2023 WL 4044663 (Mash. Pequot Tribal Ct.)
Only the Westlaw citation is currently available.
Mashantucket Pequot Tribal Court.
Srikanth NAMBU, et al.
v.
MASHANTUCKET PEQUOT TRIBAL NATION
NO. MPTC-CV-PI-2019-166
|
April 19, 2023
MEMORANDUM OF DECISION
Thomas J. Londregan, Judge
BACKGROUND
The Plaintiffs, Srikanth Nambu, Sridhar Pilla, and Venkateswara Potluri (“Plaintiffs”), brought suit against the Mashantucket Pequot Tribal Nation (“MPTN”) for injuries sustained in a two-car accident. The Plaintiffs claim the accident was caused by intoxication brought about by the failure of MPTN employees to stop serving alcohol to Adam Rocha (the driver of the second car) while he was a patron of Foxwoods Resort and Casino. On September 3, 2019, the Plaintiffs filed said three-count action, including one violation of the Dram Shop Law by the MPTN for each of the three Plaintiffs.
FACTS
On February 9, 2019, Adam Rocha and his wife were patrons of Foxwoods Resort and Casino (“Foxwoods”) from about 5:30 p.m. to about 11:13 p.m. During this time, Mr. Rocha and his wife were served alcohol, and Plaintiff claims that Mr. Rocha was continually served more alcohol despite that he had grown visibly intoxicated.
At 11:18 p.m. on that same date, Mr. Rocha was driving westbound on Route 2 in Ledyard, Connecticut, with his wife as a passenger in his vehicle. At that same time, the Plaintiffs were driving eastbound with Srikanth Nambu driving. Sridhar Pilla was a backseat passenger in the Plaintiffs’ vehicle, and Venkateswara Potluri was the front seat passenger. While traveling on Route 2, Mr. Rocha crossed the centerline and violently collided head-on with the Plaintiffs’ vehicle.
The Plaintiffs sustained extensive and significant injuries, requiring hospitalization, surgery, physical therapy and medication. Am. Compl., First Count, ¶¶ 8, 11, 14-16. Additionally, the Plaintiffs have been unable to return to work because of their injuries and claim a permanent reduction in their earning capacities. Id. ¶¶ 13, 17. They also include possible life-long suffering from shock, fright, nervousness, anxiety, and emotional distress in their Amended Complaint. Id. ¶¶ 12-14. The parties stipulated that if liability is found by the Court the maximum award under Tribal Law of $250,000 shall be awarded as damages.
The Plaintiffs claim that their injuries are directly a result of the Defendants’ agents, servants and/or employees who failed to act in accordance with tribal law and continued to serve Mr. Rocha alcohol “despite showing obvious and observable manifestations of intoxication” to the point that he was “visibly intoxicated.” Id. ¶¶ 3, 8-9. The MPTN denies all claims and liabilities brought forth by the Plaintiffs. See Answer.
LAW
The Court must begin with an analysis of its jurisdiction. This Court is one of limited jurisdiction. Milios v. Mashantucket Pequot Gaming Com’n, 3 Mash.Rep. 226, 228, 4 Mash. 109, 111–12 (2000), aff’d 3 Mash.App. 12, 5 MPR 1 (2001) (describing Tribal Council amendments that altered the Tribal Court from one of general jurisdiction to one of limited jurisdiction). In establishing the Court, the Tribal Council provided: “the tribal court shall have subject matter jurisdiction over civil causes of action ... as expressly conferred upon it by the Tribal Council.” 1 M.P.T.L. ch. 1, § 2(a). Being a court of limited jurisdiction, an expressed grant of jurisdiction is a prerequisite to the court’s exercise of jurisdiction. Milios, 3 Mash.App. at 15, 5 MPR at 9. Without a specific waiver of its sovereign immunity, the tribe cannot be sued in any court. 12 M.P.T.L. ch. 1 § 1(d)(2) In the present case, the Plaintiffs allege that this Court has jurisdiction over all counts under 1 M.P.T.L. ch. 1, § 2 and under the Tribal Dram Shop Law. 17 M.P.T.L. ch. 1, § 40(c).
The MPTN enacted Section 40 of its Liquor Control Code, named “Liquor Seller Liable for Damage by Intoxicated Person,” or more commonly known as the “Dram Shop Law,” in 1998. This law states that the MPTN has waived sovereign immunity, for suits in the tribal court, based upon the sale of alcoholic liquor to an intoxicated person. 17 M.P.T.L. ch. 1, § 40(c). It also authorizes this Court to have jurisdiction over all actions brought under the Dram Shop Law. The Dram Shop Law states:
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, up to the aggregate amount of $250,000, 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...
17 M.P.T.L. ch. 1 § 40.
In summary, if the Defendant by its agents sold alcohol to an intoxicated person on the Reservation (including at Foxwoods), and then that intoxicated person injured someone because of his intoxication, the Defendant could be liable for damages to those injured persons.
Since the Mashantucket Pequot Tribe Liquor Control Code was enacted in 1998, this Court has heard only one case regarding a dram shop action. That case did not survive a motion to dismiss. See Westbrook v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 335 (Mash. Pequot Tribal Ct., 2010). This will be the first matter where this Court addresses a dram shop action on its merits. However, in the Westbrook case, the Court noted that “... Mashantucket’s Dram Shop Law essentially mirrors Connecticut’s dram shop law, therefore this Court may look to Connecticut for guidance.” Westbrook, at 343 (analyzing an extension of the notice requirement in the dram shop act when the Court had not yet heard a case regarding that issue).1
I. “Intoxication” requirement
Both the Mashantucket and Connecticut’s dram shop laws do not include any qualifying mens rea on behalf of the alcohol seller (e.g., “knowingly), nor do they include any qualifying terms on behalf of the patron’s intoxication (e.g., “clearly,” “visibly,” “noticeably”). See O’Dell v. Kozee, 53 A.3d 178, 186, 307 Conn. 231, 246 (Conn., 2012). This ambiguity leads to the question of how a Court should determine whether a patron was intoxicated for purposes of the Draw Shop Law.
Even though Connecticut’s dram shop law does not “qualify the proof required to establish sale to an ‘intoxicated’ person,” the Supreme Court of Connecticut, in O’Dell v. Kozee, determined that a plaintiff is nonetheless required “to prove that a patron was visibly or otherwise perceivably intoxicated when sold alcoholic liquor in order to prevail on a claim against the purveyor of alcoholic liquor for injuries sustained as a result of the patron’s intoxication.” O’Dell, 53 A.3d at 179, 184, 186–197 (emphasis added). In making its determination, the Supreme Court of Connecticut considered how the legislature wrote the state’s dram shop law to require the seller to determine whether or not the patron is intoxicated. That court determined that by writing the law as such, the legislature “must have assumed that there would be an objective basis from which the seller could make such a determination through reasonable efforts.” Id. at 189 (citing State v. Katz, 189 A. 606, 607-608 (Conn. 1937)). The legislature did not issue any guidance for an objective test. For example, a patron’s certain blood alcohol content level does not per se establish intoxication. Id. at 196. The Supreme Court of Connecticut concluded that the state’s dram shop law lack of a “specific blood alcohol content as proof of a violation ... inexorably leads to two conclusions: first, there is no standard of intoxication per se under [the dram shop law]; and second, the absence of such a standard is wholly consistent with a construction of [the dram shop law] that requires proof of perceivable intoxication.” Id. at 196. Notwithstanding this analysis by the Connecticut court, that the dram shop law as written does not provide a specific blood alcohol content as proof of intoxication, the Plaintiffs have asked this Court to adopt such a rule of law - namely that a BAC of 0.12 percent or higher is per se evidence of visible intoxication.2
This Court has cited to O’Dell v. Kozee before – In a case where the plaintiff alleged the MPGE of negligently or recklessly selling alcohol to a patron, this Court distinguished those allegations from a dram shop action, stating:
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 [visibly] 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.
Bennett v. Mashantucket Pequot Gaming Enterprise, No. MPTC-CV-PI-2016-119, 2019 WL 2219790, at *5 (Mash. Pequot Tribal Ct., 2019) (emphasis added) (citing 17 M.P.T.L. ch. 1 § 40; O’Dell v. Kozee).
Therefore, considering this Court’s dicta and what the State of Connecticut has determined for their own dram shop law, this Court must determine if the Tribe sold alcohol to an intoxicated person when it knew or should have known that the person was so intoxicated. To prevail on a dram shop action, a plaintiff must prove that the patron was visibly or perceivably intoxicated at the time the defendant sold him alcohol. This obligation makes sense; for if there is no liability for selling alcohol to a person, but there is liability for selling alcohol to an intoxicated person, the seller of alcohol must be able to “perceive,” or determine from personal observations that the buyer of alcohol was intoxicated. This finding is also consistent with the allegations of the complaint: that the Defendant served Mr. Rocha alcohol when he was “showing obvious and observable signs of intoxication” and was “visibly intoxicated.” Am. Compl., First Count, ¶¶ 3, 8-9.
II. Characteristics of “visible” or “perceivable” intoxication
This Court finds that the patron must be visibly or perceivably intoxicated at the time the Defendant sold him alcohol; therefore, this Court must determine if it shall set guidelines as to what “visible” or “perceivable” intoxication may look like. Although this Court has not yet defined visible intoxication in any dram shop action decision, the MPTN and the Mashantucket Pequot Gaming Enterprise (“MPGE”) define such a term in its policies, which this Court and the Court of Appeals has recognized.
First, in a case where an employee appealed her termination due to improperly “serving a guest to intoxication,” this Court recognized that “[t]he [MPGE] maintain[ed] that evaluating patrons for signs of intoxication is solely the responsibility of the employee serving the alcohol.” Dulaney v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 51, 57 (Mash. Pequot Tribal Ct., 2008). The plaintiff in that case testified that she took alcohol training classes as required by the MPGE, and when she had served the “intoxicated” patron, “he did not demonstrate any of the signs of intoxication for which she had been trained to look.” Id. at 55 (citations omitted). The alcohol training classes instructed the plaintiff to look for the following signs to recognize intoxicated patrons: “lack of coordination, impaired balance, slow reaction time, loss of good judgment, and erratic hand and arm movements.” Id. at 55 (citations omitted). In that case, the Court concluded that the MPGE “did not have a rational basis for concluding that [she] served alcohol to a patron who was ‘actually or apparently’ intoxicated.” Id. at 56. In making that conclusion, the Court quoted a Connecticut Supreme Court dram shop case that stated:
Intoxication means an abnormal mental or physical condition due to the influence of intoxicating liquors, a visible excitation of the passions and impairment of the judgment, or a derangement or impairment of physical functions and energies. When it is apparent that a person is under the influence of liquor, when his manner is unusual or abnormal and is reflected in his walk or conversation, when his ordinary judgment or common sense are disturbed or his usual will power temporarily suspended, when ... he is so affected in his acts or conduct that the public or parties coming in contact with him can readily see and know this is so.
Id. at 56 (citing Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349–350, 493 A.2d 184 (1985) (footnotes omitted)).
Furthermore, the Mashantucket Pequot Court of Appeals more recently noted MPGE policy defining an intoxicated person in an employee appeal case, where the employee was terminated “for violating the Drug Free Workplace Policy by his refusal to undergo an alcohol consumption test.” Osfield v. Mashantucket Pequot Gaming Enterprise, 6 Mash.App. 1, 2 (Mash. Pequot Ct. App., 2013). In that case, the Court of Appeals recognized that MPGE supervisors are trained “to recognize signs of intoxication.” Id. at 7. The MPGE provides them “with a ... form that details signs of employee alcohol use or intoxication.... Particular indicators of intoxication include: erratic behavior, extreme agitation, irritability, extreme aggressiveness, a wide stance, rambling speech, insubordination, flushed face, droopy eyes and the odor of alcohol.” Id. at 7. Due to the employee in that case exhibiting some of those indicators, the Court of Appeals found that “[t]he inferences drawn by [the employee’s] supervisors from their observations were reasonable and supported the reasonable cause determination.” Id. at 9.
Although this Court acknowledges that the Mashantucket Pequot courts have recognized the MPTN and MPGE’s policies defining the characteristics of an intoxicated person, this Court does not want to set an inflexible definition for this term. Neither did the Connecticut Supreme Court in O’Dell, supra. In O’Dell, the court stated that “[t]he condition of intoxication and its common accompaniments are so much a matter of general knowledge that practicable and sensible effect may be given to the words ‘intoxicated person’ as used in the statute ... and the law cannot be held too indefinite to be enforceable.” O’Dell at 188 (emphasis omitted) (citing State v. Katz, 189 A. 606, 608 (Conn. 1937)). Keeping that frame of mind, this Court will continue to evaluate MPTN and MPGE policies regarding the characteristics of visible intoxication on a case by case basis.
ISSUE
In this matter, to establish if the Defendant violated the MPTN’s Dram Shop Law, the Plaintiffs must prove the following by a preponderance of the evidence:
(1) The patron was intoxicated at the time of alcohol service;
(2) The Defendant or its agent(s) knew or should have known the patron was intoxicated; and
(3) The Defendant served alcohol to that visibly or perceivably intoxicated patron.
The main issue is whether Mr. Rocha was visibly intoxicated when the Defendant, by its agents, sold him his last alcoholic drink at Foxwoods Casino.
DISCUSSION
At trial, both parties introduced expert testimony and video footage. A dashcamera video captured the head-on collision. Security video footage captured most of Mr. Rocha’s time at Foxwoods, from his arrival to his departure. Specifically, it captured the Defendant’s agents serving Mr. Rocha alcohol, including the last service of alcohol. Under the framework of the three issues, the Court has reviewed the available videos and the transcripts of the experts’ testimony.
I. Was Mr. Rocha intoxicated at the time of last alcohol service?
To prove whether Mr. Rocha was intoxicated at the time of last alcohol service, both parties rely on expert testimony. Both the Plaintiffs’ and the Defendant’s experts were qualified and their methodologies used were both sufficiently established to have gained general acceptance in the field of forensic toxicology. However, their methodologies were different (the Plaintiffs’ expert using “back-extrapolation” and the Defendant’s expert using mostly “forward-extrapolation”), leading them to different resulting opinions.
a. Plaintiffs’ Expert Testimony
The Plaintiffs’ expert, Robert H. Powers, Ph.D., used “back-extrapolation” as his main methodology in determining what Mr. Rocha’s likely blood alcohol concentration (BAC) percentage was at the time of last alcohol service. Black’s Law Dictionary defines “extrapolation” as “[t]he process of estimating an unknown number outside the range of known numbers.” BLACK’S LAW DICTIONARY 587 (6th ed. 1990). To back-extrapolate, someone would use a known number at a certain time as a starting point, then trace backwards to find the unknown number at the wanted time. See Trial Tr. 103, Dec. 27, 2022. In this case, Dr. Powers took Mr. Rocha’s BAC percentage at Rhode Island Hospital after the accident, and back-extrapolated it to the time of last alcohol service.
At the hospital at 12:35 a.m., Mr. Rocha’s blood was recorded to have a whole blood alcohol measurement of .137 milligrams per deciliter. Dr. Powers converted this result to get Mr. Rocha’s BAC as .118 percent, which he rounds to .12 percent.
Dr. Powers testified that he expected Mr. Rocha’s BAC percentage to have been declining at a rate of about .02 percent per hour (the average rate for casual drinkers) from about 10:30 p.m. (about 40 minutes after he was served his last drink) until that 12:35 a.m. point. Using that rate to back-extrapolate, Dr. Powers estimated that at 11:30 p.m., Mr. Rocha’s BAC was .14 percent and at 10:30 p.m., it was .16 percent.
Dr. Powers opined that Mr. Rocha’s BAC percentage would have been rising from 9:55 p.m. (the time in which he was served his last drink) until 10:30 p.m. Mr. Rocha’s last drink was a beer with 8 percent alcohol by volume, which corresponds to two standard drinks. Due to the drink being stronger, Dr. Powers opined that Mr. Rocha’s BAC would have rose about .04 percent from the time of service to 10:30 p.m. This led to Dr. Powers concluding that Mr. Rocha’s BAC at the time of last service was .12 percent.3
In summary, Dr. Powers opined the following regarding Mr. Rocha’s BAC:
Time
|
BAC
|
8:25 p.m.
|
--
|
9:55 p.m. (time of last service)
|
.12
|
10:30 p.m.
|
.16
|
11:30 p.m. (15 minutes after car accident)
|
.14
|
12:35 a.m. (at hospital)
|
.12
|
b. Defendant’s Expert Testimony
The Defendant’s expert, Dr. Charles A. McKay, M.D., used forward-extrapolation for his methodology. To forward-extrapolate, Dr. McKay analyzed the known alcoholic drinks that Mr. Rocha consumed throughout the night, what time he drank them, and the rate at which they would absorb into his body, in order to find his BAC percentage at the time of last service.
Dr. McKay opined that Mr. Rocha metabolized and eliminated alcohol at about .018 grams per deciliter per hour, similar to a typical alcohol-consuming adult male. Given this rate, the type of alcoholic drinks that Mr. Rocha consumed, and those drinks percent of alcohol per volume, Dr. McKay testified that Mr. Rocha’s BAC would be about .08 percent at the time of last service. Furthermore, he testified that because Mr. Rocha is seen on video consuming that last drink for 49 minutes, it was not likely fully absorbed until sometime after the crash. Due to that drink’s late absorption, Dr. McKay opined that Mr. Rocha’s peak BAC would have been recorded at about 11:30 p.m., shortly after the crash. At that point in time, Mr. Rocha’s BAC was likely .12 percent. Dr. McKay also converted Mr. Rocha’s whole blood alcohol measurement at Rhode Island Hospital of .137 milligrams per deciliter to a BAC percentage. However, Dr. McKay truncated decimals (Dr. Powers rounded up), so he opined that at Rhode Island Hospital at 12:35 a.m., Mr. Rocha’s BAC was .117 percent or .11 percent.
In summary, Dr. McKay opined the following regarding Mr. Rocha’s BAC:
Time
|
BAC
|
8:25 p.m.
|
.05
|
9:55 p.m. (time of last service)
|
.08
|
10:30 p.m.
|
--
|
11:30 p.m. (15 minutes after car accident)
|
.12
|
12:35 a.m. (at hospital)
|
.11
|
c. Court’s Analysis
The Court need not decide if back-extrapolation or forward-extrapolation is the preferred method of determining intoxication at the time of service. Furthermore, the Court need not determine if .08 or .12 renders a person intoxicated. This Court will not decide these issues for the reasons hereinafter stated.
Testimony, regarding what blood alcohol level is required before signs of intoxication are visible in the general population, is not determinative of visible signs of intoxication at the time of service to a particular individual such as Mr. Rocha. “Alcoholic liquor may tend to affect some persons differently than it does others, depending on a number of factors, for instance, a person’s body weight, a person’s tolerance to alcohol, and what other food or beverages, if any, a person has consumed within the same time frame....” Zaneski v. Thirsty Turtle, LLC, 48 Conn. L. Rptr. 567, 2009 WL 5184318, at *5 (Conn. Super.,2009) (quoting Wentland v. American Equity Ins. Co., 267 Conn. 592, 604–05, 840 A.2d 1158 (2004)). The determining issue in this case, even if Mr. Rocha was intoxicated at the time of service, is whether Mr. Rocha was “visibly” intoxicated at the time of service, such that the bartender/server knew or should have known that he was intoxicated.
II. Did the Foxwoods employees know or should have known of Mr. Rocha’s intoxication at the time of last alcohol service?
According to the experts’ testimony, Mr. Rocha’s BAC at the time of last service was most likely between .08 and .12 percent. Dr. McKay opined that Mr. Rocha’s BAC was .08 percent. In his report, he noted that at a .08 percent BAC, depending on a person’s alcohol tolerance, he or she may start to have poor muscle coordination (e.g., balance, speech vision, reaction time and hearing), may find it harder to detect danger, and/or may have impaired judgment, self-control, reasoning and memory. Trial Tr. 121-122, Dec. 27, 2022; Def.’s Ex. E, 8. However, Dr. McKay further testified that it is not until a person has a BAC of .10 percent that he is perceivably intoxicated (in that a standard field sobriety test has about a 90% likelihood of determining a person’s intoxication).
On the other hand, Dr. Powers opined that any person with a .12 BAC would exhibit sufficient behavioral changes to be perceived as visibly intoxicated by an attentive bartender. He testified that at a BAC of .12, there are sufficient behavioral changes in an individual that would be perceived if someone was paying attention to that individual. If a person was not paying attention, he may miss behavioral clues, such as delayed reactions and responses. But, Dr. Powers testified that a social interaction would be enough to sense “something’s not quite right” and Mr. Rocha may be intoxicated.
In addition to the experts’ testimony, the Court also heard testimony from Brandon Sweet, Director of Beverage at Foxwoods. In his position, Mr. Sweet supervises all beverage operations for the property. He is in charge of implementing Foxwoods’ alcohol training policies and ensuring Foxwoods employees receive the requisite training. Trial Tr. 11, Dec. 2, 2022. Mr. Sweet testified that all Foxwoods-owned restaurants and bars that sell alcohol on the Reservation are required to train their employees in the safe dispensing of alcohol. In venues that are not owned by Foxwoods, but are on the Reservation, training is likely still required, but is under control of the state of Connecticut. Id. at 13.4
Foxwoods’ Alcohol Service policy and the required alcohol training courses both outline what employees should do to ensure that intoxicated patrons are not served alcohol. Employees must “[b]e aware that new guests arriving to [their] section may have been consuming alcohol elsewhere on the property.” Trial Tr. 18, Dec. 2, 2022; Pl.’s Ex. 14. They must also be aware of signs of intoxication.5 Additionally, employees are taught that certain drinks may have more alcohol in them than others. Trial Tr. 21, Dec. 2, 2022. To best ensure an intoxicated patron is not served alcohol, employees are “required to make eye contact and [to] converse briefly with each guest to determine their level of intoxication.” Id. at 18. As Director of Beverage, Mr. Sweet testified that he is confident that Foxwoods’ employees who serve alcohol have been “given a level of instruction and education” that will allow them to identify an intoxicated patron better than a lay person. Id. at 20.
Notwithstanding the bartender having the requisite training and being a qualified person to recognize signs of intoxication, he only could have known, or should have known, whether Mr. Rocha was intoxicated if Mr. Rocha visibly exhibited such signs.
III. Did the Foxwoods employees serve alcohol to Mr. Rocha when he was visibly or perceivably intoxicated?
The Court finds there was no direct proof that Adam Rocha was visibly intoxicated when he was served his last alcoholic drink at about 9:55 p.m. at the Central Bar at Foxwoods. There were no witnesses who could opine on any visible or obvious signs of intoxication, such as slurred speech, balance or coordination issues, slow reaction time, or if he smelled of alcohol, at the time of service. However, direct proof of visible intoxication at the time of service is not per se required. Testimony regarding Mr. Rocha’s behaviors before or after the time of service can be circumstantially relevant. For instance, a first responder or a police officers’ subjective observation that a person was obviously intoxicated shortly after being served in a bar, can give rise to a question of fact, whether the person was visibly intoxicated at the time of service.6 Such a question can be decided by the trier of fact.7 Nonetheless, no accident responders testified about Rocha’s mental or physical condition as might have been influenced by alcohol;8 and no other patrons of the establishment or others who might have interacted with Mr. Rocha any time throughout the night testified.
The Plaintiffs rely on the security footage video prepared by the Tribe of Mr. Rocha at the casino. After the accident, the Tribe searched its video to find Mr. Rocha from the time he entered the garage until he left the casino. The parties were at odds over gaps in the video and what if any conclusions or inferences were to be made or should be made from such gaps. Trial Tr. 6-10, Oct. 17, 2022.
The Plaintiffs claim that parts of the video show Mr. Rocha as intoxicated with the following specific allegations:
1. Out of the five hours, there is about an hour and a half that is considered “probative,” which are the points where Mr. Rocha is “purchasing alcohol and walking in a manner that [the plaintiff] would claim shows that he was intoxicated.” Id. at 9.
2. From 10:23 to 10:39 p.m., Mr. Rocha is carrying and drinking a beer; there are signs of intoxication in his gait and demeanor. Id. at 16-17.
3. From 10:39 to 10:43 p.m., Mr. Rocha is drinking beer and appearing to wobble while he walks, both “obvious signs of intoxication.” Id. at 17.
4. From 10:49 p.m. to 10:54 p.m., while at Top Golf, Mr. Rocha drops pizza on the floor, picks it up, and eats it. Id. at 18.
5. From 11:03 to 11:04 p.m., there are obvious signs of intoxication. Id. at 17.
6. From 11:04 to 11:10 p.m., Mr. Rocha also exhibits the same obvious signs of intoxications at the candy store in Foxwoods. Id. at 19.
The Court has reviewed these portions of the video and other portions of the video deemed relevant, especially the portion of when Mr. Rocha was served his last alcoholic drink from Foxwoods at about 9:55 p.m. The Court finds that the video does not show, by a preponderance of the evidence, any clear signs of intoxication in Mr. Rocha’s gait or demeanor before or at the time of his last service of alcohol. As seen in the video footage, Mr. Rocha entered the bar area with his wife, where he guided her to an open area of the bar counter. Pl.’s Ex. 8 at 09:53:47–9:53:50. As they walked, she touched the bottom of his back, allowing him to guide her to the intended destination. Id. Mr. Rocha navigated through a crowd of other patrons with confidence, maintaining his normal gait and his clear intention to get to his desired destination. Id. at 09:53:50–09:53:53.
Mr. Rocha arrived to the open area of the bar and securely stood straight, not wavering in his stance. Id. at 09:53:57–09:53:57. He kept his gaze forward, looking behind the bar, where the bartenders and menus were. Id. Then, he unwaveringly walked towards a bartender, approaching an open space at the bar counter. Id. at 09:53:59–09:54:01.
As Mr. Rocha waited for the attention of a bartender, he leaned onto the bar counter with his upper body. Id. at 09:54:01–09:54:05. As he waited, he did not appear restless or impatient. His stance and demeanor continued to appear normal and confident. During the time he waited for the bartender, he capably turned and spoke to his wife; he noticed the patrons beside him having a conversation; and he looked behind the bar at the bartender and menus. Id. at 09:54:05–09:54:45.
When the bartender stops to speak with Mr. Rocha, their conversation seems normal and quick. Id. at 09:54:48–09:55:26. The bartender gave Mr. Rocha two drinks. Id. at 09:55:33–09:55:45. First, Mr. Rocha gave one drink to his wife. Id. It appeared that he waited to be sure she was gripping the glass before turning back to the bartender. Id. Then, he paid for the drinks. Id. at 09:55:54–09:55:59. He received the receipts from the bartender with ease. Id. at 09:55:59–09:56:03. Mr. Rocha placed his wallet in his pocket, signed the receipt, and placed the receipt on the counter near the bartender. Id. at 09:55:59–09:56:18.
When the final transaction is complete, Mr. Rocha took his drink off the bar, turned, and left the bar area with no issues. Id. at 09:56:18–09:56:26. His gait and demeanor continued to be normal. Id. He led the way for he and his wife to leave the bar area. Id. Mr. Rocha walked up three steps and navigated through the crowd of patrons without losing a grip on his drink or changing his gait. Id. at 09:56:26–09:56:35. All the way, he stayed attentive to his wife, noting where she was in position to him. Id. The Court finds that Mr. Rocha’s behavior shown in the security video footage is not behavior that a reasonable bartender with the requisite training would consider that of a visibly intoxicated person.
Furthermore, the Court cannot conclude that the video footage of Mr. Rocha after the 9:55 p.m. service show signs of intoxication by a preponderance of evidence. If the Court did so conclude that such signs were exhibited, the Court could only consider that evidence circumstantially when deciding if Mr. Rocha exhibited those signs at the time of service.9
Considering the testimony given at trial and the provided video footage, this Court finds that Adam Rocha, tortfeasor, was not visibly intoxicated at the time he purchased his last drink at Foxwoods Resort Casino. This Court believes a reasonable bartender with the requisite training would not view Mr. Rocha’s behavior and demeanor as that of an intoxicated individual.
CONCLUSION
Tribal law requires the Plaintiffs to meet their burden of proof, without speculation or conjecture, but rather on reasonable inferences from the evidence presented, that Mr. Rocha was visibly intoxicated at the time the Defendant’s agent last served him alcohol. Considering all the evidence presented in this case, and making all reasonable inferences in their regard, this Court finds that the Plaintiffs have failed in their burden of proof to prove such visible intoxication. Judgment shall be entered for the Defendant.
The Court notes that both parties were admirably represented by counsel who did an excellent job of providing the Court with pertinent information and facts and expert testimony, as well as a careful and well-reasoned analysis of the law. The Court thanks counsel for the vigorous representation of their clients.
All Citations
2023 WL 4044663
Footnotes |
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See generally Mashantucket Pequot Tribal Nation v. Paul Steelman, Ltd., 5 Mash.Rep. 31, 39, 2008 WL 961024, at *7 (Mash. Pequot Tribal Ct.,2008). “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.” |
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The Plaintiffs’ post-trial brief suggests that the only issue is whether this Court shall accept Dr. Powers’ expert testimony that Mr. Rocha was visibly intoxicated when he was served his last drink at 9:55 p.m. Dr. Powers’ opinion was that Mr. Rocha had a BAC of 0.12 or higher at the time of last service, and that fact would be “sufficient for a trained, interested observer, such as a bartender trained to detect intoxication ... to conclude [Mr. Rocha] was intoxicated at the time he requested his final drink.” Pl.’s Post-Tr. Br. 2. |
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Dr. Powers further testified that if Mr. Rocha had consumed a beer equivalent to one standard drink, his BAC would have rose only .02 percent from the time of service to 10:30 p.m., leaving Mr. Rocha with a .14 percent BAC at time of last service. |
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The alcohol training courses that Mr. Sweet oversees are conducted by the “TIPS” (Training for Intervention ProcedureS) organization, which is industry standard. In addition, Foxwoods provides “ART” (Alcohol Responsibility Training) through their private online-training, the Pequot Academy. Trial Tr. 14, 16, Dec. 2, 2022. The ART course is a six hour instruction regarding overall responsibility of serving alcohol, including how to properly service and how to identify signs of intoxication. Id. at 15-16. Every employee must pass a test at the course’s conclusion in order to serve alcohol at Foxwoods. Id. at 16. According to Foxwoods’ policy entitled “Alcohol Service: Training & Certification,” employees must acquire recertification through these courses every three years. Pl.’s Ex. 14. |
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Signs of intoxication may include the following:
Pl.’s Ex. 13; See Trial Tr. 19, Dec. 2, 2022. |
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See Geherty v. Moore, 570 A.2d 29, 37, 238 N.J.Super. 463, 477 (N.J. Super. A.D.,1990) (finding that in a case with no direct proof that a patron was visibly intoxicated when served at a bar, and only uses expert extrapolated opinion evidence – very much like this case – any evidence of a patron’s “condition and its noticeability” at time of service is crucial to resolve “any confusion” in this issue). |
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See Kalenka v. Jadon, Inc., 305 P.3d 346 (Alaska, 2013) (finding that testimony regarding a patron’s behaviors before and after service of alcohol is circumstantially relevant to determining his behaviors at time of the service; See also Kavorkian v. Tommy’s Elbow Room, Inc., 694 P.2d 160 (Alaska,1985). |
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One of Ledyard Police’s patrolman noted in a supplemental personal narrative that he “detected the odor of an alcoholic beverage emanating” from Mr. Rocha in the ambulance on the way to the hospital after the crash. Nothing regarding Mr. Rocha’s behavior was noted in any supplemental police narratives. Additionally, in the Uniform Police Crash Report, Mr. Rocha’s condition is checked off as “apparently normal,” not as “under the influence.” This Court finds that the mere odor of alcohol after the time of last alcohol service is not dispositive in determining visible or perceivable intoxication at the time of last alcohol service. See Geherty v. Moore, 570 A.2d 29, 32-37, 238 N.J.Super. 463, 468-77 (N.J. Super. A.D.,1990) (finding that an arresting officer’s testimony regarding a patron’s behavior after the time of service was crucial in determining the patron’s “condition and its noticeability” at the time of service; the court specified the officer’s testimony that the patron “was polite, cooperative and calm at the scene,” and “was not loud, boisterous or rambling” was crucial, but did not specify how the officer smelled the odor of alcohol on the patron’s breath as such.) |
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See Geherty v. Moore, supra note 3; See Kalenka v. Jadon, supra note 4. |
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