2019 WL 2219798 (Mash. Pequot Tribal Ct.)
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Mashantucket Pequot Tribal Court.
MASHANTUCKET PEQUOT GAMING ENTERPRISE and SCOOTER A LONG, LLC
MAY 1, 2019
Attorneys and Law Firms
M. Joseph Strafaci, Esq., for the Plaintiff
Christopher P. Williams, Esq., for the Defendant
MEMORANDUM OF DECISION
Thomas J. Londregan, Judge
On September 26, 2018, the Court granted summary judgment as to the Gaming Enterprise, but denied summary judgment as to Scooter A Long. The Court concluded that there remained a genuine issue of material fact as to the plaintiff’s allegations. A trial was held on the plaintiff’s allegations against Scooter A Long on March 6, 2019.
The plaintiff was taken to Backus Hospital by way of ambulance to treat the hip pain she had developed as the result of this accident. Ultimately, she had to undergo surgery to mend her broken hip and was enrolled in a rehabilitation facility thereafter.
The plaintiff argues that Scooter A Long should be held to a higher standard of care, and accordingly, that it should be held liable to her because (1) Mr. Murphy was not adequately instructed in the used of the motorized scooter; (2) the scooter Mr. Murphy rented did not display appropriate warnings; and (3) the scooter was inappropriate for commercial use. The defendant, Scooter A Long, argues that it should not be held to a higher standard, that it did not breach the duty owed to her, and that the actual and legal cause of the plaintiff’s injuries was Mr. Murphy’s negligence.
A. Standard of Care“A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.” Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 578 (2008).
The law does not require perfect care, or an unreasonable amount of care, or extraordinary caution or skill. Unless another standard of care under specific circumstances is prescribed by statute, the usual test of the duty of one person toward another or the property of the latter is ordinary care, or as it is sometimes termed, “reasonable care” or “due care.” The expressions are usually regarded as having the same significance and are often used interchangeably.
65 C.J.S. Negligence § 114 (2019).
The plaintiff argues that, due to a clause in the License Agreement the defendant has with the Gaming Enterprise, Scooter A Long should be held to a higher standard of care. Specifically, the agreement states that Scooter A Long “covenants that it shall operate the Premises in accordance with the highest standards of care, quality and courtesy ... in keeping with ... the operation by [the Gaming Enterprise] of an exclusive, first-class resort hotel/casino facility.” Pl.’s Ex. 12 at 4. The defendant, however, argues that it should be not be held to an elevated standard, and that the plaintiff has the burden of proving that Scooter A Long acted unreasonably with respect to it renting of scooters to casino patrons.
Under Mashantucket law, the Gaming Enterprise is normally tasked with acting as a “reasonably prudent casino owner under similar circumstances.” Ng v. Mashantucket Pequot Gaming Enterprise, 2 Mash.Rep. 138, 141 (1997) (quoting Ruffo v. Mashantucket Pequot Gaming Enterprise, 1 Mash.App. 3, 6 (1994)). The plaintiff has not proven by a fair preponderance of the evidence that the Gaming Enterprise, via the aforementioned contract provision, intended for Scooter A Long to be held to a higher standard in any negligence actions brought against it. While it is possible under certain circumstances that acting “reasonably prudent” “may require precautions against the extraordinary as well as against the ordinary,” generally “[t]he standard of care owed to others by a contracting party is not fixed by the terms of the contract. While the terms in an agreement could be considered by the jury in deciding reasonableness, they would not, by themselves, establish a standard of care.” 65 C.J.S. Negligence § 114 (2019) (citing Canada By and Through Landy v. McCarthy, 567 N.W.2d 496, 504 (Minn. 1997)); Id. § 115.
The plaintiff has introduced no other evidence to support her claim that the defendant should be held to a higher standard of care, nor is there any statutory law under the Mashantucket Pequot Tribal Laws that indicate that scooter rental vendors (or other similar businesses) must be held to a higher standard in negligence actions. The plaintiff has not cited and the Court has not found any case that suggests a different standard of care for a “first class” resort hotel/casino facility. There is no higher standard of care just because a facility is branded as “first class.” The plaintiff has not met her burden of proof to establish that Scooter A Long should be held to a higher standard; therefore, the Court shall determine whether the defendant acted as a reasonably prudent scooter rental vendor under similar circumstances.
B. Adequacy of InstructionThe plaintiff asserts that Scooter A Long should be held liable for her injuries for its failure to properly instruct Mr. Murphy on the operation of the rental scooter. Had Mr. Murphy been properly instructed, she argues, the accident would not have occurred because he would have fully appreciated the risk of leaving the scooter on before dismounting it. The plaintiff argues that this type of harm is foreseeable when a person who rents a scooter is not adequately instructed on its operation. The defendant, however, argues that it provided adequate warning to Mr. Murphy, and that it should not be held liable for his failure to follow the instructions it provided.
Theresa Hernandez, the Director of Operations for Scooter A Long, provided testimony regarding the instructions that Scooter A Long employees are to give when renting scooters to casino patrons. She trains all new hires on how to administer verbal instructions to the patrons, and will occasionally review the instructions with employees if she notices that they are lacking in a particular areas. She testified that although she has read the owner’s manual that is provided by the scooter manufacturer, Pride, new hires are not required to read the manual. All of the training she provides is verbal and hands-on, as are the instructions given to patrons. She testified that she occasionally will provide instructions to the patrons as well, especially to intervene if she overhears an employee making a mistake when giving instructions. She further testified that both she and the Scooter A Long employee who rented the scooter to Mr. Murphy, David Simmonds, participated in and “passed” training provided by Pride. Other employees have also participated in Pride training. During these training seminars, tests are administered to ensure that participants understand the material that had been taught during the session.
Ms. Hernandez represented that the instructions have remained unchanged since the accident occurred three years ago. As part of the instructions, all patrons are informed to remove the key from the ignition before they dismount the scooter. She further testified that patrons are informed that if the key is left in the scooter, it can accidentally move forward even when no one is in the seat, which is demonstrated to the patrons. They are provided with a wristband to hold the key and are instructed to remove the key from the ignition when they leave the scooter and to use the wristband to keep the key on their wrist.
A case with a similar set of facts and allegations was heard in the United States District Court for the District of Minnesota.2 The plaintiffs, Mr. and Mrs. Feehan, brought an action against Wal-Mart Stores, Inc. after Mrs. Feehan was struck by a customer who was operating a motorized scooter provided by Wal-Mart. Freehan v. Wal-Mart Stores, Inc., No. 15-CV-3853 (PJS/JSM), 2016 WL 128137, * 1 (D. Minn. Jan. 12, 2016). The Feehans claimed that Wal-Mart had acted negligently in part because it did not provide “proper instructions or training to drivers.” Id. The district court dismissed this allegation on the grounds that the Feehans failed to “allege what training Wal-Mart should have provided to the customer ... or how such training would have prevented the accident.” Id. at * 2.
Here, the plaintiff suggests that the instructions provided to Mr. Murphy were inadequate because the employees giving the instructions did not read the operator’s manual; because Mr. Murphy was not warned of the specific dangers of leaving the scooter on; and because Scooter A Long did not require Mr. Murphy to read the operator’s manual. The Court finds these arguments unavailing for the reasons hereinafter set forth. The plaintiff also calls into question whether Mr. Murphy received any instructions whatsoever; however, the plaintiff has not met her burden in proof to establish that Mr. Murphy did not receive any instructions.3
The plaintiff argues that Scooter A Long should have warned Mr. Murphy that, if he forgot to turn off the scooter, he could accidentally hurt somebody when attempting to get back on the scooter, and should have provided written materials to remind scooter renters of these dangers. However, Mr. Simmonds testified during his deposition (marked as a full exhibit during trial) that he instructs patrons to take the key out of the ignition “[s]o nobody else can take the scooter on them and [so] no kind of accidents can happen,” Def.’s Ex. D at 14, and Ms. Hernandez testified during trial that patrons are warned that failing to remove the key can result in the scooter moving forward accidentally, and that she demonstrates that the scooter can move without a person sitting in the seat. Ms. Hernandez also testified that patrons are instructed to operate the scooters at higher speeds only when they feel comfortable enough to do so and warn them to be aware of their surroundings.
The plaintiff has failed to meet her burden of proof to establish that, had Scooter A Long provided more specific warnings and provided a written “checklist” or other such documents, this accident would not have occurred. None of the evidence presented before the Court supports the position that Mr. Murphy needed to be warned specifically that leaving his rental scooter on could result in him accidentally hurting another patron in this manner instead of the general warning he received. The plaintiff also did not introduce evidence to support that providing written materials or requiring the patrons and employees review the operator’s manual would have prevented this accident. Mr. Murphy was instructed to turn the scooter off and remove the key before dismounting it. For unknown reasons, he did not heed that warning. “The defendant is not required to anticipate every possible cause of an injury to a patron and keep the premises absolutely safe; the defendant must use ‘reasonable care’ to keep the premises ‘reasonably safe’.” Ruffo v. Mashantucket Pequot Gaming Enterprise, 1 Mash.Rep. 33, 38 (1994). Scooter A Long did anticipate this type of harm, and thus, warned Mr. Murphy not to leave the key in the scooter ignition. The warnings it provided were reasonable, and the plaintiff has not proven by a preponderance of the evidence that providing additional warnings or that a different mode of providing warnings would have prevented this accident.
C. Mr. Murphy’s Fitness to Operate a Rental ScooterSimilarly, the plaintiff argues that Scooter A Long was negligent in renting the scooter to Mr. Murphy because he was not qualified to rent a scooter. The evidence presented supports that Mr. Murphy had rented scooters from Scooter A Long several times before the accident occurred, and that Mr. Murphy had not been involved in any other accidents prior to this one. Scooter A Long could not have reasonably anticipated that Mr. Murphy would forget to take the key out of the scooter’s ignition after instructing him on several occasions to do so. The plaintiff has not proven this allegation by a preponderance of the evidence. Furthermore, there was no credible evidence that Mr. Murphy was not physically and/or mentally unfit to operate a scooter.
D. Display of Appropriate WarningsThe plaintiff claims that that the scooter did not display appropriate warnings, which contributed to her accident. She claims that if the scooter displayed a written reminder to turn the scooter off before dismounting, this accident would not have occurred.
Although the scooters do not display warnings, as part of the instructions that Scooter A Long employees provide to patrons, they are told to keep the key on them at all times when they leave the scooter, using the wristband provided to keep the key on their wrist. In addition to these instructions, the scooter indicates when it is turned on via lights that are located on the control panel. A “rainbow” of lights shows the battery life of the scooter, and a separate blue light indicates that the scooter is on. These lights are only illuminated when the scooter is on. Scooter A Long employees explain the meaning of these lights to their patrons.
The plaintiff has not provided evidence that additional warnings or instructions would have been “more appropriate” and would have prevented this accident. Patrons are told to keep the scooter key on them at all times when leaving the scooter, and a provided with a wristband to remind them to do this. The scooter itself unambiguously indicates when it is on. The plaintiff has not proven by a fair preponderance of the evidence that additional warnings were necessary to prevent Mr. Murphy from accidentally hitting her with his rental scooter.
E. Appropriateness of the Scooter for Commercial UseThe plaintiff did not introduce expert testimony to support her argument regarding the appropriateness of the rental scooter for commercial use in a casino or other similar venue. Expert testimony would be required in situations where the knowledge required to come to a conclusion “is ‘so specialized as to be beyond the understanding of laymen’ or [would] aid[ ] the fact-finder’s comprehension of the issue.” Camacho v. Mashantucket Pequot Gaming Enterprise, 4 Mash.Rep. 390, 392 (2006). The average layman is not capable of determining whether a particular motorized scooter is unfit for commercial use without the help of expert industry knowledge. The Court has no way of knowing whether this model of scooter is inappropriate for Scooter A Long to rent to casino patrons. The plaintiff has failed to establish a different standard of care for commercial use of scooters in a casino.
CONCLUSIONThe plaintiff has not proven by a fair preponderance of the evidence that Scooter A Long, LLC breached the duty it owed to her. The Court finds that the defendant acted reasonably in this case in renting a scooter to the patron, Mr. Murphy. Furthermore, the Court finds that the plaintiff’s injuries were solely caused by the negligence of the patron. Judgment shall therefore enter in favor of the defendant Scooter A Long, LLC.
BY THE COURT,
Scooter A Long filed a motion to implead Mr. Murphy, which was granted by the Court on March 21, 2017, after which Scooter A Long filed a third-party complaint on March 13, 2017, which had been duly served on Mr. Murphy on March 7, 2017. On June 21, 2017, the Court entered a default judgment against Mr. Murphy for his failure to file an appearance within allotted amount of time under M.P.R.C.P. 5.
“When interpreting [Tort Claims] law, the court shall follow tribal law and precedent and may be guided by the common law of other jurisdictions.” 4 M.P.T.L. ch. 1 § 7.
A friend of the plaintiff, William Adomaitis, provided testimony on the lack of adequate instructions to scooter renters. He claimed that he was given no instruction on the use of the scooter whatsoever; however, he testified that, “[t]he woman rented the scooter ..., and I sat in it and I drove it.” This leads the Court to conclude that he was not given instructions in the operation of the scooter because he was not the person who rented it.