# Koehlinger v. State Lottery Commission of Indiana > Indiana Court of Appeals · September 7, 2010 · 933 N.E.2d 534 URL: https://www.frixlaw.com/law-library/cases/9740480 ## Case - **Full name:** Jeff KOEHLINGER and Jeff Frazier, Individually and as Class Representatives of All Others Similarly Situated, Appellants/Plaintiffs, v. the STATE LOTTERY COMMISSION OF INDIANA, Appellee/Defendant - **Court:** Indiana Court of Appeals - **Decided:** September 7, 2010 - **Citations:** 933 N.E.2d 534; 2010 Ind. App. LEXIS 1627; 2010 WL 3478555 - **Precedential status:** Published - **Opinion:** Concurring in part by Riley - **Judges:** Bradford, Mathias, Riley - **Cited by:** 10 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9740480 ## How later opinions describe it (automated extraction) - noting that the court will avoid an interpretation that renders any part of the statute meaningless or superfluous ## Opinion text RILEY, J., concurring in part and dissenting in part. I respectfully disagree with the majority's opinion in the resolution of this case. While I concur with the majority on the denial of the Lottery's claim that Appellants. had failed to exhaust their administrative remedies and its decision on Appellants' DCSA and quasi-contractual claims, I concur in result with respect to Appellants' contract rescission claim, and dissent on the majority's handling of Appellants' negligence claim. I. Contract Rescission Claim It is well established that rescission is a proper remedy when the parties to a contract are mistaken about a material fact underlying the contract. Here, the majority opines and the Lottery does not contest that a material misrepresentation occurred when the Lottery misrepresented the number of Cash Blast prizes remaining without Appellants having the means to discover the true number. See Op. p. 541. However, whereas the majority decides this issue based on the material misrepresentation theory, I foeus my decision on the mutual mistake of material fact doe-trine. Because the majority's solution still requires each individual class member to establish detrimental reliance, I believe my outcome better reflects the economic realities and the judicial efficiency of a class action suit. Equitable relief, i.e. rescission of the contract and the return of the purchase price of the Cash Blast tickets, may be granted if a contract is based upon a mutual mistake of material fact. Hancock v. Ky. Cent. Life Ins. Co., 527 N.E.2d 720, 723 (Ind.Ct.App.1988), trans. denied. As properly stated by the trial court, "bly over reporting its prizes by half, the Lottery was representing to the public that Cash Blast tickets had characteristics which they did not have, those being that the game provided the chance not only to win the prizes which were actually available, but to win prizes which were not available." (Appellants' App. pp. 754-55). It is undisputed that both the Lottery and the Appellants were mistaken about the prizes available to be won. As such, the trial court should have granted Appellants' motion for summary judgment on their contractual rescission claim and I would remand this case to the trial court for a determination of damages. II. Negligence With respect to Appellants' negligence claim, I dissent from the result reached by the majority. Mindful that summary judgment is rarely appropriate on allegations of negligent behavior, I find that Appellants' designated evidence support a genuine issue of material fact with respect to the existence of a negligence claim. *544 It is well established that a plaintiff may plead alternative theories of lability in a complaint and proceed under either or both. Ind. Trial Rule 8(E)(2). In this light, Appellants pled both a contractual claim and a negligence claim in their complaint on the understanding that the negligence claim may only be successful in conjunction with a pled contract claim if the designated evidence independently establishes the elements of the pled tort. See Greg Allen Const. Co., Inc. v. Estelle, 798 N.E.2d 171, 175 (Ind.2003). To recover under a negligence theory, a plaintiff must prove (1) a duty on the part of the defendant owed to the plaintiff; (2) a breach of that duty; and (38) an injury to the plaintiff proximately caused by the breach. Coffman v. PSI Energy, Inc., 815 N.E.2d 522, 527 (Ind.Ct.App.2004). A duty, when found to exist, is the obligation to exercise reasonable care under the circumstances. Goodrich v. Indiana Michigan Power Co., 783 N.E.2d 793, 796 (Ind.Ct.App.2003), trans. denied. Here, the Lottery had a duty to exercise reasonable care not to misinform its eustomers about the remaining prizes in its Cash Blast game. (See also Ind.Code § 4-30-1-2(6): "That lottery game advertising and promotion shall be consistent with the dignity and integrity of the state"). The Lottery breached that duty when it failed to accurately represent the number and prizes available in its instant game. Specifically, the evidence reflects that the Lottery admitted that it was a mistake not to delete the separate electronic files from its computers for the prizes attributable to those withdrawn tickets and equally admits that it was a mistake not to catch this when reporting this daily for fourteen months. Appellants present evidence claiming injury after relying on these false representations. As such, I believe that there are issues of material fact which require Appellants' negligence claim to be presented to a jury. I would reverse the trial court on this issue. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9740480. Public record. Not legal advice.