--- Am. Tribal Law ----, 2022 WL 2392581 (Mohegan Gaming Trial Ct.), 7 G.D.R. 46
Mohegan Gaming Disputes Trial Court.
MOHGAN TRIBAL GAMING AUTHORITY
JUNE 17, 2022
MEMORANDUM OF DECISION
FULL TEXT, Manfredi, J.
This case arises out of a fall by the Plaintiff while a passenger in an elevator located inside the Mohegan Sun Casino on November 11, 2017. The complaint was filed a year later in November, 2018. The essence of the allegations of the complaint are that the Defendant had a duty to exercise care in the maintenance of the elevator in a reasonably safe condition for the invited public; and, that the Defendant was negligent in this duty in various ways, including the failure to keep the elevator free of liquid substances, when they knew or should have known of an accumulation of a liquid substance in it, a failure to remove such substance, and a failure to warn of such substance. It is alleged that Plaintiff’s fall was caused as a result of Defendant’s negligence.
Defendant has denied the allegations of negligence and has alleged a Special Defense of comparative negligence against the Plaintiff. Defendant has also filed a Request for Leave to Amend its Special Defenses by adding a defense that Plaintiff has failed to mitigate his damages.
Trial before the court took place on February 1, 2022.
This court has recently had occasion to discuss the law of premises liability in another case involving a fall on an unknown substance. That discussion is set forth below:
“This case is brought pursuant to the Mohegan Torts Code, Article IV of the Mohegan Tribe of Indians Code. Under the Code, negligence means:
“Conduct that falls below the standard established by law or custom for the protection of others against under reasonable risk of injury or harm. The standard of conduct to which a person must conform to avoid being negligent is that of a reasonable person under similar circumstances. Where applicable, the rule of actual or constructive notice shall be applied to determine negligence; negligence shall not be deemed to arise from the mode of operation.”
Although the Code has defined negligence, it also has pursuant to Section 3 – 52, determined that the law to be applied by this court is the law set forth in the Mohegan Tribal Ordinances or regulations, the Connecticut General Statute’s, and the Connecticut common law, insofar as the state laws and cases do not conflict with any of the Mohegan law.
This case is what is ordinarily termed a matter of premises liability. Premises liability is concerned with the circumstances under which the possessor of land or “premises” will be held liable for damages to persons who are on or using the premises.
The law of premises liability as developed in Connecticut has been adopted by this Court, except for the mode of operation as noted above. Generally the liability hinges upon the status of the person on the premises, i.e, is the person an invitee, licensee, or a trespasser. Here, it is clear that the Plaintiff is an invitee. An invitee is “[a] person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” Restatement of the Law 2d, Torts, Section 332 (3). In discussing premises liability this Court has stated:
“As noted in Connecticut Law of Torts, 3rd Ed., Wright, et al., Section 49, the possessor of the land owes a duty to invitees to inspect the premises and is liable for defects which would be discovered by a reasonable inspection. However, “even an invitee must show that the defect has been present for a sufficient period of time so that the land possessor has had the opportunity to discover it.”
“This court has had several occasions to interpret and apply the doctrine of constructive notice in the past.... In order to successfully prosecute a claim such as the Plaintiff’s there must be more evidence than the mere presence of a foreign substance on the floor. There must be some evidence to conclude that the object or substance had been on the floor for a “sufficient period of time so that the land possessor had the opportunity to discover it.” Schiff v. MTGA, 2 G.D.R. 117 (2005) (internal citations omitted)” Barretto v. MTGA, GDTC-T-17-132-FAM, April 27, 2022 (Manfredi, J.)
Although the law to be applied here is the same, the facts of this case are readily distinguishable from the facts in Barretto.
In Barretto, the Court ultimately found that Plaintiff had not proved that the substance on the floor had existed there for a period of time such that Defendant should have known of its existence, or that Plaintiff had actual knowledge of it, or had created it.
The court takes note of legal arguments put forth by Defendant that because the fall did not take place inside the Casino proper, but in an elevator, normal rules of notice/constructive notice do not apply. Defendant cites to this court’s decision in Gardner v. MTGA, GDTC-14-100-FAM (February 3, 2020) and its discussions regarding evidence, or lack thereof, of industry standards for inspections of commercial parking areas, as well as an Arkansas case dealing with parking lots.
Here, Plaintiff’s fall took place in an elevator, not a parking lot or commercial parking area. A guest elevator is far different from a lot where cars pass and remain regularly. This elevator is meant solely for foot traffic of casino guests and the court discerns no reason why the same standards which apply to care, maintenance, and inspection of other guest areas within the casino would not, or should not, apply to the elevator used by guests.
FINDINGS OF FACT
Plaintiff was at Mohegan Sun Casino on November 11, 2017 with his girlfriend Mary Santoroso. He had been there before that date on several occasions, two to three times per month for about two years. Mr. Gibson did not recall exactly when they arrived but the surveillance video of the incident shows that his fall occurred at approximately 10:48:42 p.m.
Mr. Gibson had been playing slots in both sides of the casino and had won some money that day. He and Ms. Santoroso were leaving the casino and were taking an elevator located near Krispy Crème Donuts. They entered the elevator and were talking. He was excited over winning. When they entered no one else was in the elevator but two other people entered after them.
In the video that was entered into evidence a substance is visible in the rear left corner area of the elevator when looking in. This substance is visible in the elevator during the entire video which spans 20 minutes preceding the fall. Several people enter and exit the elevator during the 20-minute period. Shortly after 10:48 p.m. Ms. Santoroso and Plaintiff enter the elevator. He is holding a cup in his hand. Two other people enter the elevator after Plaintiff and he moves to the right. At approximately 10:48:36 p.m. everyone in the elevator leaves including Plaintiff. He has moved to his right and puts his foot into the substance on the floor, slips and falls.
Plaintiff stated that he fell on his left elbow and felt it was pushed into his shoulder and back. He was unable to get up and felt a sharp pain in his back and left arm.
He had had a previous injury to his left shoulder in 2015 when he had been assaulted in a club. The shoulder had apparently been dislocated. He went to Manchester Hospital where x-rays were taken, his shoulder was snapped back into place, he was given anti-inflammatories and released.
Following his fall at the casino, Plaintiff was seen at the William W. Backus Hospital Emergency Room where he indicated that he had fallen on a wet floor in an elevator, landed on his butt and left shoulder and was complaining of pain in his left shoulder and low back. He was diagnosed with a contusion to his shoulder and low back. X-rays of the shoulder revealed a deformity of the humeral head, likely a Hill-Sachs deformity from a prior dislocation; x-rays of the low back were essentially normal.
The Plaintiff next went to the Emergency Department at the Hospital of Central Connecticut on November 13, 2017 where he complained on increasing pain to his back and shoulder. It was noted that he had not been taking ibuprofen which had been prescribed and no pertinent past medical history. He was treated with ibuprofen, muscle relaxants and a referral to his PCP.
His next medical encounter appears to be with Dr. Kenneth Alleyne on January 11, 2018. He was there to have shoulder, neck and upper back pain evaluated. Dr. Alleyne notes no prior history of significant injury to back, neck or shoulder. Dr. Alleyne assessed strains and sprains of the neck, back and shoulder, as well as a contusion of the shoulder. He ordered physical therapy and NSAID medication.
Mr. Gibson attended physical therapy at Global Physical Therapy from January 2018 through August 2018. He next saw Dr. Alleyne on Februarry19, 2018 when he reported continued pain and an MRI was ordered. An MRI was done on February 28, 2018. Findings included a probable tear of the posterior labrum, chronic Hill-Sachs impaction fracture, distortion of anteroinferior labrum by osteophyte-like excrescence, likely from an old Bankart type injury from an old dislocation, with a suspected chronic residual tear in this region, mild tendinosis and bursitis.
Plaintiff next saw Dr. Alleyne on March 5, 2018 and Dr. Alleyne noted the finding of the MRI and continued PT at Plaintiff’s request although he thought stabilization would be better.
On May 7, 2018 Dr. Alleyne noted that Plaintiff had stopped PT on his own due to pain but again sent Mr. Gibson for more PT. On June 4, 2018 there was essentially no change and PT was continued. On July 16, 2018 Dr. Alleyne’s findings are unchanged and although operative intervention is discussed, PT is continued.
On September 17, 2018 Mr. Gibson is seen for evaluation and rating. Dr. Alleyne opines that because other treatments have failed to produce results Mr. Gibson is now a surgical candidate for evaluation of the labrum for debridement or repair. Mr. Gibson states he wants to think about surgery. He states that Mr. Gibson has a 10% impairment to his shoulder with 30% resulting from asymptomatic but present shoulder injury, and the impairment relating to the fall was 7%.
Mr. Gibson’s next encounter with Dr. Alleyne is September 11, 2019. Treatment options are discussed again, and Mr. Gibson is released from treatment.
Mr. Gibson was seen by Dr. Clifford Rios who was retained by Defendant’s counsel to examine Mr. Gibson. Dr. Rios examined Mr. Gibson and various medical records including those from Manchester Hospital relating to the shoulder dislocation and reduction in 2015. Dr. Rios opined that the labral tear, the Hill-Sachs deformity, and degenerative joint change preexisted the fall of 2017 and were more likely then caused by the prior dislocation. He felt that the need for any surgery to the shoulder was 70-80% due to the dislocation rather than the fall and did not believe that ongoing symptoms of numbness in the hand were related to the fall.
Based upon the facts and legal principles set forth above it is the Court’s conclusion that the area of wetness in the elevator at the time Mr. Gibson fell had existed for a sufficient time such that the Defendant should have known or discovered its existence and cleaned it or removed prior to Plaintiff’s fall. It was visible during the entire period of video surveillance and the elevator is one used almost exclusively by casino travel between the casino itself and its parking area. Given its use and location inspection and cleaning on a periodic basis is to be expected. Defendant has a duty to provide reasonably safe premises to its invited guests and to inspect and clean within reasonable time frames.
However, the Court also concludes that the area of wetness, whether ice cream or some other foreign substance, was sufficiently visible to patrons using the elevator and that Plaintiff failed to use his faculties to protect himself from the danger of slipping and falling in the substance. Under the circumstances the court finds that the percentage of negligence attributable to Plaintiff is 40%.
Based upon Plaintiff’s Exhibits 10 and 11 Plaintiff had medical bills of $13,440.18 and Dr. Alleyne estimated medical costs of future surgery at $30,000.00. The court finds that the medical expenses and future medical expenses are reasonable and necessary. Dr. Rios did not dispute the fact that Plaintiff in all probability will need surgery in the future, although he did allocate the need for future surgery to be 70-80% related to Plaintiff’s pre-existing condition rather than 30% as determined by Dr. Alleyne. In fact, Dr. Rios has stated that the fall hastened the degenerative process to some extent and increased his symptoms such that “he is now considering surgery.”
Plaintiff has acknowledged that 30% of Plaintiff’s injuries were attributable to his prior condition and calculated his maximum allowable recovery for economic damages to be $30,408.13. The court agrees with the 30% number as the Plaintiff had testified that his shoulder had been asymptomatic for a substantial period of time prior to the fall, and surgery was not considered a treatment option prior to the fall. Utilizing this number and 40% contributory negligence, Plaintiff’s recoverable economic damages are $18,244.61.
As far as non-economic damages, Plaintiff testified that he was unable to get up after the fall and had substantial pain in his shoulder. The meds he was prescribed upset his stomach and the pain worsened such that he went to the emergency department again on November 13, 2017. The pain continued throughout his treatment with Dr. Alleyne and at the time of trial he still was experiencing pain on a daily basis.
Dr. Alleyne has indicated that in the event of surgery the Plaintiff will likely be in a sling for four weeks and require four to six months of physical therapy and some period of total disability.
Under the circumstances the court awards non-economic damages computed as follows: economic damages of $18,244.61 times two, or $36,489.22, reduced by 40% ($14,595.68) totaling $21,893.54.
Total award to Plaintiff is therefore:
Economic damages $18,244.61 Non-economic damages 21,893.54 Total $40,138.15