Indian Law Bulletins  |  Tribal Courts  |  Lowy v. Mohegan Tribal Gaming Auth.

7 G.D.R 31
HEATHER LOWY
v.
MOHEGAN TRIBAL GAMING AUTHORITY
No. GDTC-T-18-127-JAC
Mohegan Gaming Disputes Court
January 3, 2022
 

MEMORANDUM OF DECISION

COLLINS, J.

Procedural Status

The defendant, Mohegan Tribal Gaming Authority (MTGA) filed its Motion for Summary Judgment (#117) along with a supporting Memorandum of Law and attached exhibits on August 4, 2021. The plaintiff, Heather Lowy, filed her Objection to Defendant's Motion for Summary Judgment (#118) on August 6, 2021. On October 7, 2021 the defendant filed its Supplemental Memorandum of Law (#121) with accompanying exhibits. This matter came for argument before the court on October 8, 2021.

Standard of Review

The law in this area is well settled. "Motions for summary judgment are governed by MRCP (Mohegan Rules of Civil Procedure) §49(h) (and its almost identical State counterpart, Conn. Practice. Bk. §17-49)" Shaevitz v. Mohegan Tribal Gaming Authority, GDTC-T-18-102-PMG (2019). As appropriate, the parties essentially agree as to the legal standards governing this motion. Thus, MRCP §49(h) reads:

Judgment shall be rendered if the pleadings and any other proof show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

The initial burden on a party seeking summary judgment has been described by the Gaming Disputes Court as follows:

The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. (Citations omitted; internal quotation marks omitted.) Gargano v. Mohegan Tribal Gaming Authority, 11 Am. Tribal Law 149, 151 (2003), quoting Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004).

Indeed, "in passing on a Motion for Summary Judgment, the trial court is to determine whether an issue of fact exists but may not try that issue if it does exist." Yarasavich v. Mohegan Tribal Gaming Authority, 10 Am. Tribal Law176, 178, quoting Wallace v. Mohegan Tribal Gaming Authority, 2 G.D.R. 51, 5 Am. Tribal Law 295 (2004).See also Nolan v. Borkowski, 206 Conn. 495, 538 A.2d 1031 (1988)."In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist" Nolan v. Borkowski, 206 Conn. 495, 500 (1998).

As noted by the defendant, "mere assertions of fact are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court in support of a motion for summary judgment." Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202 (1995). The plaintiff correctly observes that "a material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." Hammer v. Lumberman's Mutual, 214 Conn. 573, 578 (1990). Of course, "the party seeking summary judgment has the burden of showing the non-existence of any material fact." Strada v. Connecticut Newspapers, Inc., 193 Conn.313, 317 (1984).As noted, in deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Connell v. Colwell, 214 Conn. 242 (1990).Most significantly, "Summary judgment procedure is especially ill-adapted to negligence cases…" Spencer v. Good Earth Restaurant Corporation, 164 Conn. 194, 198-199 (1972), (citations and internal quotation marks omitted.). Accord, Murphy v. Mohegan Tribal Gaming Authority, GDTC-T-04-116-TBW.

Brief Factual Allegations and Legal Claims

The plaintiff complains that on December 28, 2017 she was injured when she slipped and fell on liquid spilled from a cooler and dropped by a patron while walking through the concourse of the Earth Hotel. Complaint ¶ 2-8. Deposition testimony of a MTGA employee, Laurie Sklar (hereinafter Sklar), reflects that she had worked in the nearby Earth Essentials store for 3 months. Defendant Exhibit A, Sklar Depo p. 9. Sklar saw the cooler tip over (Sklar depo p. 15) but did not see the contents spill (Sklar depo p. 15). She did not notify EVS of the spill (Sklar depo p. 27), did not see the spill until after the plaintiff's fall (Sklar depo p. 16), did not recall hearing the concierge call EVS (Sklar depo p. 18), and did not speak with the concierge (Sklar depo p 23). She did not recall telling anyone about the spill before the fall. Sklar depo p. 26.

A video of the subject fall was offered by the defendant as Exhibit 2, along with a Hotel log offered as Exhibit 1, each supported by Exhibit B, an affidavit of Mary Lou Morrissette, Mohegan Tribe Corporate Director of Risk Management, as business records in substantial compliance with applicable law and rules of practice. See Connecticut Code of Evidence §8-4; C.G.S. §52-180; MRCP §3-152

The video clearly depicts the before and after consequences of the plaintiff's fall as alleged in her complaint. The log, dated December 28, 2017 and created at 9:00 AM reads, in relevant part, as follows:

Registered additional guest Heather Lowy slipped and fell in the Earth Hotel Lobby. A previous guest had liquid spill out of his bag and continued on his way. The spill was reported to the shop clerk and an EVS attendant was responding. However, during the response time Ms. Lowy walked through the lobby and slipped and fell injuring her knee. Exhibit 2.

The defendant, pursuant to MRCP §49 argues that Summary Judgment should be granted because there is no genuine issue of material fact in that the MTGA had neither actual or constructive notice of the alleged defect causing the plaintiff's fall and claimed injury and suggests that cited case law relative to video testimony should control this court's decision. See Defendant's Memorandum of Law at p. 6.

The plaintiff responds that Summary Judgment should be denied because the defendant has failed to meet its burden of establishing the absence of material facts as to actual notice and that, accordingly, the defendant's motion is moot as to the constructive notice claim. In support thereof, the plaintiff claims that the hotel log offered by the defendant, in and of itself, established actual notice, or at least raises a question of material fact. The plaintiff further claims, without evidentiary support, that Ms.Sklar could have reported the fall, because she did not recall telling anyone about the spill before the fall. Sklar Depo p. 26.

Decision

In viewing the proffered evidence in the light most favorable to the non-moving party (i.e. the plaintiff), and recognizing that summary judgment is ill suited for negligence cases, the court concludes that a material fact exists as to whether the defendant had actual notice of the subject defect prior to the plaintiff's fall. The hotel log, written in the first-person narrative, clearly raises questions as to the defendant's actual knowledge of the incident. The defendant's attempt to discredit its own hotel log via testimony of witnesses itself raises issues of material facts. Of note, the defendant's above-referenced cases (Defendant's Memorandum of Law at p. 6)involving video evidence deal with police chases, assaults off property, PJR actions and premises defects. The common theme, in most instances, is decisional law accepting a video version of the facts of an incident versus the testimony of others. Yet, the current matter is inapposite since the defendant's proffered subject video reflects the timing of the spill and the plaintiff's fall, subjects which are not in dispute. The dispute centers around the actual or constructive notice by the defendant of the plaintiff's fall. The defendant has not met its burden and the Motion for Summary Judgment as to the actual notice portion of the plaintiff's complaint is denied.

The defendant also asks this court to grant its motion as to constructive notice; the plaintiff believes that issue to be moot. The court finds the issue not to be moot but also denies the motion for summary judgment as to constructive notice. The court is mindful of Connecticut Practice Book §17-51which addresses judgments on part of a claim. The Mohegan Rules of Civil Procedure have no corresponding provision. The law in Connecticut seems to be best expressed by Judge Peck when she noted that the "majority rule . . . is that Connecticut procedure does not allow entry of summary judgment on one part or allegation of a cause of action when the ruling will not dispose of an entire claim, and therefore, will not allow entry of judgment on that claim." (Emphasis added.) Glidepath, LLC v. Lawrence Brunoli, Inc., Superior Court, Judicial District of Hartford, Docket No. CV10-6014624-S (December 21, 2012, Peck, J.) (2012 WL 6924526). The court finds this majority rule, when combined with the lack of a corresponding MRCP provision, compels the court to adopt Connecticut Practice Book §17-51 pursuant to MRCP §1[1 ] and also deny the Motion for Summary Judgment argument as to constructive notice. Further, the court finds that adopting §17-51 herein does "not contravene any principle of Mohegan Tribal Law or the sovereignty of the Mohegan Tribe."

Order

WHEREFORE, the defendant's Motion for Summary Judgment (#117) is denied and the plaintiff's Objection to Defendant's Motion for Summary Judgment (#118) is sustained.

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Notes:
[1 ]These Rules govern the practice and procedure in the Trial Courts of the Mohegan Court System in all actions except where specific procedures are otherwise provided by Mohegan Tribal Law. The Gaming Disputes Trial Court may employ the Connecticut Superior Court Civil Rules for any procedure, issue or matter not covered by these Rules or by Tribal Law, provided that such Superior Court Civil Rules so utilized do not contravene any principle of Mohegan Tribal Law or the sovereignty of the Mohegan Tribe.
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