--- Am. Tribal Law ----, 2017 WL 4390258 (Mohegan Gaming Trial Ct.)
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Mohegan Gaming Disputes Trial Court.
Grimalda DIAZ
AUGUST 14, 2017

Attorneys and Law Firms
Daniel J. Horgan, Esq., New London, CT, for Plaintiff
Robert A. Rhodes, Esq., Westport, CT, for Defendant Mohegan Tribal Gaming Authority
Keith R. Rudzik, Esq., Hartford, CT, for Defendant KGM Gaming, LLC


Memorandum re: Motion to Dismiss
FULL TEXT, Manfredi, J.


This case was commenced by a complaint dated October 20, 2016. It is alleged that the Plaintiff was a customer at the Mohegan Sun Casino on September 3, 2016, walking through the slot machine area, when she tripped and fell over the feet of “an employee of the Defendant” who was fixing a slot machine. It was alleged that the Plaintiff sustained various injuries and that the injuries were caused by the negligence of the Defendant, Mohegan Tribal Gaming Authority (MTGA) “its agents, servants and employees.” The Defendant filed an apportionment complaint dated January 12, 2017 against KGM Gaming, LLC pursuant to C.G.S. § 52-572, et. seq. and C.G.S.§ 52-102b claiming that the person who was working on the slot machine was actually an employee of KGM and that KGM may be liable for all or a portion of Plaintiff’s damages. Defendant thereafter filed an Answer and Special Defense on March 7, 2017. On March 27, 2017 the Plaintiff filed an Amended Complaint with a second count claiming damages from negligence against KGM Gaming, LLC. Subsequently, KGM filed Motions to Dismiss the Apportionment Complaint and the second count of the Amended Complaint.

“A motion to dismiss admits all facts well pleaded and invokes any record of that accompanies the motion, including supporting affidavits that contain undisputed facts.” (Internal quotation marks omitted.) ... “Where ... [t]he motion [to dismiss] is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint.” (Internal quotation marks omitted.) ... [A]ffidavits are insufficient to determine the facts unless ... They disclose that no genuine issue as to of material fact exists.” (Internal quotation marks omitted, citations omitted) Weihing v. Dodsworth, 100 Conn. App. 29, 39, 917 A.2d 53 (2007).



The Court heard argument on these motions on June 13, 2017 and has reviewed the motions, the objections thereto and the cases cited by the parties in their respective briefs. The Court understands KGM’s arguments as follows: Under C.G.S. § 52-102b, apportionment complaints may only be brought in actions arising under C.G.S. § 52-572h, i.e., actions based upon negligence. Actions which arise out of a nondelegable duty are not negligence actions but actions based on vicarious liability. Smith v. Town of Greenwich, 278 Conn. 428, 899 A.2d 563 (2006). This is clearly the law in Connecticut. The essential issue here, however, is whether the work being performed by KGM employees was work being carried out to perform a nondelegable duty of the MGTA.

The Court recognizes that premises owners have many duties imposed upon them under the law, including the duty to exercise reasonable care and control of its premises and to protect and warn lawful invitees from dangerous conditions existing thereon. However, it is obvious to the Court that not every undertaking of an owner in connection with a condition existing upon the premises involves a nondelegable duty.

Here, the work being performed by KGM’s employee (the Court understands that whether the worker was a KGM employee or not may be subject to dispute but for purposes of these motions the Court assumes he was) was the repair of a slot machine.
“Nondelegable duties generally are imposed, most often by statute, contract or common law, in recognition of “the policy judgment that certain obligations are of such importance that employers should not be able to escape liability merely by hiring others to perform them.” 41 Am. Jur. 2d, Independent Contractors Sec. 43, p.518 (2005). In such circumstances, “the nondelegable duty doctrine means that [the employer] may contract out the performance of [its] nondelegable duty, but may not contract out [its] ultimate legal responsibility.” (Emphasis in original.) Gazo v. Stamford, 255 Conn. 245, 255, 765 A.2d 505 (2001). “Thus, the nondelegable duty doctrine creates a form of vicarious liability, whereby the employer remains vicariously liable for the negligence of its independent contractors in their performance of the employer’s nondelegable duty.” Id. at 255-56, 765 A.2d 505. Machado v. Hartford, 292 Conn. 364, 972 A.2d 724 (2009)
The Court is unaware of any statutory, contractual or common law duty imposed upon the Defendant MGTA to repair or maintain the slot machines, nor does it find that the repair or maintenance of the machines is an obligation of such importance that the liability for damages arising out of the performance of such a function should be borne by the owners. The Court’s understanding of nondelegable duty in this context relates to a duty to repair and/or maintain conditions upon the premises, which, if not performed would result in a dangerous condition likely to harm invitees or others upon the premises. The failure to repair a slot machine would not result in a dangerous condition upon the premises. The duty to repair a slot machine in the circumstances of this case is not a nondelegable duty.

Since the complaint and the amended complaint both allege negligence during the performance of the slot machine repair, C.G.S. § 52-572h applies in this case and the Court finds that service was properly made under the Apportionment statute. The Motions to Dismiss are denied.

All Citations
--- Am. Tribal Law ----, 2017 WL 4390258