                              In the
    United States Court of Appeals
                 For the Seventh Circuit
                           ____________

No. 02-2523
MARK MERRILL,
                                              Plaintiff-Appellant,
                                  v.

TRUMP INDIANA, INC.,
                                              Defendant-Appellee.
                           ____________
              Appeal from the United States District Court
        for the Northern District of Indiana, Hammond Division.
                No. 2:99-CV-292—Rudy Lozano, Judge.
                           ____________
    SUBMITTED FEBRUARY 11, 20031—DECIDED FEBRUARY 26, 2003
                           ____________


    Before EASTERBROOK, ROVNER, and EVANS, Circuit Judges.
  EVANS, Circuit Judge. Mark Merrill robbed banks in
December 1998 and January 1999 and for that activity
he was convicted and is now serving time at a federal pris-
on in Florida. But this is not a criminal case dealing
with the robberies: it’s a civil suit, under our diversity
jurisdiction, alleging that a riverboat casino didn’t do
what it was supposed to do to prevent Merrill from gam-


1
   After an examination of the briefs and the record, we have
concluded that oral argument is unnecessary. Thus, the appeal
is submitted on the briefs and the record. See Fed. R. App. P.
34(a)(2).
2                                              No. 02-2523

bling. His substantial gambling losses fueled a need for
money, and although his complaint doesn’t come right
out and say it, Merrill’s present predicament can be
traced to his need for cash to cover his gambling tab.
   Trump Indiana operates a riverboat casino on the
shore of Lake Michigan in Gary, Indiana. We recently
noted some of the political machinations that led to the
licensing of the casino in the mid-1990’s. See Mays v.
Trump Indiana, Inc., 255 F.3d 351 (7th Cir. 2001). Mr.
Merrill, by his own admission, is a compulsive gambler.
Like East and West, this is a twain that should never
meet. But it did.
  According to the third version of Merrill’s complaint,
which seeks over $6 million in damages, he entered a
clinic for compulsive gamblers in Peoria, Illinois, in 1996.
The clinic soon became his “guardian/custodian/trustee
in all matters pertaining to the recognition and treat-
ment of the symptoms and underlying causes of [his]
addictive and compulsive behaviors . . . .” Acting in that
capacity, Merrill alleged that his rehab counselor at the
clinic contacted the casino in 1996 and formed with it an
oral contract to keep Merrill off its premises. The con-
sideration for this contract, it is alleged, was that the
clinic would “publicize to the community” the casino’s
support of programs to help compulsive gamblers get
over their addictions. Discovery in the case, particularly
a deposition given by the rehab counselor, however, dis-
closed that no oral contract was created. But it is undis-
puted that Merrill himself, in 1996, wrote to the casino
asking that he be evicted from it if he ever showed up to
gamble. And Merrill’s name does appear on the casino’s
“eviction list.”
  In 1998, Merrill relapsed and returned to gambling at
the casino. And now, as we said, he’s serving federal time
for bank robbery.
No. 02-2523                                               3

  Merrill’s complaint alleged causes of action for fraud,
constructive fraud, strict liability, breach of contract,
intentional and reckless disregard for others’ safety (will-
ful and wanton misconduct), negligence, and breach of
the implied covenant of good faith and fair dealing. The
district court dismissed the constructive fraud and strict
liability claims on a Rule 12(b)(6) motion and, a year
later, granted summary judgment for Trump on all other
counts. The court concluded that Trump never promised
to honor Merrill’s self-exclusion request and so no con-
tract existed between Trump and Merrill. The court fur-
ther found that, because Trump owed no statutory or
contractual duty to Merrill, it did not act negligently or
engage in willful and wanton misconduct.
  On appeal, Merrill does not contest the district court’s
finding that he and Trump did not have a contract. He
challenges only the grant of summary judgment on his
tort claims. Merrill argues that the court erred in hold-
ing that Trump had neither violated a duty of care nor
engaged in willful and wanton misconduct when it al-
lowed Merrill to gamble in its casino. We review a grant
of summary judgment de novo. Trustees of the Aftra
Health Fund v. Biondi, 303 F.3d 765, 772–73 (7th Cir.
2002). In a case arising under our diversity jurisdiction,
the substantive law of the forum state applies, Land
v. Yamaha Motor Corp., 272 F.3d 514, 516 (7th Cir. 2001),
and that’s Indiana here.
  In Indiana, the existence of a tort duty is a question of
law. Benton v. City of Oakland, 721 N.E.2d 224, 232 (Ind.
1999). Thus, we review de novo whether Trump owed a
duty to Merrill. Cooper v. Nelson & Co., 211 F.3d 1008,
1015 (7th Cir. 2000). We resolve the issues in this case
as we believe Indiana courts would resolve them. Trytko v.
Hubbell, Inc., 28 F.3d 715,719 (7th Cir. 1994).
  A defendant is not liable for negligence unless it owes
a duty of care to an injured plaintiff. Webb v. Jarvis, 575
4                                               No. 02-2523

N.E.2d 992, 995 (Ind. 1991). Merrill argues that Indi-
ana statutory provisions and administrative regulations
impose a duty on Trump to exclude gamblers who ask to
be placed on the casino’s eviction list. The Indiana Gam-
ing Commission is empowered by statute to eject or ex-
clude individuals who “call into question the honesty
and integrity of the gambling operations.” Ind. Code § 4-33-
4-7 (2002). But it is not clear that Merrill’s conduct while
in the casino put the “honesty and integrity” of Trump’s
operations in question. Moreover, the statute addresses
exclusion by the gaming commission, not the casinos.
  Indiana regulations do require casinos to maintain an
eviction list, including individuals who request to be
excluded, and to prohibit entry to those on the list: “Each
riverboat licensee shall maintain a list of evicted per-
sons . . . . At minimum, the eviction criteria shall in-
clude . . . [a] person [who] requests that his or her own
name be placed on the riverboat licensee’s eviction list.”
Ind. Admin. Code tit. 68, r. 6-2-1 § 1(c)(5) (2002). But this
is a recent amendment, implemented in 2000. In 1998,
when Merrill’s relapse occurred, no statute or regula-
tion explicitly obligated Indiana casinos to honor self-
eviction requests.
  Even if the amended regulation applied, however, it is
by no means certain that the regulation would sustain
a cause of action against Trump. Trump is required
by regulation to maintain an exclusion log and to add
to that list individuals who request to be put on it. But
Trump’s obligation to follow regulations promulgated by
the Indiana Gaming Commission does not automatically
translate into a duty of care owed to compulsive gam-
blers. At most, the rules impose upon Trump a duty to
the state through the gaming commission, not to a self-
requesting evictee.
  If Trump violates regulations, it must answer to the
gaming commission—the current rules provide for admin-
No. 02-2523                                                5

istrative and disciplinary hearings, as well as sanctions
against casinos, including fines and rescindment of li-
censes. Ind. Admin. Code tit. 68, r. 13-1-1 et seq. But
neither the regulations nor the statute expressly creates a
private cause of action against nonconforming casinos.
When a statute is silent regarding the imposition of civil
liability, the Indiana Supreme Court looks to legislative
intent to determine whether a private cause of action
exists. Vaughn v. Daniels Co., 777 N.E.2d 1110, 1134
(Ind. 2002). As the district court noted, the statutory
provisions and administrative rules surrounding gam-
bling are voluminous, and although the legislature was
silent regarding civil liability, it specifically created ad-
ministrative penalties to be enforced through the gam-
ing commission. Given the extent of gambling regula-
tion in Indiana, we conclude that the Indiana Supreme
Court would not conclude that the legislature intended
to create a private cause of action. See Hakimoglu v.
Trump Taj Mahal, 70 F.3d 291, 293-94 (3d Cir. 1995)
(where state intensely regulated casinos without creat-
ing cause of action, casino was not liable to plaintiff
who suffered extensive gambling losses while intoxicated).
  But Merrill also argues that, even in the absence of a
statutory duty, Trump owed him a duty of care under
common law. We can find no Indiana case addressing the
extent of the duty owed by casinos to their patrons. In-
deed, it appears that no court has addressed the specific
issue whether casinos can be sued in tort when they fail
to evict a gambler who requests his own exclusion.
  Courts elsewhere that have addressed the liability of
casinos to injured plaintiffs have imposed on casinos no
higher duty to their patrons than any on other business.
Lundy v. Adamar of N.J., Inc., 34 F.3d 1173, 1180-81 (3d
Cir. 1994) (casino had duty to summon aid and take
reasonable first aid measures); Marmer v. Queen of New
Orleans at the Hilton, J.V., 787 So.2d 1115, 1120 (La. Ct.
6                                             No. 02-2523

App. 2001) (casino has duty to protect patrons from fore-
seeable criminal acts); Saucier v. Players Lake Charles,
751 So.2d 312, 319 (La. Ct. App. 1999) (casino has duty
to take reasonable care of patrons’ safety); Joynt v. Cal.
Hotel & Casino, 835 P.2d 799, 801 (Nev. 1992) (casino
has duty to maintain reasonably safe premises). Under
Indiana law, a business owes its invitees a duty to take
reasonable care for their safety. Ellis v. Luxbury Hotels,
Inc., 716 N.E.2d 359, 360 (Ind. 1999). Merrill never al-
leged in district court that Trump had not taken reason-
able care for his safety or that he ever felt unsafe on the
premises.
  The closest analogy to Merrill’s situation is that of a
tavern’s liability to exercise reasonable care to protect
its patrons. In Indiana, a tavern proprietor serving alco-
hol can be held liable, under certain conditions, if an
intoxicated patron injures another patron or a third party.
E.g., Paragon Family Restaurant v. Bartolini, 769 N.E.2d
609, 614 (Ind. Ct. App. 2002); Fast Eddie’s v. Hall, 688
N.E.2d 1270, 1272 (Ind. Ct. App. 1997). But a patron who
drives while intoxicated, causing his own injuries, cannot
recover from the tavern that served him alcohol. Davis
v. Stinson, 508 N.E.2d 65, 68 (Ind. App. 1987). Essen-
tially, Merrill thinks that the casino should be held re-
sponsible for the destructive effects of his 1998 relapse
into gambling. But Indiana law does not protect a drunk
driver from the effects of his own conduct, and we as-
sume that the Indiana Supreme Court would take a sim-
ilar approach with compulsive gamblers.
  Merrill’s last argument is that the court erred in grant-
ing Trump summary judgment on his willful and wanton
misconduct claim. In Indiana, a defendant engages in
willful and wanton misconduct when it consciously acts
or refuses to act knowing, or with reckless disregard to
the probability, that injury will result to the plaintiff
from its conduct or from its failure to take steps to avoid
No. 02-2523                                              7

an impending danger. Withan v. Norfolk and W. Ry. Co.,
561 N.E.2d 484, 486 (Ind. 1990); Conder v. Hull Lift Truck,
Inc., 435 N.E.2d 10, 21 (Ind. 1982). The defendant must
know that injury is probable or likely, as opposed to
possible. Conder, 435 N.E.2d at 21. Under this standard,
we cannot conclude that the district court erred in con-
cluding that Merrill raised no issue of material fact
that could lead a jury to find that Trump engaged in will-
ful and wanton misconduct. For these reasons, the judg-
ment of the district court is AFFIRMED.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—2-26-03
