--- Am. Tribal Law ----, 2023 WL 3916277 (Mohegan Gaming Trial Ct.)
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Mohegan Gaming Disputes Trial Court.
MOHGAN TRIBAL GAMING AUTHORITY
7 G.D.R. 61
June 8, 2023
MEMORANDUM OF DECISION
The Plaintiff, who alleged that a liquid foreign substance on the floor at the Season’s Buffet caused her to fall and sustain numerous injuries, brought this action under the waiver of sovereign immunity contained in the Mohegan Torts Code. The only witnesses were the Plaintiff and the Defendant’s Director of Risk Management, and the evidence included such video evidence as was available. The Gaming Disputes Trial Court found that the vide images were not of sufficient quality to allow a determination of whether the spill of the substance on which the Plaintiff slipped occurred during the twenty-minute period prior to her fall whether the defect resulted from anything carried or pushed by the Defendant’s employees. Judgement entered for the Defendant.
This case arises out of an incident on or about on December 27, 2017 at approximately 4:30 p.m. when the plaintiff Christine Palmer was walking in the Season’s Buffet when she slipped on “a liquid foreign substance” on the ground and fell, thereby sustaining her alleged injuries as a result of claimed negligence by the defendant. (Complaint, No. 100, August 21, 2018, para 5.). The defendant, by way of an Answer and Special Defense denied plaintiff’s allegation for want of knowledge and alleged that the plaintiff’s negligence was the cause of her injuries discussed below (No. 105, February 14, 2019). The court has reviewed the subject trial transcripts and associated Exhibits referenced below.
This matter came before this Court on September 26, 2022 and December 1, 2022 at which time the plaintiff and defendant were ably represented by counsel. Well written briefs were submitted by counsel for the court’s consideration on February 22, 2022 (No. 120, 121). Two witnesses testified: Christine Palmer and Mary Lou Morrissette. In addition, the court received into evidence numerous Exhibits (No. 117).
The plaintiff, now known as Christine Blardo, testified on direct examination that she is an entrepreneur of multiple businesses associated with landscaping and snow removal, and a radio station and related marketing activities, all in or about Connecticut, where she resides with her husband of five years (TR @ 10-12)1. She suffers from fibromyalgia from a 1990’s car accident in her neck, shoulders and back (TR @ 13). She is a self-described health nut with no prior physical limitations before the subject incident (TR @ 14). On the day of the incident, she had checked into her hotel room with plans to eat the Seasons Buffet, which were curtailed when she walked toward the center of the buffet to get a plate and slipped on something she “felt” under her foot and fell to the floor (TR @ 16). She subsequently felt disgusting slimy juice with her hand, which was also present on her legs and knees, occasioned by a slide into the substance. She did not see anything on the floor before her fall. She struck her left shoulder, head, knee and hip, did not see any warning signs and later hobbled in pain back to her table (TR @ 17-18, 22). She was taken by wheelchair to a waiting ambulance with excruciating left knee pain (TR @ 20, 28). She identifies Exhibit P-4 as a video that fairly reflects her fall, found at the 16:20:08 mark (TR @ 25-26). She was taken by ambulance to William W. Backus Hospital for treatment with later treatment at UConn Health Center and other providers, and still suffers from low back, and shoulder pain (TR @ 33-38) as reflected in admitted Exhibits. She saw no wet floor signs or employees posted around the buffet (TR @ 29). She testified as to injuries sustained in the accident and presented medical records in support of her claim (Exhibits P-7, P-7-B–P-7-E, P-8A-P-8G). Her claimed medical bills total $7,971.08 (Exhibit P–8).
On cross examination the plaintiff testified that she did not look at the floor as she walked toward the buffet plates (TR 42-43), which was not her first visit to the buffet that day, and that she advised the security officer that she had injured her left shoulder, upper left arm and knee (TR @ 46). She further testified that despite prior deposition testimony she did not recall what part of her head hit the floor. The referenced video refreshed her recollection that it was the back of her head, although she could not see herself falling in the video (TR 47). She reviewed Exhibit D-E wherein she denied back pain to the attending EMT (TR 49). She denied neck or back pain or striking her head when treating at William W. Backus Hospital and UConn Health Center on December 2017, and December 28, 2017 (TR 51-54, Exhibit P-7C) but did complain of back pain to her chiropractor on January 2, 2018 (TR 57-58). She also treated at Med Care Express on two occasions for treatment she acknowledged was unrelated to the subject incident (TR 60-61).
The plaintiff rested her case in chief and Mary Lou Morrissette, Vice President of Risk Management for Mohegan Sun, testified for the defense. By way of a stipulation (TR2 @ 20-23) her testimony was also considered as part of the plaintiff’s case in chief during plaintiff’s cross-examination of Ms. Morrissette as to the defendant’s procedures in acquiring the 20-minute video (Exhibits P-4, D-D), and for cross-examination. She has served as Director of Risk Management, and Vice President for 24 of her 26 years employed by Mohegan (TR2 @ 24). She testified that a review of records reflected that 248 patrons entered Season’s Buffet from 4-5 p.m. on the day of the incident (TR2 @ 26)2. It was the defendant’s procedure, well known to this court, to save 20 minutes of video prior to the fall (TR2 @ 28).3 The defendant moved for a directed verdict (TR2 @ 37). The court previously reserved decision on the motion and denies same now.
Christine Blardo was called by the defendant in its case in chief. Ms. Blardo performs marketing for a radio station through social media (TR2 @ 39) which contain videos of the plaintiff offered by the defense as “rebuttal evidence” (TR2 @ 44). The various videos and photographs offered by the defense purport to show the plaintiff as engaged in activities which were/are inconsistent with her claims of impairments arising from this incident.4
The plaintiff argues that she has sustained her burden of proof that she sustained injury as a consequence of the defendant’s negligence. The defense argues that the plaintiff has failed to prove her claim and, alternatively, that she is comparatively negligent in causing her own injuries.
The plaintiff has brought a negligence claim. “Negligence means conduct that falls below the standard established by law or custom for the protection of others against unreasonable 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. Where applicable, the rule of actual or constructive notice shall be applied to determine negligence; negligence shall not be deemed to arise from the mode of operation.” Galanos v. Mohegan Tribal Gaming Authority, 7 G.D.R 57, 17 Am. Tribal Law 266 (2023). MTC § 3-245.
The defendant has explicitly waived its inherent sovereign immunity by virtue of MTC § 3-250(b), and its adoption thereof, subject to the limitations on damages found at MTC § 3-251.
The defendant has raised the issue of contributory negligence on the part of the plaintiff pursuant to MTC § 3-251(b).
“Under well-established Mohegan and Connecticut case law, in a slip and fall incident as occurred to the plaintiff herein, the plaintiff bears the burden of proving that the defendant knew or should have known of the defect that caused her fall LaFaive v. DiLoreto, 2 Conn. App. 58, 60, 476 A.2d 626 (1984) .... [T]he defendant has a duty to keep its premises reasonably safe for invitees and a breach of that duty renders the defendant liable for resulting, causally related injuries. Morris v. King Cole Stores, Inc., 132 Conn. 489-494, 45 A.2d 710 (1946).” Tomassetti v. Mohegan Tribal Gaming Authority, 1 G.D.A.P. 118, 17 Am. Tribal Law 260 (2022).
Lastly, “In determining liability where there is no direct evidence as to how long a defect has existed, as described by the Connecticut Supreme Court.” “[T]he controlling question is that of constructive notice: whether the condition had existed for such a length of time that the defendants’ employees should, in the exercise of due care, have discovered it in time to have remedied it.” O’Brien v. H. L. Green Co., 128 Conn. 68, 69, 20 A.2d 411 (1941). Poverman v. Mohegan Tribal Gaming Authority, 6 G.D.R. 6, 14 Am. Tribal Law 84 (2015).” Galanos v. Mohegan Tribal Gaming Authority, 7 G.D.R 57, 17 Am. Tribal Law 266(2023).
FINDINGS OF FACT
The court finds Ms. Blardo and Ms. Morrissette to be credible witnesses. Ms. Blardo’s recollection about certain medical treatment and events seemed impaired by the passage of time and not associated with any deception by her. The court has carefully viewed and re-reviewed the subject videos (Exhibits P-4, and D-D) and concludes, based upon her testimony, that the individual falling at 4:20:08 in the video was likely Ms. Blardo. The court notes that the videos, taken from a distance, do not allow the court to specifically see the individual falling to be Ms. Blardo. Various documents completed by the defendant’s employees confirm the existence of a liquid substance in the area of her fall. See: Exhibits: D-A, D-E, and D-F. Ms. Blardo presented inconsistent testimony as to whether her visit to the buffet bar was her first or second such trip. Regardless, the video shows no evidence of anything spilling on the floor in the area of her fall within the 20-minute video. No evidence has been presented that the defendant knew of the alleged defect prior to her fall. The question before this court is whether the defendant should have known of the alleged defect prior to her fall. The question correctly framed by plaintiff’s counsel in plaintiff’s post-trial brief is whether this matter is more akin to the factual issues presented in Witham v. Mohegan Tribal Gaming Authority, 4 G.D.R. 112, 10 Am. Tribal Law 239 (2011), 1 G.D.A.P. 68, 16 Am. Tribal Law 414 (2011), or Tomassetti. In Tomassetti no evidence was presented other than clear liquid was on the floor at the time of the plaintiff’s fall. Tomassetti v. Mohegan Tribal Gaming Authority, 7 G.D.R. 22, 17 Am. Tribal Law 140 (2021). In Witham, the court found “based upon the evidence in this case that no spill occurred between the times the video commenced and the Plaintiff’s fall in the puddle of syrup and that the spill occurred prior to 10:30 a.m. The Court also finds that the employees who passed the area of the spill should have observed it but were negligent in their duties and failed to do so.” Witham v. Mohegan Tribal Gaming Authority, 1 G.D.A.P. 68, 16 Am. Tribal Law 414 (2011) (emphasis added).” As noted on appeal, “The weight accorded to the video recording by the Trial Court was well within its discretion, and the finding that no spill occurred during the time period recorded was a reasonable interpretation of what was shown by the video recording.” Witham v. Mohegan Tribal Gaming Authority, 1 G.D.A.P. 68, 16 Am. Tribal Law 414 (2011).
In this matter, evidence was presented that the substance was slimy, along with other evidence generally described as mode of operation evidence often found in claims involving buffets, salad bars, produce aisles and the like. See: Kelly v. Stop and Shop, Inc., 281 Conn. 768, 918 A.2d 249 (2007). Unlike courts in Connecticut that have recognized mode of operation claims, MTC § 3-245 specifically precludes such claims.5 Thus, Connecticut law applicable to this court by virtue of MTC §§ 3-151, 3-152 is inapplicable in his instance. This court finds that there is not sufficient evidence found on videos, or through oral and documentary evidence, to establish that the defendant knew of the claimed defect or reasonably should have known of said defect with the confines of MTC § 3-245. See: Footnote 2 incorporated herein as a finding of fact. No evidence was presented as to how long the claimed defect was on the subject floor, and the videos are not of assistance to the court or to the plaintiff, who bears the burden of proof. In short, the claimed defect could have occurred before or shortly after the 20-minute video commenced, or within 20 seconds of the fall.
The plaintiff has failed to prove that the defendant knew or should have known of the claimed defect within a reasonable time before she slipped and sustained her injuries. Accordingly, judgment may enter for the defendant.
--- Am. Tribal Law ----, 2023 WL 3916277
TR = Transcript from September 26, 2022; TR2 = Transcript from December 1, 2022.
There was no testimony as to how many patrons obtained food at the buffet prior to the plaintiff’s fall. The court finds that a review of the video (Exhibit P-4) shows individuals in the area of the plaintiff’s fall prior to her fall and the video, taken from a distance, is not of sufficient quality to allow the court to make any determination as to either the number of patrons traversing the area of the plaintiff’s fall within 20 minutes prior to her fall, or whether anything fell from buffet plates of those patrons, the buffet or any items carried or pushed by employees.
See Miller v. Mohegan Tribal Gaming Authority, 1 G.D.A.P. 39, 6 Am. Tribal Law 487 (2006), Miller v. Mohegan Tribal Gaming Authority, 2 G.D.R. 149, 6 Am. Tribal Law 543 (2005).
The videos and photos were offered by the defendant in its case in chief, not as rebuttal evidence. Rebuttal evidence is that offered by the plaintiff to rebut the defendant’s claims, as opposed to surrebuttal evidence offered thereafter by the defense. See: Connecticut Trial Practice, 7.1 (Yules), Faulkner & Graves, Connecticut Trial Evidence Notebook, and Connecticut Practice Book 15-5. As such, the proffered evidence, intended to be offered in the proponent’s case in chief, should have been disclosed prior to trial in the Trial Management Conference Report (No. 112). The court admitted such evidence in error and accordingly assigns no weight to the erroneously admitted evidence and has not considered same in its decision herein.
See MTC § 3-245, which provides in part: ‘negligence shall not be deemed to arise from the mode of operation.’