7 G.D.R 39
EDILBERTA BARRETO
v.
MOHEGAN TRIBAL GAMING AUTHORITY
No. GDTC-T-17-132-FAM
Mohegan Gaming Disputes Court
April 27, 2022
 
MEMORANDUM OF DECISION

MANFREDI, J.

This case was brought pursuant to a complaint dated December 21, 2017. Plaintiff filed a Motion to Amend on November 10, 2021 and Defendant answered and replied to the Amended Complaint on January 19, 2022. The complaint alleges that the plaintiff sustained personal injuries as a result of a fall at the Season's Buffet on January 16, 2017, and the Amended Complaint, in addition to other allegations of negligence, adds Paragraph 10(g) claiming the Defendant "caused the accumulation of water or substance on the floor." Defendant has denied all allegations of negligence and asserted a Special Defense of contributory/comparative negligence by the Plaintiff.

Plaintiff claims that she fell on water or other substance that was on the floor in front of a self-service counter at the buffet and that the defendants knew or in the exercise of reasonable care, should have known of the hazardous and dangerous condition caused by the substance and either negligently caused it to be on the floor or failed to correct or remedy it.

This matter was tried to the court on November 9, 2021 and trial briefs were submitted by the parties on January 20, 2022.

DISCUSSION:

This case is brought pursuant to the Mohegan Torts Code, Article IV of the Mohegan Tribe of Indians Code. Under the Code, 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."

Although the Code has defined negligence, it also has pursuant to Section 3-52 determined that the law to be applied by this court is the law set forth in the Mohegan Tribal Ordinances or Regulations, the Connecticut General Statutes, and; the Connecticut common law, insofar as the state laws and cases do not conflict with any Mohegan Tribal law.

This case is what is ordinarily termed as a matter of premises liability. Premises liability is concerned with the circumstances under which the possessor of land or "premises" will be held liable for damages to persons who are on or using the premises.

The law of premises liability as developed in Connecticut has been adopted by this Court, except for the mode of operation as noted above. Generally, the liability hinges upon the status of the person on the premises, i.e, is the person an invitee, licensee, or a trespasser. Here, it is clear that the Plaintiff is an invitee. An invitee is "[a] person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land." Restatement of the Law 2d, Torts, Section 332(3). In discussing premises liability this Court has stated:

"As noted in Connecticut Law of Torts, 3rd Ed., Wright, et al., Section 49, the possessor of the land owes a duty to invitees to inspect the premises and is liable for defects which would be discovered by a reasonable inspection. However, "even an invitee must show that the defect has been present for a sufficient period of time so that the land possessor has had the opportunity to discover it."

This court has had several occasions to interpret and apply the doctrine of constructive notice in the past.... In orderto successfully prosecute a claim such as the Plaintiff's there must be more evidence than the mere presence of a foreign substance on the floor. There must be some evidence to conclude that the object or substance had been on the floor for a "sufficient period of time so that the land possessor had the opportunity to discover it." Schiff v. Mohegan Tribal Gaming Authority, 2 G.D.R. 117 (2005) (internal citations omitted).

FINDINGS OF FACT:

The Plaintiff and her husband are both retired and prior to this incident had been regulars at both Foxwoods and Mohegan Sun Casinos since they opened but would go to the Mohegan Sun more than Foxwoods. They would play slots and frequent the casino restaurants including the Seasons Buffet. They would visit the casinos once or twice per week and at the time of trial were still regular customers at the casinos.

On January 16, 2017, the Plaintiff and her husband had arrived at the Mohegan Sun at approximately 11:00 A.M. to play slots. Around 2:00 P.M., they went to the Seasons Buffet to eat. Based on the time records of the Video Surveillance records admitted into evidence as Plaintiff's Exhibit 6 and Defendant's Exhibit E, it appears that the actual incident occurred at approximately 2:03 P.M.

Plaintiff testified that they paid for the buffet, were seated and ordered non-alcoholic drinks. Customers must order drinks from a server as there are no drinks in the buffet line. Plaintiff then got up, got a plate and went to the buffet line for Sushi. She got some Sushi, was holding her plate in her right hand, and was walking back to her table when slipped and fell. She held onto her plate to keep it from hitting her in the face. Prior to the incident, she noticed an employee putting dishes out on the patron's side of the buffet line, unloading the dishes from a cart. When she fell the employee was 4-5 feet from her right side.

After falling, another patron helped her up. She felt dizzy, was trembling and held onto the counter. An employee moved the dish cart over the area where she fell. Afterwards she noticed that her "butt" was wet but she did not see any water before she fell. She testified that she saw water after she fell. She was wearing pants and shoes with a wedge heel. She told a supervisor who came to investigate that she slipped in water.

The surveillance video noted above was played for the court during Plaintiff's testimony and during cross-examination. The court has also carefully reviewed this video in the process of reviewing evidence for its decision herein.

The video viewed by the Court appears to be taken from a camera from above and behind the serving area of the Season's Buffet. It shows a more or less, u-shaped aisle which appears to be some sort of tile flooring. The flooring is a light tan color and the aisle appears to be 8 to 10 feet wide although this is just an estimate based upon the video. The serving area runs parallel to the aisle and appears to be a case or shelf which the food choices are set on and there is a clear barrier over the food which allows the customer to see the food and apparently to protect the food from debris or contamination.

The view of the aisle on the video is unobstructed and the floor is clearly visible throughout the period of the recording. The video recording viewed by the Court started at approximately 1:43 P.M. on the date of the incident and was viewed through 2:05:10 P.M. The fall occurred at approximately 2:03:24 P.M. The court viewed this recording several times. Focusing on the area where the fall occurred the court was unable to see any substance at all on the floor prior to the fall. There was a constant stream of foot traffic over the floor and the very spot where Plaintiff fell, right up to the moments before the incident. No one walking through that area slipped, looked down or appeared to have any difficulty passing over the location of the incident.

At 1:53:16 P.M. an employee with a dust pan and broom is seen in the area but there is nothing visible on the floor. This employee or another with a broom and dust pan are seen in the area again at 1:55:24 P.M., 2:00:06 P.M., 2:00:39 P.M., 2:01:38 P.M., and 2:01:47 P.M. Again, there is no substance visible on the floor at any of these times.

At 2:02:16 P.M. an employee with a dish caddy is seen in the lower left portion of the video unloading dishes into the buffet shelves. There is nothing visible coming off the dishes or trailing the dish caddy. The employee proceeds with the dish caddy to the upper right portion of the aisle with nothing visible trailing or falling from the dishes or the dish caddy. During this time there is still a constant flow of foot traffic through the area and directly behind the dish caddy. No one appears to have any difficulty walking and no one looks down or appears to slip or slide in any fashion. A woman in yellow walks directly behind the dish caddy with no issues and almost immediately thereafter the Plaintiff walks in the same spot. The Plaintiff's left leg slides forward and she falls onto her left side holding her buffet plate in her right hand.

An employee appears to take the dish from Plaintiff and a bystander assists her. After the slip, another woman appears in the video and walks through the same area with no visible reaction or looking down.

The bystander who assisted the Plaintiff moves his right foot around the area of the slip and the employee with the caddy moves the caddy over that area. Another employee arrives at approximately 2:05:10 P.M. and appears to mop the area with a rag and a broom. During this time there are still other patrons walking through the area without difficulty.

DISCUSSION:

The Plaintiff's Amended Complaint alleges negligence on the part of Defendant in various ways including: permitting an accumulation of a foreign wet and slippery substance to remain on the floor for an unreasonably long period of time without cleaning; failure to properly maintain and inspect the premises; failure to post adequate warnings of a dangerous condition; failure to provide adequate and proper personnel and equipment to inspect and maintain the floor; failure to provide adequate and proper training with regard to inspection and maintenance; failure to mop and clean the floor; causing the accumulation of water or substance on the floor.

Although Kelly v. Stop and Shop, Inc., 281 Conn. 786, 918 A.2d 249 (2007) adopted a "mode of operation" standard for Connecticut which has been explicitly rejected by the Mohegan Code, it does otherwise set out the tests for premises liability:

''Typically, [f]or [a] plaintiff to recover for the breach of a duty owed to [him] as [a business] invitee, it [is] incumbent upon [him] to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused [his injury] or constructive notice of it. . . . [T]he notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it . . . In the absence of allegations and proof of any facts that would give rise to an enhanced duty . . . [a] defendant is held to the duty of protecting its business invitees from known, foreseeable dangers.'' (Citations omitted; internal quotation marks omitted.) Id. at 281 Conn. at 794.

The evidence establishes that Plaintiff was an invitee as she was at the Casino and Season's Buffet for a purpose directly related to Defendant's business dealings. The Defendant, therefore, owed a duty to inspect and would be liable for defects which a reasonable inspection should reveal.

It is "hornbook" law that the Plaintiff, in a civil case, has the burden of persuasion meaning that the Plaintiff must produce sufficient evidence to satisfy the trier of facts of the existence of facts constituting the essential elements of his or her claim and:

"When the evidence is equally balanced or in equipoise, then the proponent has not met his or her burden of persuasion. Brodie v. ConnecticutCo., 87 Conn 363, 364, 87 A 798 (1913). A party has not met the burden of persuasion merely because the evidence is uncontested or uncontroverted because the trier, as the judge of credibility, may disbelieve such evidence. Mercer v. Mercer, 131 Conn 352, 353, 39 A.2d 879 (1944)." Handbook of Connecticut Evidence, 4th Edition, Tait and Prescott, Section 3.5.1, Page 118.

As noted, Plaintiff has set out several allegations of negligence. The Court finds that in connection with the allegations relating to warnings, personnel, equipment and training, no evidence was introduced concerning such matters and therefore, those allegations are found in favor of the Defendant. The remaining allegations include the accumulation of a foreign substance for an unreasonably long time, failure to maintain and inspect, failure to properly mop and clean, and causing the accumulation of water or substance on the floor.

In regard to a failure to maintain or inspect, mop or clean, there was no evidence from which the Court can determine what the proper inspection, maintenance, mopping or cleaning procedures should be. No one testified regarding any industry standards as to what types of inspections are reasonable, how to "properly" mop or clean, or how often any inspections should be made. The Court was able however, to determine from viewing the video that maintenance employees were in the area and viewing the area several times during the 20 minutes of video review. The Court cannot conclude that the Defendant failed to properly or reasonably inspect the premises based on these observations. The same employees were noted to sweep in the same areas during this time and the court cannot conclude that they somehow failed in their maintenance duties, especially in view of the fact that no evidence of what those duties entail was submitted to the court.

As noted in its review of the video, the Court did not observe any wet or foreign substance in the area of the fall (or any other area) during the period of time recorded. Moreover, during the constant flow of foot traffic through the very area where Plaintiff fell, no other person or employee appeared to notice any wet or foreign substance on the floor or have any difficulty in transiting that area.

The Court does not dispute that the Plaintiff slipped and fell and that following the incident that her "butt" was wet as she testified. However, as noted, the court cannot, based on the video evidence conclude that whatever was on the floor was there for any period of time such that Defendant should have known of it, or that Defendant had any actual knowledge of it in time to take any steps to remedy it.

The only other allegation of negligence remaining is that the Defendant caused the accumulation of water or substance on the floor. Of course, even if the Court could conclude that the Defendant caused the accumulation as alleged, it must also be shown that it was done negligently or carelessly. The Plaintiff has posited that the water or substance came from the dish caddy which was moved through the area. This may be the case but the Court cannot find, based on a preponderance of the evidence that this is so. Any such conclusion would be speculation. There was nothing visible dripping or emanating in any way from the dish caddy in the video, at any time prior to the incident. The testimony of Mr. Pepin established that the process by which the dishes are cleaned and dried makes it very unlikely that there would be anything on them which could escape from the caddy and fall to the floor. The dishes are rinsed and washed at a high temperature, then blown dry, stacked, and allowed to sit and cool before being moved to the floor.

CONCLUSION:

Based on the evidence presented, the court is unable to conclude that the Plaintiff was injured as a result of a defect in the premises which existed for a period of time sufficient for the Defendant to have known of it and taken actions to correct it or that the Defendant had any actual knowledge of it in time to act to prevent the incident, and, as just noted, the Court finds there is insufficient evidence to conclude that the Defendant caused the accumulation of water or other substance on the floor.

Therefore, the court finds that the Plaintiff has failed in her burden of proof and directs that judgment enter on behalf of the Defendant and against the Plaintiff.