Stevens v. MTR Gaming Grp., Inc.

• Decision Date: 15 June 2016
• Docket Number: No. 15–0821,15–0821
• Citation: 237 W.Va. 531,788 S.E.2d 59
• Court: West Virginia Supreme Court
• Parties: Stacy Stevens, Personal Representative of the Estate of Scott Stevens, deceased, Plaintiff Below, Petitioner v. MTR Gaming Group, Inc., d/b/a Mountaineer Casino, Racetrack & Resort; and International Game Technology, Inc., Defendants Below, Respondents

237 W.Va. 531

788 S.E.2d 59

Stacy Stevens, Personal Representative of the Estate of Scott Stevens, deceased, Plaintiff Below, Petitioner

v.MTR Gaming Group, Inc., d/b/a Mountaineer Casino, Racetrack & Resort; and International Game Technology, Inc., Defendants Below, Respondents

No. 15–0821

Supreme Court of Appeals of West Virginia.

Submitted: April 20, 2016

Filed: June 15, 2016

James G. Bordas, Jr., Laura P. Pollard, Sharon Y. Eubanks, Pro Hac Vice, Bordas & Bordas PLLC, Wheeling, West Virginia.

Terry Noffsinger, Pro Hac Vice, Crossen Kooi LLP, Carmel, Indiana, Counsel for Petitioner.

Robert J. D'Anniballe, Jr., Pietragallo Gordon Alfano Bosick, & Raspanti, LLP, Weirton, West Virginia, Counsel for Respondent MTR Gaming Group, Inc., d/b/a Mountaineer Casino, Racetrack & Resort.

John F. McCuskey, Brian J. Warner, J. Robert Russell, Shuman, McCuskey & Slicer, PLLC, Morgantown, West Virginia, Counsel for Respondent International Game Technology, Inc.

Benjamin, Justice:

This proceeding arises upon our acceptance of certified questions from the United States District Court for the Northern District of West Virginia in connection with the underlying civil action filed by Stacy Stevens. Ms. Stevens is the personal representative of her late husband, Scott Stevens, and, in that capacity, she asserts a number of claims on behalf of his estate against defendants MTR Gaming Group, Inc., d/b/a Mountaineer Casino Racetrack & Resort (“MTR”), and International Game Technology, Inc. (“IGT”).

I. FACTUAL AND PROCEDURAL BACKGROUND

The district court certified potentially dispositive questions of West Virginia law to aid its analysis of the defendants' respective motions to dismiss, which have been premised on Rule 12(b)(6) of the Federal Rules of Civil Procedure. Hence, the material allegations of the complaint filed August 7, 2014, recited in the district court's order of certification and set forth below, have necessarily been taken as true. See Hurley v. Allied Chem. Corp. , 164 W.Va. 268, 269, 262 S.E.2d 757, 759 (1980).

Ms. Stevens alleges that her husband regularly patronized MTR's casino in Chester, West Virginia, from January 2007 until mid-August 2012, where he used video lottery terminals manufactured by IGT. She further alleges that, in the course of his patronage, Mr. Stevens developed a condition known as “gambling disorder,” which is a recognized medical diagnosis documented in the Diagnostic and Statistical Manual of Mental Disorders (“DSM”).¹ Before he was found out and fired, Mr. Stevens, a corporate executive, embezzled over $7 million from his employer to play the video lottery machines. It is alleged that Mr. Stevens concealed his condition from his wife, and, that during the ten months following his termination, he spent his family's savings, his retirement account, and his children's college funds at the casino. On August 13, 2012, after gambling away the last of his money, Mr. Stevens sat down at a local park, phoned 911, and, when the police arrived, fatally shot himself.

According to the complaint, the software used in IGT's terminals employ algorithms and other features that deceptively cause gamblers to play longer, more quickly, and more intensely. The machines are allegedly designed to cause physiological change in brain functioning, which promotes the loss of willpower and curtails the capacity to make rational decisions. It is further contended that by their construction and programming, the machines erode the players' ability to walk away before they have exhausted their available funds. The casino is said to facilitate the compulsive behavior engendered by the machines by targeting affected patrons with marketing ploys such as offering complementary food and lodging, and by tendering lines of credit on terms that would not otherwise be bargained for.

Premised on the foregoing allegations, the complaint sets forth six claims by which Ms. Stevens maintains that the estate is entitled to compensatory and punitive damages. Count I contends that MTR breached its duty of care to Mr. Stevens by failing to deny him access to the casino in light of his psychological infirmities. Count IV more or less recasts the Count I negligence allegations against both MTR and IGT in the context of a premises liability claim, wherein Mr. Stevens is asserted to have been a business invitee. Counts II and III, also naming both MTR and IGT, comprise products liability claims. In Count II, Ms. Stevens insists that the machines were defectively designed and not reasonably safe for their intended use, in part because they should have been programmed with available technology to permit players to lock themselves out after having expended a certain amount of time or money. Count III alleges that the defendants rendered the video terminals use defective by failing to adequately warn Mr. Stevens that the machines were inherently dangerous. Count V accuses MTR and IGT of intentionally inflicting emotional distress on Mr. Stevens, while Count VI seeks recovery from the defendants pursuant to the West Virginia Wrongful Death Act, W. Va. Code § 55–7–5, et seq.

MTR and IGT moved separately to dismiss the complaint for failing to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). At the conclusion of a hearing convened on May 11, 2015, the district court indicated its inclination to certify to this Court certain questions of law relevant to resolving the motions. After soliciting written suggestions from the parties as to how such questions should be formulated, the district court entered the subject order of certification on August 25, 2015, which was received in this Court on August 27, 2015. By Order entered February 24, 2016, in consideration of the parties' submissions, we docketed for oral argument the following three certified questions:

1. What duty of care exists as to each defendant given the allegation that the slot machines or video lottery terminals are designed through the use of mathematical programs and algorithms to create the illusion of chance while instead fostering a disassociated mental state, to protect casino patrons from becoming addicted to gambling by using these machines or terminals?

2. Are the gambling machines or terminals and specifically the software in them a “product” under West Virginia products liability law?

3. What legal duties, if any, arise under Moats v. Preston County Commission , 206 W.Va. 8, 521 S.E.2d 180 [ (1999) ], given that the suicide of Scott Stevens was a possible intervening cause?

II. STANDARD OF REVIEW

In accordance with the Uniform Certification of Questions of Law Act, W. Va. Code § 51–1A–1 to § 51–1A–13, as adopted in West Virginia:

The supreme court of appeals of West Virginia may answer a question of law certified to it by any court of the United States or by the highest appellate court or the intermediate appellate court of another state or of a tribe or of Canada, a Canadian province or territory, Mexico or a Mexican state, if the answer may be determinative of an issue in a pending cause in the certifying court and if there is no controlling appellate decision, constitutional provision or statute of this state.

W. Va. Code § 51–1A–3 (1996). “A de novo standard is applied by this court in addressing the legal issues presented by a certified question from a federal district or appellate court.” Syl. pt. 1, Light v. Allstate Ins. Co. , 203 W.Va. 27, 506 S.E.2d 64 (1998) ; accord syl. pt. 1, Bower v. Westinghouse Elec. Corp. , 206 W.Va. 133, 522 S.E.2d 424 (1999) (“This Court undertakes plenary review of legal issues presented by certified question from a federal district or appellate court.”).

III. ANALYSIS

The first certified question appropriately corresponds to “the threshold question in all actions in negligence[, which] is whether a duty was owed.” Strahin v. Cleavenger , 216 W.Va. 175, 183, 603 S.E.2d 197, 205 (2004). In short, “[n]o action for negligence will lie without a duty broken.” Syl. pt. 1, in part, Parsley v. Gen. Motors Acceptance Corp. , 167 W.Va. 866, 280 S.E.2d 703 (1981). Resolution of the first question before us thus depends on whether a cognizable legal duty may be identified as arising from the facts as alleged in the complaint. In aid of such identification, we have instructed as follows:

The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. The test is, would the ordinary man in the defendant's position knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?

Syl. pt. 3, Sewell v. Gregory , 179 W.Va. 585, 371 S.E.2d 82 (1988).

Put another way, “one who engages in affirmative conduct, and thereafter realizes or should realize that such conduct has created an unreasonable risk of harm to another, is under a duty to exercise reasonable care to prevent the threatened harm.” Syl. pt. 2, Robertson v. LeMaster , 171 W.Va. 607, 301 S.E.2d 563 (1983) (citing Restatement (Second) Torts § 321 (1965) ). Importantly, however, “the existence of duty also involves policy considerations underlying the core issue of the scope of the legal system's protection.” Id. at 612, 301 S.E.2d at 568 (citations omitted). We are therefore bound to evaluate such pertinent factors as “the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on the defendant.” Id. (citations omitted).

Ms. Stevens asks that we employ unadorned reasoning to answer the first certified question in the affirmative. She contends quite simply that, by its repeated observance of Mr. Stevens, MTR was in a position to know that he had been seriously affected psychologically by using the video lottery terminals. Supported by the complaint's allegations that about one-half of those treated for gambling and associated disorders have suicidal ideations and about one-sixth actually attempt...