--- Am. Tribal Law ----, 2022 WL 18587035 (Mohegan Gaming C.A.), 1 G.D.A.P. 118
Mohegan Gaming Disputes Court of Appeals.
 
Shanni TOMASSETTI, Appellant
v.
MOHEGAN TRIBAL GAMING AUTHORITY, Appellee
GDCA-T-21-502
|
November 21, 2022

 

DECISION ON APPEAL

COLLINS, J.,

SUMMARY:

The Plaintiff appealed from the decision of the Gaming Disputes Trial Court, McNamara, J., finding that the Plaintiff had failed to establish Defendant’s constructive notice of the accumulation of liquid which she claimed caused her to fall and sustain injury. The Gaming Disputes Court of Appeals, in sustaining the decision of the Trial Court, ruled against Plaintiff’s contention that if the liquid was present at the time of Plaintiff’s fall, as agreed by all parties, and no intervening spill can be observed in the video images for the preceding twenty minutes, the Court must find that it had been present during that entire period. The Court of Appeals found this argument to be the same continuity presumption/relation back argument specifically rejected in Musial v. MTGA, 1 G.D.A.P. 107, 17 Am. Tribal Law 22 (2020).

This case arises out of an appeal by Shani Tomassetti against the Mohegan Tribal Gaming Authority from a Memorandum of Decision of the Gaming Disputes Trial Court (McNamara, J.) filed on November 21, 20211. Oral argument was heard on July 21, 2022. For reasons set forth below, the judgment of the trial court is AFFIRMED.

PROCEDURAL BACKGROUND

By way of a Complaint dated September 27, 20182, the plaintiff, Shani Tomassetti, brought claims alleging that she had slipped on an accumulation of “water and/or liquid foreign substance”3 on the defendant’s premises due to the negligence of the defendant, and that she had sustained injuries resulting from the fall. The defendant acknowledged jurisdiction, denied the allegations of negligence and/or left the plaintiff to her proof, and raised special defenses alleging comparative negligence by the plaintiff, which negligence was denied by the plaintiff.4

On appeal, plaintiff argues that the trial court generally erred in its factual findings and its application of the law. As elaborated in her brief, the plaintiff suggests that the court erred “in finding that it was possible that the clear liquid on the floor could have been spilled in the area just prior to the plaintiff falling despite no evidence to support this finding.”5 She further argues that the court “erred in finding that the color or lack of color of the liquid substance located on the floor would preclude a finding that defendant should have known of its existence in the exercise of reasonable care.”6

On appeal, the defendant argues that the evidence supports the trial court’s findings as to constructive notice, that the court properly applied the application of the law, did not err regarding constructive notice and that the plaintiff failed to preserve arguments regarding lack of footprint evidence.7 By way of reply brief, the plaintiff disagreed.

DISCUSSION

The gravamen of this appeal centers on the concept of constructive notice. Under well-established Mohegan and Connecticut case law, in a slip and fall incident as occurred to the plaintiff herein, the plaintiff bears the burden of proving that the defendant knew or should have known of the defect that caused her fall. LaFaive v. DiLoreto, 2 Conn. App. 58, 60, 476 A.2d 626 (1984). As noted by the trial court, the defendant has a duty to keep its premises reasonably safe for invitees and a breach of that duty renders the defendant liable for resulting, causally related injuries. Morris v. King Cole Store., 132 Conn. 489 -494, 45 A.2d 710 (1946). The court factually found that a clear liquid was present on the floor at the time of the defendant’s fall, which the defendant does not appear to dispute, but held that the plaintiff failed to meet her foregoing burden of proving that the defendant should have known of the defect,8 and entered judgment accordingly.

Standard of Review

The plaintiff and the defendant agree that that the standard of review in such matters is not plenary but clearly erroneous; they disagree as to whether the trial court’s findings and application of law are clearly erroneous. Thus, “with regard to the trial court’s factual findings, the clearly erroneous standard of review is appropriate.... A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made.... Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses....” Miller v. Guimaraes, 78 Conn. App. 760, 766-67, 829 A.2d 422 (2003). “In applying the clearly erroneous standard of review, [a]ppellate courts do not examine the record to determine whether the trier of fact could have reached a different conclusion. Instead, we examine the trial court’s conclusion in order to determine whether it was legally correct and factually supported .... This distinction accords with our duty as an appellate tribunal to review, and not to retry, the proceedings of the trial court.” (Internal quotation marks omitted.). DeMattio v. Plunkett, 199 Conn. App. 693, 711, 238 A.3d 24 (2020). “Under the clearly erroneous standard of review, a finding of fact must stand if, on the basis of the evidence before the court and the reasonable inferences to be drawn from that evidence, a trier of fact reasonably could have found as it did.” Wells Fargo Bank, N.A. v. Lorson, 183 Conn. App. 200, 192 A.3d 439 (Conn. App. 2018). As noted in Musial v. MTGA, 1 G.D.A.P. 107, 17 Am. Tribal Law 22 (2020), “a factual finding by the Trial Court must stand unless clearly erroneous as a matter of law. The function of this Court is not to determine whether the Trial Court could have reached a different conclusion other than the one reached, but rather could it reasonably have reached the one that it did.” Allen v. Nissley, 184 Conn. 539, 542, 440 A.2d 231 (1981). See also, Alday v. Mohegan Tribal Gaming Authority, 1 G.D.A.P. 25, 6 Am. Tribal Law 476 (2005), which adopted Conn. Prac. Bk. § 60-5 as the standard for appellate review.

Burden of Proof

The parties seemingly agree with the plaintiff’s observation that “the Plaintiff was not required to negate every possible contrary event; her burden of persuasion is satisfied if the evidence “induces in the mind of the trier of fact a reasonable belief that the fact or issue is true. [Citations omitted]. It is not necessary that the proof negate all other possibilities or that it reach the degree of certainty that excludes every other reasonable conclusion.” Witham v. Mohegan Tribal Gaming Authority, 1 G.D.A.P. 68, 16 Am. Tribal Law 414 (Mohegan Gaming Disputes Ct. of App. 2011).” Tait and Prescott, TAIT’S HANDBOOK OF CONNECTICUT EVIDENCE § 3.5.1 (4th Ed., 2008). The plaintiff goes to great lengths to argue that her burden should be based upon preponderance of the evidence and not a clear and convincing standard.9 This court agrees. In short, the plaintiff has the burden of proving facts by a preponderance of the evidence, a standard well known to this and Connecticut courts. Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 702, 651 A.2d 1286 (1995); Holmes v. Holmes, 32 Conn. App. 317, 318, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993).

Constructive notice

The plaintiff misconstrues decisional law to suggest that she must prove a negative in constructive notice cases. Of course, such is not the case. The law states that the plaintiff must prove facts establishing that the defendant had actual or constructive notice of the subject defect. See Gentile v. MTGA, 1 G.D.R. 76, 3 Am. Tribal Law 455 (2003), Fuller v. First National Supermarkets, Inc., 38 Conn. App. 299, 661 A.2d 110 (1995). The plaintiff asserts that allowing the defense to produce evidence as to the number of individuals traversing an area in support of its claim that it had no constructive or actual notice of a detective is somehow unfair. Yet, such evidence is well supported in Connecticut law. Zheutlin v. Sperry & Hutchinson Co., 149 Conn. 364, 366-67, 179 A.2d 829 (1962); Calkins v. City of Hartford, 33 Conn. 57, 59 (1865); Tait and Prescott, TAIT’S HANDBOOK OF CONNECTICUT EVIDENCE § 4.33.2 (5th ed. 2014).

In this matter the parties agree that a clear liquid was present at the time of the plaintiff’s fall. The issue presented to the trial court was not of actual but of constructive notice.10 The plaintiff argues that if the liquid existed at the time of the fall and it is not seen, and no intervening spill of liquid is shown, in the prior available 20-minute video, it therefore must have been present for the 20-minute span. Such an argument raises the continuity presumption/backwards relation argument raised and rejected by this court in Musial v. MTGA, 1 G.D.A.P. 107, 17 Am. Tribal Law 22 (2020), and similarly rejected by this court without further discussion.

There was no evidence before the trial court as to the quality of the subject video. Perhaps, as postulated by the trial court, liquid spilled in the preceding 20 minutes and said spill was not reflected on the video. The fact that a video of unknown quality did not show a clear liquid on the floor, or being spilled on the floor, does not suggest that such did not happen. The video, as reviewed by the trial court is, essentially, pictorially silent on the timing of the actual spill. While the plaintiff claims that it is not her burden to prove the color of the liquid, a true assertion, it is the color that actually may make it be more visible on a video.

The so-called “20 minute rule,” well known to this court and counsel, is nothing more than a rebuttable presumption that assumes knowledge by the defendant if the defect occurs prior to the 20 minute window. The history of this 20 minute rule is based upon a spoliation claim wherein the trial court (Eagan, J) observed, in dicta, that “[i]n future cases, however, the Court assumes that no videotapes relevant to a pending issue will be destroyed. The defendant’s future destruction of such evidence will make it exceedingly difficult to find the destruction was unintentional.” Miller v. MTGA., 2 G.D.R. 149, 151, 6 Am. Tribal Law 543 (2005). Indeed, “the Trial Court’s decision properly leaves articulation of the calculation of the period of video image time to preserve images which, in many cases, can provide evidence crucial both to plaintiffs and defendants, unobtainable by any other means”. Miller v MTGA, 1 G.D.A.P. 39, 6 Am. Tribal Law 487 (2006).

The plaintiff has proven only that a clear liquid existed on the floor at the time of her fall. Under her analysis, she has sustained her burden of proof by showing the defect at the time of the fall. Period. She has offered no proof, as the law requires, as to the length of time that the defect was present so as to allow a finding of constructive notice of the defect by the defendant. See Mohegan Tort Code Sec. 3-245. The video evidence in the instant matter was not one which provided evidence to enable the trial court to find, by a preponderance of the evidence, that the defendant had constructive notice of the spill, described as a clear liquid. The plaintiff misapprehends the trial court’s reference to “possibilities” as somehow holding her to a higher burden of proof. Such was not the case here, nor in Musial, where each court found the presented evidence to be in equipoise and, accordingly, found that the plaintiffs had not proven their respective cases.11

The decision of the trial court is AFFIRMED

In this opinion, Judges Guernsey and Manfredi concurred.

All Citations
--- Am. Tribal Law ----, 2022 WL 18587035, 1 G.D.A.P. 118

Footnotes
1	Record No. 11.
2	Record No. 1.
3	Complaint, para. 6.
4	See generally, Record 3 & 4.
5	Brief of Plaintiff, p. 14.
6	Brief of Plaintiff, p. 18.
7	Brief of Defendant, p. i.
8	There is no claim that the defendant had actual notice of the alleged defect.
9	Brief of Plaintiff, p. 17.
10	As defined by the Mohegan Tort Code Sec. 3-245, “Constructive Notice means, with respect to an Act or Defective Condition, notice of such act or condition that, based on the circumstances including location, timing, magnitude, and opportunity to obtain information, is sufficient to impute to a person adequate notice so as to permit corrective action....”
11	“The Plaintiff in this matter has not satisfied that burden. It is certainly possible that the clear liquid substance was spilled on the floor prior to the video surveillance. It is equally possible that the spill occurred by someone walking in the area just prior to the incident.” Tomassetti v. Mohegan Tribal Gaming Authority., 7 G.D.R. 22, 17 Am. Tribal Law 140 (Mohegan Gaming Disputes Ct. 2021). “While it is possible the spill occurred prior to the twenty minutes shown on the video, it is equally possible that the spill occurred by someone walking in the area just prior to the incident.” Musial v. Mohegan Tribal Gaming Authority, 6 G.D.R. 139, 17 Am. Tribal Law 88 (Mohegan Gaming Disputes Ct. 2019).