2024 WL 4448727 (Mash. Pequot Tribal Ct.)
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Mashantucket Pequot Tribal Court.
 
Alexis J. VILAR, Plaintiff
v.
MASHANTUCKET PEQUOT GAMING ENTERPRISE, Defendant
 
No. MPTC-CV-PI-2023-106
|
APRIL 5, 2024

 

MEMORANDUM OF DECISION RE: DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT

JEAN M. LUCASEY, JUDGE

The plaintiff, Alexis Vilar, filed1 suit against the defendant Mashantucket Pequot Gaming Enterprise alleging that negligent conduct by the defendant’s employees caused the plaintiff to lose $52,000 in cash. Before the Court is the defendant’s motion for partial summary judgment.

 

I. Background

The plaintiff alleges on Saturday, March 19, 2022, he and his friend Joseph Ronnekki visited the defendant’s Foxwoods Resort and Casino. The plaintiff says he checked into a room at the Grand Pequot Hotel at Foxwoods and gave a keycard to Ronnekki. The plaintiff states that after checking in he went to gamble at one of Foxwoods’ casinos.

Apparently, the plaintiff had good luck, as his complaint alleges that over the course of several hours playing baccarat he won more than $52,000. He states that he brought his winnings back to his hotel room and secured his cash in the room safe provided by the hotel. The plaintiff alleges later that evening and into the early hours of the next day he and Ronnekki met two women at the Shrine Nightclub in Foxwoods. He alleges Ronnekki gave one of the women his keycard.

The plaintiff alleges the woman gave Ronnekki’s keycard to a third “unidentified” woman. This third woman, the plaintiff says, then used Ronnekki’s keycard to enter the plaintiff’s room in the Grand Pequot Hotel. The gravamen of the plaintiff’s claim is this: from inside his hotel room, the unidentified woman called for hotel security to come open the safe in the plaintiff’s room and the hotel dutifully sent employees to oblige her request. The plaintiff alleges that hotel employees went up to his room and opened his safe for the woman without either contacting him for permission or checking to see if the woman was a registered guest of the room. The plaintiff alleges that he did not give the unidentified woman permission to be in his room or to access his safe.2 He claims that the defendant’s conduct resulted in theft that caused the plaintiff serious harm, including the loss of $52,000.

On September 18, 2023, the defendant filed a Motion for Partial Summary Judgment, claiming that tribal law limits the defendant’s liability to $1,000 in suits, such as this one, where it is alleged that a hotel employee’s negligence caused the loss of a hotel guest’s property. The defendant’s argument rests on the Hotel and Innkeepers Liability law, codified at 9 M.P.T.L. ch. 2 §§ 1–3. The defendant asserts there is no genuine issue of material fact that its damages are statutorily limited to $1,000.

Along with its motion the defendant filed an affidavit signed by Chris O’Connell, the Vice President of Hotel Operations at Foxwoods Resort Casino. Mr. O’Connell asserts via affidavit that during the days in question, from March 18, 2022, through March 20, 2022, an innkeepers notice fully compliant with the requirements of 9 M.P.T.L. ch. 2 § 1 was posted on the back of the entrance door to room No. 2076.3

The plaintiff’s objection to the defendant’s motion raises two issues. First, he argues that the defendant is liable for all $52,000 of his damages because the Tribe waived the defendant’s sovereign immunity for torts up to the full amount of actual damages in the Tort Claims (Gaming Enterprise) law, codified at 4 M.P.T.L. ch. 1 § 1 et seq. Second, he argues that summary judgment is inappropriate here because the defendant has not met its burden to show there is no genuine issue of material fact. The plaintiff filed an affidavit with his objection in which he asserts that he did not see, either on the back of his hotel room door or in the hotel registration area, a sign or notice stating that the hotel’s liability for damage to or loss of guest property in the hotel room safe was limited to $1,000.

For the reasons stated below, the Court FINDS that the Hotel and Innkeepers Liability law governs the defendant’s liability here, but that a genuine issue of material fact exists that renders summary judgment inappropriate at this time.

 

II. Discussion

A. The Tort Claims (Gaming Enterprise) Law and the Hotel and Innkeepers Liability Law

The Tribal Court is a court of limited jurisdiction “empowered to exercise only that jurisdiction conferred upon it by the tribe’s governing body.” Milios v. Mashantucket Pequot Gaming Com’n, 3 Mash.App. 12, 15 (2001) (quoting Healy v. Mashantucket Pequot Gaming Enterprise, 2 Mash.App. 28, 34 (1999)). Therefore, as a threshold matter, the Court must determine which tribal law applies to the Court’s jurisdiction to hear this suit. If the Tort Claims law governs, the defendant’s liability could be $52,000 or greater (see 4 M.P.T.L. ch. 1 § 4); but if the Hotel and Innkeepers Liability law applies, the defendant’s liability could be limited to just $1,000.

Tribal Court jurisdiction is a question of legislative intent, Milios, 3 Mash.App. at 15, and “determinations of legislative intent must begin with the language of the particular enactment,” id. (citing Shea v. Mashantucket Pequot Gaming Enterprise, 1 Mash.App. 43, 46 n.2 (1997)). It is settled law that as an arm of the Tribe the Gaming Enterprise enjoys sovereign immunity from suit unless the Tribe has expressly waived its sovereign immunity. Ruffo v. Mashantucket Pequot Gaming Enterprise, 1 Mash.App. 3, 6 (1994). “Statutory waivers of sovereign immunity are strictly construed and narrowly interpreted. ‘[A]ny limitations on the Court’s jurisdiction must be construed in favor of the sovereign.’ ” Barnes v. Mashantucket Pequot Gaming Enterprise, 4 Mash.Rep. 404, 408 (2006) (alteration in original) (quoting Milios, 3 Mash.App. at 17). The Tribe has granted the Tribal Court jurisdiction to hear tort claims against the Gaming Enterprise and expressly waived the Gaming Enterprise’s sovereign immunity from suit for actions in Tribal Court founded upon a tort. 4 M.P.T.L. ch. 1 § 3(a) and (b).

At the same time, the Hotel and Innkeepers Liability law limits the liability of the proprietor of a hotel to $1,000. See 9 M.P.T.L. ch. 2 §§ 1 and 2.4 The “proprietor” of a hotel is defined as the defendant Mashantucket Pequot Gaming Enterprise. Id. § 3.5 Because the Hotel and Innkeepers Liability law provides specific dollar limits on liability and specifically applies those limits to the liability of the Gaming Enterprise, the Court FINDS that the innkeepers statute indicates a clear legislative intent to limit the defendant’s liability for loss of or damage to a hotel guest’s property up to the amounts found in the statute. Moreover, restricting the Court’s power to award damages above a certain amount is a statutory limit on the Court’s jurisdiction that must be construed in favor of the sovereign. As an arm of the Tribe, the defendant shares the Tribe’s sovereign status, so the Court must construe the Hotel and Innkeepers Liability law in the defendant’s favor. Finally, the plaintiff’s position that the Court can award damages above the limits imposed by the Hotel and Innkeepers Liability law impermissibly renders the law superfluous.

In light of the foregoing, the Court HEREBY FINDS that the Hotel and Innkeepers Liability law governs the instant case. Consequently, the liability of the defendant here must be limited to $1,000 if it can prove that the conditions required by the innkeepers law were met at the time of the incident.

 

B. Summary Judgment

Summary judgment is permitted under M.P.R.C.P. 56. The Court may grant a motion for summary judgment if there is no genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law. M.P.R.C.P. 56(c). The moving party may file affidavits in support of its motion for summary judgment, id. 56(b), provided inter alia such affidavits are “made on personal knowledge,” id. 56(e).

“The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all the material facts which, under applicable principles of substantive law, entitle him to a judgment as to a matter of law.” Colebut v. Colebut, 6 Mash.Rep. 412, 415 (2017) (quoting Heydari-Darafshian v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 189, 192 (2009)). A fact is material if it “will make a difference in the result of the case.” Id. (quoting Hill v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 218, 221 (2009)). An issue is genuine “if the evidence is such that a reasonable trier of fact could rule in favor of the nonmoving party.” Id. (citing Scanlon v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 211, 217 (2009)). “In ruling on a motion for summary judgment, the function of the trial court is not to decide issues of material fact, but rather to determine whether any such issues exist.” Id. (quoting Mahan v. Mashantucket Pequot Gaming Enterprise, 4 Mash.Rep. 499, 502 (2007)).

Section 1 of the Hotel and Innkeepers Liability law applies to “any securities, bank notes, money, jewelry, precious stones, watches or other valuables belonging or brought to such hotel by a guest of such hotel.” 9 M.P.T.L. ch. 2 § 1.6 The plaintiff alleges he brought $52,000 in cash from a Foxwoods casino to his room in the Grand Pequot Hotel. The plaintiff’s lost property fits squarely within the purview of § 1 because it was money that he brought to his hotel room.7 Additionally, § 2 does not apply here because it applies to any property “other than the property described in Section 1 ... and not in the room assigned to such guest ....”8 That is, § 2 expressly excludes all § 1-type property, including money, not in the plaintiff’s hotel room. As the instant case arises from an alleged loss of § 1-type property within the plaintiff’s hotel room, the Court FINDS that § 1 of the Hotel and Innkeepers Liability law applies here.

The Court has previously held that the innkeeper’s notice is material to § 1 summary judgment analysis. Section 1 limits the defendant’s liability if the defendant has “posted in the room of such guest or in the registration area of such hotel a notice to the effect that such proprietor has provided a safe for the keeping of valuables.” Id. § 1. In Vo v. Mashantucket Pequot Gaming Enterprise, 4 Mash.Rep. 120 (2003) (O’Connell, J.), where unauthorized persons gained entry to the plaintiff’s room and stole cash, casino chips, and jewelry, the Court found that “whether an ‘innkeeper’s notice’ was posted in the plaintiff’s hotel room or the registration area of the hotel” is a “fact that will make a difference in the result of the case.” 4 Mash.Rep. at 121. In other words, it was a material fact. In accord with Vo, the Court here finds that whether the notice was posted either in the plaintiff’s room or in the registration area of the Grand Pequot Hotel is a material fact.

The analysis now turns to whether there is a genuine issue as to that material fact. In Vo, the defendant filed affidavits stating there was a notice posted in the plaintiff’s room, in response to which the plaintiff filed affidavits stating there was no notice posted in their hotel room or the registration area. Id. The parties’ affidavits contradicted one another, and the Court held that the affidavits revealed a genuine issue of material fact that could not be resolved by summary judgment. Id. Here, the situation is somewhat different. The plaintiff’s affidavit states he did not see a notice on the back of his door and he does not recall seeing a notice in his hotel room or the registration area. Vilar Aff. ¶¶ 9 and 10. The defendant emphasizes that the plaintiff’s affidavit contains something less than an assertion that there was no notice and argues that its own affidavit positively asserts that “[f]rom March 18, 2022, through March 20, 2022, a notice fully compliant with 9 M.P.T.L. ch. 2 § 1 was posted on the back of the entrance door to Room #2076.” O’Connell Aff. ¶ 4. But it is apparent that Mr. O’Connell does not have personal knowledge that such a notice was posted. For example, he did not assert that he was in the room at the time of the incident and saw a notice on the door, nor did he assert that he saw a photograph taken during the investigation of the incident depicting the notice on the door. Instead, he appears to base his statement on a company policy or practice that “each room in the Hotel has had a notice ... posted on the back of each entrance door.” Id. ¶ 2. While that may be probative of a regular business practice admissible under the rules of evidence, the rules of civil procedure require affidavits in support of motions for summary judgment to be made on “personal knowledge.” See M.P.R.C.P. 56(e). Mr. O’Connell may have personal knowledge of company policy, but the affidavit does not reflect that he had personal knowledge of whether a notice was posted in the plaintiff’s hotel room at the time of the incident. Consequently, in deciding the question of whether a genuine issue of material fact exists here, the Court cannot credit Mr. O’Connell’s conclusion that such notice was present in the room at the time of the incident.9

The role of the Court is not to decide whether a notice was posted in the plaintiff’s room, but rather to determine whether there is a genuine issue regarding whether notice was posted there. An issue is genuine “if the evidence is such that a reasonable trier of fact could rule in favor of the nonmoving party.” Colebut, 6 Mash.Rep. at 221. It is the defendant’s burden to show the absence of any genuine issue as to this material fact. Id.

Here, the defendant’s affidavit appears to be based not on personal knowledge but on information and belief about a company policy and practice. Its conclusion as to the material fact relies on an inference. The material fact necessary here is not whether a company policy exists, but rather whether the notice was posted in the room as required. In the instant case, the defendant has not met its burden of proving there is no issue as to whether a notice was posted in the plaintiff’s hotel room, and the Court FINDS that a reasonable trier of fact could rule in the plaintiff’s favor. Consequently, for the foregoing reasons, a genuine issue of material fact exists that cannot be resolved by summary judgment.

 

III. Conclusion

Although the defendant’s damages may be limited to the $1,000 found in the Hotel and Innkeepers Liability law in this lawsuit, there is a genuine issue as to whether the notice required to trigger that $1,000 liability cap was posted in the plaintiff’s room or in the registration area of the Grand Pequot Hotel.

Therefore, the defendant’s Motion for Partial Summary Judgment is hereby DENIED.

It is so Ordered.

All Citations
2024 WL 4448727

Footnotes
1	The operative complaint is an amended complaint filed on November 27, 2023, to which the defendant withdrew its objection at oral argument on motion, held on January 4, 2024. Tr. 23:24 through 24:7. In addition to negligence, the amended complaint alleges gross negligence and recklessness. The defendant has moved to dismiss the count of the amended complaint alleging gross negligence and recklessness. The Court will rule on the defendant’s motion in a separate decision at a later time.
2	In paragraph 4 of his November 20, 2023, affidavit, the plaintiff asserts that he did not disclose the combination to the safe in his hotel room to any other person.
3	The Court assumes, for sake of argument, that 2076 was the plaintiff’s room number but notes, however, that Mr. O’Connell’s affidavit marks the first mention of a specific hotel room number anywhere in the parties’ papers.
4	The defendant conceded at oral argument to the higher limit of $1,000. Tr. 5:4-7.
5	The full text of 9 M.P.T.L. ch. 2 § 3 is this: “For purposes of this Chapter, the ‘proprietor’ of a hotel located on the Mashantucket Pequot Reservation shall be the Mashantucket Pequot Gaming Enterprise.”
6	The full text of 9 M.P.T.L. ch. 2 § 1 is: The proprietor of a hotel located on the Mashantucket Pequot Reservation shall not be liable for the loss of or damage to any securities, bank notes, money, jewelry, precious stones, watches or other valuables belonging or brought to such hotel by a guest of such hotel unless such guest has delivered such property to the person in charge of the office of such hotel for safekeeping and taken a written receipt therefor, provided such proprietor shall have posted in the room of such guest or in the registration area of such hotel a notice to the effect that such proprietor has provided a safe for the keeping of valuables, and such proprietor shall not be liable for more than $500 damages for the loss of or damage to such property so delivered unless such guest has declared a greater value and such proprietor has given a written receipt stating such value.
7	At oral argument, the defendant stated that cash fits the category of “money,” to which § 1 applies. Tr. 7:21–24.
8	The full text of 9 M.P.T.L. ch. 2 § 2 is: The proprietor of a hotel located on the Mashantucket Pequot Reservation shall not be liable for the loss of or damage to any property belonging to or brought to such hotel by a guest of such hotel, other than the property described in Section 1 of this Chapter and not in the room assigned to such guest, unless such loss or damage is caused by the negligence of such proprietor or any of his employees, and such proprietor shall not be liable for more than $1,000 damages in the aggregate for any loss or damage so caused; provided, if any such property is deposited in the checkroom or baggage room of any such hotel and a check or written receipt taken therefor, the proprietor of such hotel shall be liable for the loss of or damage to such property to the extent of $350, and provided such proprietor shall not be liable for more than $1,000 damages for the loss of property from the room assigned to such guest.
9	If it did, then simple knowledge of the company policy by the affiant alone would be enough to trigger the $1,000 liability cap found in the Hotel and Innkeepers Liability law. To defend a claim against summary judgment, the burden would effectively fall to the plaintiff to prove that his hotel room did not contain a posted notice. Such result reverses the burden of proof for summary judgment, which properly falls on the moving party to show a lack of a genuine issue of material fact.