The anti-gambling movement is attempting to show that legal gaming creates so many social problems that it should be outlawed. A standard argument is that more gambling means more bankruptcies, which means more suicides.
The world is so complicated, that it is often impossible to know whether one thing “causes” another. If that there has been an increase in bankruptcies, or suicides, over the last few years — was this caused by the proliferation of gambling, or by the increasingly easy availability of credit, or by a hundred other factors?
It is often up to legislators and voters to decide these issues. But the political process never really answers important questions of fact. Instead, the debate is resolved by taking a vote. Judges are not as fortunate. They have to determine the truth, based on the law and actual facts of a real case. For example, a judge in Mississippi had to rule on whether a casino could have caused a suicide. On May 7, 1996, James Shamburger killed himself in his apartment in Slidell, Louisiana. His widow sued Grand Casino, claiming the Mississippi casino was responsible for the suicide.
In most states, the case would have been dismissed almost immediately. Under what is known as the American rule, suicide breaks the chain of causation. This is particularly true in states like Mississippi, where suicide is still recognized as a common law crime. Even if a defendant had done something to cause harm, the law holds that the person who commits suicide is a new and independent cause, a free agent, who has created his own injury.
Federal Judge Dan M. Russell, Jr., found that Mississippi law recognizes an exception to the American rule: The estate of a suicide victim may recover if the defendant committed an intentional, outrageous act which produced “a mental illness resulting in an irresistible impulse to commit suicide.” The tests are difficult to meet. The mental illness must be so great that the victim “must not be in control of his faculties, or be able to discern the nature nor understand the consequences of his own actions.” A mental “condition,” such as depression or stress, is not enough. The defendant’s act must result in a mental illness which makes the suicide involuntary.
Further, it is not enough that the defendant acted with malice. The conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.” Was Grand responsible for this death? Another way of asking the same thing: should the casino executives have done anything different?
The attorney for Shamburger’s widow argued that fear of going to jail caused Shamburger to be unable to resist the impulse to kill himself. Judge Russell found there was no evidence supporting this theory. It was uncontested that Shamburger had had trouble with gambling, drinking and personal relationships for years. His optical business failed in the summer of 1994.
In July 1994 Shamburger wrote markers totaling $3,000 for chips, on a checking account that had already been closed. After the checks bounced, Grand employees wrote and called Shamburger. When he failed to make any effort to make the checks good, Grand executives turned them over to the Office of the District Attorney for Harrison County, Mississippi, under the Mississippi Bad Check Statutory Scheme.
The D.A. sent Shamburger letters, using forms required by law. Rather than pay, Shamburger showed up with his lawyer at the D.A.’s office on January 19, 1995, and asked to be arrested. But, no one would arrest him. The ploy actually worked. Shamburger never received another communication from either the casino or the D.A.
In March 1995 Shamburger and his wife filed a petition in bankruptcy. They listed the $3,000 owed Grand, along with approximately $220,000 in other debts. As the judge noted, “The debt to Grand thus constituted less than 1.5 percent” of the total owed. Besides not being arrested when he tried to turn himself in on the Grand debt, Shamburger had other run-ins with the law. In April 1996, only a few weeks before his suicide, Shamburger pleaded guilty to writing a bad check to a merchant in an unrelated incident. He made restitution and served no jail time. Even if Shamburger feared jail, what did the casino executives do that was outrageous?
Plaintiff’s attorney argued that they were wrong to file a criminal complaint, when the casino had agreed to hold the markers. The only problem: The evidence showed the agreement was that the checks would not be held, but rather deposited in his bank.
With many deaths, there is a natural tendency to try and place blame. But, the law recognizes that a legal business, even a casino, does not “cause” a suicide when it tells a prosecutor that one of its customers has written a bad check on a bank account that he had already closed.
[Professor Rose can be reached at firstname.lastname@example.org] END
In the past few years, I testified as an expert witness in two major hearings where “best practices” had important and surprising roles. The Bergin Inquiry reexamined the entire system of regulating casinos in New South Wales, Australia. Five years earlier, NSW had...