TOBACCO, TOKES & TORTS

Suing Casinos for Failing to Provide Safe Premises

By Michael Kumar Chaudhuri, mchaudh3@law.ua.edu

University of Alabama School of Law, Class of 2006

A. ABSTRACT

The health hazards of Environmental Tobacco Smoke (ETS, also known as secondhand smoke) have been well documented. Smoking in public places has been banned outright in many jurisdictions; many others have required restaurants to offer non-smoking sections.
However, smoking is unfettered in most American casinos. Letting casinos have free reign over the health of their patrons is perhaps the biggest public ETS health hazard in America today and yet is the least regulated.
Only one jurisdiction, a relatively small player in the casino industry -- Delaware -- has banned smoking in casinos. All other jurisdictions in the U.S. have failed to take even smaller steps such as forcing casinos to create non-smoking sections or imposing air safety standards on them.
Approximately 33 states have casinos in one form or another (although many are on Native American reservations) and it is likely more states will approve casino gambling in the near future. According to a 2003 survey by Harrah's Entertainment, more than 50 million adult Americans gamble in casinos, averaging six trips a year to casinos.

At most casinos, those gamblers do not have the option of choosing a non-smoking section, an option found today in most restaurants. Nor do they have the option of choosing a totally smoke-free casino, other than the ones in Delaware (which only offer slot machines).

Serious gamblers will also spend long hours at a casino, thus potentially exposing themselves to a higher level of ETS than somebody having a meal at a smoke-filled restaurant or bar.
As this paper will show, a tort action, ideally a class action, against a large casino operator for failing to provide safe premises may be the most effective way to strike back at the industry and at the very least make it and the public take notice of the problem.
There are several other avenues to approach this problem, but all face difficulties.

 Federal legislation would be the most effective, but it is unlikely Congress would pass a comprehensive public anti-smoking bill in the face of the powerful tobacco and casino industries. Legislatures in states where gambling is a major revenue source, including Nevada and Mississippi, have also been reluctant to seriously consider a smoking ban, although New Jersey’s legislature is debating such a ban now.

OSHA could regulate ETS in the workplace, but after preliminary movement to do so in the 1990s it pulled back, in part due to fears that Congress would cut its budget in retaliation. Workers’ compensation claims, and related claims using the ADA, might work in some instances, but only on a case-by-case method. A casino could also respond to those claims by simply moving a worker into a back-room job (and interestingly most casino "back-room" offices are non-smoking). Also, the Nevada Supreme Court has held that Nevada worker's compensation laws do not cover ETS, reasoning that ETS is not uniquely "incidental to the character" of the casino business.
That leaves us with a tort action as the most immediate opportunity to impact upon the casino industry. Under common law, as a business/landowner, a casino has a duty to exercise reasonable care for the safety of its invitees, and gamblers clearly are "invitees" of a casino. ETS has been classified as a Class A carcinogen by the EPA, a classification that has withstood legal challenges. ETS has also been identified by the U.S. Surgeon General as a significant health hazard.

Carcinogens from tobacco smoke can possibly linger after the visual and olfactory signs of ETS have dissipated, creating hidden hazards, hazards that the general public -- and gamblers -- may not be aware of.

This paper will show that casinos are aware of the problem that ETS poses, in part because of comments from industry spokespeople and in part because many have attempted to install ventilation systems in an attempt to ameliorate the problem of ETS.

 But casinos have done nothing to warn patrons of the danger, nor have they eliminated it by the simplest and most effective means possible -- by banning smoking outright. Instead, casinos have encouraged smoking, by selling cigarettes in their gift shops and in vending machines frequently found on casino floors.

By failing to take protective actions, casinos have acted negligently towards their patrons. Even a warning to invitees of the dangers of ETS would not necessarily eliminate an action charging negligence, since under common law a business has a duty to obviate the danger if even a visitor aware of the danger would be subjected to unreasonable risks.

The causation prong of negligence recovery will be harder to establish. The ideal plaintiff would be a frequent patron of the casino who has developed health problems identified with smoking, and who has no other significant exposure to ETS. Identification of sufficient plaintiffs to permit a class action would be optimal. This may be difficult, although possibly casino employees could be added to the action.

Since it is likely that a state court in a gaming state such as Nevada would look disfavorably upon such a suit, it would also be beneficial to bring this action in federal court.

I. INTRO

In National Lampoon’s Vegas Vacation there is a casino game called “you can’t win.” Gamblers walk past the game, hand the dealer some money, and then walk away. After all -- you can’t win. Today, a nonsmoker entering almost any casino in America will lose in another way. That is because the indoor air in casinos across the country is polluted with secondhand smoke, smoke that gradually can kill. American casinos cater to smokers, perhaps more than any other public venues today, at the expense of the health of adult Americans – nonsmokers and smokers alike.

This paper will argue that secondhand smoke (also known as environmental tobacco smoke, or ETS) in casinos is a major health hazard and will examine various ways to fight it. Many approaches have been tried or suggested to fight secondhand smoke in casinos – legislation, OSHA, and workers’ compensation, for example -- but all have largely failed to control the situation, especially in the states with the highest concentration of casinos. After briefly reviewing the shortcomings of some of those approaches, this paper will suggest a novel approach to fighting this problem – a tort action against a casino arguing that by allowing secondhand smoke to remain in casinos unabated, casinos are in violation of both the duty to provide safe premises and the duty to warn of such dangers.

II. THE PROBLEM TODAY

Casino gambling continues to grow across America. For decades, Nevada was the only state with legal casino gambling, but the floodgates began to open in 1976 when New Jersey approved casinos in Atlantic City.[1] Today 33 states have casinos in varying forms, from commercially-owned Las Vegas-style palaces complete with lavish hotels and pools, hereafter referred to as “commercial casinos,” to “racinos” – horse or dog-racing venues that now have slot machines.[2] Pennsylvania has recently approved casino gambling[3], and it is likely that more states will eventually follow because of perceived economic benefits. The majority of casinos in this country, however, are on sovereign Native American land,[4] and generally are not within the reach of state laws or most federal regulation.[5]

The industry has also seen extensive consolidation in recent years through mergers and acquisitions. Four casino giants -- Caesers Entertainment, Mandalay Bay Resorts, Harrah’s Entertainment and MGM Mirage -- now control approximately two-thirds of hotel rooms on the Las Vegas strip, and those four corporations will be reduced to just two if the pending acquisitions of Caesers by Harrah’s and of Mandalay Bay by MGM Mirage receive regulatory approval.[6] If the acquisition of Caesers by Harrah’s goes through, just two companies – Trump Hotels and Casino Resorts Inc. and Harrah’s Entertainment – will own more than half of the Atlantic City casinos.[7] This consolidation naturally could mean that public interest lawyers will be fighting an opponent with deep pockets in any legal action. But it would also mean that an action like the one suggested herein could have deep impact, since it is likely that a major corporation would be involved and would have much to lose in a tort action.[8]

The gambling industry has grown because people want to gamble. Casinos are a popular form of entertainment for millions of Americans. A survey by Harrah’s Entertainment estimated that 53.4 million Americans (26% of those 21 or older) gambled at a casino in 2003, with the average gambler making 5.8 trips that year.[9] The survey noted that “the number of U.S. gambling trips is likely to increase in the second half of this decade as new casinos open near major markets.” [10] Other studies of gamblers are sparse, other than studies of problem gamblers,[11] but I would suggest that thousands of gamblers spend countless hours at the casino tables, slot machines, video poker machines, and at the sports books, whether they are full-time professional gamblers, problem gamblers or simply serious hobbyists.[12] Those gamblers – some of whom may spend more cumulative time on the casino floor than casino workers themselves -- face the biggest health hazards from secondhand smoke, although the casual gambler who makes a trip or two a month or even a year to a local casino still faces dangerous exposure to ETS. The length of exposure to secondhand smoke faced by thousands of serious gamblers in a smoky casino is one reason why the problem in casinos is potentially more significant than found in restaurants and bars.

That secondhand smoke in itself is a danger to the public health has been well documented by the American Cancer Society:

n Secondhand smoke is the third leading preventable cause of death in the U.S., killing 38,000 to 65,000 nonsmokers each year.

n Cigarette smoke contains over 4,700 chemicals, over 200 poisons and over 50 human carcinogens. The carcinogen NNK has been found in nonsmokers who have been exposed to secondhand smoke.

n Secondhand smoke causes lung cancer, other types of cancer, and heart disease in nonsmokers.[13]

In addition, the National Institutes of Health’s National Toxicology Program’s 9^th issue of the Report on Carcinogens listed secondhand smoke as a “known” human carcinogen, for which the National Center for Chronic Disease Prevention and Health Promotion says indicates there is a cause and effect relationship between exposure and human cancer incidence.[14] And in 1993, the Environmental Protection Agency classified Environmental Tobacco Smoke as a “Group A” Carcinogen – i.e., a substance known to cause cancer in humans. Environmental tobacco smoke was thus put on a list that includes radon and asbestos.[15]

And, unfortunately, ETS runs rampant in most American casinos. The dangerous levels of ETS in casinos has been well documented:

n The average level of cotinine (metabolized nicotine) among nonsmokers increased by 456%, and the average levels of the carcinogen NNAL increased by 112% after four hours of exposure to secondhand smoke in a smoke-filled casino with a “sophisticated” ventilation system.[16]

n Casino workers in a “well-ventilated” casino had cotinine levels 300%-600% higher than workers in other smoking workplaces during a work shift.[17]

n Casino workers are at greater risk than the general population for lung and heart disease because of secondhand smoke exposure.[18]

The combination of a popular and growing activity – casino gambling – with a dangerous environmental hazard such as ETS is potentially a deadly one and should be a major public policy area of concern. However, it is often overlooked, in part because of the economic power of the casino industry, and perhaps in part because casino gamblers are already perceived to be risk-takers and not in need of protection from dangers such as secondhand smoke.

Casinos themselves have done little to combat the secondhand smoke problem, although they are well aware there is a problem. Many casinos have only small areas – if any – that are smoke free.[19] Enforcement is sometimes lax in areas that are designated non-smoking, and other non-smoking areas are adjacent to smoking areas with no significant separation between the areas.[20] Non-smoking blackjack or craps tables are usually only a few feet from tables where smoking is allowed. The racinos of Delaware are entirely smoke-free (by legislative act), and a few casinos, to their credit, have entire floors or separate casinos within the facility that are non-smoking, including the Native American casino Mohegan Sun in Connecticut and Harrah’s in Laughlin, Nevada.[21]

Most casinos rely on ventilation and air-filtration systems to combat secondhand smoke. “Bringing in a lot of fresh air can help reduce the concentration of secondhand smoke and provide a more comfortable environment for everybody,” said Brendan McCormick, manager of media relations for Philip Morris USA. “The comfort of nonsmokers is what’s at issue.”[22] But according to Americans for Nonsmokers’ Rights, ventilation is “not a means to protect workers or patrons from exposure to secondhand smoke.”[23] The American Society of Heating, Refrigerating, and Air Conditioning Engineers (ASHRAE) has stated that an amount of ventilation needed to make smoke-filled areas safe, including in casinos, cannot be determined until health authorities have “determined an acceptable level of environmental tobacco smoke.”[24] Health authorities seem unwilling to determine such a level.[25] The tobacco industry, while championing ventilation, does not claim that it eliminates the health hazards posed by secondhand smoke. “We don’t in any way address the health effects of ventilation,” said Thomas M. Ryan, manager of media programs for Philip Morris.[26]

One study summarized by ANR found that

Ventilation technology installed in a Wilmington, Delaware, casino did not protect workers and patrons from secondhand smoke exposure, as the levels of the carcinogen PPAH and other air pollutants caused by secondhand smoke decreased dramatically after the state’s smokefree law went into effect. Prior to the law’s implementation, indoor air pollution levels, even with ventilation in place, greatly exceeded those encountered on major truck highways.[27]

ANR also notes that the World Health Organization, Environmental Protection Agency, Center for Disease Control and Prevention and the U.S. Surgeon General concur that there is no safe level of exposure to secondhand smoke.[28]

III. APPROACHES TO FIGHT THE PROBLEM

Various approaches have been or could be used to fight secondhand smoke in casinos, including state or federal legislation, OSHA, and workers’ compensation. Most actions have been aimed at protecting casino workers, not patrons, and all have fallen short of the goal of protecting casino patrons – and workers – from the dangers of ETS. After a brief examination of some of these approaches, this paper will suggest a new approach – a tort action against a casino for the failure to provide safe premises and failing to warn of hazardous conditions.

A. LEGISLATION

The legislative banning of smoking in all public places – including casinos -- is the most comprehensive way to stop ETS in casinos. Although some states have enacted such a ban, it is unlikely that most states will do so in the near future. Those that do would likely exempt casinos from any such legislation. California, Delaware, New York, Connecticut[29] and a few other states[30] have comprehensive public anti-smoking laws, but none of those states currently have commercial casinos. California has more casinos – 54, according to the American Casino Guide[31] – than any state other than Nevada but all are Native-American casinos and not subject to the statewide ban. Delaware, because of its statewide ban on smoking in public buildings, is currently the only state with casinos that are completely nonsmoking.[32]

However, states that have large numbers of commercial casinos seem unlikely to enact such a ban. Nevada, Mississippi, and Louisiana, for example, have relatively high rates of smoking in the general population,[33] and they also have strong casino lobbies and casino industry support in their state legislatures. Nevada voters recently had two petitions sent to their legislature, but even the tougher of the two – sponsored by the American Cancer Society, the American Heart Association and the American Lung Association – would allow smoking on casino floors.[34] One possible exception is in New Jersey, where a Senate committee recently amended an anti-public smoking bill to include casinos.[35] The casino industry is powerful in New Jersey but it is located in only one part of the state -- Atlantic City – and faces strong competing lobbies, including non-casino restaurants and bars in and around Atlantic City and in other parts of the state that complained of the fundamental unfairness of allowing smoking in casinos but not in other public places. The measure must still clear the full Senate and New Jersey Assembly before becoming law. What happens in New Jersey if the bill passes will be watched closely in other states with commercial casinos but by itself will likely not encourage other states to follow suit.

The Federal government could also ban most public smoking, including in casinos, through legislative or regulatory action. A ban would likely be constitutionally valid under the commerce clause powers. But under the laissez-faire regulatory approach of the Republican-dominated Congress, we are unlikely to see any movement in the near future at the federal level. What has happened at the Occupational Safety and Health Administration is evidence that the federal government has acknowledged that secondhand smoke poses severe health risks but seems unwilling to do anything substantial about the problem.

B. OSHA

The Occupational Safety and Health Administration could put an end to most indoor public smoking if it banned smoking in all workplaces. Such a ban would clearly apply to casino floors.[36] For political reasons, though, OSHA has apparently been unwilling to do so, despite the evidence of the dangers of second-hand smoke in the workplace. Under the Clinton administration, a comprehensive smoking ban was sought by OSHA through legislative means, as noted by Charles Jeffress, Assistant Secretary for Occupational Safety and Health:

As you know, OSHA has a statutory responsibility to ensure that America’s workers have safe and healthful workplaces. Exposure to environmental tobacco smoke (ETS) or secondhand smoke can pose a serious health risk to workers. Unlike Methylene Chloride or ammonia, chemicals for which OSHA has set permissible exposure limits, ETS is not a necessary component of any manufacturing process or jobs.[37]

Jeffress went on to say that:

Proposed tobacco legislation takes two distinct approaches that involve OSHA in reducing involuntary exposure to ETS. The first, and more common approach, has been to declare, in the law, that public facilities must have and implement smoke-free environment policies. Most of these bills call on OSHA to enforce their requirements. The agency favors this approach, because we believe that OSHA should have jurisdiction to enforce smoking restrictions in workplaces, most of which would be considered “public facilities” as defined in these bills.[38]

In addition to seeking legislative action, OSHA also in 1994 proposed requiring employers to “restrict smoking to designated smoking areas that are either outdoors or in separate, enclosed rooms that are exhausted directly to the outside of the building.”[39]

However, apparently due in part to political pressure from Members of Congress from tobacco-growing states,[40] OSHA later backtracked and in 2001 formally withdrew its Indoor Air Quality proposal after a non-smoker rights group, Action on Smoking and Health (ASH) dismissed its lawsuit against the agency that had attempted to force it to implement the proposal. ASH was fearful that OSHA would set limits of acceptable ETS rather than banning it outright or alternately that OSHA would pass a weak rule on workplace smoking, a rule that could “pre-empt future and possibly even existing nonsmokers’ rights law.”[41] Given the laissez-faire regulatory approach of the Bush Administration it seems unlikely OSHA will shift attitude in the near future.

C. WORKERS’ COMPENSATION

Workers’ compensation claims could be effective in making casinos rethink their smoker-friendly policies. A successful claim by a worker who has suffered physical ailments due to secondhand smoke in a casino would hurt a casino financially and – in fear of future claims – encourage a casino to accommodate workers by controlling or eliminating secondhand smoke.

However, in the state most dominated by gambling – Nevada -- the state’s highest court has held that there is no worker’s compensation cause of action relating to secondhand smoke for casino workers. In Palmer v. Del Webb’s High Sierra, the Nevada Supreme Court said that “until the Nevada legislature so decides, occupational disease claims based on inhalation of environmental smoke in the work place must fail,” noting that “environmental smoke, although a common presence in bars and casinos, is not incidental to the character of these businesses, is not a natural incident of these businesses.”[42] The high court looked to the Nevada code because worker’s compensation cases are statutorily-based. It is unlikely that a state with a significant number of commercial casinos will have approved legislation – in worker’s compensation statutes or otherwise -- unfavorable towards casinos in the area of secondhand smoke.

Under certain circumstances, worker’s compensation claims relating to secondhand smoke can work. The court in Palmer treated ETS as an occupational disease issue, but a few years later another court looked approached secondhand smoke from an accidental injury approach. In Johannesen v. New York City Department of Housing Preservation and Development, the New York Court of Appeals held that bronchial asthma caused by prolonged exposure to secondhand smoke qualified as an accidental injury under worker’s compensation law and held for the worker.[43]

However, even if workers’ compensation cases were winnable, their overall impact on reducing secondhand smoke in a casino may not be significant. Workers’ compensation programs are designed to make workers whole and do not allow for punitive damages. Workers also give up their common-law right to sue the employer for any injuries covered by workers’ compensation acts.[44] Also, casinos may be able to accommodate workers deemed to be sensitive to tobacco smoke by moving them into backrooms or other non-smoking areas. Thus it is unlikely that worker’s compensation claims would have enough economic impact on a casino to force it to rethink smoker-friendly policies.

Given the drawbacks to the above methods of fighting casino secondhand smoke, this paper respectively suggests a novel approach to the problem:

IV. A TORT ACTION AGAINST A CASINO FOR THE FAILURE TO PROVIDE SAFE PREMISES AND FOR THE DUTY TO WARN OF HAZARDS

Under the theory of traditional common law torts, casino patrons/gamblers have at least two potentially powerful causes of action against a casino saturated with secondhand smoke. Both involve the traditional duty that owners or occupiers of the land have towards entrants onto their land: The duty to provide safe premises and the duty to warn of unsafe conditions. Although both will be novel actions as applied to secondhand smoke in casinos, both actions have a long history in the common law.

In order for a tort action to succeed, several elements have to be established in addition to duty. The duty has to be breached; there has to be harm to the plaintiff, and the negligent activity of the defendant has to be the proximate cause of the plaintiff’s injuries.[45] Casinos will also be able to raise affirmative defenses that have longstanding tradition in the common law – assumption of risk and custom -- but modern trends should allow for those defenses to be overcome.

This paper will look at each element separately as it applies to our proposal.

A. DUTY AND BREACH OF DUTY

Under the traditional common law rule, entrants to land are classified either as licensees, invitees or trespassers. Generally, the highest standard of care applies to a licensee, someone who is invited onto the land “for some purpose of interest or advantage” to the landowner.[46] Casino patrons would obviously fit into that category: They are invited into a casino, and the casino hopes to gain a financial advantage from the patron who decides to gamble and, in the long run, lose more money than he or she will win. Although the common law distinction between licensees, invitees, and trespassers has been gradually losing favor,[47] there remains a general duty of reasonable care in those jurisdictions that have eliminated or altered the distinction, a duty that would still apply to casino patrons.

A casino certainly qualifies as an occupier of land, and usually owns the land the casino is located on. According to American Jurisprudence, the landowner or occupant has the duty toward a licensee to “use ordinary care to have his premises in a reasonably safe condition under the circumstances of the case, for use in a manner consistent with the purpose of the invitation, or at least not to lead such persons into a dangerous trap or to expose them to an unreasonable risk…”[48] By allowing secondhand smoke to run rampant throughout their premises, casinos are breaching a basic duty: They are not safeguarding the health, and thus the safety, of their patrons. Nobody walks into a casino expecting to leave with cancer, but that is what is happening on a daily basis today, if only on a gradual basis.

We have seen supra that secondhand smoke is a dangerous toxin and the cause of numerous health problems. Secondhand smoke should be treated by our court system like any other toxic agent. Other airborne dangerous toxins that have harmed plaintiffs have led to successful actions against defendants, see, e.g., Warren v. Hudson Pulp & Paper Corp.[49] in which the plaintiff incurred lung damage from fumes he inhaled in the course of his work at the defendant’s pulp mill. The United States Court of Appeals for the Second Circuit held there was a prima facie case of negligence under Florida law where the defendant was aware of the presence of sulphur dioxide in the smoke being produced at the pulp mill, where it knew, or should have known, about the emissions of fumes and the dangerous consequences which could result from continuing exposure to such toxicity and where it made no effort to correct the problem or give warning to the plaintiff of the danger before the fumes impaired his health. That same standard of negligence could be applied to a casino for not correcting the problem of secondhand smoke or failing to warn about the problem. Establishing that the casino had knowledge of the danger is important to this action:

The general rule that where a defendant is charged with negligence for a breach of his duty of care owed to the plaintiff, liability depends on a showing that the defendant was chargeable with knowledge that his conduct might endanger another, and that he should have foreseen that it might cause harm to someone.[50]

The casino industry is well aware of the danger of secondhand smoke and its prevalence on the casino floor but is unwilling to correct the problem, apparently because of economic fears. Wayne Mehl, a consultant with the industry trade group, the American Gaming Association, said a gaming industry survey done in the 1990s estimated the industry would lose $1 billion in revenue the first year if indoor smoking was outlawed.[51] Casino executives have said that including their businesses in New Jersey’s proposed smoking ban would have a “disastrous” economic impact on the New Jersey gaming industry, claiming that 10% of the industry’s 50,000 workers in the state might lose their jobs because of the ban. “Smoking is bad for you. Nobody denies that,” said attorney Mark Sandson, who represents New Jersey’s gaming industry. “But including the casino floor in this ban is a tremendous mistake for New Jersey. It would be a tremendous competitive shock to the industry.”[52] However, there is no actual evidence that eliminating smoking from casino floors will hurt the industry in the long run. We have only one example to work with: three racinos opened in Delaware in the mid-1990s and allowed smoking until late in 2002, when the state banned smoking in virtually all of Delaware’s public places, including the racinos.[53] A study published in the Tobacco Control Journal, using regression analysis, determined that the smoke-free law “had no detectable effect on total gaming revenue or the average revenue per machine.”[54] Of course, no one really knows how much business from non-smokers might increase if casinos went no-smoking. But even if there were some economic impact on the industry, public policy concerns about the health of the American public should trump the financial concerns of the casino industry.

In addition, the casino industry directly or indirectly supports smoking and has connections to the tobacco industry, creating a conflict of interest that may discourage casinos and the industry from fulfilling its duty to provide safe premises. All casino gift shops sell cigarettes. Many casinos have vending machines on the casino floor that sell cigarettes. A few even continue the nostalgic, non-politically correct practice of having cigarette girls walk the casino floor. Ash trays are everywhere.[55] Americans for Nonsmokers’ Rights (ANR) says that “The American Gaming Association (AGA), led by its president and CEO Frank Fahrenkopf, also a former lobbyist for the Tobacco Institute, works with the tobacco industry to prevent casinos from going smoke free.”[56] The ANR also notes that the AGA is a member of the Philip Morris front group, the Hospitality Coalition on Indoor Air Quality.[57] Interestingly, it is a common misperception that most gamblers smoke and that casinos simply are trying to accommodate a majority of their patrons. In fact, a substantial majority of gamblers are nonsmokers. One study found that one-third of casino patrons are smokers,[58] and less than 30 percent of respondents to a survey conducted on the vpFREE message board said they smoke.[59]

Establishing that the casino industry encourages smoking at the expense at maintaining safe premises should be easy. It will be a little harder to establish that the industry knows how hazardous that practice is to nonsmokers. A casino executive is not going to come out and say “we know cigarette smoke is killing our customers,”[60] However, it is interesting to note that many if not all casino backroom or executive offices are non-smoking. It may also be possible to establish that secondhand smoke is an open and obvious danger, one that should be apparent to a casino, perhaps in the form of “constructive notice” if more direct evidence of a casino’s knowledge of the problem cannot be established.[61] According to American Jurisprudence:

As in other negligence actions, imputed or constructive knowledge on the part of the defendant may be sufficient to satisfy the requirement, and lack of knowledge is immaterial where a defendant has a duty to inspect his premises for defects which may cause injury to a visitor, and fails to perform that duty.[62]

That same argument would give a casino the affirmative defense that the danger, if so obvious, should also be apparent to casino patrons. We will discuss that defense later in this paper, but it also may be enough to show a breach of duty if it can be established that the casino had superior knowledge of the condition than did the plaintiff.[63] An ongoing, highly capitalized business such as a casino is in a better position than a gambling patron to be aware of the danger – to, for example, monitor the level of toxins such as secondhand smoke in its air. Also, the casino industry and hospitality industry[64] in general have advocated ventilation as an alternative to outright smoking bans – an implicit admission that there is a problem that needs to be relieved could be inferred from that fact. Although the casino and tobacco industries rely on ventilation as their preferred method to ameliorate the problem, they also admit that it does not completely eliminate it, see infra.

It may be obvious to the reasonable person that a puddle of water on the floor of a casino is hazardous and something to be eluded. But it may not be so clear that secondhand smoke is as dangerous as health authorities insist. After all, the tobacco industry itself at one time denied that secondhand smoke posed a serious health hazard.[65] Also, many gamblers treat secondhand smoke more as a nuisance than a health hazard. Consider a recent thread on the vpFREE message board, in which a video poker player wrote:

My wife and I each have mild smoke allergies that is (sic) not bad enough to keep us from casinos, but it does decrease our total enjoyment a bit. While we are in the casino, we expect to smell the smoke…unfortunately the smoke smell gets into your clothes and gradually makes the (hotel) room smell a bit as well. We have serious problems sleeping in this smoke smell, so this has always been a downer for us.[66]

The poster’s solution was to spray a cleaning product on his and his wife’s clothes to eliminate the smell; at no point did he voice concern about the potential long-term health risks he and his wife were being forced to accept if they wanted to gamble in that casino.[67]

American Jurisprudence also notes that the traditional rule states the owner/occupier should give “adequate and timely notice and warning of latent or concealed perils, which are known to the owner or occupant but not to such entrants.”[68]. Again, we have a question of fact as to whether secondhand smoke is an “open and obvious” danger that a “reasonable” casino patron would be fully aware of before entering the premises.[69] Nonsmokers may frequently be irritated physically by the presence of secondhand smoke but not be fully aware of the actual dangerous levels of the toxic fumes, and would certainly not be able to fully study the danger. Also, it may not be so apparent that lingering smoke from a cigarette poses a health hazard. In addition, there is evidence that the tobacco industry has tried to mask the odor of secondhand smoke, which if successfully done would mean the toxins from ETS would constitute a truly hidden danger.[70]

A casino operator is best equipped to determine the quality of its indoor air, but is currently under little legal or economic pressure to do so. A successful tort action would, perhaps at the very least, force a casino to start warning patrons of the dangers they may encounter within. “A possessor of land is required simply to share his knowledge of dangerous conditions or dangerous activities with licensee. When such warning has been given, possessor’s knowledge is no longer superior to that of licensee, and possessor’s duty extends no further.”[71]

In 1965, Congress declared that the public should be warned of the danger of cigarette smoking.[72] No equivalent statute requires businesses to warn of the dangers of secondhand smoke. But a successful tort action which establishes negligence on the part of the casino for not doing so could start an industry trend. Imagine signs at the entrance to every casino in the country, stating: “WARNING. Entering this casino may be hazardous to your health because of the high level of toxins from secondhand smoke found within.” Or imagine requiring patrons to sign waivers before entering, acknowledging that they are aware of the dangerous conditions on the premises.[73] Such warnings certainly would not help the bottom line of the casino, since they might sufficiently sway at least some non-smokers from entering the premises, thus placing additional economic pressure on casinos to at least move in the direction of eliminating smoking on their premises.

B. INJURY AND PROXIMATE CAUSE

Naturally, the plaintiff has to have injuries, and for a tort action to succeed it must be established that those injuries were caused by the defendant’s negligence. “Liability for negligence is predicated upon a causal connection between the negligence alleged as the wrong and the injury of which complaint is made…if there is no causal relation between a defendant’s negligence and a plaintiff’s harm, there is no tort.”[74] An injured plaintiff, unfortunately, should be easy to find, given the quantity of gamblers who are regularly exposed to secondhand smoke. Establishing that there is a causal link between the injury and time spent in a casino may be more difficult, but it has been done before. In the worker’s compensation case, Palmer v. Del Webb[75], the plaintiff lost the case not because of a lack of connection between his injuries and the smoke in the casino. In fact, it was uncontested that there was a causal connection. Both the hearing officer and appeals officer found such a connection did exist. The appeals officer said “The evidence presented by testimony and by documents establish[es] a direct causal connection between Palmer’s work in an enclosed area containing smoke in the air he breathed and his…disease of chronic pulmonary dysfunction.”[76]

Palmer was not a smoker, nor did he socialize or live with smokers. Furthermore, he led an active life, participating regularly in outdoor activities including jogging. Palmer “presented evidence from three doctors who stated Palmer’s condition resulted from continuous exposure to toxic tobacco fumes contained in the secondhand tobacco smoke.”[77] Like Palmer, the plaintiff in this paper’s proposed tort action would be a nonsmoker who is exposed to no other significant secondhand smoke in the home, at work or socially, and who has developed health problems identified with ETS, secondhand smoke that he or she could only have encountered in quantity at the defendant casino. Establishing the amount of time a particular gambler has been in a casino will be easy to do. Virtually every serious table game or slot machine player in the country is electronically monitored while he or she plays, since most will use player reward cards, or “slot club cards,” in order to qualify for complimentaries.[78] Casinos in Atlantic City in the 1980s started issuing slot club cards as a way to track their patron’s gambling activity and to improve their ability to market to individual gamblers. The practice has spread to virtually every casino in the country, and casino records should be available through discovery.[79]

Finding several plaintiffs would be ideal for the action proposed, since a class action would certainly be a more efficient and potentially more effective action than an action involving a single plaintiff. It may be possible to join employees with patrons as class members. One reason this paper advocates approaching this issue from the perspective of the casino patron is that that could have the biggest economic impact on the industry; even actions that only result in casinos issuing warnings to patrons about the quality of their air would be a victory, and such general warnings to the public would likely not result from a tort action that involved only casino workers. An employee in a similar situation to Palmer, see supra, should be able to join such a class action even after filing a worker’s compensation claim; worker’s compensation laws generally state that workers give up their right to sue for damages for any injury covered by the act, but as the court in Palmer[80] noted, injuries from secondhand smoke are not covered by Nevada’s worker’s compensation act.

The two requirements for a class action are that “questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.”[81] Although the exact requirement of duty that an employer owes an employee may differ from that which a possessor owes an invitee, under the common law the standard of duty is very similar. For example, in Shimp v. New Jersey Bell Telephone Co., the Superior Court of New Jersey, Chancery Division, held that an employee has the right to work in a safe environment and the employer is under an affirmative duty to provide a work area that is free from unsafe conditions.[82] The court derived those rights both from the common law and from statutory law, saying also that under OSHA an employer has the duty to eliminate all foreseeable and preventable hazards. It would still be valuable to find as many plaintiffs who are gamblers as possible, in case a class comprised of both gamblers and casino employees would fail to satisfy class certification requirements. The impact on this potential class action of recent federal legislation is beyond the scope of this paper, but it is worth noting that this tort action could face better odds if undertaken in federal court, since it is possible that there may be judicial bias in a state such as Nevada that is dominated by the casino industry.

C. DEFENSES

At least two affirmative defenses will be available to a casino in this cause of action: assumption of risk and custom. Assumption of risk under the traditional approach, also called plaintiff’s knowledge or notice, postulates that

Since the most that the licensee can expect is an opportunity for an intelligent choice as to whether or not the advantage to be gained by coming on the land is sufficient to justify his incurring the risk incident thereto, if he knew personally of the condition of the premises, including the particular danger of which he complains, the owner or occupant who granted him the license committed no breach of duty in failing to warn him of the danger.[83]

If it cannot be established that the casino had superior knowledge of the hazard, such an assumption of risk could be a successful affirmative defense. It could indeed be an effective negation of negligence liability under traditional tort law if the defendant can establish as a matter of fact that casino patrons, and in particular the plaintiffs in this cause of action, were aware of the danger but chose to ignore it, or in other words, assumed the risk. The finding that a reasonable person should have known of the risk may even suffice to defeat any action.

However, there has been a rejection or modification of the traditional rule in many jurisdictions.

In such jurisdictions, it is said that despite the obvious nature of a dangerous condition and the knowledge of the invitee, the premises owner may have a duty to warn or take other action if he should anticipate that the invitee will nevertheless encounter the condition because it is advantageous to do so…[84]

Gamblers are the very type of people who, even if aware of a danger, may choose to risk such danger because they feel it is advantageous to do so. This paper will separate serious casino gamblers, those who spend considerable time in a casino, into three categories, all with potential overlap: 1.) Problem (or pathological) gamblers; 2.) Professional gamblers, and 3.) Hobbyists.

Pathological gambling is defined as the “inability, over an extended period of time, to resist impulses to gamble….pathological gamblers often ‘chase’ their losses, feel a need to bet more frequently and in larger amounts, and continue to gamble in spite of the serious negative consequences of their behavior.”[85] Professional gamblers can be defined as gamblers who earn their living gambling. If their game or games of choice are found in casinos, they will have to enter said casinos in order to earn their livelihood and thus be forced to enter the casino environment despite possible worries about unsafe conditions.[86] Hobbyists take gambling seriously and spend more time in casinos than the average recreational gambler, but having a good time is their primary concern as opposed to making a living at gambling, Hobbyists also have enough control over their gambling to avoid being problem gamblers.[87]

All three types of gamblers will probably face exposure to significant levels of secondhand smoke due to the time they spend on the casino floor, but all three types – even if aware of the hazard – may indeed find it advantageous to remain in the casino.[88] First of all, if they want to gamble in a casino – for whatever reason -- they really have no effective way to avoid secondhand smoke, given the unwillingness of the industry to eliminate it.[89] Also, unlike most other businesses, casinos want their patrons to stay as long as possible on their premises, with the hope that they will continue to gamble and continue to lose money.[90]

Most people are aware of the white-glove treatment that heavy gamblers – “High Rollers” – receive, but even small-stakes gamblers playing slots receive many complimentaries (comps) from casinos and the levels of those comps increase commensurate with the level of the patron’s gambling. Players in most casinos earn points that can be redeemed for meals, hotel rooms, shows, gifts and frequently even cash, since many casinos will rebate a percentage of the money the player has gambled in what is called “cashback.”[91] The more the gambler plays, the more he or she gets,[92] and thus the gambler who continues to play perceives an advantage to doing so. But in order to gain that advantage, the gambler must be present in the casino and that desire and concern may override concerns about safety and health.[93]

Restaurants and bars do not have similar programs in place. Of course, restaurants usually do not want their patrons lingering too long after a meal. Bars, in part because of “dram-shop” laws that make them liable for actions by a patron who over consumed on their premises, will at some point refuse to serve alcohol to a patron whom they perceive has already had enough to drink.[94] But casinos will rarely ask a gambler to quit, regardless of how much the gambler is losing or how long he or she has been gambling. Casinos have also been generally found to have no duty to make gamblers who gamble beyond their means stop doing so, except in some cases when the casino was aware the gambler was under the influence of alcohol or drugs.[95] But casinos have not been absolved from the common law duty to provide safe premises. Gamblers want to gamble, receive perceived benefits from gambling (and real benefits in the form of comps from the casino the more they gamble), and thus feel it is to their advantage to be in the casino. This perception should negate the traditional view on duty and keep in place a casino’s obligation to maintain safe premises, even if the hazards were obvious and apparent under the traditional rule of torts.

Of course, in some states that follow a comparative negligence standard, assumption of risk might be reduced simply to a “damage-reducing factor in the apportionment calculus.”[96] Other jurisdictions follow the theory that comparative negligence does not vitiate assumption of risk “as an absolute bar to an injured person’s claim for damages.”[97] Obviously, the law of the particular state in which this action is brought will be a crucial element as to its success, but it is beyond the scope of this paper to look at each state individually.

Custom is another affirmative defense a casino may raise, but it should be beatable. A casino-defendant may claim that since allowing secondhand smoke is commonplace in the industry, it is simply meeting industry norms and thus cannot be held liable. But this is certainly not an absolute bar to recovery:

Although relevant to the question of what constitutes due care in a particular case, custom is not dispositive of the legal standard of care in negligence actions…simply put, customary practice is not necessarily ordinary care….what ought to be done remains the standard of reasonable care under the circumstances regardless of whether there is customary compliance with that standard.[98]