that capacity, Merrill alleged that his rehab counselor at the clinic contacted the casino in 1996 and formed with it an oral contract to keep Merrill off its premises. The consideration for this contract, it is alleged, was that the clinic would "publicize to the community" the casino's support of programs to help compulsive gamblers get over their addictions. Discovery in the case, particularly a deposition given by the rehab counselor, however, disclosed that no oral contract was created. But it is undisputed that Merrill himself, in 1996, wrote to the casino asking that he be evicted from it if he ever showed up to gamble. And Merrill's name does appear on the casino's "eviction list."

In 1998, Merrill relapsed and returned to gambling at the casino. And now, as we said, he's serving federal time for bank robbery.

Merrill's complaint alleged causes of action for fraud, constructive fraud, strict liability, breach of contract, intentional and reckless disregard for others' 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 and 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 a grant of summary judgment de novo. Trustees of the AFTRA Health Fund v. Biondi, 303 F.3d 765, 772-73 (7th Cir.2002). In a case arising under our diversity jurisdiction, the substantive law of the forum state applies, Land v. Yamaha Motor Corp., 272 F.3d 514, 516 (7th Cir.2001), and that's Indiana here.

In Indiana, the existence of a tort duty is a question of law. Benton v. City of Oakland, 721 N.E.2d 224, 232 (Ind. 1999). Thus, we review de novo whether Trump owed a duty to Merrill. Cooper v. Nelson & Co., 211 F.3d 1008, 1015 (7th Cir.2000). We resolve the issues in this case as we believe Indiana courts would resolve them. Trytko v. Hubbell, Inc., 28 F.3d 715, 719 (7th Cir.1994).

A defendant is not liable for negligence unless it owes a duty of care to an injured plaintiff. Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991). Merrill argues that Indiana statutory provisions and administrative regulations impose a duty on Trump to exclude gamblers who ask to be placed on the casino's eviction list. The Indiana Gaming Commission is empowered by statute to eject or exclude individuals who "call into question the honesty and integrity of the gambling operations." Ind.Code § 4-33-4-7 (2002). But it is not clear that Merrill's conduct while in the casino put the "honesty and integrity" of Trump's operations in question. Moreover, the statute addresses exclusion by the gaming commission, not the casinos.

Indiana regulations do require casinos 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 amendment, 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 care 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 regulations, 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 non-conforming casinos. When a statute is silent regarding the imposition of civil liability, the Indiana Supreme Court looks to legislative intent to determine whether a...