--- Am. Tribal Law ----, 2024 WL 1253837 (Mohegan Trial Ct.)
Only the Westlaw citation is currently available.
Mohegan Tribal Trial Court.
 
Julie GRANATA
v.
MOHEGAN TRIBAL GAMING AUTHORITY
 
7 G.D.R 85
|
GDTC-T-17-100-JAM
|
March 4, 2024

 

MEMORANDUM OF DECISION

FULL TEXT, McNamara, J.

SUMMARY

The Plaintiff sought damages under the Mohegan Torts Code, alleging that she fell while exiting the Mohegan Sun Arena as the result of uneven ground under the carpet, which she described as a divot. The Gaming Disputes Trial Court, MacNamara, J., found: 1. that no evidence was presented to establish actual or constructive notice of the claimed defect on the part of the Defendant; and 2. that Plaintiff’s claim that the defect was created by the Defendant, obviating any notice requirement, requires that the defect created by the Defendant must be an obviously hazardous condition (the Affirmative Act Rule), and that the claimed defect was not shown to be obviously hazardous. Judgment entered for the Defendant.

 

I. Factual Background.

This matter was commenced by the filing of a Summons and Complaint with the Gaming Disputes Trial Court on January 3, 2017.

The Complaint alleges that on December 31, 2015 the plaintiff, Julie Granata, was a guest and business invitee at the Mohegan Sun and Casino and was caused to trip and fall due to a defect in the floor where she was walking, resulting in personal injuries.

It is further alleged that the defendant was negligent by one or more unreasonably dangerous, deficient, defective or hazardous conditions existing in the area where she fell. It is claimed that said dangerous conditions that contributed to her fall include:

a. One or more objects or fixtures protruding unreasonably into the circulation point of travel;

b. The subject area lacked appropriate guards or rails to guide persons safely through the area and/or provide reasonable means of support or aid thereto;

c. The absence of any posted warning or notice that one or more objects protruded unreasonably into the circulation path of travel and/or that the leading edge of the aforesaid partition unreasonably protruded into the path of intended travel and/or was out of plumb;

d. A floor joist was protruding up into the carpet which was multi-colored making the protrusion difficult to ascertain;

e. The unreasonably hazardous, defective and/or unsafe condition of the area was due to the MTGA’s failure to reasonably inspect, construct and/or maintain the same.

The defendant, through its Answer, has admitted that the MTGA owned the premises known as the Mohegan Sun Casino, that the plaintiff was lawfully upon the premises at the time of the incident, and that the defendant owned, possessed, maintained and controlled the premises at the time of the incident. The remainder of the allegations of the Complaint were either denied or left to the plaintiff’s proof. The defendant also affirmatively alleged as a Special Defense that:

Any injuries, losses, damages sustained by the plaintiff were the result of her own negligence and/or carelessness in one or more of the following ways:

(a) She failed to watch where she was walking;

(b) She failed to keep a reasonable look out as to where she was going;

(c) She failed to make reasonable use of her senses and faculties;

(d) She failed to take reasonable steps to avoid “one or more unreasonably dangerous, deficient, defective or hazardous condition(s)” while walking toward the casino area to the right of the Selfie Circle after exiting the arena;

(e) She failed to lift her feet while walking.

The testimony and evidence presented to the Court established the following facts relevant to the decision in this case.

The plaintiff arrived at Mohegan Sun and Casino sometime prior to December 31, 2015. She could not recall exactly what time she arrived or what she did prior to the evening hours of December 31, 2015. It was her intention to spend New Year’s Eve at Mohegan Sun and attend a concert, have dinner and partake in New Year’s Eve activities at the Casino. She met friends at the Sachem Lounge at approximately 6:30 p.m. She then had dinner in a ballroom and attended a concert in the arena. After leaving the arena, the plaintiff headed to the Wolf Den for another concert. The plaintiff claims that after exiting the arena, she fell near a metal stand near the Selfie Circle in the Casino. The plaintiff claims that she fell forward and after she fell, she felt uneven ground under the carpet. She described the uneven ground as a divot under the carpet.

After she fell, she got up and proceeded to go to the Wolf Den to listen to music. She did not report the incident to Mohegan Sun Security that evening and did not seek medical attention that evening. The next morning her left knee was swollen and she reported the incident to Mohegan Sun Security.

The plaintiff first sought medical attention for her left knee injury on January 3, 2016 at the Monroe Urgent Care Center in Monroe, Connecticut. Dr. Corey Jaquez performed x-rays and examined the plaintiff. Dr. Jaquez diagnosed the plaintiff’s injury as a contusion bruise to her left knee.1

The plaintiff next treated with Dr. Stuart Belkin, Orthopedic Surgeon, on December 4, 2017, almost two years after the fall. The plaintiff treated with Dr. Belkin for approximately eighteen months. During that period of time, he gave the plaintiff cortisone shots as well as Synvisc gel shots and prescribed Ibuprofen and Ovexis. The plaintiff also went to physical therapy at Rehabilitation Associates, Inc. from January 24, 2018 to April 6, 2018. Dr. Belkin claims the plaintiff sustained a tear of the medial meniscus of her left knee and sustained a 10% percent permanent partial impairment of the left knee.2

The plaintiff testified that this injury has greatly affected her quality of life. She claims to be in constant pain as a result of her fall and is unable to enjoy and perform many activities that she enjoyed prior to her injury. She also claims the injury has precluded her from working in bars and restaurants, and she has been unable to teach creative movement to children, all of which she did prior to her fall.

The evidence established that the total medical and rehabilitation expenses arising from this fall were $6,633.83.

 

I. Analysis

On the day in question, the plaintiff was a patron at the Mohegan Sun Casino, and as such was a business invitee to which the defendant owed the duty of exercising reasonable care. As an invitee, the defendant owed the plaintiff a duty to keep its premises in a reasonably safe condition. Guycz v. Stop and Shop Co., 29 Conn. App. 519, 521, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992).

This action is governed by the Mohegan Torts Code. It provides in relevant part that “tort” means an injury to a person caused by a breach of a legal duty to that person, that “duty” means an obligation to conform to a particular standard of conduct and that “negligence” means conduct that falls below the standards established by law or custom for protecting others against 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. The Code also provides that a claimant shall recover nothing if his contributory negligence is determined to be greater than fifty percent of any negligence of the defendant.

To hold Mohegan Tribal Gaming Authority responsible, the plaintiff must prove (1) the existence of a defect, (2) that the defendant knew or in the exercise of reasonable care should have known about the defect and (3) that such defect had existed for such a duration of time that the defendant should, in the exercise of reasonable care, have discovered it in time to remedy it. Martin v. Stop & Shop Supermarket, Co., 70 Conn. App. 250, 251, 796 A.2d 1277 (2002).

“The controlling question in deciding whether the defendant had constructive notice of the defective condition is whether the condition existed for such duration of time that the defendant should, in the exercise of reasonable care, have discovered it in time to remedy it ... What constitutes a reasonable duration of time is largely a question of fact to be determined in the light of the particular circumstances of a case.” Riccio v. Harbour Village Condominium Assoc., Inc., 281 Conn. 160, 163, 914 A.2d 529 (2007).

The plaintiff testified that after she fell, she determined that there was uneven ground underneath the carpet. Unfortunately, this incident was not reported to the defendant at the time of the incident and there is no video surveillance showing said fall. Susan Fargo, the plaintiff’s friend, who was present when she fell, testified that she went back the next day to the location where Ms. Granata fell and determined that there was a divot under the carpet which caused Ms. Granata to fall.

James Todd, who is the Engineering Project Manager for Mohegan Sun, testified that he is responsible for the removal and replacement of carpet in the facility and repairs of any defective flooring within the Casino. He testified that he had not received any complaints regarding cracking or splitting of the concrete under the carpet, and is not aware of any complaint of divots, lumps or hollows in the carpet at the location where the plaintiff fell.

In the present case, there was no evidence that Mohegan Tribal Gaming Authority had actual knowledge of the defect or that such defect had existed for such a duration of time that the defendant should, in the exercise of reasonable care, have discovered it. The plaintiff offered no evidence of any prior falls in the area and the photograph submitted by the plaintiff did not reveal any defects. Furthermore, neither Mr. Todd or Mary Lou Morrissette had any knowledge of other falls in this highly traveled area of the Casino. The plaintiff has not provided sufficient evidence that would demonstrate that there was an unreasonably dangerous condition or that the Mohegan Tribal Gaming Authority had constructive notice of any unreasonably dangerous condition.

The plaintiff also claims that since the defendant created the defect, notice of the defect can be inferred. More specifically, the plaintiff claims that a divot or an uneven surface under the carpet created a defect, and since said surface was created by the defendant, notice is not required. A defect or unreasonably dangerous condition, makes the premises not reasonably safe for the reasonably anticipated uses of the premises. Masterson v. Atherton, 149 Conn. 302, 306, 179 A.2d 592 (1962).

Therefore, the issue before the Court is whether the alleged divot in the carpet constitutes a defect or hazardous condition.

The Affirmative Act Rule applies in situations in which the defendant or its employees created an obviously hazardous condition. DiPietro v. Farmington Sports Arena, LLC., 306 Conn. 107, 123, 49 A.3d 951 (2012). The Supreme Court in DiPietro held that the Affirmative Act Rule, which creates the inference of knowledge where defendants are responsible for creating the allegedly dangerous condition, did not apply because the condition of the carpet did not constitute an obviously hazardous condition. Id. at 961-962.

Similar to DiPietro, there is no evidence in the instant case of an obviously hazardous condition. The alleged defect in the carpet could not have been detected by a reasonable inspection and the photograph of the area does not show any visible defect with the carpet or the floor.

In the instant case, the plaintiff failed to provide any evidence of an unreasonably dangerous or defective condition. Despite the alleged visible defect in the floor there was no evidence of any other trips and falls in this area, which is heavily traveled on a daily basis. If a defect did in fact cause the plaintiff to fall, it certainly was not an obvious hazardous condition.

In an action for damages, predicated upon negligence, the plaintiff has the burden of showing a casual connection between the negligence averted and the injury suffered. Pryor v. Murnane, 82 Conn. 48, 72 A. 571 (1909).

The Court finds that the plaintiff has failed to prove that the conduct of the defendant fell “below the standard established by law for the protection of others against unreasonable risk of injury.” MTC, Section 3-245.

Judgment shall enter for the defendant.

All Citations
--- Am. Tribal Law ----, 2024 WL 1253837

Footnotes
1	See plaintiff’s exhibit P-6.
2	See plaintiff’s exhibit P-7.