Judge's ruling in I-395 fatal reinforces tribal immunity

A Hartford Superior Court judge's decision in a suit brought by the estate of a Connecticut College student killed in a 2009 highway crash reinforces the principle that a sovereign Indian tribe's immunity from lawsuits extends to the dispensing of alcohol.

Judge William Bright Jr., who ruled a month ago, dismissed claims against the Mohegan Tribal Gaming Authority; Bruce "Two Dogs" Bozsum, chairman of the Mohegan Tribal Council; Mitchell Etess, the authority's chief executive officer; and Gary Crowder, Mohegan Sun's senior vice president of resort operations.

The authority, an entity of the Mohegan Tribe, operates Mohegan Sun.

The suit also named as defendants the nontribal owners of Ultra 88, the Mohegan Sun bar that served alcohol to the driver of a vehicle that slammed into a van in which Elizabeth Durante, a 20-year-old premed student at the time of her death, was riding along with seven other students who survived.

The driver, Daniel Musser, was traveling the wrong way near Exit 79A of Interstate 395 when the collision occurred. He pleaded guilty to manslaughter and reckless-endangerment charges and was sentenced to 75 months in prison.

Durante's family filed a separate Superior Court suit against Plan B LLC, which owns Ultra 88, and Patrick Lyons, the bar's permittee, and also alleged negligence in another suit against the bar owners and tribal officials in the Mohegan Gaming Disputes Trial Court.

Robert Reardon, the New London attorney representing Durante's estate, argued that Congress never granted tribes sovereign immunity over liquor regulation.

He downplayed the effect of Bright's decision.

"It's not of any great significance because the bar is owned by Plan B LLC, not the tribe, and they (Plan B) have ample insurance - $21 million," he said this week. "We're not going to appeal because that would delay the trial of the case and we are ready to proceed to trial."

In his decision, Bright rejected the plaintiff's argument that the Mohegan authority had, in effect, waived its sovereign immunity by obtaining a state liquor license and agreeing to adhere to the state's liquor laws. Under the state's Dram Shop Act, establishments that serve alcohol are liable for the actions of those they serve.

"Merely agreeing to a legal obligation does not constitute an explicit waiver of immunity from suit for breach of that obligation," Bright wrote.

Reardon had been expected to press the point in an earlier case in which he represented a Waterford teenager who was struck by an SUV whose driver had been drinking at a Mohegan Sun bar. Attorneys for the victim in that case, Emily Vanstaen-Holland, reached a financial settlement with the tribe the day before the state Supreme Court was to hear the case.

About a month later, the tribe adopted its dram shop law.

"The court completely understands the plaintiffs' frustrations with the application of sovereign immunity to a case such as this," Bright wrote in his decision. "… This court, though, has no authority to abrogate MTGA's sovereign immunity, no matter how sound the reasons to do so might be."

b.hallenbeck@theday.com

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