#115 © Copyright 2005, all rights reserved
worldwide. Gambling and the Law® is a registered trademark of Professor
I Nelson Rose,
Gambling and the Law®:
Who Owns Tokens Left In Slot Machine Trays, Or
How To Turn 5¢ Into A Fortune – By Suing The Casino
Stella Romanski found a nickel token
in a slot machine tray and won a jackpot, thanks to a runaway jury and judges
who think casinos have too much money.
Stella, 72, and her friends, Dorothy
Dombrowski and Linda Holman, had paid $9.00 each for bus rides and a lunch
buffet at the MotorCity casino in
What happened next is in
dispute. Stella, now playing the sweet,
innocent, injured grandmother, claims she was accosted by the casino’s evil
security minions. Surrounded by
uniformed officers, she was led to an interview room without windows, seated at
a desk and informed that she had stolen a coin from the slot machine tray. They even took her nickel. The trial judge, Lawrence Zatkoff, bought her
story, hook, line and sinker. “Ms.
Romanski began to cry at the thought that she, a grandmother of nine children,
could commit a crime.” Right.
The testimony of the security
officers, under oath, was a little different.
Stella, far from being the shy little elderly lady, was loud, hostile
and “even belligerent.” The first and
only security officer at the scene, Marlene Brown, was in plainclothes, not in
uniform. She explained the casino’s
policy that money left in a slot machine tray belonged to the player who won
the money or, if no one claimed it, to the casino. But Stella became hostile and raised her
voice. Brown testified, “Well, my
instinct was to just tell her and let her just go finish gaming, but like I
said, she was getting kind of loud, and that’s when I called Sky.” The eye-in-the-sky surveillance operators
sent backup. But Stella still was making
a scene, so they got her off the floor.
Judge Zatkoff refused to throw out
the complaint. Apparently buying
Stella’s version of events, he wrote that she had been banned from the
casino. Admittedly, she was allowed to
return to use a restroom, but she was humiliated by having a security officer
in the stall with her. The casino then
forced her to stand outside for hours in the hot, humid,
At trial it was shown that, in fact,
the female security officer did not enter the bathroom stall with Stella, that
she was escorted to the valet area which was air-conditioned, and the reason
she decided to walk outside was because she ran into her friends.
But never let truth get in the way
of a good story.
Her lawyer, Neil H. Fink, sued the
casino and agents alleging five counts: false arrest and imprisonment,
defamation, intentional infliction of emotional distress, violation of her
federal civil rights, and exemplary damages.
Students learn in their first year of law school that there is no such
thing as a “count” for exemplary damages, but Judge Zatkoff reworked the
complaint for Fink.
The jury found there was no
defamation and no intentional infliction of emotional distress. So this left only the civil rights claim,
called a §1983 action, and false arrest.
Damages were thus limited to what happened to Stella from the time she
was approached by Officer Brown to the time she left the interview room.
Since there was no evidence that she
ever even visited a doctor, let alone needed psychiatric care for this
traumatic incident, the jury awarded Stella as follows: $9.00 for the bus trip
and lunch, $270.00 for compensatory damages for being detained, five cents for
the nickel token, and $850,000.00 in punitive damages.
The legal issue on appeal was the
civil rights claim and the size of the punitive damages.
If a person “acting under color of
state law” deprives another person of her federal civil rights, the victim can
sue in federal court. Fink’s problem was
that there was no state agent involved, no state policeman, no agent of the
state gaming board, no one at all, except the casino’s private security agents.
In a two to one decision, the 6th
Circuit Court of Appeals held that Officer Brown’s conduct could be “fairly
attributable to the state,” because she had the power to make arrests on the
casino grounds.
Courts are split on whether a
private security guard, and, of course, her deep-pocket employer, can be sued
under §1983. One way to find state
action is the “public function” test.
This looks to see if the privately hired guard has the power of a
government policeman. The test has
become so complicated that tiny differences in the facts and state laws spell
the difference between liability for hundreds of thousands or millions of
dollars and the claim being dismissed.
What has gotten lost is the reason
for the tests. Private guards can be
sued for state violations of civil rights only because the state has decided to
delegate its police power to that private individual.
Does anyone really think the
security guards at casinos were acting for the state in this case?
But having found the casino’s
private guards were state agents, the Court went on to find that they had, in
fact “arrested” Stella, and that they had no right to make that arrest. A real cop can make an arrest when there is
“probable cause” to believe a crime has been committed. But here there could be no crime, because the
casino was wrong in thinking the nickel token was its property.
The Court ruled the slot token was
abandoned property. Since the real owner
could not be found, the law of finders-keepers kicks in. Stella, being the first person to find the abandoned
token had a superior title over everyone else, including the owner of the place
were the property was found.
The Court held that $850,000 was
excessive, but $600,000 in punitive damages sounded right. It got that number by looking at cases where
victims had been strip-searched, falsely convicted and even beaten to
death.
And the Court decided that big money
was needed to deter the casino. It noted
that Wal-Mart had been hit for $600,000 in a horrendous case of a pregnant
woman falsely convicted and sent to jail, as if that were the same as Stella’s
half-hour in the interview room, or that a casino is as rich as the world’s
largest retailer. The Court also ignored
the fact that the casino had never done this before and would be hit with
enormous damages if it ever did it again.
But what was really overlooked was
that this windfall all belongs to Stella and her lawyer. With a one-third contingency fee, that means
that Fink gets $200,000 and Stella walks away with $400,000.
Personally, I would put up with
being questioned by security guards, even called a thief, for $400,000.
END
© Copyright
2005. Professor I Nelson Rose will be
teaching International Gaming Law as part of