2017 WL 1208587 (Mash. Pequot Tribal Ct.)
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Mashantucket Pequot Tribal Court.
Marie LICCIARDELLO, Administratrix of the Estate of Rosario Licciardello.
MASHANTUCKET PEQUOT GAMING ENTERPRISE.
March 10, 2017.
MEMORANDUM OF DECISION
JEAN M. LUCASEY, Trial Judge.
*1 Plaintiff Marie Licciardello filed this action on August 11, 2014. She alleges that on October 2, 2013, her late husband, Rosario Licciardello, was using a motorized scooter as a patron of the Defendant’s Foxwoods Resort Casino and was picked up by a shuttle bus located on the property. The Plaintiff further alleges that the driver of the shuttle bus directed Mr. Licciardello to the front of the bus in an area designated for patrons using scooters or wheelchairs. During the shuttle bus ride, it is undisputed that the driver suddenly applied the brakes to avoid another vehicle and that Mr. Licciardello’s scooter tipped over with him on it, causing injury to the Plaintiff’s then–94–year–old husband. The Plaintiff alleges that Mr. Licciardello’s injuries directly resulted from the negligence of the Defendant, its agents, servants and/or employees, and prays this Court to award reasonable damages available under Mashantucket Pequot Tribal Law in light of his medical expenses along with an award for the pain and suffering he endured as a result of his injuries. In its October 10, 2014, Answer to Plaintiff’s Complaint, the Defendant denied Mr. Licciardello’s injuries were caused by its negligence and asserted the special defense that any injuries, losses or damages Mr. Licciardello sustained from the incident stemmed from his own carelessness and negligence in that he allegedly failed to sit in a regular passenger seat when, “in the exercise of reasonable care, he should have done so.”1
The parties met for the first day of bench trial on November 17, 2015, when three2 witnesses, including the Plaintiff, testified. Mr. Licciardello’s doctor and the Defendant’s medical expert gave deposition testimony thereafter. The parties appeared before the Court again for submission and marking of trial exhibits on April 18, 2016, when the Court set forth a briefing schedule. Thereafter, the parties timely submitted detailed briefs setting forth their closing arguments.
For a cause of action in negligence, the Plaintiff must show that (1) the Defendant owed a duty of care to the Plaintiff; (2) the Defendant breached that duty of care; (3) the Defendant’s negligent acts constituted both the factual and proximate cause of the Plaintiff’s injuries; and that (4) the Plaintiff suffered actual damages. Celentano v. MPGE, 6 Mash.Rep. 189, 191–192 (2014); Hazard v. MPGE, MPTC–CV–PI–2009–120, 2016 WL 589519 at *2 (Trib.Ct. Feb. 3, 2016). It is for the Plaintiff to prove these elements on a preponderance of the evidence. Hazard at 2016 WL 589519 at *2.
Plaintiff claims that the Defendant breached its duty to reasonably and safely transport Mr. Licciardello when its shuttle driver, Mr. Mann, failed to secure Mr. Licciardello’s motorized scooter in a safe position aboard the shuttle, and when he operated the shuttle in an unsafe manner. Plaintiff asserts that Mr. Licciardello’s accident and injury were a direct and proximate result of the Defendant’s negligence. The Defendant denies that it owed a special duty to the Plaintiff, that it operated the shuttle in an unsafe manner, and that Mr. Licciardello’s injuries resulted from any negligence on its part.
i) Duty and Breach
*2 The Defendant’s liability can be assessed under the standard of ordinary or reasonable care.3 Accordingly, the foreseeability of harm determines whether there exists a duty to use due care on the part of a defendant. Ruffo v. Craft Worldwide Holdings, LLC, MPTC–CV–PI–2013–107, 2015 WL 9673844 at *4 (Trib.Ct. Dec. 17, 2015); Latina v. MPGE, 3 Mash.Rep. 173, 175, 4 Mash. 46 (2000). Reasonable care is that degree of care that is necessary “to keep the premises reasonably safe under the particular facts and circumstances of the case. As the facts and circumstances differ in degree, so does the duty of reasonable care.” Ruffo v. MPGE, 1 Mash.App. 3, 7, 1 MPR 3 (1994). Although the Gaming Enterprise is not an insurer of its invitees, reasonable care requires that the Enterprise “warn or otherwise protect the [invitees] from any dangerous condition or hazard of which it had actual or constructive knowledge, or which it might reasonably have anticipated.” Malouf v. MPGE, 6 Mash.Rep. 73, 77 (2013) citing Ruffo, 1 Mash.App. at 6, 1 MPR 3.
This Court has previously assessed whether the Gaming Enterprise is liable in negligence for injuries sustained on its shuttle buses. See Santos v. MPGE, 6 Mash.Rep. 28 (2012); Swabey v. MPGE, 5 Mash.Rep. 403 (2011); Rantz v. MPGE, 2 Mash.Rep. 44, 2 Mash. 128 (1997). As Swabey involved a scooter injury while the plaintiff was boarding a shuttle, it is the closest on facts to this case. The court in Swabey, however, did not reach issues of liability. What the above cases clarify is that the Gaming Enterprise has a duty to exercise reasonable care with regard to passengers that use its shuttles and that the Court need not analyze the Defendant’s liability here under a special-duty standard.
The Positioning of the Scooter
Plaintiff claims that the Defendant was negligent in directing Mr. Licciardello to power off his scooter and position it at an angle behind the driver’s seat, rather than facing it forward.4 Plaintiff points to Mr. Mann’s testimony, which shows that he understood the scooter’s wheels would lock once it was switched off. This, in Mr. Mann’s opinion and experience, was enough to safely transport passengers with mobility scooters. The Plaintiff contends, however, that Mr. Mann should have foreseen that the locked wheels would not prevent the scooter from tipping sideways, especially since the scooter was placed at an angle. She argues that Mr. Mann, being in charge, should have realized this and placed the scooter facing forward, especially since Mr. Licciardello remained seated on the scooter. She points out that Mr. Mann agreed during his deposition that the scooter might have been less likely to tip over had it been facing forward. Finally, the Plaintiff charges that Defendant’s failure to adopt a policy for the safe transport of mobility scooters on shuttles amounts to a breach of its duty to exercise reasonable care.
Defendant contends that it had no duty to secure Mr. Licciardello’s scooter. It asserts that mobility scooters are routinely transported and positioned on shuttles in like manner to Mr. Licciardello’s. Defendant points to Mr. Mann’s extensive experience of thirteen years, during which time he safely transported about 260 disabled passengers without incident. Defendant’s Trial Brief, at 5. Defendant argues that Mr. Mann’s decision in positioning Mr. Licciardello’s scooter was commensurate with this experience (positioning between nine and twelve o’clock) and in the absence of a policy directing him to the contrary, Mr. Mann was not negligent in following his usual practice. Additionally, the Defendant argues that Mr. Licciardello could have chosen to sit in the bus passenger seat, as the scooter’s safety manual recommends, instead of remaining on his scooter while the shuttle bus was moving. Since, according to the Defendant, Mr. Licciardello did not follow the manual’s safety guidelines, the Court should find that he was contributorily negligent.
*3 The Record establishes that Mr. Mann is an experienced shuttle driver. Trial Tr. vol. 1, 86:3–8. He has driven handicap accessible buses for the Gaming Enterprise for thirteen years, and it is undisputed that he has never had a similar incident. Id. In all his years of transporting passengers on mobility scooters, Mr. Mann has always positioned scooters the same way, i.e. behind the driver, facing between nine and twelve o’clock. Def.’s Trial Brief at 19. Additionally, it was Mashantucket Transportation Department Policy to allow passengers to remain on their mobility scooters while shuttles were moving. Id. Mr. Mann’s supervisor, Mark Manning, also testified that in his opinion it was safe for passengers to remain seated upon their scooters during transport. Trial Tr. 32–34.
The Court agrees with the Defendant that the Plaintiff has introduced no evidence to show the accepted safe method of transporting passengers with mobility scooters. Instead the Plaintiff urges the Court to rely on “common sense” in finding that Mr. Mann should have known not to position the scooter at an angle. The Court finds that Mr. Mann employed his best judgment, commensurate with his own knowledge and experience of transporting a passenger with a mobility scooter in a safe manner. A reasonable person in his position would have seen no reason to depart from a method that had worked for thirteen years and that his employer believed to be safe. Indeed, given Mr. Mann’s nonsupervisory position and the absence of a safety policy, it would be unfair to expect him to do so at his own discretion. Consequently the Defendant’s negligence cannot be derived from positioning of the scooter alone.
Mr. Mann had no choice but to employ his own judgment in this matter because the Defendant failed to adopt a policy for the situation. It is undisputed that the Defendant has no policy in place for the safe transportation of passengers with motorized scooters. Trial Tr. vol. 1, 34: 2–9. This means that no directive or policy governs how the scooters should be positioned and whether passengers should remain seated on them during transport. In addition, no seatbelts are used for passengers in either wheelchairs or scooters. Trial Tr. 1–47. Given the common use of mobility scooters in shuttles/buses and the ordinary risk of sudden braking and stopping on the road, a reasonable person or entity would foresee the need for safety measures or a standard policy. Connecticut, New York and Rhode Island transit systems, for example, all have written procedures for the safe transportation of mobility vehicles.5 The absence of such a policy also creates a safety risk for other passengers, as an unsecured scooter could collide with one of them, causing injury. The Defendant was therefore negligent in not having in place a policy or procedure for securing and transporting passengers with mobility vehicles. It is not for the Court to say what the policy should be, but the Defendant’s negligence flows from its failure to adopt any policy whatsoever. The Court finds that Mr. Licciardello’s accident and injuries were the direct and proximate result of the Defendant’s failure to adopt a safety policy.
*4 The Plaintiff also claims that the Defendant was negligent because Mr. Mann braked abruptly, and that the braking caused an unsafe condition that made Mr. Licciardello’s scooter tip over. She argues that Mr. Mann had an unobstructed view and was driving slowly enough to have seen the van that darted in front of the bus. Defendant denies that Mr. Mann could have braked differently. It points out that the Plaintiff’s own testimony confirms that Mr. Mann was driving very slowly at the time of the incident and that the van was not visible until it suddenly appeared in front of the bus.
As established above, the duty owed by the Defendant in operating the bus was that of ordinary care. See Ruffo v. MPGE, supra. Nothing in the record suggests that Mr. Mann operated the vehicle negligently or recklessly. On the contrary, the evidence suggests that he tried to drive as carefully as possible. It is undisputed that before he was forced to brake abruptly, Mr. Mann was driving at just over 10 mph. Trial Tr. vol. 1, 96:8–23. The Plaintiff herself testified that she found nothing wrong with Mr. Mann’s driving until he braked. Trial Tr. vol. 1, 99:21–100:2. The abrupt braking was the result of a van that suddenly “zipped in front” of the bus. Trial Tr. vol. 1, 98:11–99:2. The Court finds that a reasonable person in Mr. Mann’s position would have braked reflexively to avoid a collision. His sudden braking likely averted a collision, and so the Court finds that the Defendant was not negligent in the operation of the bus.
Defendant claims that the Plaintiff was contributorily negligent in remaining on the scooter within the moving shuttle. Defendant argues that since the scooter’s manual warns against doing this, and Mr. Licciardello had read the manual, he was comparatively negligent by not using a passenger seat. Plaintiff contends that it is Defendant’s own practice to allow passengers to remain seated in their mobility vehicles. She argues that in doing the same, Mr. Licciardello was only conforming to the Defendant’s normal operating procedures. She also points to Mr. Mann’s expertise and certification in transporting disabled passengers and argues that Mr. Licciardello cannot be expected to understand safe transportation at the same level of sophistication.
The Plaintiff testified at trial that Mr. Licciardello had read the scooter manual. Trial Tr. vol. 1, 92:24–93:9. The safety section of the manual clearly warns against remaining seated on the scooter in a moving vehicle. Plaintiff’s Exhibit 13, p. 15. The manual also warns against remaining seated upon the scooter while it is on a lift/elevator. Id. at 14. In addition, Mr. Licciardello received hands-on training in operating the scooter at the VA location where he acquired it. Trial Tr. vol. 1, 87:18–25. While the Record indicates that Mr. Licciardello read the entire manual, the Court does not expect that he committed it to memory. There is also no evidence as to whether the VA training actually addressed transporting the scooter on buses. The Court notes that the Plaintiff testified that Mr. Licciardello could have gotten off the scooter had he been asked to do so. Trial Tr. vol. 1, 86:23–25. The critical fact, however, is that the record reflects that all passengers with mobility scooters remained seated upon their scooters and in their wheelchairs. Trial Tr. 1–31. One reason why the Defendant did not ask passengers to get off their scooters and sit in a regular bus seat was to avoid embarrassing them. Defendant’s Trial Brief at 3. The usual practice of disabled passengers was therefore to remain seated on their scooters and in their wheelchairs, and they were never instructed otherwise. In view of these circumstances, it was not unreasonable for Mr. Licciardello to remain on his scooter when that is what all other passengers in his situation had done in the past. Accordingly the Court declines to find that Mr. Licciardello was comparatively negligent.
ii) Causation and Damages
*5 It is undisputed that Mr. Licciardello suffered a fractured rib as a direct result of the incident. Tr. vol. 1, 73:16–74:22; 116:1–10. It is also undisputed that he was suffering from congestive heart failure and a right side pleural effusion prior to the incident. A pleural effusion is the accumulation of fluid within the cavity between the chest wall and the lungs. See Dr. Deren’s Testimony at 15. The principal dispute between the parties is the extent to which Mr. Licciardello’s post-incident medical costs can be attributed to his injury, rather than to his pre-existing conditions. The Defendant acknowledges that if it is found liable, the cost of Mr. Licciardello’s emergency room treatment on October 4, 2013, is recoverable.6 The Defendant contests, however, the causal relationship to the incident and liability for any and all other medical treatment that Mr. Licciardello received after that date. In particular, the Defendant denies liability for two post-incident drainings of the effusion, a procedure called thoracentesis. For a person suffering from a pleural effusion, thoracentesis is performed to prevent excessive fluid from accumulating around the lungs.
The parties’ experts disagree as to why the two post-incident thoracenteses became necessary for Mr. Licciardello. The Plaintiff’s expert, Dr. Peter Bezdicek, testified that Mr. Licciardello’s effusion was aggravated by the rib injury, resulting in the need for further treatment. Bezdicek Dep. 73:18–19. In contrast, the Defendant’s expert, Dr. Michael Deren, testified that he believed the effusion was aggravated by Mr. Licciardello’s congestive heart failure and not by the rib injury. Defendant’s Trial Brief at 14. Both experts agree that the pleural effusion pre-existed the rib injury. See Defendant’s Trial Brief at 14 and Bezdicek Dep. 74:4–75:10. If the effusion became aggravated by the rib injury, then the subsequent thoracenteses and other treatment that Mr. Licciardello underwent were the proximate result of the Defendant’s negligence. If the effusion worsened because of the preexisting cardiac disease, however, then Plaintiff may not recover the cost of the subsequent procedures.
“Expert opinions must be based upon reasonable probabilities rather than speculation.” Waterman v. MPGE, MPTC–CV–PI–2013–191, 2015 WL 9673869 at *4 (Trib.Ct. Dec. 22, 2015) (internal citations and quotation marks omitted). “To have a reasonable degree of medical certainty, the belief must be more likely than not.” Id. “The plaintiff must prove that the expenses he claims were reasonably necessary and proximately caused by the defendant’s negligence.” Gaetano v. Mashantucket Pequot Gaming Enterprise, MPTC–CV–PI–2012–186, 2015 WL 7896642, at *3 (Trib.Ct. Oct. 21, 2015). “Once liability is established, the [Defendant] must take the Plaintiff as it finds her.” Simeonidis v. MPGE, 6 Mash.Rep. 85, 87 (2013). The aggravation of a pre-existing disability is distinguishable from “other cases where the plaintiff has a pre-existing injury that had been fully treated at the time of the incident.” Id. at 88.
*6 The Court agrees with the Plaintiff’s expert and finds that the worsening of the pleural effusion was triggered by Mr. Licciardello’s accident. While the Defendant’s expert, Dr. Deren, testified that the effusion, and therefore the fluid accumulation, could have been exacerbated by the worsening of Mr. Licciardello’s cardiac disease, he is unable to explain why that only happened after the incident. The Court notes that Mr. Licciardello had to undergo two thoracenteses within a space of ten weeks immediately after the accident. By contrast there was only one thoracentesis prior to the accident, and that thoracentesis was in September 2012, nearly a year earlier. While the Court gives due consideration to Dr. Deren’s opinion as to the alternate cause, it finds that the Defendant has not proved that it is more likely than not that Mr. Licciardello’s heart failure, and not the scooter incident, triggered the need for the thoracenteses and related treatment that occurred from November 27, 2013, through December 19, 2013. The Court finds no plausible explanation was offered on the record for why that cause operated with such intensity only after the incident. The Court therefore affords greater weight to the cause proposed by Dr. Bezdicek, who was Mr. Licciardello’s treating physician, in contrast to Dr. Deren, who reviewed Mr. Licciardello’s medical records without examining him. That cause is the rib fracture, which according to Dr. Bezdicek, exacerbated Mr. Licciardello’s effusion and resulted in greater fluid accumulation. Consequently, the Court finds the Plaintiff has proved that it is more likely than not that the injury Mr. Licciardello suffered on the shuttle bus was the direct and proximate cause of the aggravation of his pleural effusion. The subsequent thoracenteses and related medical treatments were therefore “reasonably necessary and proximately caused by the Defendant’s negligence.” Gaetano, supra.
In light of the foregoing, the Court awards to the Plaintiff the medical costs for the two thoracenteses. Additionally, in light of Dr. Bezdicek’s testimony that limited breathing and chest pains result from rib fractures, the Court awards the costs for radiology and hospitalization subsequent to the injury and HEREBY ORDERS that the Plaintiff shall recover $48,539.21 in actual damages.7
Pain and Suffering
If a plaintiff prevails in a tort claim filed under the Tort Claims (Gaming Enterprise) Act, “the court may enter an award for actual damages.” 4 M.P.T.L. ch. 1, § 4(a). “Actual damages” are defined as “the ascertainable loss of money or property sustained as a result of an injury without any reduction for collateral sources.” 4 M.P.T.L. ch. 1, § 1(g). See Misuraca v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 71 (2013). “In addition to an award for actual damages, the court may enter an award for pain and suffering or mental anguish in an amount which shall not exceed 200% of the actual damages sustained.” 4 M.P.T.L. ch. 1, § 4(d)(1). “An award for pain and suffering cannot be computed by mathematical calculations.” Misuraca, 6 Mash.Rep. at 72, quoting Peckham v. Mashantucket Pequot Gaming Enterprise, 1 Mash.Rep. 121, 124, 1 Mash. 88 (1995). “In assessing an award for pain and suffering the amount awarded should be fair, just and reasonable for the pain, suffering, inconvenience, disability and loss suffered.” Id. (internal citations omitted). The statutory restriction of 200% of the actual damages sustained “is simply a limitation above which any amount found for pain and suffering must be reduced.” Peckham, 1 Mash.Rep. at 124, 1 Mash. 88. “Only if the amount found for pain and suffering exceeds 200% of the actual damages would the court be obligated to reduce the amount awarded for pain and suffering to the statutory maximum.” Misuraca, 6 Mash.Rep. at 73.
*7 In the instant case, it is undisputed that, before his injury on the bus, Mr. Licciardello lived an active life for his age despite some problems breathing. Plaintiff reported that he was able to travel and move about without an oxygen tank. After October 2, 2013, the date of the incident, his breathing worsened markedly, and his activity level decreased. Mrs. Licciardello explained that her husband would have to sleep sitting up due to pain, was not able to go upstairs to shower, required sponge baths, and had sudden attacks where he could not breathe. Trial Tr. vol. 1, 74:25–75:9, 76:1–20. Further, he couldn’t move around, and he needed help to get up. Mr. Licciardello’s increased breathing problems lasted until about January 10, 2014, when his condition was improving but he suffered a cracked hip from an unrelated trip and fall. He passed away on February 28, 2014, as a result of the fall. Trial Tr. vol. 1, 77:4–24.
It is undisputed that Mr. Licciardello was unable to take narcotics after his injury, and he appeared to be in pain a majority of the time from October 2, 2013, to January 10, 2014. Trial Tr. vol. 1, 79:16–80:1. Based on the Plaintiff’s observations, the source of the pain appeared to be “in his lower back, his rib area and trying to breathe.” Trial Tr. vol. 1, 80:21–24. The Court recognizes, however, that Dr. Deren noted in Mr. Licciardello’s Veterans Administration records from November 12, 2013, that his pain level was “0.” Defendant’s Trial Brief at 15. So, despite the Plaintiff’s impression that her husband suffered pain the majority of the time for nearly three months after the incident, Dr. Deren’s examination of the medical records suggests that Mr. Licciardello’s pain was something less than constant and not as intense as Plaintiff believed. Moreover, the Plaintiff admitted that his condition was improving leading up to the unrelated January 10, 2014, trip and fall.
As to pain and suffering, a plaintiff must prove the nature and probable duration of the injuries sustained. Gaetano, 2015 WL 7896642, at *6, citing Simeonidis, 6 Mash.Rep. at 90. The Court notes the relatively short duration of the pain, just longer than three months. Nonetheless, it is undisputed that Mr. Licciardello suffered pain, had increased difficulty breathing post-incident and that his quality of life declined markedly after the injury curtailed his activities of daily living. Taking into consideration the entirety of the circumstances, the credibility of the witnesses, and the evidence presented, the Court awards damages for pain and suffering in the amount of $4,800.00.
III. CONCLUSION AND ORDER
Based upon the relevant evidence presented and the Court’s assessment of the credibility of the witness testimony and that of the exhibits, the COURT HEREBY ENTERS judgment for the Plaintiff in the amount of $53,339.21, allocated as follows: $48,539.21 for actual damages and $4,800.00 for pain and suffering. As the Court found no contributory negligence, the total award shall be $53,339.21.
At trial, counsel for the Defendant admitted that Mr. Licciardello’s rib fractures resulted directly from the incident. Trial Tr. vol. 1, 116:1–10.
The Plaintiff and Mark Manning, supervisor of the shuttle driver, testified in person. Shuttle driver Darrell Mann gave a videotaped deposition on October 19, 2015, and the Plaintiff submitted the deposition during trial on November 17, 2015, when the court viewed same on the record. Mr. Mann’s deposition appears in the record as Exhibit 8.
Defendant argues that it was under no duty to secure Mr. Licciardello’s scooter. As support for this claim, Defendant offers the guidance of a slip opinion from the Appellate division of the New York Supreme Court, Tauzama v. New York City Transit Authority, to claim that no duty was owed to secure the scooter under the circumstances. 37 Misc.3d 132(A) (2012). Tauzama, however, is inapposite as the driver there made efforts to secure plaintiff’s oversized electric wheelchair but found no strap or harness large enough for the task. The question here is not whether there is a duty to secure mobility scooters, but whether there is a duty to safely transport them.
The scooter was positioned facing behind the driver. The position was characterized as a nine o’clock position, the front of the bus being 12 and the rear of the bus being 6 o’clock. Trial Tr. vol. 1, 94:5–13.
CT GUIDELINES, http s://www.cttransit.com/how-ride/accessibility (last accessed: Jan. 26, 2017)
The Emergency Room treatment on October 4, 2013, was billed in the amount of $16,842.78. Def.’s Trial Brief at 19.
Mr. Licciardello incurred the following costs, paid to Orange Regional Medical Center and to Goshen Medical Associates (both in New York), on the following dates for medical treatment necessitated by his injuries, which the court has found were proximately caused by the Defendant: