Civil Practice – Electronic Sweepstakes – Skill vs. Chance – Predominate Factor Test

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The parties presented competing experts, one of whom said “Ocean Fish King” was primarily a game of skill and thus legal while the other said it was primarily a game of chance and thus in violation of G.S. § 14-306.4. However, the parties agreed on how the game was played: Ocean Fish King players use digital weapons, controlled with a joystick, to shoot projectiles at sea creatures as they appear on the display screen. The screen is crowded with fish. Each fish requires a set amount of hits to destroy. The player does not know how many hits are required to destroy a given fish, and similar looking fish do not necessarily require the same number of hits every game.

We hold that Ocean Fish King is predominantly a game of chance. Though players must have some measure of dexterity to use the joystick, a player cannot know beforehand how many hits are necessary to destroy fish and, thus, cannot strategically optimize a favorable return on credits. Since a player wins credits proportional to the number and type of fish destroyed, this game is predominantly one of chance, and any skill and dexterity involved is essentially de minimis.

We affirm summary judgment for defendants.

Fun Arcade, LLC v. City of Hickory (Lawyers Weekly No. 011-135-23, 12 pp.) (April Wood, J.) Appealed from Catawba County Superior Court (Gregory Hayes, J.) Gregory Posch and Jonathan Trapp for plaintiffs; Steven Bader, Patrick Flanagan, Monroe Pannell and Paul Culpepper for defendants. North Carolina Court of Appeals