Josh Harvey, his pregnant wife, and their three children were on their way home from a Halloween party at a family member’s home. Michael Thomas, who had been at the 7 Clans Paradise Casino near Ponca City, Okla., gambling and drinking for approximately five hours, rear-ended the Harvey’s vehicle. Thomas was traveling approximately 90 miles per hour and there was no evidence of braking prior to impact. Josh Harvey, his wife Casey, their unborn child and two of their three children were killed. Thomas’ blood alcohol level was still over the limit when he was tested three hours later. He was sentenced to 15 years in prison for manslaughter.
Christopher Cook has incurred more than $1,000,000.00 in medical bills after he was struck on his motorcycle by a car driven by Andrea Christianson. Ms. Christianson had been given free drinks at a birthday party at Avi Casino Enterprises in Southern Nevada, then was taken to her car and allowed to drive home. Her blood alcohol content the morning following the wreck was 0.25. Ms. Christianson, who also happened to be an employee of the Casino, plead guilty to aggravated assault and drunk driving and was sentenced to four years in prison.
The Harvey family, wanting to hold the Casino accountable and to provide for the remaining child, filed suit against 7 Clans Paradise Casino in an Oklahoma State Court. Christopher Cook, also wanting to hold the Casino accountable and recover for his injuries, sued Avi Casino Enterprises in Nevada.
Even though the Harvey family and Christopher Cook were not on Casino property and even though their accidents occurred on a public roadway, both suits were dismissed. The suits were dismissed because Indian casinos enjoy what is called sovereign immunity. Tribal sovereign immunity protects Indian tribes from suits absent express authorization by Congress or a clear waiver by the tribe.
Lawyers in our firm were shocked to learn that Indian Casinos could send drunken patrons and employees out on our public roadways and not have to answer to anyone for this conduct. Even more unbelievable was that victims and their families who are injured or killed by this conduct are left with no remedy. That’s an absolute travesty.
The 9th U.S. Circuit Court of Appeals issued the opinion in the Avi Casino Enterprises case. The Court held that sovereign immunity applies to the tribe’s commercial as well as governmental activities. Additionally, the Court ruled that the protection from suit extends to the employees “when acting in their official capacity and within the scope of their authority.”
Cook argued it was unfair to allow tribes to create commercial corporations that can compete in the marketplace while enjoying immunity from legal liabilities that all other corporations must face. He said it was unnecessary to grant tribal corporations immunity to protect tribal autonomy and self-government.
The Appeals Court went on to state “this leaves Mr. Cook without a remedy against Avi Casino for his grave injuries under our law, even if his assertions of negligence by Casino employees are correct.” The Court suggested that either the U.S. Supreme Court or Congress should review the rule limiting tribal sovereign immunity involving Indian gaming casinos. The Court also suggested that the tribe itself could take responsibility for the action of its employees and waive sovereign immunity.
Our firm was recently contacted by a client who was seriously injured by an employee of Wind Creek Casino & Hotel in Wetumpka, Ala. This employee, driving a company owned vehicle, left the casino to run an errand. She was involved in an accident involving our client. As it turned out, this employee had a blood alcohol level well in excess of the legal limit of .08. We filed suit on behalf of the client. However, as with Christopher Cook and the Harvey family, the casino is claiming sovereign immunity from suit. The casino’s Motion to Dismiss is currently pending before the Court.
States should not allow Indian casinos to purchase and sell alcoholic beverages unless the casinos agree to waive Sovereign Immunity. There is no reason to shield casinos from liability when they act irresponsibly and someone is injured or killed. This is particularly true when those who were injured or killed never set foot on casino property. Those of us who use our public roadways deserve better. If you need more information about the subject discussed above, contact Graham Esdale, a lawyer in our firm’s Personal Injury/Products Liability Section, at 800-898-2034 or by email at Graham.Esdale@beasleyallen.com.
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