6 Mash.Rep. 429, 2017 WL 3441178 (Mash. Pequot Tribal Ct.)
Mashantucket Pequot Tribal Court.
MASHANTUCKET PEQUOT GAMING ENTERPRISE, et al.
July 17, 2017.
Attorneys and Law Firms
M. John Strafaci, Esq., for the Plaintiff.
Edward W. Gasser, Esq., for the Defendant.
MEMORANDUM OF DECISION
THOMAS J. LONDREGAN, Judge.
In this matter, which arises from a unique set of facts, the parties were ably represented by Counsel. The Plaintiff, Jessica Sebastian, brings this action against the Mashantucket Pequot Gaming Enterprise and the Mashantucket Pequot Tribal Nation for injuries she sustained while a guest at the Two Trees Inn. The Inn is owned and operated by the Mashantucket Pequot Tribal Nation. She alleges that she was in her room when a large *431 picture fell off the wall behind the sofa. It hit her on the head causing her to sustain injuries. The Plaintiff alleged that the Defendants were negligent in that they: failed to properly secure the picture to the wall, thereby leaving it loose and likely to fall; failed to warn the Plaintiff; failed to make proper and reasonable inspections of the room to identify the “unreasonably dangerous condition;” and failed to properly train and supervise the employees to maintain and inspect the rooms of the Inn.
The Plaintiff testified that she was staying at Two Trees in a two-room suite with her son and other family members. At the time of the incident, about 3:35 p.m., the living room in the suite was occupied by the Plaintiff, her three-year-old son, John DeCou, and cousin, Debra Flowers. John’s father, Blair DeCou, was sleeping in the bedroom, and the Plaintiff’s daughter, April, was in the bathroom. The picture hung above the sofa in the living room. The Plaintiff testified that her son, John, was running around the room as a typical three-year-old boy would do. Concerned that John would wake up Blair who was asleep in the next room, the Plaintiff told John to sit on the couch and bent down to talk to him. Debra Flowers was also sitting on the couch. It was at this time that the Plaintiff noticed Debra Flowers holding up her hand as the picture fell on the Plaintiff. The picture hit the Plaintiff squarely on the top of her head and she was unable to push it off. Her son then went into the bedroom to get his father, Blair DeCou, who was able to lift the picture off the Plaintiff. The Plaintiff testified that the picture weighed “like a ton” and she couldn’t lift it up.
Blair DeCou testified that after his son ran in and said that the Plaintiff and Debra Flowers needed help, he went into the room and saw both Debra Flowers and the Plaintiff holding the picture over their heads. He raised it up so they could escape, and then took it off the wall and set it on the sofa. He noticed that the bottom part of the picture was attached to the wall, but not the top. Only the Plaintiff, her son John, and her cousin Debra Flowers were in the room when the picture fell. The Plaintiff testified that nobody in the room pulled the picture or did anything to it before the incident.
The Defendant called Kyle Satoh–Platz who is employed by Foxwoods Security. He investigated whether or not any similar incidents had ever occurred on any of the Gaming Enterprise’s properties and testified that there have been no incident reports in the past of something like a picture falling off a wall. He acknowledged that the database he checked only contained incident reports that were made known to the Gaming Enterprise. The report for this incident concluded that the Defendants were “unable to determine why the picture fell.”
The Defendants also called Ted Welch who is the Director of Engineering & Technical Services for the Gaming Enterprise. He has been familiar with the maintenance of the gaming facilities for eight years. He explained to the Court how the picture is hung on the wall, going into great detail about the hardware pieces that are used on the wall and on the back of the picture. In order to prevent theft, the bottom of the picture is attached to the wall with a locking device. A special tool is needed to loosen the lock to take the bottom of the picture off the wall.
The essential elements of a cause of action in negligence are well established. The plaintiff must show that: (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty of care; (3) the defendant’s negligent acts *432 constituted both the factual and proximate cause of the plaintiff’s injuries; and (4) the plaintiff suffered actual damages. See Celentano v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 189, 192 (2014) (citing Mashantucket Pequot Tribal Nation v. Castellucci & Assoc., Inc., 4 Mash.Rep. 21, 5 Mash. 227 (2002)). The Court does not have to solve the mystery of what caused the picture to fall off the wall. No such burden is on the Court. Rather, it is the Plaintiff’s burden to prove the elements of negligence by a preponderance of the evidence. To do so, the Plaintiff must satisfy the Court that it is more probable than not that the Defendant Gaming Enterprise was the cause for the Plaintiff’s injuries. See Neang v. Mashantucket Pequot Gaming Enterprise, 3 Mash.Rep. 253, 256, 4 Mash. 136 (2000).
While the Plaintiff may have met her burden of production, that is, presenting a prima facie case, she failed in her burden of persuasion, that is, convincing the Court of her claim by a preponderance of the evidence. She argues that it is self-evident that a large, heavy, framed picture should not fall off the wall unless it was either improperly hung on the wall or a person intentionally pulled it from the wall. The Plaintiff admits that just before the picture fell, the Plaintiff’s son had been running around and jumping on the couch. The Plaintiff further admits that her son, John, may have bumped the picture when he got up on the couch. However, when the picture fell he was seated on the couch with his mother facing him and bending down towards him to admonish him for running around making noise while his father was trying to rest in the other room. Mr. DeCou testified that when he came from the bedroom to lift the picture off the Plaintiff and Ms. Flowers, it was still attached at its bottom to the wall. The Plaintiff’s theory is that the picture fell from the top and the weight of the picture caused the bottom to come loose.
The top of the picture has two brackets which appear not to be damaged. These two brackets interlock with the wall brackets, and when the bottom of the picture is secured to the wall the picture should not be able to be moved. The bottom bracket appears to be damaged and the photographs of the wall, after the picture was removed, show damage to the bottom area of the wall where the picture was attached with the interlocking device. The Plaintiff suggests that the bottom lock was pulled out of the wall by the force of the picture falling from the top down. This is difficult because the brackets on the wall are placed under and through the brackets on the back of the picture. The picture, when installed, is raised above the brackets on the wall and then lowered so that the bracket on the wall slides under the bracket on the back of the picture. The picture rests on the wall bracket. The Plaintiff’s theory is that the picture was not properly hung in that wall brackets were not properly inserted into the brackets at the top of the picture. This allowed the top of the picture to eventually come loose and fall. How long the picture was on the wall without the top bracket secured is anybody’s guess. The rooms were renovated years ago, so conceivably the picture was fastened only at the bottom by its locking device for a long period of time and simply fell forward when the Plaintiff was bending down talking to her son. The Plaintiff contends that in the ordinary course of events this incident would not occur unless the employees failed to hang the picture properly. Thus, the Plaintiff argues the doctrine of res ipsa loquitur. The Defendant defends this case by claiming the Plaintiff cannot sustain her burden of proof as to how the picture fell, and in the alternative, someone in the room at the time pulled the picture off the wall.
The doctrine of res ipsa loquitur has been summarized as follows: “Where it is sure that the thing or instrumentality that has caused the injury complained of was under the control or management of the defendant and that the occurrence resulting in the injury was such as in the ordinary course of things would not happen if those who had its control or management used proper care, there is sufficient evidence, or as sometimes stated, reasonable evidence in the absence of explanation by the defendant, that the injury arose from or was caused by the defendant’s want of care.” McDonald v. Mashantucket Pequot Gaming Enterprise, 2 Mash.Rep. 157, 159, 2 Mash. 200 (1997), aff’d 2 Mash.App. 7, 1 MPR 45 (1998). “Res ipsa loquitur is not a doctrine imposing strict liability. Rather, the [doctrine] allows the court to infer negligence based on the circumstances of the incident even though no direct evidence of negligence has been introduced.” Kelleher v. MPGE, 4 Mash.Rep. 511, 513 (2007) (citations and quotation marks omitted). Although the doctrine permits an inference of negligence, it does not compel such an inference. See Digirolamo v. Otis Elevator Co., MPTC–CV–PI–2014–119, 6 Mash.Rep. 381, 384, 2016 WL 1614171 at *2 (Tribal Ct. Apr. 1, 2016). “The doctrine has no evidential force, does not shift the burden of proof and does not give rise to a presumption.” Id. “The doctrine of res ipsa loquitur is a rule of common sense and not a rule of law which dispenses with proof of negligence.” Id.
Moreover, res ipsa loquitur is merely an alternative method of proving negligence, and is not a separate legal theory of recovery. Negligence cannot be presumed. It must be proved by a preponderance of the evidence. Res ipsa loquitur is a doctrine which means “the thing speaks for itself.” See 57B AM.JUR.2D Negligence § 1163 (2017) (the belief is that some events ordinarily do not occur in the absence of negligence). While, the doctrine permits an inference of negligence on the part of the defendant, it does not permit the imposition of liability without fault. See 57B AM.JUR.2D Negligence § 1187 (2017) (“Doctrine of Strict or Absolute Liability”). The res ipsa loquitur rule only gets the Plaintiff to a prima facie case of negligence. The Plaintiff still has the burden to prove the negligence of the Defendant was more probable than not for the cause of her injuries. A party who relies on res ipsa loquitur must establish facts from which the trier can draw a conclusion that the alleged wrongdoer was negligent, and in that manner cause the accident and the resulting injuries. 57B AM.JUR.2D Negligence § 1199 (2017) (Defendant’s Negligence).
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. Here either someone took the picture off the wall, Plaintiff’s son bumped the picture so as to unfasten the top brackets, or the two top brackets were improperly hung and, as a result, the picture fell forward. The Plaintiff has the burden of proof as to how the incident occurred. Relying on res ipsa, the Court is not persuaded that the improper hanging of the picture was the only possible cause of this incident.
The evidence adduced at trial shows the brackets on the back of the picture and the brackets in the wall not to be damaged. Therefore, even if the picture was not properly connected at the top, the evidence was clear that it was certainly secured with a locking device at the bottom, in the middle of the bottom frame of the picture. This one attachment was a “rod” into the *434 wall with a locking device. It would have acted like a fulcrum if the top of the picture slid along the wall either clockwise or counterclockwise as it fell. Likewise the picture could have fallen forward off the wall. Regardless of which way the picture fell, the res ipsa loquitur rule requires evidence which would indicate at least a probability that the picture falling forward off the wall was caused by the Defendant. This is where the Plaintiff’s case fails.
Liability may be imposed on the Defendant if in the exercise of reasonable care the Defendant could have or should have discovered by inspection a dangerous condition that subsequently caused injury to the Plaintiff. The Court doubts any defect in the picture not being attached at the top could have been discovered by an inspection. The picture would have hung on the wall the same way whether or not the top two brackets were interlocked. Therefore, if the defect was a concealed one and could not have been discovered, the Defendant could not have warned the Plaintiff. It follows that if the defect was a concealed one, which could not have been discovered by an inspection, there could be no negligence on the part of the Defendant.
The Plaintiff has not proved by a preponderance of the evidence that the Defendant was negligent in hanging the picture on the wall. The Plaintiff has not convinced the Court that it was more probable than not that the picture fell forward as a result of it being improperly hung on the wall by the Defendant.1
Therefore judgment is rendered in favor of the Defendant.
6 Mash.Rep. 429, 2017 WL 3441178
Because the Court is not persuaded of the Defendant’s negligence, it does not reach the issue of whether the Plaintiff’s injuries resulted from being hit by the picture. The Plaintiff’s Objection to the Defendant’s Trial Brief, filed on May 30, 2015, is therefore moot and the Court does not address it.