NO. CV 98-130

HOLLEY OHAR                                                                          MASHANTUCKET PEQUOT

V.                                                                                                 TRIBAL COURT

MASHANTUCKET PEQUOT

GAMING ENTERPRISE, ET AL                                                   APRIL 14, 2000

 

MEMORANDUM OF DECISION ON DEFENDANTS’

MOTION FOR JUDGMENT ON THE PLEADING

 

The defendants in this action, the Mashantucket Pequot Gaming Enterprise and Robert A. Zitto as permittee, move for judgment on the pleadings because the papers by which this action was commenced were not timely filed, and because the defendants did not waive their sovereign immunity against the cause of action set forth in the first count of the complaint, and because the cause of action set forth in the second count is not recognized as a cause of action under Connecticut or Tribal law.

The plaintiff’s complaint arises out of a motor vehicle accident in which a vehicle driven by the plaintiff is alleged to have crossed a double yellow line on Connecticut Route 164 and collided with a vehicle driven by Bernard Schram. This case has been consolidated with an action brought by Schram in the Mashantucket Pequot Tribal Court, entitled Bernard Scham v. Holly Ohar, et al, bearing docket number MPTC 98-119. Mr. Schram’s action is also based upon the collision between the vehicle driven by him and the plaintiff in this action.

The plaintiff’s first count alleges that on July 30, 1997 the defendants were reckless in the service of alcohol to her at the Foxwoods Casino. In the second count, she alleges negligent service of alcohol to her on that date.

The defendants assert that the first count of the complaint, alleging reckless service of alcohol, must fail because they did not waive their tribal immunity against causes of action alleging recklessness. They also assert that the second count, alleging the negligent service of alcohol, must fail because no common law action for the negligent sale of liquor exists under Tribal or Connecticut law. The defendants cite Cunningham v. Mashantucket Pequot Gaming Enterprise, 1 Mash. 267 (1996) as support for their position.

In Cunningham, the plaintiff alleged that she sustained injuries and property damage when another patron struck her vehicle in the Foxwoods Casino parking garage. Id. Her complaint was based upon the Connecticut dram shop act and theories of negligence, gross negligence, recklessness and willful misconduct. Id.

The Cunningham court granted the Gaming Enterprise’s motion to dismiss, concluding that the Connecticut dram shop act is a strict liability statute and the Mashantucket Pequot Tribe did not waive its sovereign immunity against actions based on strict liability, supra at 268-270, that no common law negligence action based on the negligent sale of liquor exists under Tribal or Connecticut law, supra at 270,271, and that the Mashantucket Pequot Tribe has not waived its sovereign immunity against actions based on non-negligence theories such as gross negligence, recklessness or willful misconduct, supra, at 271.

The plaintiff’s claims are nearly identical to those dismissed in Cunningham, the only difference being that the plaintiff is not the alleged innocent victim but rather is the alleged consumer of alcohol. This does not affect the underlying applicability of the Cunningham rationale to the circumstances of this case. The reckless service of alcohol claim fails because the defendants have not waived their tribal immunity against such causes of action, and the negligent service of alcohol claim fails because such a claim is not recognized as a common law cause of action under Connecticut or Tribal law.

The plaintiff, as does the plaintiff in the companion Schram matter accepts the applicability of the Cunningham court’s rationale to her cause of action. She complains bitterly about the defendants’ long delay in raising this jurisdictional issue in this court, and the apparent contrary positions taken by the defendants in other courts, but she agrees that there are no tribal remedies available to the plaintiff. She does not request this court to address these issues anew, and makes no claim that the Civil Actions Law, XII M.P.T.L. ch. 1, which was enacted after Cunningham, should affect or modify the reasoning and holding of that court.

While not disputing the applicability of Cunningham, the plaintiff vigorously disputes the defendants’ claim that the papers by which this cause of action was commenced were not timely filed.

The defendants contend that the plaintiff filed her complaint on April 6, 1998, after the 180 day time limitation established by IV M.P.T.L. ch. 1, 11 had expired. The plaintiff, however, provided evidence in the form of an affidavit with documents attached, demonstrating that the plaintiff’s claim, notice of claim and entry fee were tendered to a clerk of

the Tribal court on January 21, 1998, a date which falls within the 180 day limitations period. The court gives credence to this evidence, and finds that the plaintiff’s complaint was presented to the Tribal court clerk on January 21, 1998.

The Mashantucket Rules of Civil Procedure provide that a tort action is commenced against the Gaming Enterprise by filing a claim and notice of claim, together with the appropriate filing fee, with the Tribal Court. M.R.C.P. 3.a.1. See Davids v. Mashantucket Pequot Gaming Enterprise, 3 Mash. 233,234 (1999). The plaintiff’s claim was commenced on January 21, 1998, before the 180 day statute of limitations set forth in IV M.P.T.L., ch. 1 11 had expired.

The defendants’ motion for judgment on the pleadings on the ground that the plaintiff’s action was not timely commenced is denied. The defendants’ motion for judgment on the pleadings on the ground that they have not waived their sovereign immunity against the cause of action set forth in Count One (reckless service of alcohol), and on the ground that the cause of action set forth in Count Two (negligent service of alcohol) is not cause of action that exists under Tribal or Connecticut law, is granted.

__________________________

Edward B. O’Connell, Judge

 

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