--- Am. Tribal Law ----, 2025 WL 560710 (Mohegan Gaming Trial Ct.)
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Mohegan Gaming Disputes Trial Court.
 
ANGELA PERRY
v.
MOHEGAN TRIBAL GAMING AUTHORITY
 
GDTC-T-21-106-JAM
|
7 G.D.R. 124
|
FEBRUARY 7, 2025

SUMMARY

The Plaintiff, an invitee at the Mohegan Sun Casino, suffered a serious left ankle fracture when she fell on an outside sidewalk due to an accumulation of ice. The issue before the Gaming Disputes Court was whether the icy condition causing her to fall was the result of untreated snow melting and refreezing on the building side of the sidewalk, or rather the result of an ongoing storm. The Gaming Disputes Trial Court, MacNamara, J., held that while there was an ongoing weather event, the cause of the Plaintiff’s fall was the melt/freeze activity of snow that had fallen two days earlier rather than the ongoing weather event, and rendered judgment for the Plaintiff.

 

MEMORANDUM OF DECISION

FULL TEXT, McNamara, J.

 

I. FACTUAL BACKGROUND

This matter commenced by the filing of a Summons and Complaint with the Gaming Dispute Trial Court on May 7, 2021.

The Complaint alleges that on February 13, 2021, the Plaintiff, Angela Perry, was a guest and business invitee of the Defendant’s Hotel and Casino. While walking on an exterior sidewalk of said Casino, Plaintiff slipped on an accumulation of ice, which was located upon said sidewalk, causing her to fall to the ground and sustain injuries.

It is further alleged that Defendant was negligent in that it:

(a) Failed to remedy the unsafe condition upon said sidewalk, which it either created, knew existed, and/or should have discovered with reasonable inspection due to the period of time it existed;

(b) Failed to inspect said area, especially in light of its knowledge of drainage issues and the propensity for water to pool in that area;

(c) Failed to apply salt and sand;

(d) Failed to apply salt and sand to an accumulation of ice on said sidewalk;

(e) Failed to divert water or provide for drainage which would prevent the pooling of water on a sidewalk which it knew or should have known, would create icy conditions on said sidewalk;

(f) Otherwise failed to take reasonable and proper precautions to avoid the probability of harm to invitees using Defendant’s premises, including Plaintiff.

Through its Answer, Defendant has admitted that the Mohegan Tribal Gaming Authority owned the premises known as Mohegan Sun Casino and that Plaintiff was lawfully on the premises at the time of the incident. The remainder of the allegations of the Complaint were either denied or left to the Plaintiff’s proof. Defendant affirmatively alleged as a Special Defense that:

Any alleged injuries or losses sustained by the Plaintiff were caused by her negligence and/or carelessness in that she:

(a) Failed to keep a proper lookout for the conditions alleged in the Complaint or the general conditions then and there existing;

(b) Failed to exercise due care for her own safety and proper use of her senses;

(c) Failed to use reasonable care for her own safety commensurate with the existing circumstances and conditions;

(d) Failed to notice a condition which was or should have been open and obvious to her; and

(e) Failed to take the appropriate precautions given the circumstances then and there existing.

Further, Defendant alleged as Special Defenses that: (1) Plaintiff failed to mitigate her damages if she sustained injuries as alleged in the Complaint; (2) Defendant lacked notice of the condition that caused Plaintiff’s injury, and (3) the condition complained of was open and obvious to the Plaintiff.

Testimony and evidence, including a videotape of the actual incident, established the following facts relevant to the decision in this case.

On February 12, 2021, after completing her workday at approximately 5:00 p.m., Plaintiff left Stamford and traveled to Mohegan Sun Casino, where she met her husband, Stephen Perry, who had arrived a day earlier with their dog, Sandy. The couple planned to spend the weekend at one of the hotels on the property. Mr. Perry had been invited to participate in a blackjack tournament on Saturday.

On Saturday, February 13, 2021, the Perrys spent the day at the Casino, shopping, and dining, and Stephen Perry participated in an afternoon blackjack event. The Plaintiff walked Sandy in the morning. Her route involved walking out of the hotel exit near the Cove Road side of the building and taking a sidewalk that wrapped around the hotel and the abutting Expo Center.

After eating dinner in their hotel room, the Plaintiff left the hotel to walk Sandy. The Plaintiff exited the hotel with Sandy and walked on the aforementioned sidewalk. As she was walking on the said sidewalk, she was caused to slip and fall on a patch of ice.

After she fell, she immediately felt pain in her ankle. The Plaintiff was unable to get up and called her husband to come and assist her. She testified that prior to her slip and fall, she did not observe any sort of icy condition in the area where she fell and did not recall any precipitation. She also testified that the walkway was clear of snow, and there was no evidence of any sanding or salting in the area. After she fell, she noticed a sheet of ice on the walkway in the same location where she fell. She stated it resembled a very shiny coating over the asphalt. The Incident File Full Report states that an inspection of the area was conducted, and there appeared to be many icy spots due to the precipitation that had previously occurred.1 The Plaintiff’s husband arrived in approximately ten minutes. He was able to assist her in getting up and move her to an embankment where she waited while her husband called for help. Emergency responders arrived shortly thereafter and drove her to Backus Hospital for treatment. Backus Hospital performed X-rays, splinted her leg, and then discharged the Plaintiff. The Plaintiff testified that she preferred to go home to New York and be seen by her orthopedic doctor.

The Plaintiff left the Mohegan Sun Casino the next day and was able to schedule an appointment for Monday with an orthopedic surgeon, Dr. Michael Clain. Dr. Clain performed additional X-rays and re-casted her leg. He diagnosed her injury as a left ankle displaced trimalleolar fracture and a left tibia displaced pilon fracture and scheduled surgery for the following week.2 The Plaintiff testified that she was in extreme pain and was required to be on constant pain medication. On February 19, 2021, the Plaintiff underwent surgery to repair the displaced left fibular fracture. Her recovery was long and arduous. She was in excruciating pain for a significant period of time post-surgery and was in a walking boot until April 2021. She was immobile and unable to work or perform her normal activities. She began physical therapy in April of 2021 and noticed progression and some relief of pain. The Plaintiff moved to Florida at the end of June 2021 and began physical therapy in Florida.3 She continued physical therapy until August 27, 2021.

The Plaintiff testified that she could return to her nursing profession in a new job in Florida in June of 2021; however, the injury greatly affected her quality of life and her ability to work. The Plaintiff is unable to hike up any incline, has difficulty getting in and out of her pool, and has difficulty walking long distances. The Plaintiff still experiences pain at the surgical site and numbness at the bottom of her foot. The evidence established that the total medical and rehabilitative expenses arising from the Plaintiff’s fall total $26,272.82, which appears reasonable in light of the injuries sustained. In addition, the Plaintiff was required to miss time from work because of her injury and has asserted a lost wage claim in the amount of $12,000.00.

 

II. ANALYSIS

Defendant does not dispute that Plaintiff was lawfully on its premises when she slipped and fell. Defendant further recognizes that it owed Plaintiff, as a business invitee, a duty to exercise reasonable care to maintain its premises in a reasonably safe condition for reasonably anticipated use by its patrons and invitees. Davenport v. Quinn, 730 A.2d 1184, 53 Conn. App. 282 (1999). It is also undisputed that if Defendant breached this duty, had actual knowledge of the defect, and had a reasonable time to remedy it, Plaintiff can recoup for her injuries. Morris v. King Cole Stores, Inc., 132 Conn. 489 (1976).

This action is governed by the Mohegan Torts Code, which defines negligence at the time of Plaintiff’s fall as follows:

‘Conduct that falls below the standard established by law or custom for the protection of others against unreasonable risk of injury or harm. The Standard of Conduct to which a person must conform to avoid being negligent is that of a reasonable person under similar circumstances. Where applicable, the rule of actual or constructive notice shall be applied to determine negligence ...’

See Galanos v. Mohegan Tribal Gaming Authority, 17 Am. Tribal Law 266, 270 (2023), citing MTC § 5-245.

Thus, Plaintiff must prove by a preponderance of the evidence that Defendant breached a duty owed to Plaintiff and that said breach was a substantial factor in producing Plaintiff’s injuries.

First, for Plaintiff to recover, she must allege and prove that Defendant had actual or constructive notice of the unsafe condition that caused her fall. Lafaye v. DiLoreto, 2 Conn. App. 58, 60, 476 A.2d 626 (1984).

It is undisputed that the Plaintiff slipped and fell on the sidewalk due to ice. The surveillance footage, witness testimony, and the Defendant’s incident report confirm said details. Therefore, the key issue of liability is whether the Defendant had actual or constructive notice of said condition.

It is Plaintiff’s contention that Defendant failed to remove snow from the sidewalk, which had been present for several days and/or failed to adequately treat the sidewalk despite having knowledge of the remanent snow and the likelihood of it melting and refreezing given the weather conditions on the day she fell.

More specifically, it is the Plaintiff’s position that during the daytime hours of February 13, 2021, snow from a snowstorm several days prior melted, and that melted snow caused a pooling of water across the sidewalk, which subsequently froze that evening.

The Plaintiff’s expert witness, John Bagioni, a meteorologist consultant, testified that the last measurable snow event before February 13th was February 11, 2021. He testified that if ice was present, it came from melt and refreeze activity where water was running down from the snowbank or the snow area along the building, protruding out onto the walkway, freezing, and then melting again another day or the next day.4 He also testified that although a winter advisory was issued for the evening of February 13th, he didn’t see any evidence of any precipitation. He testified that the source of the ice that caused the Plaintiff to fall was the untreated snow left on the building side of the sidewalk.

It is the Plaintiff’s position that Defendant failed to adequately treat the sidewalk and prevent melt and refreeze even though it knew or should have known there was remnant snow lining the sidewalk, which, without adequate treatment, could cause icy conditions.

Defendant contends that the ice patch that caused Plaintiff to fall was not the result of melt/refreeze activity but an ongoing winter weather event. The Defendant’s expert, Robert Cox, opined that there was light snow and freezing rain beginning at least an hour before the Plaintiff slipped and fell, and said precipitation continued well past midnight.

Mohegan Tribal Authority’s Grounds Supervisor, Daniel Rheaume, and former Protective Services Supervisor, Jeffrey Thereau, both testified they were present at the Casino at the time the Plaintiff fell and there was sleet and freezing rain falling and that the Public Safety Department had begun treating the road and sidewalk.

Defendant claims that the ongoing storm doctrine bars Plaintiff’s claim. The ongoing storm doctrine holds:

‘...in the absence of unusual circumstances, a property owner, in fulfilling the duty owed to invitees upon his property to exercise reasonable diligence in removing dangerous accumulation of snow and ice, may await the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps. To require a landlord or other invitee to keep walks and steps clear of dangerous accumulation of ice, sleet or snow or to spread sand or salt while a storm continues is inexpedient and impractical.’ Kraus v. Newton, 211 Conn. 191, 197-98 (1989).

Once a property owner has presented evidence of an ongoing storm, the Plaintiff has the burden of proving that his/her injury was caused by a slippery condition that existed prior to the ongoing storm of which the property owner had actual or constructive notice.

Plaintiff does not allege that Defendant had actual notice of the ice upon in which she slipped. Thus, the Plaintiff must prove that the Defendant had constructive notice of the ice. The test is well established: “The controlling question is whether the condition had existed for such a length of time that the defendant’s employees should, in the exercise of due care, have discovered it in time to have it remedied.” Poverman v. Mohegan Tribal Gaming Authority, 14 A. Tribal Law 87 (2015).

Therefore, the issue before this court is whether the Plaintiff fell on ice that resulted from melt/refreeze activity or was created by an ongoing weather event.

There was clearly an ongoing weather event. While the plaintiff and the plaintiff’s husband could not recall whether precipitation was falling, Daniel Rheaume and Jeffrey Thereau testified that there was sleet and freezing rain before and around the time the Plaintiff fell. If said freezing rain and sleet created the ice patch where the Plaintiff fell, it is this Court’s opinion that the ongoing storm doctrine would preclude recovery by the Plaintiff. Defendant had pretreated the area where Plaintiff fell, and the weather event commenced approximately one hour prior to Plaintiff’s fall.

Defendant has presented sufficient evidence of an ongoing storm event; thus, Plaintiff has the burden of proving that her injuries are the result of a slippery condition existing prior to said storm.

The testimony of both experts and the Plaintiff established that there was snow on both sides of the sidewalk where she walked her dog. Said snow resulted from a snow event that occurred at least two days before the Plaintiff’s fall. The walkway itself was clear, but there was snow on the side of the walkway. The Plaintiff’s expert, John Baglioni, testified that the ice that caused the Plaintiff’s fall was the untreated snow left on the side of the sidewalk. The snow melted during the day due to its proximity to the building, which caused a pool of water. Said water later refroze as temperatures dropped, creating the icy conditions the Plaintiff slipped on.

It is important to note that the Plaintiff fell as she got closer to the building, thus strengthening the Plaintiff’s argument of a melt/refreeze activity. Snow is more likely to melt on the building side of the sidewalk. It is also important to note that if the ice patch was the result of the ongoing weather event, there would likely be other slippery conditions on the walkway where the Plaintiff fell. The Plaintiff, the Plaintiff’s husband, and EMT workers did not encounter any other icy areas of the walkway except in the area where the Plaintiff fell. The video evidence is compelling. There is clearly a condition present in the area where Plaintiff fell, which is not uniform across the entirety of the sidewalk but isolated to the area where Plaintiff fell.

While determining the cause of the icy condition has been difficult for this Court, it is this Court’s opinion

All Citations
--- Am. Tribal Law ----, 2025 WL 560710

Footnotes
1	Plaintiff’s Exhibit 1.
2	See Plaintiff’s Exhibit 6C.
3	See Plaintiff’s medical records of Select Physical Therapy – Exhibit P6.F.
4	Transcript pg. 53.