2019 WL 1749292 (Mash. Pequot Tribal Ct.)
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Mashantucket Pequot Tribal Court.
DEIDRA M. SCRUGGS
MASHANTUCKET PEQUOT GAMING ENTERPRISE
APRIL 10, 2019
Attorneys and Law Firms
M. Joseph Strafaci, Esq., for the Plaintiff
Edward W. Gasser, Esq., for the Defendant
MEMORANDUM OF DECISION
Thomas J. Londregan, Judge
The plaintiff, Deidra M. Scruggs, filed this one-count claim against the defendant Mashantucket Pequot Gaming Enterprise (“Gaming Enterprise”) on May 15, 2017, alleging that she sustained injuries as a result of the defendant’s negligence. On October 28, 2016, she was in attendance at a concert at the Grand Theater at Foxwoods (“Grand Theater”). As an usher escorted her down a set of portable steps to get to her seat, she fell forward.1 The plaintiff claims that the heel of her shoe became lodged in a gap in the step,2 thereby causing her fall. Videotaped surveillance footage of the incident was introduced at trial.
The essential 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, he or she 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).
A. The Positions of the Parties
Here, the plaintiff alleges that the Gaming Enterprise breached the duty that it owed to her as an invitee of its premises by allowing the dangerous condition of the defective carpet and flooring of the step to exist. She claims that the defendant knew or should have known that such a condition had the potential to cause the type of injuries she suffered when she fell. She further alleges that the inspection policies and procedures that are in effect for the Grand Theater are inadequate. She argues that had the defendant maintained adequate policies, she would not have been injured. Finally, she alleges that, under the doctrine of res ipsa loquitur, the defendant should be held liable for the injuries she sustained while on its premises. The type of harm that befell her would not have occurred if not for the negligence on the part of the defendant.
The defendant acknowledges that it owed a duty to the plaintiff as an invitee of its premises, but denies that it breached said duty. The defendant maintains that no such defect existed on the step on which the plaintiff fell. Because no such defect existed, the defendant claims that any alleged inadequacy of inspection or policy could not have caused the plaintiff injury. Even if the defect had existed, inadequacies in inspection are not a defect ipso facto, and instead are an issue of notice. In regard to the plaintiff’s assertion of res ipsa loquitur, the defendant argues that the doctrine does not apply in the present matter because the mechanism of the plaintiff’s injury (i.e., falling down stairs) could very well occur in the absence of the defendant’s negligence, and because the plaintiff would have no difficulty in proving the alleged defect on the stairs if it had existed.
B. Premise Liability
The Gaming Enterprise owes a duty to invitees like the plaintiff to keep its premises “reasonably safe” and “warn or otherwise protect the plaintiff from any dangerous condition or hazard of which it had actual or constructive knowledge, or which it might reasonably have anticipated.” Lin v. Mashantucket Pequot Gaming Enterprise, 4 Mash.Rep. 393, 396 (2006) (citing Ruffo v. Mashantucket Pequot Gaming Enterprise, 1 Mash.App. 3, 6 (1994)). “[A] dangerous condition should have been known to exist if it is established that the condition has existed for such a period of time and was of such a nature that, in the exercise of reasonable care, such condition and its dangerous character should have been discovered.” 4 M.P.T.L. ch. 1 § 1(e).
C. Discussion of Testimony
Both the plaintiff and her significant other, Mr. Dairwood Vereen, testified at trial that the heel of her shoe became lodged in the stair as she was descending the steps in the Grand Theater. Both witnesses also testified that when she fell, her foot came out of her shoe, and her shoe was stuck in the stair. Mr. Vereen further testified that he removed the shoe from where it had become lodged and indicated during his testimony that about one and a half (1 1/2) inches of the heel of the plaintiff’s shoe had been stuck in the alleged gap.
Dayna Mendolia, the Theater Manager at the Grand Theater and Entertainment Coordinator, also testified at trial. Ms. Mendolia testified that she was present during the October 28, 2016 concert, and that when she was notified of the plaintiff’s fall, she called the Security Department to assist her. Ms. Mendolia also testified that while there are no written policies in place that require her to perform inspections of the Grand Theater before an event is to occur, it is part of her practice to perform a walk-through of the area to inspect it for any safety hazards or concerns. She reported that she did not detect any defects in the stairs when she performed her inspection before the October 28th concert, nor was she informed of any defects by members of her staff.
Theodore Welch, the Executive Director of the defendant’s Engineering Department, was also called as a fact witness during trial. He testified that Engineering does not perform its own inspections of the premises because the department relies on other departments to report any observed hazards or defects to Engineering. Mr. Welch said that he was not aware of any work orders for the area in which the plaintiff had fallen six months prior or in the months after the accident occurred, and testified that the carpet in the Grand Theater is the same carpet that was installed when the theater opened in 2008.
Jack Labombard, the Assistant Manager for Carpet, Tile & Upholstery in the Engineer Department, also provided testimony at trial. He testified as to the construction of the stairs on which the plaintiff fell. He explained that the particular set of stairs (A–N) is portable to allow for additional event space whenever necessary.3 He explained that each step is a separate four-sided “pan,” and that the steps are welded in the corners. Padding is glued into the pan, and then carpet is glued to the padding, which is a process known as double-stick insulation. The carpet is then cut flush with the pan. Mr. Labombard testified that if there had been an issue with buckling in the carpet, he would have been the person to have arranged to have it fixed, or if there was an issue with the pan, he would have worked with the Chief Engineer to figure out the proper solution. He testified that no repairs had been ordered with regard to this issue, and that upon conducting his own inspection, he did not encounter any “gaps” or “buckling.” In fact, when he attempted to wedge a pencil between the metal pan and the edge where the heel of the plaintiff’s shoe allegedly was caught, he could not force the pencil in and his attempt to do so shaved off the eraser.
D. Alternate Theory of Recovery
The plaintiff argues that the doctrine of res ipsa loquitur should apply because “[i]n the typical course of walking, heels of shoes do not get trapped in gaps in stairs but for the negligence of the party in control of that step.” She also claims that she “cannot point towards any specific action of the Defendant which caused her to fall.”
The doctrine of res ipsa loquitur applies only when two prerequisites are satisfied. First, the situation, condition or apparatus causing the injury must be such that in the ordinary course of events no injury would have occurred unless someone had been negligent. Second, at the time of the injury, both inspection and operation must have been in the control of the party charged with neglect.
Hines v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 232, 238 (2009) (quoting Godwin v. Danbury Eye Physicians & Surgeons, P.C., 254 Conn. 131, 140 (2000) (Internal quotation marks omitted.)). “Res ipsa does not apply where an unexplained accident may be attributable to one of several causes. If the evidence shows that the accident might have happened as a result of one of two causes, res ipsa does not apply.” Sebastian v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 429, 433 (2017).
“The Court’s findings cannot be the result of supposition or conjecture, and must be based on the evidence presented.” Bolling v. Mashantucket Pequot Gaming Enterprise, 4 Mash.Rep. 110, 112 (2003). After reviewing the testimony and evidence presented before it, as well as the oral and written arguments of the parties, the Court hereby finds that the defendant did not breach the duty it owed to the plaintiff as an invitee of its premises. The plaintiff has not shown by a preponderance of the evidence that the defendant’s premises—especially on the stairs between rows K–N in the aisle between the Orchestra Right and Orchestra Center sections of the Grand Theater—was in an unsafe condition. As to the claim of a “wobbly” handrail, the Court sees no evidence of the same in the video and notes that no such defect was alleged in the complaint. The plaintiff failed to prove by a preponderance of the evidence that there was a dangerous condition of any sort, whether it was a buckling in the carpet or a gap in the portable steps. The Court’s site visit to the scene of the incident did not reveal the presence of any gaps or buckling of the carpet that could have caught the plaintiff’s shoe, nor did the surveillance footage of the incident suggest that the plaintiff’s shoe had been caught in the stair.4 The footage was ambiguous and unclear as to whether the plaintiff’s foot had come out of her shoe, but even if it had, the footage did not depict Mr. Vereen removing the shoe from where it had allegedly been wedged in the steps. Furthermore, the testimony of Ms. Medolia, Mr
Welch, and Mr. Labombard supported the defendant’s position that no gap or buckling had existed in the area, because there had been no prior or subsequent repairs made to the stairs on which the plaintiff fell.
Without the presence of a dangerous condition, the defendant also cannot be held liable for inadequate inspection practices because there was no condition that the defendant should have discovered. The Court cannot conclude that even having an inspection protocol would have prevented the plaintiff’s fall.
The Court is not persuaded that the doctrine of res ipsa loquitur applies to a fall when one is walking down a staircase and falls. Ordinarily, “[t]he mere fact in and of itself that the plaintiff was injured on the premises does not constitute a lack of due care—or negligence—on the part of the defendant.” Ruffo, 1 Mash.App. at 6. There are many reasons why the plaintiff could have been injured in the manner that she was, including reasons that cannot be considered the fault of the Gaming Enterprise whatsoever. The plaintiff was in control of her movements going down the stairs. A fall down the stairs is not the type of claim that would relieve the plaintiff of the burden of proving negligence.
The plaintiff has not met her burden of proof in establishing that her injuries were the result of the defendant’s negligence. The Court need not address the defendant’s affirmative defenses at this time.
Judgment shall enter in favor of the defendant Mashantucket Pequot Gaming Enterprise.
BY THE COURT,
2019 WL 1749292
The fall occurred in the aisle between the Orchestra Right and Orchestra Center sections between rows K–N.
The operative complaint claims that a gap existed in a buckling of carpet. The plaintiff attempted to introduce an amended version of the complaint which alleged that the gap was between a buckling in the carpet and the metal trim of the stair. At trial, the plaintiff testified as to the latter.
Ms. Medolia also testified to this fact and explained that the portable stairs are typically only moved for event such as boxing events or certain types of concerts.
The plaintiff’s account of how she fell was not believable. If the heel of the plaintiff’s shoe became wedged between the carpet and the metal edge at the end of the step, before it drops down to the next step, there would be no place for the front of her foot to land except on the step below. She would have fallen regardless if something had caught the heel of her shoe because there was no place for the front of her foot to land. As the defendant argues in its brief, the plaintiff’s claim would make more sense if she were walking up the stairs. The Court finds no defect that would have grabbed the heel of the plaintiff’s shoe and force it into a 1-1/2 inch hole as she was descending the stairs.