2020 WL 257788 (Mash. Pequot Tribal Ct.)
Only the Westlaw citation is currently available.
Mashantucket Pequot Tribal Court.
MASHANTUCKET PEQUOT GAMING ENTERPRISE
JANUARY 8, 2020
MEMORANDUM OF DECISION
Thomas J. Londregan, Judge
I. BACKGROUNDOn April 5, 2017, the plaintiff, Raymond Renzi, filed this one-count claim against the defendant, Mashantucket Pequot Gaming Enterprise (the “Gaming Enterprise”), alleging that he sustained injuries as a result of the defendant’s negligence while he was in his room at the Fox Tower Hotel. At a one-day trial that occurred on November 13, 2019, the Court heard testimony from the plaintiff.
II. FACTSOn April 19, 2016, the plaintiff was a guest at the Fox Tower hotel. Upon arriving at his room, at around 4:00 p.m., he disrobed in preparation to take a shower. Before getting into the shower, the plaintiff walked across the room to put his valuables in the safe. As he walked towards the safe, which was on the other side of the bed, he was caused to trip and fall. As he fell forward, the plaintiff turned to the right exposing his left shoulder to a large pillar situated next to the window. The back of his left shoulder made contact with the pillar. He fell to the ground between the window and the pillar. He landed on his rear end and hit his left elbow on the frame of the window. After falling, the plaintiff looked around to see what had caused him to trip and fall. He noticed that there was a cluster of exposed electrical wires protruding from a socket in the floor in between the bed and the “entertainment center.”
III. DISCUSSIONThe elements of a cause of action in negligence are well established. In order for the plaintiff to prevail in a cause of action alleging negligence, they must prove by a preponderance of the evidence that (1) the defendant owed a duty to the plaintiff; (2) that the defendant breached that duty; (3) that the breach of said duty was the proximate cause of the plaintiff’s injuries; and (4) that the Plaintiff suffered actual damages. Mashantucket Pequot Tribal Nation v. Castellucci & Assoc., Inc., 4 Mash.Rep. 21, 33 (2002); Hazard v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 354, 357-58 (2016).
The parties are at issue over whether the plaintiff’s left elbow “epicondylitis” was proximately caused by the hotel room fall. The defendant argues that the plaintiff “has no credibility with regard to ostensibly any aspect of the incident or the injuries ....” The defendant relies primarily on (1) its own incident report which alleged that the plaintiff reported an injury to his upper right arm and not his left elbow; (2) that the plaintiff testified at his deposition that the incident report was accurate; and (3) one medical report that stated the plaintiff injured his right shoulder/arm and the right side of his stomach.
A. LiabilityThe defendant does not contest that it had a duty to keep the hotel room properly made up and that it breached that duty when it left exposed wires running from the outlet on the floor into the entertainment center. The defendant takes the position that the fall was not the proximate cause of the plaintiff’s left elbow epicondylitis because medical records and the incident report indicate that the plaintiff hurt the right side of his body. The defendant also argues that the plaintiff was comparatively negligent because he failed to see the wires before tripping over them. The plaintiff asserts that he was not comparatively negligent because he was distracted by the hotel room’s view. The plaintiff further argues that the inconsistencies in the medical records and incident reports are the mistakes of their authors.
The plaintiff, in a cause of action for negligence, “must establish not only that the defendant was negligent in some fashion, but also that the defendant’s negligence was the proximate cause of the plaintiff’s loss.” Simeonidis v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 85, 87 (quoting Cooper v. Mashantucket Pequot Gaming Enterprise, 5 Mash.App. 59, 65 (2011)).
The defendant contests causation by pointing to inconsistencies between the plaintiff’s testimony and what is contained in both of the medical records and the incident report. The incident report states that, when the plaintiff fell, his back hit the pillar and his upper right arm hit the window and window frame. However, at trial, the plaintiff testified that when he fell the left side of his back made contact with the pillar and his left elbow hit the window and the window frame. The defendant argues that this inconsistency impeaches the credibility of the plaintiff’s testimony. The plaintiff asserts that this inconsistency is based on a mistake of the incident report. In doing so, he points to Pl.’s Ex. 5 B. This photograph is of the plaintiff shortly after he tripped and fell in his hotel room. It clearly shows that there is a large bruise on the left side of his back.
The defendant further argues that there are inconsistencies between the plaintiff’s testimony and Dr. Savoretti’s April 20, 2016 report and that these inconsistencies impeach the credibility of the plaintiff. “Notes in medical records that are prepared by a third party may be used for impeachment purposes; however, the Court has the ultimate decision on the weight to be given to third party statements ....” LeTarte v. Mashantucket Pequot Gaming Enterprise, No. MPTC-CV-PI-2016-151, 2019 WL 1398057, at *3 (Mash. Pequot Tribal Ct. Mar. 21, 2019). The medical report and the incident report were not statements of the plaintiff. He did not author those documents. Therefore, they must be considered a third party statement. When a plaintiff, at trial, denies having made the statement in the record, the Court, to attribute that statement to them, must be able to reasonably infer from the face of such records that the plaintiff was the actual source of the statement at issue. At trial, the plaintiff denied making such statements to security and to his doctor that he injured the right side of his body. He testified that he told all who asked that he injured his left elbow. Both the incident report and the one medical record were not written in the first person such that the Court could reasonably infer that the plaintiff was the actual source of the statement. Furthermore, neither record specifically quoted the plaintiff as having made the statement. Without such assurances that the only source of the statement was the plaintiff, the Court will not use the statements for impeachment purposes or as a prior inconsistent statement.
The day after the accident, April, 20, 2016, the plaintiff went to see his primary care physician, Dr. Savoretti, about his injuries. The defendant points out that the visit report states that the plaintiff “injured Right Shoulder/arm and Right side of stomach.” Pl.’s Ex. 8 A. However, the accuracy of Dr. Savoretti’s reporting in general is called into question because he also wrote that the plaintiff “fell last night into glass door ....” Id. The defendant does not contest the fact that the plaintiff fell forwards and hit a pillar and then fell towards the window in his room. Dr. Savoretti’s report clearly misstates this fact. Since Dr. Savoretti’s report contains inconsistencies with what is not factually disputed, the Court is inclined to give more weight to the plaintiff’s trial testimony as to the mechanism of injury.
The defendant further attacks the plaintiff’s testimony based on a demonstration of the fall that he made in the courtroom. The Court understood the plaintiff’s testimony on direct examination as to how he fell. He testified exactly as to how he fell without doubt or hesitation in a straightforward manner. After being caused to trip on the exposed wires, the plaintiff fell forward and slightly turned to his right, exposing his left shoulder to a large pillar in the room. The force of the collision caused a significant bruise to his left shoulder. Pl.’s Ex. 5 B. After hitting the pillar, he fell straight down in the space between the window and the pillar, landing on his hindquarters with his left arm hitting the frame of the window. The Court asked the plaintiff to demonstrate in the courtroom as to how he fell. He proceeded in one direction in the courtroom and after “hitting” the imaginary “pillar” he spun around such that he landed on his right arm. He then proceeded to reenact his fall going in the opposite direction with the same result. His demonstration was not in accord with his testimony. The Court should not have expected the plaintiff to accurately recreate the incident in a courtroom using only his imagination. The Court accepts his oral testimony describing his fall rather than his demonstration in the courtroom with an “imaginary” pillar and window.
The defendant also argues that any negligence by it is far outweighed by the plaintiff’s own comparative negligence in that he should have been watchful of his surroundings and that the wires were an open and obvious condition. “The Plaintiff must use reasonable care to avoid injury to himself, and must make such use of his faculties and senses as a reasonably prudent person would have made under the same circumstances.” Misuraca v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 406, 411 (2011). Here, the plaintiff testified that he tripped over the electrical cords after being in his room for only a short period of time. He had immediately disrobed to get ready to enter the shower. Before doing so he was walking across the room to put his valuables into the safe. As the plaintiff approached the electrical cords he was admiring the view through his window. It was only after the fall that the plaintiff noticed that there were electrical wires running through the space he had just walked in. What’s more, the carpet of the hotel room has a pattern that contains black lines that intersect and the electrical cords themselves are black. Pl.’s Ex. 2 C. This background makes it so that the electrical cords blend into the surroundings. The plaintiff also testified that the appearance of the room did not give him cause for concern. Based on this fact, he argues that none of the furniture in the room was positioned so as to raise concern about the safety of the surroundings.
B. FindingsBased on the totality of the circumstances and upon careful consideration of all of the evidence and a review of the exhibits, and having given appropriate weight and credibility to the testimony of the plaintiff, the Court finds that he did suffer injuries to his left elbow as a result of the trip and fall of April 19, 2016. The Court gives more weight to the plaintiff’s testimony of how he fell and what he hurt than it does to the report of Dr. Savoretti of April 20, 2016. The plaintiff’s testimony is more reliable because the medical report contains misstatements of fact that are clearly established.1 Significantly, the medical report states that the plaintiff hit the pillar with the right side of his back. However, the plaintiff’s testimony and photographic evidence indicate that it was, in fact, the left side of his back.
The Court finds that when the plaintiff tripped and fell over the exposed electrical wires that he turned to the right thus exposing the left side of his back to the pillar. Upon making contact with the pillar with the left side of his back he fell down in the space between the pillar and the window causing him to hit his left elbow on the frame of the window. The Court finds that Pl.’s Ex. 5 B corroborates this testimony. This photograph shows the plaintiff with a significant bruise on the left side of his back, not the right. Based on these facts, the Court finds that the trip and fall in the hotel room on April 19, 2016 was the proximate cause of the plaintiff’s left elbow epicondylitis.
The Court finds that the defendant has not proved by a preponderance of the evidence that any comparative negligence by the plaintiff outweighs the negligence of the defendant as herein stated. The Court gives great weight to the plaintiff’s testimony that nothing about the setup of the room’s furniture gave him cause for alarm. Furthermore, the plaintiff testified that as he was walking towards the wires he was engrossed in the spectacular view outside of the window. The Court also finds it significant that the cluster of black electrical wires blends in with the pattern of the hotel room’s carpet making them difficult to see.
IV. DAMAGESUnder the Mashantucket Pequot Tort Claims Law, “[t]he [C]ourt may enter an award for actual damages,” which are defined as “the ascertainable loss of money or property sustained as a result of an injury ....” 4 M.P.T.L. ch. 1 §§ 1(g), 4(a).
Here, the plaintiff incurred medical expenses of $9,230.00. The evidence showed that he was out of work from April 20, 2016 to April 29, 2016 (the plaintiff withdrew any claim for lost wages after April 29, 2016). The plaintiff testified that he worked 40 hours per week. Therefore, of the ten days lost (from April 20 through April 29), two days were non-work days. The Court finds that the plaintiff missed eight days of work at a rate of $16.50 per hour. This comes to a total of $1,056.00 in lost wages. The total economic damages are found to be $10,286.00.
Non-economic damages may be 200% of the actual damages, which in this case could be $20,572.00. The plaintiff is asking the Court for $15,000.00. in non-economic damages. The plaintiff underwent injections and then a surgical procedure to remedy his left elbow “epicondylitis.” He then required physical therapy from May 22, 2018 to July 24, 2018. The plaintiff ultimately achieved relief from his injury. The Court will award $12,000.00 for pain and suffering after the accident for a total amount of $22,286.00.
Pursuant to 4 M.P.T.L. ch. 1 § 4(g), the Court will conduct a hearing on February 26, 2020 to determine if there are any collateral sources as defined in 4 M.P.T.L. ch. 1 § 1(h). The parties shall notify the Court one week in advance if such a hearing is necessary.
Judgment will enter for the plaintiff, Raymond Renzi, against the defendant, the Mashantucket Pequot Gaming Enterprise in accordance with the above decision.
BY THE COURT:
The fact that the plaintiff twice acknowledged in his deposition that the incident report was accurate does not change the Court’s finding that the incident report is in error.