As another year closed, 2014 had many interesting lawsuits that I was involved in as an expert witness who specializes in casino cases. It was also interesting to listen to the case inquiries made during the last several years.
As a consultant with a primary specialization in gaming security and surveillance, I wanted to share some of these inquiries and trending litigations. The demand for my legal services has far surpassed the demand for general consulting for casinos.
For the most part, litigation involving claims of inadequacy and negligence where surveillance or security had a legal duty to protect their patron from foreseeable harm remained consistent with prior years. I received calls from both defense attorneys representing casinos and plaintiff attorneys representing customers who felt they were wronged in some way.
During 2014 and in recent years, there is a trend moving into litigation that involves self-exclusion programs, armed robberies (both on and off site), and the ever-increasing incidents of assaults in the casino as a result of two or more customers in a dispute where injuries are suffered. The other typical cases involving intentional torts (where a security officer does something to someone) by security personnel and alcohol-related cases continue to be the focus of many lawsuits.
Self-Exclusion
There are more and more attempts at litigation involving those customers who self-exclude from casinos and then sneak back in and are able to gamble. When they lose, they sue the casino for allowing them back in. Many jurisdictions have mandated self-exclusion programs where the standard is to at least do what the jurisdiction requires for self-exclusion and monitor those people to keep them from coming back in. Plaintiffs will allege that when this regulation is violated it proves a claim.
If the casino drafts and implements a self-imposed standard (policies and procedures) that dictates the process and specific instructions regarding self-exclusion and they do not follow their own guidance, this also becomes problematic and challenging at trial. It also becomes problematic when a self-excluded patron comes in, wins a jackpot, and is not paid as a result of the self-exclusion. I have been contacted on these types of claims recently also.
As available technology improves, it is becoming easier for a property to detect a self-excluded patron. As an example, the advances in license plate recognition (LPR) software are proving beneficial in self-exclusion programs in North America, as long as the database of information is accurate during the exclusion process.
The case law in various jurisdictions is changing, and in some instances in favor of the patron and not the casino operation. The logical, common-sense thinking, that if you self-exclude because you have a gambling problem you should not be able to sue if you come back in and lose money, does not prevent people from suing.
A best practice might be to do an evaluation of your self-exclusion program, the applicable regulations, laws and case laws every year. You might be able to avoid lawsuits or at least prevail in legal motions that might dismiss them early on before the cost of defense increases. The key is to do what is reasonable under the circumstances and prove that you are concerned enough to focus an annual review. This will go a long way during a trial. Proving you actively monitor and watch for self-exclusions through logs and reports will not only help in a lawsuit; it will help in demonstrating compliance to the regulators.
Armed Robberies
We traditionally think of the armed robber as the guy with a mask that comes up to the cage cashier with a gun and attempts to take away a sack full of cash (or sometimes a fistful of chips). These types of casino robberies are in fact on the increase in almost all jurisdictions, and are chronic in some markets. Casino operators need to be aware that if there are cage robberies that occur frequently in their geographic area, the issue of foreseeability or the reasonable anticipation that a robbery will occur at their facility increases. Just because one has not happened at your casino before does not necessarily insulate you from liability.
The issue with these robberies is the customers that are in the vicinity of a cage robbery will often file a lawsuit claiming inadequate security and trauma as a result, including contracting post-traumatic stress disorder (PTSD) and alleged fear of going back into a casino. It is actually rare that a customer will be shot by the robber in a casino cage robbery—and more likely than not, an employee would be hurt, if anyone. The end result is that a lawsuit is filed by someone who was not physically injured that will be served years later, well after all of the principal employees have moved on to other employment.
There will be allegations that security did not protect the plaintiff in various ways, to include not being aware of the fact that robberies will occur in casinos; not patrolling the premises including at or near the cashiers cage at a frequency to have some deterrent effect to the would-be robber; not having an actual robbery policy and procedure for prevention, response, crime scene protection; insufficient care of customers post-event; and inadequate training of security personnel who know the “do’s and don’ts” of responding to an armed robbery.
There will also be allegations of inadequate surveillance, which will come as part of an inadequate security lawsuit. There is little case law that addresses specific surveillance inadequacy; it is typically lumped into the inadequate security case law found in every jurisdiction. It does not matter if we as an industry keep them very separate for what we feel are obvious reasons; we are one of the very few industries in which surveillance is typically independent of the physical security operation.
We are seeing more and more cases where a plaintiff’s attorney will allege that there was an inadequacy of the surveillance department to make an observation of what should have been obvious stalking of a customer inside the casino, or at minimum suspicious behavior including walking the casino, not gambling, looking for a victim. The allegation for security is normally that they failed to respond and prevent the robbery in the first place.
An increasing number of what the press has labeled “follow-home robberies” have occurred, where the perpetrators will “mark” their victim winning or getting paid a large amount of cash and follow them home. Once home, they commit an armed robbery far away from the casino’s more secure environment. Depending on the individual case law in the state where it occurred, a patron could prevail if they demonstrate that the casino should have done more to reasonably protect them as a customer.
Perceived Failures
More and more surveillance-related activity has become involved in lawsuits that include alleged failures to monitor and detect suspicious persons that eventually commit a robbery on a patron or an employee. The allegations that post-event, surveillance failed to save relevant video that was captured by the camera system or complete a comprehensive review are also increasing.
Spoliation-of-evidence claims are becoming more common, where it can be eventually proven that there would have been numerous cameras that may have captured images of an event that were not reviewed adequately, not kept as evidence and allowed to recycle, and as a result somehow caused damages to a plaintiff. Juries will typically frown on lost video that was once available for them to review when coming up with a verdict. A simple jury instruction from a judge could create a verdict in favor of the plaintiff.
On the flip side there are cases where the surveillance review was very comprehensive and the surveillance director ordered the views to be combined into one composite piece of evidence to be retained with the rest discarded. In some of these cases the composite backfires on the casino, in that when a jury watches the evidence at trial, it appears that it was very obvious that surveillance should have noticed it live while performing normal functions. The perception is much different when composites are used, because you are only saving the negatives and not all of the other things occurring in the environment.
A best practice in these situations might be to collect all-inclusive video of a serious incident and avoid making any composites until after your legal counsel has been consulted. That way it becomes attorney-client work product and is protected based on the fact it is done in anticipation of litigation. Consulting your legal counsel on this issue would prove beneficial.
Although the intent of the surveillance director is to put together a shorter version of what occurred, it becomes problematic when you just show the negative instances in a composite recording. It is a much easier case to defend if you can demonstrate all the other factors involved in a piece of video and not just the bad thing that a plaintiff’s attorney wants.
It is also beneficial to pull each video segment and look for instances of security staff performing patrol or seen in the vicinity of the event in the minutes prior, to prove security presence. It is also relevant in those many cases where the video produced as evidence of the incident starts seconds before the actual bad deed and ends seconds after it is over. Although the intent is to just document the event, it creates an illusion that the casino is hiding something they do not want the jury to see. Understanding what occurred prior is something that should be retained and analyzed way prior to trial. Once the system recycles the available hard drive, it can never be retrieved.
On-Property Assaults
Other types of robberies that are also increasing in severity are the robberies of customers in the parking lots after they leave the casino with winnings and are still on the premises. I have been involved in carjackings, armed robberies and homicides that are a result of a robbery gone worse in a surface parking lot or parking garage.
Plaintiffs will typically allege inadequate security of the parking lots to include how the security department patrols, at what frequency, and how they are trained in crime prevention and deterrence. They will also allege that the casino easily took money from their clients on a regular basis and when their client won a large sum, the casino failed to adequately warn them or protect them from foreseeable harm.
Not offering escorts off property, not giving them a warning that they need to be careful and what not to do will certainly come into the case and quite possibly be used against you at trial. Many casinos require that surveillance be called for review of any jackpots or chip redemptions over a certain amount to allow surveillance to watch the transaction. Just watching the transaction is not enough, and what is occurring in the vicinity should be emphasized.
Although most casinos will say that they offer a check written for the winnings or to make arrangements to wire money, they can rarely prove that they did so, primarily because there is no audio that corresponds to the casino cage video of the transactions. Customers frown on not getting their money in cash, and as a result do not trust the check or wire process.
This creates a condition that should be well-documented and established. Another smart practice may be to produce a pocket-size card that tells the customer of the dangers of leaving with a large sum of cash and the alternatives available, which may satisfy any legal obligations to warn customers of the risks.
I have seen cards that essentially say “Congratulations on being a winner at ABC Casino” and go on to say that they are concerned for their valuable customer’s safety and offer the following tips for their own safety and well-being. The card is distinct when seen on video being handed to the customer, and helps establish that the casino did what was reasonable in letting their winning customers know the dangers of carrying a large amount of cash and the potential for someone observing the payoff.
Fights and Disputes
The final area of increase in lawsuits I have been involved in are those where two patrons get involved in some form of altercation over a slot machine, social interactions or just simple disputes. It is quite common that one of the parties will most likely sue the casino if they are hurt as a result. Even though the casino did not create the condition for a fight, the allegations will be that you failed to properly secure the environment, in the way that other casinos secure theirs.
There is significant case law in these areas across the country, and the basic premise is that you owe a legal duty to provide security, in a manner that is reasonable, to protect patrons from foreseeable harm. All of the best practices described in this article also apply to these fights that will occur anywhere on the casino premises. The likelihood of the fight causing injury to other patrons and employees is greater in these instances.
I have recently had cases where security responded to an incident, attempted control of a disruptive patron and as a result of alleged lack of control severely injured an elderly patron not involved in the incident. In another case where security decided to pursue a suspect who had committed a minor undesirable panhandling, they ran over a customer creating severe injuries.
From a security perspective it would be a smart practice to have a well-defined policy and procedure, reviewed by legal counsel, on the appropriate response to these common incidents that result in litigation. Training, written protocols and deployment of personnel will all come under scrutiny during a lawsuit.
From a surveillance perspective, the smart practice may be to rethink how evidence is collected and the use of composite video as primary evidence rather than a collection of video clips that can be used as a defense rather than a detriment to the case. Understanding the time it takes for a video review, a directive on what types of incidents require a comprehensive video review may be warranted.
