--- Am. Tribal Law ----, 2022 WL 4102845 (Mohegan Gaming Trial Ct.), 7 G.D.R. 51
Mohegan Gaming Disputes Trial Court.
 
Andre COLLINS
v.
MOHEGAN TRIBAL GAMING AUTHORITY, et al.
GDTC-T-19-122-FAM
|
SEPTEMBER 1, 2022

 

MEMORANDUM OF DECISION

Manfredi, J.

This case was brought pursuant to a complaint dated August 8, 2019. Plaintiff filed a Request to Amend on May 14, 2020. No objection was filed in response and therefore the Amended Complaint was deemed to have been filed by consent pursuant to MRCP Section 27 b.3. The essence of the Plaintiff’s Complaint is that on December 30, 2018 he was eating a meal at Bobby’s Burger Palace, a restaurant located in the Mohegan Sun Casino, which was owned, operated and controlled by the Defendant when he “was caused to eat pieces of an unidentified foreign object that was imbedded in his food.”

The Complaint alleges negligence by the Defendant in several respects, including: Defendant failed to remedy the unsafe meal, which it either created, knew existed, and/or should have discovered with reasonable inspection; it failed to warn the Plaintiff of the foreign object; it failed to provide proper food handling inspection; it failed to prepare and serve food free of foreign objects; and, it failed to take reasonable precautions to protect invitees from harm.

Defendant’s Answer to the Complaint admitted Defendant’s ownership and operation of the Casino and the restaurant and either denied the remaining allegations of the Complaint or left the Plaintiff to his proof. Additionally, the Defendant filed four Special Defenses: failure to mitigate damages; lack of notice of the conditions causing the injuries; the injuries were not attributable to Defendant’s conduct or omissions; and the defect was an open and obvious condition.

The matter was tried to the court on April 26, 2022.

 

DISCUSSION:

At trial the Plaintiff presented testimony from Heather Holness, the Plaintiff, and Scott Sjoquist. Mr. Sjoquist was also called by the Defense as one of its witnesses. Krystal Shaw also testified for the Defense.

The testimony is summarized as follows.

Heather Holness had dated Mr. Collin’s in the past, but their relationship ended in 2019. On December 30, 2018 Ms. Holness and Mr. Collins were returning to Boston after attending a funeral in southeast Connecticut. They stopped at the Mohegan Sun Casino to eat and went to Bobby Flay’s. She had never been there before.

She ordered a burger and Mr. Collins ordered a salad. While Mr. Collins was eating his salad she noticed he spit something out of his mouth. Ms. Holness took the object which appeared to her to be plastic and took a photo of it. The photo was entered into evidence as Plaintiff’s Exhibit A. Plaintiff’s Exhibit B is another photo she took of the salad.

They called their waiter over and explained what had happened. Ms. Holness also testified that they left the Casino soon thereafter and headed home to Boston. Mr. Collins was not feeling well and was throwing up. The next day he went to the emergency room and she met him there. Over the next couple of weeks Mr. Collins was not feeling well and had trouble keeping food down. She had no recollection of any stomach issues prior to this event.

During cross examination, Ms. Holness indicated she did not recall the day of the week or time that the incident occurred. After leaving the casino they returned to Boston where her car was parked as she has a place in Barnstable, Massachusetts. It was her best recollection that they went to Boston first then to Barnstable.

She stated that Mr. Collins had spit the object into a napkin, and that she had taken a picture of the receipt for the meal.

Mr. Collins had vomited in a bag while in the car on their way back to Boston and had also vomited at home after his Emergency Room visit.

She indicated she had not discussed the case with Mr. Collins and again stated that she went to the emergency room with him. When she arrived there, he was waiting for prescriptions. She testified that she is a nurse.

Mr. Collins lives in Hyde Park, Massachusetts and was 44 years old at the time of trial. He is a licensed real estate agent, drives for Lyft and Uber and is a Reggae artist. He drives about 40 hours per week for Lyft, usually in the mornings. He owns properties which he rents out, sometimes through AirBNB, and also acts as a property manager.

After the incident at Bobby Flay’s he couldn’t function for about two weeks but doesn’t know how much income he may have lost. Plaintiff’s Exhibits 6a-6d are earning summaries from Lyft and 1009Ks. He is only claiming loss of income from Lyft.

On December 30, 2018 he had been at a cousin’s funeral in Connecticut and stopped at Bobby Flay’s for food on the way back to Boston. His cousin had died on December 24th. He is a vegetarian and ordered a salad. While he was eating, he started gagging on a big piece of plastic. He spit it out into his napkin. At that point he felt as if he were in shock and his stomach was hurting. He called a waiter over and explained what happened. He didn’t notice the object in his salad before eating because it looks like plastic.

He had no stomach problems for 48 hours prior to this. On the way back to Boston he felt uneasy and threw up. Heather dropped him off in Boston and then she left. He went to Boston Medical Center the next day. His symptoms resolved and he was back to normal in a couple of weeks. His medical bill for the hospital visit was $3,096.13.

He did not recall what testing was done at the emergency room.

He did not ask the restaurant for an incident report as he thought one would be filed by the waiter or the manager.

During cross examination Mr. Collins was asked about his ER visit and noted that the records indicated he arrived at approximately 1947 hours on December 31, 2018 and that his history at the ER stated that he denies vomiting. The ER record also indicated he found plastic “pieces” in his food but didn’t note anything about chewing or ingesting. He also testified in cross examination that the manager had “comped” him for the salad and again stated that he didn’t know the exact amount of wages he had lost from his driving job.

He also admitted, without objection, that he had a felony conviction in 2000 for Assault and Battery with a Dangerous Weapon.

On Re-Direct Mr. Collins explained that conviction was the result of an incident with a car that occurred in 1999 and that the car was the dangerous weapon. Someone had jumped in front of his car to stop him from parking.

He also indicated that he drank tea at home after the incident to try and calm his stomach and went to the ER the next day as the discomfort did not stop.

He lost Lyft income for two weeks in January of 2019.

Scott Sjoquist was called by Plaintiff. He is the Director of Public Health for the Mohegan Tribe and oversees a staff of nine people. He has a BS degree and a MS degree and has worked in food preparation and inspections since 1996. He is familiar with Bobby Flay’s restaurant which uses a one step cook and serve process. There are four classes of food preparation for defining risk: Class 1 being the least risk, and Class 4 being the highest. Bobby Flay’s is a Class 2 Risk.

Mr. Sjoquist does not do inspections himself, but his employees do so on a rotating basis. He was not aware of any complaints regarding the food preparation at Bobby Flay’s which has been in operation for about ten years.

He also teaches “food safety” classes to employees.

In looking at Plaintiff’s Exhibit A (Photo of the foreign object) he stated that he did not know what it was and that it shouldn’t be in food being served.

All the food used at Bobby Flay’s comes into the “side” warehouse because it is part of the Mohegan Tribe. The food goes into a cooler and is then picked up or delivered to whichever tribal restaurant is using it. The food is inspected for temperature, amount, and safety upon receipt at the restaurant, by restaurant staff.

Mr. Sojquist also teaches a “Serve Safe Manager’s” course which is a nationally accredited food safety course. Among other topics, the course includes information regarding the discovery of objects in food and makes it clear that foreign objects are not permitted.

Mr. Sojquist was also called by the Defense as a witness. The Defense introduced several exhibits through Mr. Sojquist including Inspection Reports dated from July 26, 2018 through April 14, 2019, Defense Exhibit D-D. The report closest in time to the incident in the complaint was December 19, 2018. The December 19, 2018 report does not appear to be filled out completely as only Lines 18 and 19 have any notations on them. The remaining items for inspection appear blank.

Mr. Sjoquist testified in depth regarding the “Food Safe” class and the types of inspections that the restaurants are subject to. There are visual and physical observations of the product at the warehouse, at the restaurant, and during the food preparation process. Walk through inspections at the restaurant are done to ensure the “Serve Safe” protocols are being followed.

As noted above, the closest inspection in time to the incident was December 19, 2018.

There were photographs of food entered into evidence as Defendant’s I 1-5 but Mr. Sjoquist did not know when they were taken although he indicated that they appeared to be at Bobby Flay’s based on the floor tiles in the photos. He also testified that the shelf life of lettuce is under one week.

Krystal Shaw a shift manager at Bobby Flay’s since 2014 testified for the Defense. She stated that shift managers spend four weeks in training on each aspect of the business and are required to take the “Serve Safe” class. The food preparers are trained by the managers. Line cooks prepare the food including salads and receive monthly training from the mangers. Ms. Shaw identified Defendant’s Exhibit I 1-5 as photographs of the restaurant’s salad station which were taken by Defendant’s attorney approximately two months before the trial.

There are ten ingredients in the salad prepared individually, such as tomatoes. The line is emptied every day and there are seven inspection points including a manager review. Each person is trained to make constant visual inspections and managers work with line cooks to ensure that the procedures are being followed. Ms. Shaw was not working on the date this incident took place but worked the day before and indicated that salad ingredients are generally chopped and cut the day before they are put out.

She also testified that the Plaintiff should not have been “comped” for the meal.

Employees on the line change gloves often, at least every four hours or when changing stations. The Crunch salad which the Plaintiff ordered is prepared using two-ounce scoops.

Ms. Shaw prepares salads herself and has put the wrong ingredients in. She acknowledged that foreign objects get into the food on occasion, including things such as temperature picks and hair. The jobs at the restaurant are labor intensive.

 

FINDINGS OF FACT:

Plaintiff and his friend Heather Holness were patrons of Bobby Flay’s Burger Restaurant at the Mohegan Sun Casino on December 30, 2018. Ms. Holness ordered a burger and the Plaintiff ordered a salad. The Plaintiff was eating his salad when he began gagging and discovered what appeared to be a large piece of plastic in his mouth. He spit it out into a napkin and immediately felt as if he were in shock and his stomach began to hurt.

He had not noticed the object before he discovered it in his mouth.

The Plaintiff experienced stomach discomfort, including vomiting and stomachaches for approximately two weeks following the incident. He sought medical treatment the following day which was billed at $3,096.13. Although he apparently did not drive as a Lyft driver for those two weeks, he was unable to establish an amount of income lost.

The salad Plaintiff ordered was a Crunch salad which was prepared in the kitchen using two-ounce scoops for apportionment. The salad served to Plaintiff had a foreign object in it which appeared to be a piece of plastic or rubber approximately one to two inches long and one inch wide.

Bobby Flay’s employees all attend a Serve Safe food preparation safety class and line cooks receive monthly training on various aspects of food safety. Managers work with the line cooks to ensure safe practices are followed.

The Mohegan Tribal Health Department performs frequent inspections of the restaurant to ensure that safe and healthy procedures are followed in the preparation of food at the Bobby Flay’s.

The inspection report of December 19, 2018 was the report closest in time to the date of the occurrence involving the Plaintiff. That report had no notation for Item 11 which indicates whether the food is “in good condition, safe and unadulterated.” Previous reports in evidence had the section notated as “IN” meaning that this category was “in compliance” with standards.

 

DISCUSSION:

Negligence under Section 3-245 of the Mohegan Code means:

“Conduct that falls below the standard established by law or custom for the protection of others against under reasonable 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 Statute’s, and the Connecticut common law, insofar as the state laws and caselaw do not conflict with any Mohegan law.

In its brief and Special Defenses, Defendant asserts that Plaintiff must prove actual or constructive notice of the defect alleged to succeed in his claim of negligence against Defendant. If this were a premises liability claim, alleging a defect in the condition of the premises, then Defendant’s assertion would be correct. However, this is a case of simple negligence in the preparation and service of food, not a premises liability case. The very first line of DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 49 A.3d 951 (Conn. 2012) cited by Defendant states: “The dispositive issue presented by this premises liability appeal ...” Empahsis Added. Actual or constructive notice is not the issue in this case. The issue in this case is whether or not the Defendant failed to exercise reasonable care in the ways alleged in the complaint, in the preparation and service of food to the Plaintiff.

Paragraphs 6a. and 6b. of the complaint do make allegations of negligence that Defendant knew or should have known or discovered the unsafe or dangerous meal, but these allegations do not convert the case to one of premises liability. Premises liability is a very specialized issue of negligence law having a whole separate set of principles attached to it.

The issue here is whether the Defendant negligently permitted the foreign object in the Plaintiff’s food, or negligently failed to find it and remove it from Plaintiff’s food.

There is no doubt that Defendant conducts sufficient training and carries out routine inspections of the food preparation procedures. However, the fact that Plaintiff has reasonable inspection procedures in place and trains its employees adequately regarding food safety and inspections does not mean that in all instances, the employees carry out the inspections properly. Regardless of the amount of training one receives, if the training is not followed on each and every occasion, adulterated or contaminated food may be served.

It is not unlike a situation where a driver may be adequately trained to properly operate a vehicle, but if the driver fails to operate as trained, he may still engage in negligent operation and his employer may be liable for damages caused by that negligence. For example, if an employer has a training program that it requires all its drivers to take and it tests and passes those employees on safe driving procedures, but a driver doesn’t drive in accordance with the training received, the employer will be liable for the driver’s negligence.

If a driver is operating a vehicle and strikes a pedestrian in a walkway, it is no defense to say “I didn’t see him.” If the pedestrian was there to be seen, the driver should have seen him.

Likewise, here, the employees were trained to inspect and look for foreign objects in the food being served, and the evidence showed that the salad was prepared in two-ounce portions. The court finds that the object depicted in Plaintiff’s Exhibit A was in the salad and was of sufficient size and differentiation that a food service employee preparing the salad should have seen it and removed it.

In this regard, the Court notes that it found the testimony of both the Plaintiff and Heather Holness to be forthright and credible. There may have been some minor inconsistencies in non-essential facts, but the court has no doubt that the Plaintiff took the object into his mouth and became ill as a result.

The court finds that the Plaintiff’s prior conviction was too remote (over twenty years old) and not relating to truthfulness and honesty, and therefore the conviction did not impair Plaintiff’s credibility in the opinion of the Court. The Court does not accept the Defense’s implied theory that the Plaintiff and Ms. Holness concocted the foreign object in order to make a false claim.

The Court finds that the Defendant negligently prepared and served the salad with a foreign object in it and is therefore liable to Plaintiff for damages incurred.

 

DAMAGES:

The Court further finds that Defendant failed to prove any of its Special Defenses, in particular as noted, the issue of notice is misplaced as this is not a premises liability case.

The Court finds no evidence that Plaintiff failed to mitigate his damages in any way. He spit the object out and sought medical attention the next day. He stayed home and rested.

As to the defense that the injuries are not attributable to Defendant’s conduct, the Court has found that the Defendant prepared a defective salad and failed to inspect properly before serving it.

Regarding the defense that the “condition” was open and obvious to Plaintiff, the Court finds that the object which was in the salad was in the salad as a result of a failure on the part of the Defendant. The preparer or line cook who made the salad using two-ounce scoops should have found the object prior to serving it. The object was of such an appearance that a customer eating in a normal manner was not likely to have seen it before placing it in their mouth. Moreover, the Court finds that the Plaintiff had no duty to inspect his food for foreign objects while eating. When dining out, one is not expected to inspect their own food with every bite. It is the server’s duty to prepare food free of foreign contamination.

As a result of putting the foreign in substance in his mouth and discovering it, Plaintiff became physically ill. He vomited and had a stomachache such that he went to the emergency room the next day and felt ill for a couple of weeks. The evidence was insufficient to establish with probability, what, if any income Plaintiff may have lost.

The Court awards the Plaintiff $3,096.13 in economic damages and $1,500.00 in non-economic damages for a total award of $4,596.13.

All Citations
--- Am. Tribal Law ----, 2022 WL 4102845, 7 G.D.R. 51