$15M crash lawsuit tests Mohegan Sun liability

A $15 million lawsuit accusing the Mohegan Tribal Gaming Authority of negligence in the death of a Connecticut College junior killed in a wrong-way car crash could shed light on whether the tribal entity that operates Mohegan Sun is legally responsible for the conduct of the liquor-serving establishments that lease space at the casino.

In the suit filed last month in the Mohegan Gaming Disputes Trial Court, Kathleen Hurley Durante, administratrix of the estate of her daughter, Elizabeth Durante, also alleges negligence on the part of Patrick Lyons, co-permittee of the Ultra 88 nightclub at Mohegan Sun, and Plan "B" LLC, the nightclub's financial backer.

Elizabeth Durante, a 20-year-old premed student from West Islip, N.Y., was killed March 7, 2009, when the northbound van in which she and seven other students were passengers collided head-on with a car being driven the wrong way near Exit 79A of Interstate 395. The driver of the car, Daniel Musser, a Navy man stationed at the Naval Submarine Base, told police he had been drinking at Ultra 88. After the crash, he was found to have a blood-alcohol content well in excess of the legal limit. Durante, the sole fatality, died at the scene.

Musser is expected to plead guilty next month to manslaughter and drunken-driving charges.

Last November, Kathleen Durante filed a wrongful death suit under the state's Dram Shop Act against Lyons and Plan "B" in New London Superior Court, alleging the nightclub served Musser alcohol when he was already intoxicated. State courts have ruled that the Mohegan and Mashantucket Pequot tribes are immune from such claims in state court. The Mashantuckets' tribal law includes a dram shop statute; the Mohegans' does not.

"We've taken a different strategy, bringing it as a negligence case," M. John Strafaci, the New London attorney representing the Durante family, said Monday. "Mohegan Tribal Gaming Authority is listed on (Ultra 88's) liquor permit, so we think it has a responsibility to make sure the staff is not serving intoxicated people. Beyond that, it has an obligation as the operator of Mohegan Sun to protect the rest of us out on the road from those they serve."

Robert Rhodes, a Westport attorney representing the MTGA in the Durante case, was unavailable for comment. Typically, the Mohegan Tribe does not comment on matters in litigation, Helga Woods, the tribe's attorney general, said.

Mohegan Sun officials announced late last year that they had taken steps to better train staff to identify intoxicated patrons and had stationed security personnel at garage exits on weekends to watch for impaired drivers. The limit on drinks served to patrons was reduced from three to two an hour.

"It's my understanding that subsequent to this (Durante) case and others - there was probably a cumulative effect - they did enact these sorts of procedures," Strafaci said.

According to Strafaci, Mohegan law limits total damages in such cases to three times special damages, which include such things as medical expenses and lost earnings. The plaintiffs estimated that Durante, whose father is a surgeon and whose mother is an attorney, would have earned $5 million during her lifetime, Strafaci said, bringing to $15 million the total damages sought in the suit.

An award of that magnitude would likely be among the highest ever granted by a tribal court. In settling a personal-injury case in Mashantucket Pequot Tribal Court last summer, the Mashantucket Pequot Gaming Enterprise, which operates Foxwoods Resort Casino, agreed to pay a Massachusetts man $2.9 million. The plaintiff, who had a leg amputated following a valet-parking accident at Foxwoods, was represented by Strafaci.

Both the state's Dram Shop Act and the Mashantuckets' dram shop statute limit damages to $250,000.