A family injured in a big rig collision has little recourse after the state Supreme Court ruled they can't sue the casino where the other driver in the crash had been drinking.
The court decision, which found the Peoria Tribe and its Buffalo Run Casino immune from suit in state courts, is raising questions about an entity's legal responsibility when it serves alcohol. Under Oklahoma law, sellers of alcohol have dramshop liability, which means they could be liable if someone they sell alcohol to hurts someone else.
The case arose from a traffic collision in which Jennifer and Charles Sheffer and their young son were injured when their tractor-trailer was hit by a rental car driven by David Billups and occupied by William Garris, both Carolina Forge Co. employees on a work trip to Joplin, Mo.
The Sheffers sued the Peoria Tribe and Buffalo Run Casino in Miami, OK, for dramshop liability, asserting the casino overserved Billups (who died in the collision.) In a five to four decision, the state Supreme Court dismissed the claim Sept. 24.
“The Peoria Tribe is immune from suit in state court,” the decision states. “Because the Peoria tribe and its entities did not expressly waive their sovereign immunity by applying for and receiving a liquor license from the State of Oklahoma, the tribe is immune from dramshop liability in state court.”
After the court issued its decision, attorneys representing the Sheffers requested a rehearing. If it's denied, the only venue left is the U.S. Supreme Court, said Lauren Peterson, an attorney for The Hershewe Law Firm in Jop-lin, Mo.
Ruling impacts regulators
The Alcoholic Beverage Laws Enforcement Commission (ABLE), which enforces the state's alcohol laws, expressed concern over the decision at its most recent meeting.
“We want to make sure those serving alcohol are responsible. If you take the liability away, it could be dangerous,” said ABLE Director Keith Burt.
He asked Kathryn Savage, an assistant attorney general who provides legal counsel to the commission, to research whether the agency could place a restriction or condition on the casino's liquor license when it comes up for renewal in December. Burt said to his knowledge that has never been done in Oklahoma with alcoholic beverages.
Jon Brightmire, a Tulsa attorney representing the tribe, declined to comment when contacted by phone this week.
Family plans to appeal
If the state Supreme Court denies the Sheffers' request for another hearing, the family plans to take the case to the U.S. Supreme Court, Peterson, their attorney, said.
“From our perspective, it has a lot of import for Oklahoma citizens, and any state,” she said.
Others echoed concerns about the impact of the decision. The Oklahoma Association for Justice offered its expertise to the state Supreme Court through an amicus curiae brief because of the broad legal effects the decision could have.
“Whether non-Indians injured due to the negligence of an Indian casino have access to Oklahoma courts is an important issue, particularly in light of the proliferation of Indian casinos in Oklahoma,” the association states in court filings.
Dissenting justices in the recent decision also had concerns.
“Over the past century, the United States Supreme Court, with little analysis and almost by accident, developed the doctrine of tribal immunity ... today's opinion expands the federal judge-made default doctrine of tribal immunity at the state's expense, diminishing the authority of the state courts and wiping out state law protections for its citizens harmed by tribal commercial activities,” Justices Steven Taylor and James Winchester wrote in the opinion.
The Sheffer case reversed decisions in other cases that found civil suits arising in Indian country could be heard in state courts. The court also overruled an Oklahoma case it decided in 2008 that involved Thunderbird Entertainment Center's dramshop liability; then, the court decided tribes waive their immunity when they receive a mixed beverage license from the state.
In their request for another hearing, the Sheffers' attorneys point out differences between this case and previous ones. The Sheffers were not “patrons” of the casino, who are allowed to sue under the state Gaming Compact; they were driving on a state highway and hadn't been to the casino.
And they can't sue in tribal court because the Gaming Compact places a strict one-year limit on claims in tribal court; in this case, the collision occurred in 2006.
“A suit against the tribe and/or its entities in tribal court proves a hopeless, impossible and insuperable task,” the attorneys state.