NO. CV 98-119

BERNARD SCHRAM                                                          MASHANTUCKET PEQUOT

V.                                                                                        TRIBAL COURT

HOLLEY OHAR, AT ET                                                      APRIL 14, 2000

MEMORANDUM OF DECISION ON TRIBAL

DEFENDANTS’ MOTION FOR JUDGMENT

The Mashantucket Pequot Tribe, the Mashantucket Pequot Gaming Enterprise and Robert A. Zitto as permittee (the "Tribal Defendants") move for judgment on the pleadings because the plaintiff’s claim was not filed in a timely manner and because the Tribal Defendants have not waived their sovereign immunity against certain causes of action alleged in the complaint and because other causes of action alleged in the complaint do not exist under Connecticut or Tribal law.

This is an action brought in six counts. The first two counts are directed against the defendant Holley Ohar, and allege recklessness and negligence resulting in a motor vehicle accident in which a vehicle driven by Ohar allegedly crossed a double yellow line on Connecticut Route 164 and hit a vehicle driven by the plaintiff. Counts three through six are directed against the Tribal Defendants and allege causes of action based on the Connecticut dram shop act (Count Three), reckless service of alcohol (Count Four), negligent service of alcohol (Count Five) and negligent supervision (Count Six).

After the motion for judgment on the pleadings was filed, information was made available regarding the timing of the filing of the papers by which this action was commenced. Upon receipt of this information, the Tribal Defendants advised the court that, assuming the infraction is accurate, they would not argue that judgment on the pleadings should enter based upon an untimely commencement of this action. The court finds that the submitted information is accurate. The court considers that this ground of the Tribal Defendants’ motion has been withdrawn. Judgment on the pleadings shall not enter based upon untimely filing of the plaintiff’s claim

The Tribal Defendants assert that the claims based on the dram shop act, reckless service of alcohol and negligence in the service of alcohol and the supervision of alcohol must fail, because the Tribal Defendants did not waive their sovereign immunity for suits based on strict liability, recklessness or gross negligence, and because no common law action for the negligent sale of liquor exists under Tribal or Connecticut law. The Tribal 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 Cuninngham. The Sixth Count, entitled "negligent supervision," is based on the Gaming Enterprise’s alleged failure

to properly supervise its employees in the service of alcohol to the defendant Ohar, and is essentially a claim for negligent service of alcohol, a cause of action with the Cunningham court found did not exist under Tribal or Connecticut law.

The plaintiff does not contest the applicability of the Cunningham court’s rationale to his cause of action, and agrees that there are no tribal remedies available to the plaintiff. He does not request this court to address these issues anew. He 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.

The Tribal Defendants’ motion for judgment on the pleadings is granted, on the ground that the Tribal Defendants have not waived their sovereign immunity against the causes of action set forth in Count Three (Connecticut dram shop act) or Count Four (reckless service of alcohol), and on the ground that the causes of action set forth in Count Five (negligent service of alcohol) and Count Six (negligent supervision of the service of alcohol) are not causes of action that exist under Tribal or Connecticut law.

__________________________

Edward B. O’Connell, Judge