--- Am. Tribal Law ----, 2024 WL 1715285 (Mohegan Gaming Trial Ct.)
Only the Westlaw citation is currently available.
Mohegan Gaming Disputes Trial Court.
Anh Que DUONG
v.
MOHEGAN TRIBAL GAMING AUTHORITY
7 G.D.R. 103
|
GDTC-T-18-103-FAM
|
April 12, 2024
MEMORANDUM OF DECISION
Manfredi, J.
SUMMARY
Plaintiff sought damages under the Mohegan Torts Code for injuries sustained in a fall at the Seasons Buffet at Mohegan Sun. Although she had passed over the area where she fell numerous times without noticing anything on the floor, she testified that after she fell she noticed a light colored unknown fluid on the floor, and did not know how long it had been there. Although the documentary evidence indicated that the Defendant had notice of a spill at 2:50 p.m. and sent someone to investigate, by the time the responding person arrived a chair had been placed over a greasy spot on the floor, leading the Gaming Disputes Court, Manfredi, J., to conclude that the Plaintiff had already fallen. The Court held that the Plaintiff had not met her burden of proof to establish either constructive notice, or that if it had actual notice of the condition, the Defendant took immediate steps to investigate and correct the defect.
This matter was tried before the Court on November 16, 2023. Plaintiff’s Complaint dated February 5, 2018 alleges that she fell and sustained certain injuries while a business invitee at the Season’s Buffet at the Mohegan Sun Casino on February 6, 2017 due to an accumulation of liquid on the floor. It further alleges that the Defendant, its agents, servants or employees spilled the liquid on the floor or failed to remove it, clean it up, warn of it, or barricade the area, although it knew or should have known of it.
Defendant’s Answer and Special Defenses denied the allegations of negligence, and in turn alleged contributory or comparative negligence on the part of the Plaintiff.
FACTS
Plaintiff did not testify in person during the trial and the parties stipulated that her deposition of July 15, 2022 would be admitted in lieu of live testimony. There were no witnesses presented during trial. All evidence other than photographs and a video recording of the incident was documentary consisting of incident reports and medical records and bills.
The evidence thus considered established that the Plaintiff had visited and been a patron at the Casino many times prior to the date of the incident alleged in the complaint and had visited the Season’s Buffet several times before. In fact, the Plaintiff had been employed as a dealer at the Mohegan Sun Casino from approximately 1997 until 2000. She left her employment because the traveling distance was too far.
On the day in question, she was 57 years old and was visiting the Casino with her husband, as she had done on many occasions. Prior to going to the buffet, she had played games of chance. At the Season’s Buffet, Plaintiff finished eating but decided to go back to the buffet for fruit. She fell suddenly and got up very quickly. She had passed the area where she fell “multiple times” that day but did not notice anything on the floor. According to Plaintiff’s Exhibit 3, the fall occurred at approximately 3:05 p.m. After she fell, she noticed a light-colored fluid on the floor. She did not recall how big the area of fluid was or whether she had wet spots or stains on her clothing. She did not know how the substance came to be on the floor, did not see anyone spill anything and did not know how long the fluid may have been on the floor.
Plaintiff’s Exhibit 6, “Patron Incident Report” which Plaintiff’s attorney referred to in closing arguments and brief indicates that Matthew Guasp was in the Seasons’ Buffet as a Breaker at 14:50 (2:50 p.m.) when he was asked by a supervisor to help clean up a spill. When he arrived, he helped to look for liquid or food on the floor. After searching he noticed a greasy substance under a chair that was being used to block other patrons from passing through.
DISCUSSION
As noted by this Court in its recent decision in the matter of Jardine v. MTGA, Docket No.: GDTC-T-16-115-FAM: “[t]his action is governed by the provisions of the “Mohegan Torts Code,” hereinafter the “Code.” The Code applies to “any and all tort claims arising on the Mohegan Reservation that may be brought against the MTGA....” and, is “the exclusive means of adjudication of claims brought against the MTGA.”
Additionally:
“Negligence is defined as “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.” Restatement of the Law, Second, Torts 2d, Vol. 2, Sec. 282. Sec. 3-245 of the Mohegan Torts Code adopts essentially the same definition.
Additionally:
“Negligence is the omission to do something which a reasonable person, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable person would not do. The standard or yardstick is, therefore, “the reasonable and prudent man.” Wright, Fitzgerald & Ankerman, Conn. Law of Torts (3d Ed.), Sec. 30, Standard of Care.”
In this matter the issue of negligence revolves around the issue of constructive notice.
“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, 6 Am. Tribal Law 519 (2005) (internal citations omitted).
Additionally, it goes without necessity of citation to state that the burden of proof in a civil case is upon the plaintiff to establish each and every element of his or her claim by a preponderance of the evidence.
Here, Plaintiff has shown that the fall had occurred at approximately 3:05 p.m. although the exact time is unclear. Defendant had notice of a spill in the area at approximately 2:50 p.m., again not an exact time. When Mr. Guasp arrived, he looked for a spill but found a greasy area underneath a chair being used to block access to a portion of the buffet area.
No other evidence has been presented to indicate when the substance appeared on the floor or how long it had been there when Plaintiff fell. Plaintiff had no information in this respect according to her deposition testimony.
The incident report does not provide sufficient information to conclude with any probability when the spill may have occurred. Although Mr. Guasp was dispatched to the area at 2:50 p.m., by the time he reached the buffet, it seems more likely than not that the Plaintiff had already fallen as there was a chair over a greasy area.
There is simply insufficient evidence from which the court can conclude when the substance appeared on the floor. The court can only conclude that someone called in a spill around 2:50 p.m. Mr. Guasp was dispatched and upon arrival found a chair already protecting the area. The court infers from this that Plaintiff had already fallen.
The Court has no way of knowing when the substance appeared or how long it took to dispatch someone thereafter. Even if we assume that Defendant had actual knowledge of a condition at 2:50 p.m., it is clear that Defendant immediately took action to investigate and correct the condition, if necessary. The Court finds that Defendant’s conduct in response to the notice was reasonable and appropriate and did nothing to expose Plaintiff to an unreasonable risk of harm.
Under the circumstances, the court finds that Plaintiff did not carry her burden of proof and therefore enters judgment in favor of the Defendant.
All Citations
--- Am. Tribal Law ----, 2024 WL 1715285