2023 WL 4044615 (Mash. Pequot Tribal Ct.)
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Mashantucket Pequot Tribal Court.
MASHANTUCKET PEQUOT GAMING ENTERPRISE
May 16, 2023
MEMORANDUM OF DECISION
Edward B. O’Connell, Judge
On July 28, 2019, Lois Shramek and her husband visited the Mashantucket Pequot Gaming Enterprise’s Foxwoods Resort and Casino. On that day, when leaving the casino, they entered the Rainmaker Garage to return to their vehicle. Very suddenly, Mrs. Shramek tripped and fell on the floor of the garage, sustaining serious injuries to her face, mouth, and teeth. To treat her injuries, Mrs. Shramek sought emergency and long-term medical care from several emergency medical personnel, doctors, dentists, orthopedists, and other medical care providers.
Thereafter, Mrs. Shramek filed this action against the Gaming Enterprise, claiming to have fallen due to a defect on the garage floor. She alleges that a raised expansion joint on the garage floor was a dangerous condition, causing her injuries. She asserts that the Gaming Enterprise knew or should have known of this dangerous condition; that it negligently and carelessly allowed the dangerous condition to exist; and that it failed to take action to remedy the dangerous condition. The Gaming Enterprise denies all Mrs. Shramek’s claims and asserts that her injuries are due to her own carelessness and negligence.
In cases such as this, the plaintiff has the burden of proving by a fair preponderance of the evidence that the defendant owed a duty to safeguard the plaintiff from a dangerous condition; that the defendant breached said duty; that the breach of said duty was the proximate cause of the plaintiff’s injuries; and that the plaintiff suffered actual damages as a result of said breach. Hazard v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 354, 357-58 (2016); Mashantucket Pequot Tribal Nation v. Castellucci & Assoc., Inc., 4 Mash.Rep. 21, 33 (2002).
The Mashantucket Pequot Court of Appeals has repeatedly held that the Gaming Enterprise “is not an insurer of invitees to its facilities.” Malouf v. Mashantucket Pequot Gaming Enterprise, 6 Mash.App. 19, 21 (2014) (citing Senatore v. Mashantucket Pequot Gaming Enterprise, 4 Mash.App. 34, 38 (2006)). “The 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 v. Mashantucket Pequot Gaming Enterprise, 1 Mash.App. 3, 6 (1994). The fact that the plaintiff suffered a serious injury “is not enough for the recovery of damages.” Martello v. Mashantucket Pequot Gaming Enterprise, 1 Mash.App. 34, 35 (1996). On the other hand, if the Gaming Enterprise “failed to comply with the degree of care which would have been exercised by a reasonably prudent casino owner under similar circumstances, a lack of due care – or negligence – would be established on the part of the defendant.” Ng v. Mashantucket Pequot Gaming Enterprise, 2 Mash.Rep. 138 (1997) (Ruffo, supra, at 4).
The required degree of care is that “which would have been exercised by a reasonably prudent casino operator under similar circumstances.” Caruso at 48 (citing Ruffo at 6). When a plaintiff is considered a business visitor, or an invitee, of the defendant, that defendant “owe[s] her the duty to have the premises reasonably safe for her travel and use.” Malouf at 21 (citing Ruffo at 6). This duty of care further requires the defendant to “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.” Malouf at 22 (quoting Martello at 194).
As defined in Mashantucket Pequot (Gaming Enterprise) Tort Claims Law, a “dangerous condition” is a “physical aspect of [the casino] which constitutes an unreasonable risk to human health or safety....” 4 M.P.T.L. ch. 1 § 1(e). The law also provides that a dangerous condition must have been known to exist, or “should have been known to exist” by the Gaming Enterprise. Id. 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.” Id. “For a defect to be considered a ‘dangerous condition’ it must have been proximately caused by the negligent acts or omissions of the Gaming Enterprise....” Id. “A dangerous condition shall not exist solely because the design of any facility is inadequate.” Id.
The defendant’s duty to warn or protect the plaintiff from dangerous conditions is limited to those dangerous conditions of which it has “actual or constructive knowledge.” Malouf at 22 (quoting Martello at 194). The defendant would have constructive knowledge of the condition if it existed for a “length of time sufficient for the defendant’s employees, in the exercise of due care, to discovery [it] in time to have remedied it.” Malouf at 23 (quoting Brown v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 79, 81 (2008)).
Here, the plaintiff must show that, at the time of her fall, the expansion joint was a dangerous condition. The plaintiff must also show that the defendant had at least constructive knowledge of the dangerous condition, that the defendant had time to remedy it, and that it was the proximate cause of her sustained injuries.
With commendable candor, the plaintiff and her husband testified that they did not discover an immediate reason for her fall. After she fell, they were first concerned with her physical well-being and the need to seek treatment for her injuries. The plaintiff did recall that she was walking along the surface of the parking garage, not looking down because she was looking ahead towards where she was going. She recalled that suddenly she stumbled, hit her toe on “something,” and fell forward on her face. Later they returned to view the scene of the accident when the plaintiff had somewhat recovered, and they “saw where the blood was.” The plaintiff saw a raised area of a concrete slab abutting the expansion joint on the concrete floor of the parking garage, and alleges in her complaint that this was a dangerous condition which was created by the defendant and was the proximate cause of her fall and her injuries. Her husband of 68 years, James Shramek, testified in a similar vein.
The defendant responds that there is no evidence that describes the status of the area of the expansion joint at the time the plaintiff fell. It also contends that there is no evidence that the area in question constituted an “unreasonable risk to human health or safety,” 4 M.P.T.L. ch. 1 § 1(e), i.e., a dangerous condition. Lastly, the defendant asserts that even if a dangerous condition existed, there is no evidence that it had actual or constructive knowledge of it.
A security officer who prepared an incident report twelve days after the fall stated that he viewed the surveillance video depicting the event (which was admitted into evidence and viewed by the Court) and identified an “elevated surface.”1
About one year later, while this action was pending, the defendant’s employee, Brian Hunt, after speaking with the plaintiff regarding her memory of the site of her fall, took a photo of an expansion joint on the floor of the parking garage which was admitted into evidence.
In addition to her testimony, the testimony of Mr. Shramek, and the photograph and incident report and a video of the incident, the plaintiff submitted the testimony of Michael Jones, an employee of the defendant working in the Engineering Department.2 The plaintiff did not offer him as an expert witness and was limited to asking him factual questions about how floors at the Gaming Enterprise were constructed. He testified that his work was mainly concerned with repairing “basic stuff” and “simple kinds of repairs” at the Gaming Enterprise. To the extent he testified about floors in general, he observed that the “substrate,” the area “underneath your finished floor,” should be flush. He attempted to explain an expansion joint as “it has material in there that moves in and out. It’s like an accordion.” Mr. Jones also observed, however, that his department does not work on parking garage floors. “That [work] is subbed out to other subcontractors.” Mr. Jones’ expertise was more in the nature of high end carpentry and building maintenance and repair than concrete flooring. Other than his observation that an expansion joint “moves like an accordion,” Mr. Jones’ testimony did not shed much light onto the issue at hand.
Here, the Court has no doubt that the plaintiff fell and was severely injured. The question to be answered, however, is whether the plaintiff was caused to fall by a “dangerous condition” as defined in the Mashantucket Pequot Tort Claims Law, and if it was a dangerous condition, whether the Gaming Enterprise had actual or constructive knowledge of it. The plaintiff asserts that she tripped and fell on the raised surface of a concrete slab connected to another slab by an expansion joint in the concrete floor of a parking garage on the Gaming Enterprise premises, and that this was a dangerous condition of which the defendant knew or should have known. The Gaming Enterprise vigorously contests these allegations, and contends that the plaintiff failed to prove even existed at the time or at the location of the plaintiff’s fall.
The Court heard testimony of the plaintiff and her husband that after she had recovered to some extent from her injuries, they returned to the site where they remembered she had fallen, and saw some blood near a raised expansion joint. They did not, however, attempt to take any measurements of the differential in height of one concrete slab in relation to the other concrete slab, nor did they measure the width of the gap between the slabs. Moreover, they did not orient themselves to certain fixed objects or “landmarks” so they could identify the particular expansion joint in the future.
A year later, security officer Brian Hunt, after this lawsuit had been filed and upon speaking with the plaintiff, went to what he considered was the scene of the accident and photographed a portion of an expansion joint in the defendant’s parking garage. Mr. Hunt was not called as a witness to establish exactly where the photographed expansion joint was, but it was admitted into evidence on the plaintiff’s testimony as to the particulars depicted in the photograph. The plaintiff insisted that the photograph depicted the expansion joint at issue, but could not recollect that it was in the same condition as on the day of the accident.
The security officer who watched the video of the plaintiff’s fall prepared a report stating that the plaintiff fell on a raised expansion joint. He did not testify in person. The Court also watched the video. With eyeglasses, the Court’s vision is as sharp as most persons. The video speaks for itself in this case, and needs no gloss by the security officer, who had no better view than the Court, and who was in no better position to determine the cause of the fall than the Court. The video itself does in fact show the plaintiff’s fall, but does not depict the scene in the detail necessary to determine whether there was a differential in height or a gap between slabs at the site of an expansion joint. The video is of limited assistance in the determination of the critical fact of this case.
As noted previously, the testimony of Mr. Jones was not helpful on the issue of how expansion joints work in concrete floors. While truthful, he recited only a layman’s observation of how an expansion joint works and did not possess the necessary expertise to assist the court.
When considered individually or as a whole, the items of evidence submitted by the plaintiff did not meet her burden to prove by a fair preponderance of the evidence that her trip and fall was caused by a raised slab of concrete at an expansion joint at the defendant’s parking garage. The plaintiff submitted no evidence as to the height of any differential between the surfaces of the cement slabs, or the width of any gap that might have existed between the slabs. It is not certain that Mr. Hunt’s photograph of an expansion joint taken upon the plaintiff’s instructions of its location is a photo of the expansion joint at issue. Moreover, the Court cannot conclude that the expansion joint was in the condition as depicted in the photograph on the day of the accident. The differential in the height of the concrete slabs could have changed from the time of the injury to the time when the photograph was taken. “The Court’s findings cannot be the result of speculation and conjecture.” Green v. Mashantucket Pequot Gaming Enterprise, 1 Mash.Rep. 487, 489, 2 Mash. 93, 94 (1997)(citing Gulycz v. Stop & Shop Cos., 29 Conn.App. 519, 522 A.2d. 1087 (1992)). There is simply no credible evidence to enable the Court to conclude that a concrete slab on either side of an expansion joint was “raised” to a height which would constitute a dangerous condition for patrons who made use of the parking garage.
Regarding the issue of actual notice, there was no evidence to enable the Court to determine that the Gaming Enterprise constructed the parking garage or the expansion joints in such a manner as to constitute a dangerous condition as defined by the Mashantucket Tort Claims Law. To reach such a conclusion, the Court would have had to receive and credit expert evidence.
Regarding the issue of constructive notice, assuming arguendo that there was in fact a “raised” slab constituting a dangerous condition, there was no evidence to enable the Court to determine if and when one or both of the slabs changed in height to a degree that the Gaming Enterprise in the exercise of reasonable care should have taken notice and remedied the condition. As previously noted, the Court cannot base its decision on speculation. Malouf v. Mashantucket Pequot Gaming Enterprise, 6 Mash.App. 19, 24 (2014); Brown v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 79, 81 (2008).
For the above reasons, the Court finds that the plaintiff has not met her burden of proof by a fair preponderance of the evidence that a raised concrete slab existed at an expansion joint at the time of her accident, or if it did exist, that the Gaming Enterprise had actual or constructive knowledge of it.
Judgment may enter for the defendant.
2023 WL 4044615
This aspect of the security officer’s report is of limited probative value, inasmuch as the same surveillance video was admitted into evidence and viewed by the court, which can draw its own conclusions therefrom. See discussion on p. 7.
Mr. Jones identified himself as the Chief Engineer and his job as the Chief Operations Manager.