--- Am. Tribal Law ----, 2024 WL 1253851 (Mohegan Gaming Trial Ct.)
Only the Westlaw citation is currently available.
Mohegan Gaming Disputes Trial Court.
 
Delores JARDINE
v.
MOHEGAN TRIBAL GAMING AUTHORITY
 
7 G.D.R 94
|
GDTC-T-16-115-FAM
|
March 18, 2024

 

MEMORANDUM OF DECISION

Manfredi, J.

SUMMARY

The Plaintiff sought damages under the Mohegan Torts Code for injuries sustained when she slipped and fell on wet pavement while attempting to enter the passenger side of her car which had been brought to her by the Defendant’s valet parking attendant. The evidence established that her vehicle had been brought to a covered portion of the valet parking area, which was nevertheless wet, and that she fell attempting to step over a puddle. The Gaming Disputes Trial Court, Manfredi, J., held that the evidence failed to establish that the wet pavement created an unreasonable risk of harm to the Plaintiff, and rendered judgment for the Defendant.

This matter was tried before the Court on October 12, 2024. It arises out of an incident which occurred on August 11, 2015 when the Plaintiff fell while attempting to get into her daughter’s car which was located in the Sky Valet drop-off and pick-up area of the Mohegan Sun Casino.

The action was commenced by complaint dated August 1, 2016 with a return date of September 6, 2016. The Plaintiff has alleged she was injured in the fall referred to above due to the negligence of the Defendant, its agents, servants or employees. Specifically, Plaintiff claims:

“(a) the valet driver parked the vehicle in an area that was exposed to the rain and inclement weather, which required the Plaintiff, who was utilizing a walker, to walk through wet and slippery pavement to enter said vehicle; although he knew or should have known that it presented an unreasonable and dangerous risk that the plaintiff might slip and fall;

(b) the valet driver failed to warn the plaintiff of the dangerous condition;

(c) the valet driver failed to move the vehicle to an area which was not wet and/or slippery;

(d) it failed to provide adequate and proper personnel; and

(e) they failed to provide for the adequate and proper training and supervision of their agents, servants and /or employees;

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, but her testimony was presented via the transcript of her deposition which was taken via “Zoom” on July 19, 2022. The Court finds the following as the facts established by the evidence in this matter. Plaintiff was travelling with her daughter Jeri Freedman and a friend Gloria Covino on August 11, 2015. They had arrived via car around 11:00 a.m. and were leaving around 2:00 p.m. The Plaintiff used a scooter to get between the car and the casino and back due to previous medical issues. When leaving, she drove the scooter across the parking lot to where the car was parked. Plaintiff drove the scooter up to the passenger door of the vehicle so she could step from the scooter into the car but couldn’t reach the car without stepping on the ground. She tried to step over a puddle of water but could not reach the car and that is when she fell. She knew it was raining that day and that the car was not parked under the overhang in the valet area, and she was getting soaked from the rain. Plaintiff could not recognize the exact area where the car was parked on the way out, based on photo exhibits.

Jeri Freedman did not see her mother fall but she was holding some sweaters and putting things in the back seat of the car when her mother fell. She heard Gloria say that her mother had fallen. Additionally, Ms. Freedman knew that it was raining that day, the pavement was wet and puddled and that the car was not parked under the protected canopy in the valet area.

According to Jose Cabrera, the Valet Department Manager, there are no written policies regarding where to park cars, when or how to render assistance to clients with canes or scooters, and the valet training is essentially hands on. There are four or five entry lanes to the Sky Valet parking area, and three exit lanes. Even the covered areas get wet from car traffic and wind-blown rain on rainy days.

A site view of the Sky Valet parking area was conducted by the court following testimony. The site view, photo exhibits, and testimony establish that the Plaintiff’s vehicle was parked in the second lane for exiting vehicles and would have been fully covered.

 

DISCUSSION

This 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, Section 3-52 of the Code sets forth the substantive law of the Court to be the Tribal Ordinances and regulations; the General Statutes of the State of Connecticut; and, the common law of the State of Connecticut, except to the extent that such statutes or common law is in conflict with Mohegan Tribal Law.

The Plaintiff’s claim is clearly a “tort” claim asserting negligence in connection with its valet operations, and as noted above specifically that the valet driver parked plaintiff’s vehicle where it was exposed to rain and inclement weather; that the valet driver failed to move the vehicle to area that wasn’t wet an slippery; he failed to warn of the dangerous condition; that the Defendant failed to provide adequate and proper personnel; and, that it failed to provide adequate and proper training.

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.

When there is no legislative enactment, administrative regulation, or judicial decision establishing the standard of conduct against which the Defendant’s conduct is to measured in a particular case, then the standard is determined as “applied to the facts of the case by the trial judge or the jury ...” Restatement of the Law, Second, Torts 2d, Vol. 2, Sec. 285.

Here, the Court is unaware of any legislation, regulation or prior judicial decision which would establish a standard of conduct under the circumstances of this case. Therefore, the Court must make that determination here. There was no evidence presented as to any industry standard concerning the training for valets or any common practices for valets in circumstances presented here.

The facts, as found by the court above need to be analyzed to determine what standard the Defendant is to be held to here, and whether or not the Defendant’s conduct deviated from that standard.

What is clear is that Defendant had a valet service available to its patrons and that there was an area known as the Sky Valet where patrons can drop off the cars when arriving at the Casino and then retrieve their vehicles in the same area when leaving. There was no testimony regarding the actual process a patron would go through to either pick up or drop of their vehicle. However, Mr. Cabrera did testify that valets do not offer assistance such as offering an umbrella or relocating a car unless asked by a patron.

It is clear that Plaintiff was an invitee as she was on the premises as a patron of the Defendant. See: Restatement of the Law, Second, Torts 2d, Vol. 2, Sec. 332.

“A possessor of land may be subject to liability to an invitee if he knows or should know of a condition that poses an unreasonable risk of harm, should expect that an invitee will not discover or realize the danger, and fails to exercise reasonable care to protect against the danger. ...” Restatement of the Law, Second, Torts 2d, Vol. 2, Sec. 343.

Here, the facts do not establish that any condition of the property or any conduct of the Defendant constituted or created an unreasonable risk of harm to the Plaintiff. The valet parking was wet from rain. It is a partially covered area and even under the covered area, rain makes the driving surface wet and can create puddles. The Court finds that a wet, paved area is not an unreasonably dangerous condition which requires any extra duty of care to patrons. It is an open and obvious condition which requires no warnings. Wet pavement is far different from pavement covered by snow or ice which is inherently slippery and may require special treatment to create a safe surface, or even warnings where the ice may not be clearly visible. No such conditions existed here—only wet pavement due to rain. This court is not willing to conclude that a wet surface caused by ongoing rain constitutes an unreasonably dangerous condition or imposes any special duty upon the Defendant.

Further, the Court finds no evidence that a valet service has a duty to provide umbrellas or escort patrons to and from their vehicles, or that it is customary for valet service to do so. A wet surface does not present an unreasonably dangerous condition for one walking or for one in a wheelchair. There was no evidence presented that a scooter such as the Plaintiff used would be dangerous on a wet surface. Likewise, there was no evidence presented that an escort could have prevented Plaintiff from falling while getting off the scooter or that such a service is customarily provided by valet services. Nor can the court conclude that a reasonable valet service would provide such service under these circumstances.

Under the circumstances, there is simply insufficient evidence from which the Court could conclude that the Defendant failed in any duty owed to the Plaintiff.

Judgment may enter for the Defendant.

All Citations
--- Am. Tribal Law ----, 2024 WL 1253851