2019 WL 2219790 (Mash. Pequot Tribal Ct.)
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Mashantucket Pequot Tribal Court.
MASHANTUCKET PEQUOT GAMING ENTERPRISE
JANUARY 17, 2019
MEMORANDUM OF DECISION RE: DEFENDANT’S MOTION TO DISMISS
Edward B. O’Connell, Judge
By a complaint filed on February 26, 2016, the plaintiff Era Bennett brought this action for negligence against the defendant Mashantucket Pequot Gaming Enterprise (the “Gaming Enterprise”) for injuries she sustained while she was a patron of the Grand Pequot Hotel (the “Hotel”) during the late night/early morning hours of November 20, 2016 and November 21, 2016.
The plaintiff alleges the following: She observed another female patron slouching on the floor of the Hotel near a bank of elevators. The patron appeared to be highly intoxicated. Gaming Enterprise employees offered help to the patron, but after the patron refused, the employees left the area. The patron then stood up and attempted to walk away. The plaintiff intervened and accompanied her as she walked down the concourse because the plaintiff was concerned for the patron’s safety. When they reached a set of escalators, the plaintiff stepped on the down escalator first and the patron followed her. Suddenly, while riding the escalator, the patron lost her footing and fell forward into the plaintiff, causing the plaintiff to fall.
The plaintiff was required to seek emergency medical treatment. She alleges that she sustained serious injuries, including a right humeral fracture, a catastrophic vascular damage to the right extremity, a scalp laceration, and a head injury. The plaintiff had to seek emergency medical treatment and surgery, and was hospitalized. She was prescribed pain medication, immobilization devices, and long term nursing home and rehabilitative care.
The defendant filed a Motion to Dismiss this action pursuant to M.R.C.P. 12(b)(2) and 12(b)(7), requesting that the Court dismiss the plaintiff’s action for lack of subject matter jurisdiction and for plaintiff’s failure to state a claim upon which relief can be granted. The defendant asserts that the plaintiff’s claim should be properly regarded as a dram shop claim, and that the plaintiff did not follow the statutory procedure in order to bring such a claim. The defendant asserts further that the Mashantucket Pequot Tribe enjoys sovereign immunity from claims of negligence in connection with the service of alcohol by the Gaming Enterprise, and that the sole remedy available to the plaintiff is a dram shop claim, from which the Tribe expressly waived its sovereign immunity in 17 M.P.T.L. ch. 1 § 40. The defendant contends that a dram shop claim is the only possible cause of action available to the plaintiff because “[b]ut for the fact that the third-party patron was intoxicated, [the] plaintiff would have no claim against the Gaming Enterprise,” and that the plaintiff’s claim is an attempt to “work around” the limitations of 17 M.P.T.L. ch. 1 § 40.
The plaintiff objects to the defendant’s motion and asserts that her claim is a separate and distinct cause of action that arises out of the negligence of security personnel, not the negligent service of alcohol. The plaintiff explains that her complaint is devoid of any allegation that the Gaming Enterprise negligently served alcohol to the intoxicated patron. She explains further that two crucial elements of a dram shop action are missing from her complaint: first, an allegation that the Gaming Enterprise served the patron alcohol, and second, an allegation that the patron was visibly intoxicated when the Gaming Enterprise served her alcohol. The plaintiff asserts that her cause of action stands apart from a dram shop claim because it is based on the defendant’s failure to keep her safe from a patron who was physically compromised due to her own intoxication, of whom the Gaming Enterprise had actual knowledge, and thereby created a potential harm to others on its premises.
Rule 12(b)(2) is unique to the Mashantucket Rules of Civil Procedure, as it provides a ground for dismissal when the lack of jurisdiction is based upon sovereign immunity from suit. “Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter or lacks jurisdiction based upon sovereign immunity from suit, the court shall dismiss the action.” M.P.R.C.P. 12(h)(3). “When a court’s subject matter jurisdiction is challenged, the burden of establishing subject matter jurisdiction rests on the party asserting jurisdiction.” Id.; see also Chamberlin v. Mashantucket Pequot Gaming Enterprise, 2 Mash.Rep. 187, 189, 2 Mash. 227, 229 (1997). As a court of limited jurisdiction, the Court does not have jurisdiction over matters that the Tribal Council has not been expressly conferred upon it. Milios v. Mashantucket Pequot Gaming Com’n, 3 Mash.App. 12, 15, 5 MPR 1, 4 (2001).
“When considering a motion to dismiss for failure to state a claim pursuant to M.R.C.P. [12(b)(7) ], the court must accept the material facts alleged in the pleading as true. All doubts and inferences are to be resolved in the pleader’s (i.e. non-moving party’s) favor.” Ziffer v. Mashantucket Pequot Gaming Enterprise, 3 Mash.App. 28, 5 MPR 20, 26 n. 6 (2002). Under Rule 12(b)(7), a claim “may be dismissed where it either asserts a theory that is not cognizable as a matter of law, or fails to allege sufficient facts to support a cognizable legal claim.” Cives Corp. v. Mashantucket Pequot Tribal Nation, 4 Mash. 189, 190–91, 3 Mash.Rep. 293, 296 (2001). “Although the plaintiff’s pleading obligations are minimal, they are not non-existent. The plaintiff must still allege facts, either directly or inferentially, that satisfy each element required for recovery under some actionable legal theory.” Fletcher v. Mashantucket (Western) Pequot Tribe, 2 Mash.Rep. 443, 3 Mash. 265, 268 (1998) (citations omitted). “... [T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Pequot Pharmaceutical Network v. Connecticut Hospice, Inc., 6 Mash.Rep. 323, 328 (2015) (quoting Mastafa v. Chevron Corp., 770 F.3d 170, 177 (2d Cir. 2014)).
Title 17 of the Mashantucket Pequot Tribal Laws sets forth the Mashantucket Pequot Liquor Control Code, known colloquially as the Mashantucket dram shop law. The Code was adopted for the purpose of regulating alcohol and the service of alcohol for certain establishments on the Reservation. 17 M.P.T.L. Leg. History § A(1). By adopting this Code, the Tribal Council unequivocally waived its sovereign immunity for dram shop actions and gave the Tribal Court jurisdiction to hear causes of action related to injuries sustained because of the negligent service of alcohol, provided that a plaintiff complies with the procedural requirements of the code. Id. § B(1).
Chapter 1, section 40 of the Code (hereinafter “Section 40”), wherein the Tribe expressly waives its sovereign immunity to allow dram shop actions to be brought against it, was written to create “a cause of action against the backer of an establishment1 who sells alcoholic liquor to an intoxicated person on the Reservation, if such purchaser, in consequence of such intoxication, thereafter injures the person or property of another.” 17 M.P.T.L. Leg. History § B(2)(a). Specifically, Section 40 states the following:
If any person, by himself or his agent, sells any Alcoholic Liquor to an intoxicated person on the Reservation, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another whether within or without the Reservation, such seller shall pay damages to the person or persons injured, ... to be recovered in an action under this Section, provided the aggrieved person or persons shall give written notice to such seller within 60 days of the occurrence of such injury to person or property of his or their intention to bring an action under this Section .... Such injured person shall have no cause of action against Seller for negligent sale of alcoholic beverages.
The defendant asserts that the Mashantucket Liquor Control Code represents the Tribe’s sole waiver of sovereign immunity from claims brought against it that are based upon the service of alcohol to a third party, and that it does not provide any other jurisdictional bases for suits based upon the service of alcohol, because Section 40 states that “[s]uch injured person shall have no cause of action against Seller for negligent sale of alcoholic beverage.” 17 M.P.T.L. ch. 1 § 40. In support of its claim that Mashantucket dram shop law provides the sole remedy available to the plaintiff, the defendant primarily relies on Westbrook v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 335 (2010).2 In Westbrook, the plaintiff brought an action against the Gaming Enterprise and the Tribe in four counts: count one against the Gaming Enterprise for violation of the Dram Shop Act; count two against the Gaming Enterprise for recklessness; count three against the Tribe for unjust enrichment; and count four against the Tribe for violation of the Dram Shop Act. The Court (Londregan, J.) dismissed the dram shop claims because they did not comply with the Mashantucket law’s notice requirement. Westbrook, supra, at 343–44. The Court also dismissed the plaintiff’s other causes for reckless distribution of alcohol against the Gaming Enterprise and unjust enrichment against the Tribe, stating that “when a Dram Shop violation has occurred no additional actions may be brought against the Tribe in negligence and no action may be brought against any tribal employee, agent or entity.” Id. at 339. Specifically, the Court stated that “Tribal law clearly does not recognize a cause of action in recklessness for damages allegedly caused by the service of alcohol by the MPGE” and that it “cannot expand the scope of the Tribe’s limited waiver beyond what the Tribal Council has clearly articulated by recognizing a separate cause of action in recklessness for the dispensation of alcohol.” Id. at 340. Finally, the Court dismissed the plaintiff’s claim of unjust enrichment against the Tribe because she failed to provide evidence of compliance with Section 40’s notice requirements. Id. at 341.
Westbrook also addresses the portion of Section 40 that prohibits “[s]uch injured person” from advancing a “cause of action against Seller for negligent sale of alcoholic beverages.” The Westbrook plaintiff was a passenger in a vehicle involved in an automobile accident. She claimed that the accident was the result of the Gaming Enterprise’s continuous service of alcohol to the driver of the vehicle, despite the fact that they had been “visibly intoxicated.” Id. at 337–38.
The facts and legal arguments advanced in the Westbrook plaintiff’s complaint are distinct from those asserted here. In Westbrook, the plaintiff brought the claims of reckless service of alcohol and unjust enrichment in addition to her claims that the Gaming Enterprise and the Tribe had violated Mashantucket dram shop law. In contrast, here the plaintiff does not make any allegations regarding the Gaming Enterprise’s service of alcohol. Rather, she attributes her injuries to the security personnel’s failure to properly supervise the intoxicated patron and failure to intervene when the plaintiff assisted the patron. She asserts that the Gaming Enterprise had actual knowledge of the patron not because she was served alcohol on the premises, but because the security personnel had approached the intoxicated patron, offered to help her, and then abandoned her.
The plaintiff insists that no elements of her claim are consistent with a dram shop action, and that her negligent security claim is a separate and distinct cause of action. To support this assertion, the plaintiff discusses Connecticut cases that contain facts and legal theories similar to her own claim. The defendant responds that the Court should disregard the plaintiff’s reliance on Connecticut case law because “any decision from Connecticut ... that discusses statutory law of Connecticut ... is improperly relied on by the Court,” and cites to Ruffo v. Craft Worldwide Holdings, LLC, 6 Mash.Rep. 366 (2016). This is a narrow interpretation of this principle mentioned in Ruffo. The issue of improper reliance on guidance from other jurisdictions arises only when the laws are in conflict or contrast with one another. “[A]lthough this Court often looks to federal and state case law (Connecticut in particular) for guidance in the absence of Mashantucket case law, guidance from other jurisdictions is of limited value when the underlying federal or state laws and rules are different or conflict with Mashantucket law.” Ruffo, supra, at 372; Waterman, supra, at 353 (Waterman v. Mashantucket Pequot Gaming Enter., 6 Mash.Rep. 345 (2015)). Under Mashantucket precedent, “[i]n the absence of Tribal statutory or case law, the Court has looked to Connecticut law for guidance.” Mashantucket Pequot Tribal Nation v. Kenneth Castellucci & Ass’n, Inc., 4 Mash.Rep. 21, 5 Mash. 227 (2002) (citing Cunningham v. Mashantucket Pequot Gaming Enterprise, 1 Mash.Rep. 358, 1 Mash. 267 (1996); Klatte v. Brown, 1 Mash.Rep. 114, 1 Mash. 126 (1995)). This principle is supported under 4 M.P.T.L. ch. 1 § 7(a), which states that “[w]hen interpreting [the law governing tort claims against the Mashantucket Pequot Gaming Enterprise or arising at the Gaming Enterprise Site], the court shall follow tribal law and precedent and may be guided by the common law of other jurisdictions.” See Brisbois v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 162, 167 (2009). Here, “Mashantucket’s dram shop law essentially mirrors Connecticut’s dram shop law.” Westbrook, supra, at 343,. Because Connecticut’s dram shop law is similar to Mashantucket’s law and does not conflict with Mashantucket law, the Court may properly refer to Connecticut law in determining the nature and reach of Mashantucket dram shop law. “Truly persuasive foreign cases should provide a reasoned analysis of a statute (tribal, state, or federal) that mirrors or at least closely resembles a Mashantucket statute.” Mashantucket Pequot Tribal Nation v. Paul Steelman, Ltd., 5 Mash.Rep. 31, 39 (2008). Indeed, the Westbrook Court considered Connecticut case law when forming its decision, as the Court will here.
In Collar v. Da Cruz, No. CV030830138, 2004 WL 2095045 (Conn. Super. Ct. Aug. 13, 2004), the Connecticut Superior Court granted in part and denied in part the defendant’s motion to strike the plaintiff’s claims against it. The court denied the defendant’s motion to strike the negligent security claim that the plaintiff had brought, and distinguished such a claim from a dram shop cause of action: “The cause of action for negligent supervision ... is based on conduct amounting to the defendant proprietor’s failure to exercise reasonable care in the supervision of the conduct of patrons or other business visitors within his establishment, rather than the proprietor’s negligence in furnishing alcohol.” Collar, supra, at * 2 (quoting Jensen v. DePaolo, No. CV010277460S, 2004 WL 574869, at *3 (Conn. Super. Mar. 8, 2004)).
The plaintiff contends that this type of claim is distinct from a dram shop claim, which requires the following elements: (1) service of alcohol by a purveyor; (2) to an intoxicated patron; (3) who is visibly intoxicated at the point of sale; and (4) who injures another party as a result of that intoxication. See O’Dell v. Kozee, 307 Conn. 231, 53 A.3d 178 (2012). The plaintiff asserts that the absence of these elements distinguish her claim from a dram shop cause of action. In this case, the plaintiff does not allege that the patron was visibly intoxicated at the time that the Gaming Enterprise served her alcohol and that the Gaming Enterprise’s service of alcohol is not the basis for which she made her claim.
In Taylor v. Brother Jimmy’s BBQ, FSTCV176032757S, 2018 WL 3015093 (Conn. Super. Ct. May 24, 2018), the Superior Court acknowledged the Collar Court’s reasoning in deciding whether to grant the defendant’s motion to strike. The court recognized “that the Dram Shop Act does not bar claims regarding negligent supervision and training, such as inadequate supervision over the premises or failure to provide a safe business environment.” Taylor, supra, at * 2 (citing Eaton v. Ruggles, No. CV116010411, 2012 WL 1089902 (Conn. Super. Ct. March 9, 2012, Martin, J.); Collar, supra). However, the court granted the defendant’s motion to strike the Taylor plaintiff’s negligent security claim because the injury did not occur on the defendant’s premises; in order to prevail on a claim for negligent supervision, the conduct causing the injury must have occurred within the establishment. Id. (citing Collar, supra, at * 2; Widdows v. Crown St. Bar Ltd. P’ship, CV075009467S, 2008 WL 344568 (Conn. Super. Ct. Jan. 14, 2008)). In this case, however, the plaintiff was on the defendant’s premises and claims to have witnessed its security personnel interact with the intoxicated patron on the premises.
The purpose of dram shop law is to protect the general health, safety, and welfare of the public by regulating the liquor industry; provide an avenue of recovery against those who participate in the “indiscriminate sales or transfers of alcohol”; and encourage the responsible sale and service of alcohol. 4 Drinking/Driving Litigation: Criminal and Civil § 29:1 (2018). Prior to the enactment of dram shop laws, there was no common law liability for those providing intoxicating beverages to consumers because “[t]he prevailing theory was that the voluntary consumption of liquor, rather than its provision, constituted the proximate cause of an injury.” Id. § 29:4.
Considering the history of dram shop law and the case law discussed above, it is clear that the purpose of creating the dram shop cause of action was to expand the liability for those who contribute to an already-intoxicated person’s impaired state in a way that is dangerous. Under Mashantucket law, a dram shop action must include the allegation that alcoholic liquor was sold to an intoxicated person. 17 M.P.T.L. ch. 1 § 40. But here, the plaintiff asserts that the Gaming Enterprise is liable because it failed to protect her from an intoxicated person when it had actual knowledge of the intoxicated person, not because the Gaming Enterprise negligently or recklessly sold alcohol to the patron. She alleges that security should have done more to intervene. This cause of action is separate and distinct from a Mashantucket dram shop claim, which requires allegations that (1) any person, by himself or his agent, sold any alcoholic liquor (2) to an intoxicated person on the Reservation (3) who was visibility intoxicated at the point of sale, and that (4) such purchaser injured the person or property of another, whether within or without the Reservation, in consequence of such intoxication. See 17 M.P.T.L. ch. 1 § 40; O’Dell v. Kozee, 307 Conn. 231, 53 A.3d 178 (2012). There are no such allegations in this case.
The defendant’s Motion to Dismiss is hereby denied.
A “backer” is defined as “the proprietor of any business or institution established by the Mashantucket Pequot Tribe, incorporated or unincorporated, engaged in the sale of Alcoholic Liquor on the Reservation, in which business a permittee is associated, whether as employee, agent or part owner,” “except in cases where the permittee is himself the proprietor.” 17 M.P.T.L. ch. 1 § 1(c).
The defendant also cites other dram shop actions that the Court has previously dismissed; however, these cases where decided prior to the enactment of the Mashantucket Liquor Control Code and had been brought under the Connecticut Liquor Control Code, from which the Tribe has not waived its sovereign immunity. See Schram v. Mashantucket Pequot Gaming Enter., 3 Mash.App. 22, 5 MPR 12 (2002) (holding that strict notice requirements of the Connecticut Liquor Control Code did not apply to driver’s action and granting plaintiff’s leave to file a Section 40 claim); Schram v. Ohar, 3 Mash.Rep. 202, 4 Mash. 76 (2000) (holding that Tribe has not waived its sovereign immunity for suits based on Connecticut dram shop act or reckless service of alcohol and that negligent service of alcohol and negligent supervision of service of alcohol are not causes of action that exist under Tribal law); Ohar v. Mashantucket Pequot Gaming Enter., 3 Mash.Rep. 199, 4 Mash. 78 (2000) (holding that the Tribe did not waive sovereign immunity for a claim made under Connecticut’s Dram Shop Act and claim for negligent service of alcohol is not recognized as common law cause of action under Connecticut or Tribal law); Cunningham v. Mashantucket Pequot Gaming Enter., 1 Mash.Rep. 358, 1 Mash. 267 (1996) (holding that the Tribe did not waive sovereign immunity for a claim made under Connecticut’s Dram Shop Act; there is no cause of action based upon negligence for sale of alcohol to adult who thereafter injures another person by reason of his intoxication; and sovereign immunity of Gaming Enterprise is not waived for claims of gross negligence, or reckless or willful misconduct).