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Brookings v. Kirk

Superior Court of Delaware

July 2, 2018

JOHN BROOKINGS, JR. and RICHARD SPENCE, Plaintiffs,
v.
VERNON KIRK, Director of the Delaware Lottery, et. al., Defendants. VICTOR RODRIGUEZ, Plaintiff,
v.
VERNON KIRK, Director of the Delaware Lotter, et. al., Defendants.

          Submitted: April 4, 2018 and May 9, 2018

         Upon Defendants' Motion for Summary Judgment GRANTED

         Upon Defendants' Motion in Limine MOOT

         Upon Plaintiffs' Motion in Limine MOOT

          William L. O'Day, Jr., Esq., Woloshin, Lynch & Associates, P.A., Attorney for Plaintiffs.

          Julie M. Donoghue, DAG, Department of Justice, Attorney for Defendants.

          MEMORANDUM OPINION

          Honorable Andrea L. Rocanelli, Judge.

         In this consolidated action, Plaintiffs John Brookings, Jr., Richard Spence, and Victor Rodriguez ("Plaintiffs") assert that they collectively own seven Keno Lottery tickets that are each worth $1, 000, 000.00. Plaintiffs filed suit against Vernon Kirk, as Director of the Delaware Lottery, the Delaware Lottery, and the State of Delaware (collectively, "Defendants"), alleging that Defendants refused to honor these alleged million-dollar Keno tickets. In response, Defendants argue that the Plaintiffs' Keno tickets are invalid because an anomaly occurred with the Keno Computer on December 17, 2015 that caused the same twenty numbers to win for five consecutive Keno drawings, which took place at 11:24 a.m., 11:28 a.m., 11:32 a.m., 11:36 a.m., and 11:40 a.m. ("Anomalous Drawings").

         Defendants now move for summary judgment, arguing that Plaintiffs have no legally enforceable claims because the Plaintiffs' Keno tickets resulted from illegal lottery games. Specifically, Defendants argue that the Anomalous Drawings did not have the legally required element of chance, which renders them invalid. Defendants also argue that Plaintiffs cannot recover under a contractual theory. In addition, the parties have each filed a motion in limine seeking to exclude certain evidence at trial. For the reasons that follow, the Court grants Defendant's motion for summary judgment.

         FACTUAL BACKGROUND

         The State of Delaware created the Delaware Lottery pursuant to its constitutional authority to offer certain forms of legalized gambling to the public.[1]The Delaware Lottery offers the game Keno, which the State asserts is a bingo-style lottery game. To play Keno, a player chooses up to ten numbers from 1 to 80, places a wager, chooses how many consecutive games to play, and decides whether to use a Keno bonus, which can multiply the amount won in each game. According to the State, a computer ("Keno Computer") then chooses twenty winning numbers every four minutes. The maximum amount a player can win during a game of Keno is $1, 000, 000.00 if the player correctly picks ten numbers out of the winning twenty, and if the player chooses to play with a Keno bonus.

         The winning numbers for each Keno drawing are displayed on Keno computer monitors located in licensed lottery retailer locations. These computer monitors also display so-called "hot numbers," which Defendants assert are numbers that are currently being more frequently selected than others. The Delaware Lottery uses the "hot numbers" as a marketing tool to encourage individuals to play Keno using those numbers.

         On December 17, 2015, at 11:20 a.m., the Delaware Lottery held a Keno drawing with the following winning numbers: 17, 22, 35, 59, 30, 08, 02, 26, 31, 43, 65, 73, 24, 07, 64, 11, 09, 66, 71, 56. The next five drawings were the Anomalous Drawings, in which the same twenty numbers repeated every time. According to the State, after the 11:40 a.m. Anomalous Drawing, trouble-shooting was initiated and the Keno Computer was restarted. Functionality resumed after the restart, and the Keno Computer began generating random numbers again with the next draw at approximately 11:46 a.m.

         Plaintiff Rodriquez was at Pockets Discount Liquors around the time of the Anomalous Drawings. According to Plaintiff Rodriguez, he played an initial game of Keno by randomly selecting his own numbers, but did not win. However, Plaintiff Rodriguez claims that another patron in the store then suggested that ...


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