2024 WL 4578902 (Mash. Pequot Tribal Ct.)
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Mashantucket Pequot Tribal Court.
 
DAVID DOSTER, Plaintiff
V.
MASHANTUCKET PEQUOT GAMING ENTERPRISE, Defendant
 
DOCKET NO. MPTC-CV-PI-2021-118
|
OCTOBER 16, 2024

 

MEMORANDUM OF DECISION

Thomas J. Londregan, Judge

 

I. BACKGROUND

On March 22, 2021, the plaintiff and his girlfriend went to Foxwoods Casino on their day off to go shopping, have dinner and do a little gambling. When it was time for dinner they decided to go to Cedars Steakhouse. The plaintiff wanted to freshen up and wash his hands before eating after playing the slot machines. Cedars has no restroom. He went to the nearest restroom outside of Cedars. After walking into the restroom, he immediately went to his right to the row of sinks. As he did so, he slipped on the wet floor; heard a “pop”; and fell to the floor.1 He noticed there was a man mopping. The man pointed to an A-frame sign in the back of the restroom that said “caution, wet floor.” He asked the man mopping for help. Within two minutes the medics came in with a wheelchair. Two employees came in and shut down the restroom.

The plaintiff testified that there were no other A-frame “caution wet floor” signs other than the one at the back of the restroom. The plaintiff admitted that there was a tile in the entrance to the restroom that was embedded with the words “wet floor caution.”2

The defendant pled special defenses alleging that any damages sustained by the plaintiff were due to the plaintiff’s own negligence, in that the plaintiff failed to be watchful of his surroundings, failed to proceed with reasonable care, and failed to make reasonable use of his faculties.

Candelario Becerra, a former defendant employee, now retired, had worked for Foxwoods for twenty years in housekeeping. He was the man with the mop. He recalled the incident and stated that the plaintiff entered the restroom when he was mopping the floor. His standard routine when going to work in a restroom is to make sure that there are three (3) A-frame signs: one at the entrance, one in the middle, and one in the back of the restroom. He sets the three signs up before mopping. He mixes chemicals in a bucket. He uses two mops, a dry mop and a wet mop. He “twists” the wet mop very dry and mops the floor, and then with a dry mop goes over the floor. The three signs are always out when he cleans. The signs say “caution wet floor.” Mr. Becerra said the plaintiff looked at him and saw him mopping before he fell.

 

II. DISCUSSION

The elements of a cause of action in negligence are well established.

In order for the plaintiff to prevail in a cause of action alleging negligence, they must prove by a preponderance of the evidence that (1) the defendant owed a duty to the plaintiff; (2) that the defendant breached that duty; (3) that the breach of said duty was the proximate cause of the plaintiff’s injuries; and (4) that the plaintiff suffered actual damages. Mashantucket Pequot Tribal Nation v. Castelucci & Assoc., Inc., 4 Mash.Rep. 21, 33 (2002); Hazard v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 354, 357-58 (2016). See Renzi v. Mashantucket Pequot Gaming Enterprise, 2020 WL 275588.

 

A. Liability

It has been stated many times in this jurisdiction that the defendant Gaming Enterprise owes a duty to invitees to keep its premises reasonable safe and to warn of any dangerous condition that it has actual knowledge of. Lin v. Mashantucket Pequot Gaming Enterprise, 4 Mash.Rep. 393, 396 (2006). Here, the defendant’s employee was actively mopping the floor at the time of the plaintiff’s fall. The defendant Gaming Enterprise therefore had actual knowledge that the just mopped floor was a dangerous condition.

The parties were at odds over a number of factual and legal issues, among them whether the floor was wet/dry/semi-wet or semi-dry; whether the defendant failed to warn the plaintiff of the mopping of the floor; whether or not there were three A-frame signs with the words “caution wet floor” or only one such sign in the back of the restroom; whether a tile embedded in the floor just before the entrance to the restroom with the words “wet floor caution” is adequate notice for a warning of a dangerous condition; and how the “cone shape” sign came into the restroom. The plaintiff testified that the cones were not there before he fell, but that after he fell he saw defendant employees bring in the same “cone shaped” signs to close the restroom that were pictured in the incident report.

 

B. Credibility

In bench trials, the judge serves as the sole fact-finder and, thus, assumes the role of the jury. “In this capacity, the judge’s function includes weighing the evidence, evaluating the credibility of witnesses, and deciding questions of fact, as well as issues of law.” Citron v. Wachovia Mortgage Corp., 922 F.Supp.2d 1309, 1314 (M.D. Fla. 2013). “Where the cause is tried to the court, the resolution of conflicting evidence is solely within the province of the court. Its findings must be given great weight in light of the fact that it had the opportunity to hear and observe the witnesses.” Ahern v. Veterans Administration, 537 F.2d 1098, 1101 (1976). “It is ... exclusively within the province of the trier of fact to draw reasonable inferences from the facts and to resolve conflicts in the evidence.” Steiner Corp. v. Johnson & Higgins of California, 118 F.Supp.2d 1174, 1184 (D. Utah 2000).

During the trial, the Court had ample opportunity to observe the conduct, demeanor and attitude of the plaintiff as a witness, to evaluate his testimony, and to relate his testimony to the exhibits admitted into evidence. When weighing the evidence, the Court considered the ability of those testifying, whether in person or in admitted documents, to perceive the things about which they testified, their ability to recall relevant facts and events, any interest that they may have had in the outcome, the reasonableness of their testimony, and any contradictions that arose between their testimony and other evidence introduced at trial. See Carsetti v. Mashantucket Pequot Gaming Enterprise, 2020 WL 1080521 (2020).

 

III. FINDINGS

The Incident Report

Russell Thompson was called as a witness by the plaintiff. He is a security shift supervisor for the defendant. He’s been at Foxwoods for 16 years. He prepared the incident report (Exhibit B). When he got to the restroom his co-worker, Scott Dawson, and a few other security people were already there. Mr. Thompson stated that he inspected the location of the restroom where the plaintiff fell and found the area damp and contained “small wet areas.”

He took all of the photographs in the incident report and all the photos of the signs in the incident report were the only signs that he saw when he arrived at the restroom. Of these photographs, there were no photos of an A-frame sign near or at the entrance. There were no photos of an A-frame sign in the middle of the restroom. Within the incident report is a picture of a cone shaped sign. Mr. Thompson wrote in the incident report that there was a “caution sign” over the “small wet areas” where the plaintiff fell. The plaintiff fell near the sinks located along the wall to the right as one enters the restroom. The spot where the plaintiff fell cannot be said to be at the entrance nor in the middle of the restroom where Mr. Becerra testified that he always places A-frame signs. The incident report only has a photo of one A-frame sign, and that one A-frame sign is in the rear of the restroom. Mr. Becerra, the defendant’s employee who was actively mopping and cleaning the restroom, testified that the photo of a cone shaped sign, incorporated into the incident report on page 1 of a 2-page document, “was a different sign” from the A-frame signs he used and that all the signs Mr. Becerra used were like the A-frame sign on page 2 of the incident report. Mr. Becerra did not put the cone shaped sign as shown on page 1 of the incident report in the restroom. Mr. Thompson was not the first defendant Gaming Enterprise employee to enter the bathroom after the plaintiff fell. Mr. Thompson testified that a Scott Dawson was in the restroom before him as well as multiple other defendant Gaming Enterprise employees.

When Russell Thompson was asked if he has ever observed employees wet mopping the floor in a restroom while customers continued to come in and out of that restroom, he responded “I’ve never seen that.” He testified that he hadn’t seen a restroom being cleaned with customers inside; “usually they block the restroom off.” “They block them off so nobody can come in and say ‘this restroom is closed.’”

Photographs in the incident report show that no A-frame or cone sign was placed at the entrance to the restroom, nor in the middle of the restroom. The Court credits the plaintiff’s testimony that there was only one A-frame sign at the far end of the restroom, opposite the entrance.

The Court credits the testimony of the plaintiff that he saw employees of the defendant Gaming Enterprise bringing in the cone type signs after he fell. The Court also credits the testimony of the plaintiff that in either case there was no A-frame or cone style sign at the entrance.3

The Court does not credit the supplemental report made two and a half months after the incident wherein the author stated that the plaintiff noticed the signs but thought he could walk through. The plaintiff denied making such a statement.

The defendant relies on the case of Caruso v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 244 (MPTC-CV-PI-2008-259) (2010) and argues that the instant case is “on all fours” with the findings and conclusions of the Caruso court. The Court disagrees. The Caruso case is factually different in many respects.

In Caruso, the plaintiff entered the restroom and walked, at a rapid pace, down a corridor, eight to ten feet long, where a restroom attendant was standing with a mop in hand. The plaintiff in Caruso testified that he saw the uniformed attendant when he was at least eight feet away from him as he approached the attendant. He also admitted he was a trained and experienced civil engineer and knew that water on a polished floor would likely be slippery.

In the instant case the Court finds that the plaintiff was not walking at a rapid pace, he was not intending to use the urinals or toilets, but only to wash his hands at the sinks which were located immediately inside the restroom. Upon entering the restroom, he turned to go to the sinks, and after taking four or five steps he slipped and fell on the water that the attendant admitted he had wet mopped where the plaintiff fell.

The plaintiff admitted that “out of the corner of his eye” he saw the restroom attendant standing past the row of sinks but did not realize he was mopping until after he fell. These facts are significantly and substantially different than the Caruso case.

Mr. Becerra testified that all his signs were the A-frame style signs and not the cone style signs. Mr. Becerra did not put up any cone style signs. The Court concludes that no cone style signs were in the restroom when the plaintiff entered and fell. The only sign in the restroom was one A-frame at the back of the restroom, not at the entrance nor in the middle of the restroom. The plaintiff has proved by a preponderance of the evidence that the defendant failed to properly warn him that the restroom floor was being mopped and cleaned and that there was a dangerous condition which the defendant had actual notice of, namely a wet floor, and the wet floor was the cause of the plaintiff’s fall.

Based on the totality of the circumstances and upon careful consideration of all of the evidence and a review of the exhibits, and having giving appropriate weight and credibility to the testimony of the parties, the Court finds that the plaintiff did suffer a significant injury when he fell in the defendant’s restroom, caused by a dangerous condition - wet floor - created by the defendant’s employee who was in the process of mopping the restroom floor while patrons were coming and going.

 

IV. DAMAGES

Plaintiff claims actual damages. Upon a finding of liability, the Court may enter an award for actual damages. 4 M.P.T.L. ch. 1 § 4(a). Actual damages are defined as “the ascertainable loss of money or property sustained as a result of an injury after any reduction for collateral sources.” 4 M.P.T.L. ch. 1 § 1(g). The plaintiff’s burden of proof to recover damages is a fair preponderance of the evidence. Jones v. Mashantucket Pequot Gaming Enterprise, 2024 WL 3157295, at 5 (Mash. Pequot Tribal Ct., 2024). The Court’s decision must be based on “reasonable probabilities in light of the evidence presented at trial.” Id. (quoting Esteves v. Mashantucket Pequot Gaming Enterprise, 2020 WL 8024886, at 5 (Mash. Pequot Tribal Ct., 2020)). There must be an evidentiary basis for the damages – “plaintiff and witness testimony and/or all medical and financial records.” Jones, supra at 5 (citing Kyle v. Green Bird, LTD, 2023 WL 7385143, at 2 (N.D.N.Y. Nov. 8, 2023)).

The defendant has not contested plaintiff’s injuries. As a result of this incident, the plaintiff sustained a dislocated right patella and a meniscal tear. The plaintiff treated with orthopedic surgeon Dr. Robert Arciero from UConn. The plaintiff initially treated with a course of physical therapy at Integrated Rehab Services from April through June of 2021. After discharge from this course of treatment, the plaintiff wore a knee brace. While the plaintiff’s condition improved, he continued to experience symptoms.

These continued symptoms ultimately worsened. Dr. Arciero recommended surgery. On January 12, 2023, the plaintiff underwent right knee surgery which involved the reconstruction of his right knee. After surgery, the plaintiff underwent a second course of physical therapy. Medical bills in the amount of $61,635.98 were incurred. Dr. Arciero rated the plaintiff’s knee as having a 20% permanent loss of function.

The Court finds that the plaintiff’s submitted medical bills are the ascertainable loss of money sustained as a result of the injury caused by the defendant. The Court finds that the plaintiff has met his burden of proof on his claim for medical expenses. The Court bases this determination on the connection made clear in the submitted medical records between the treatment incurred and the injury sustained that is the subject of this action. Accordingly, the Court awards the plaintiff $61,635.98 in actual economic damages.

Plaintiff also claims damages for pain and suffering. In addition to actual damages, the Court may enter an award for pain and suffering, but said amount cannot exceed 200% of the actual damages. 4 M.P.T.L. ch. 1, § 4(d)(1); Waterman v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 345, 354 (2015). “In assessing an award for pain and suffering the amount awarded should be fair, just and reasonable for the pain, suffering, inconvenience, disability and loss suffered.” Misuraca v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 71, 72 (2013) (citing Moore v. Mashantucket Pequot Gaming Enterprise,4 Mash.Rep. 317, 324 (2005)). “An award for pain and suffering cannot be computed by mathematical calculations.” Misuraca, supra at 72 (citing Peckham v. Mashantucket Pequot Gaming Enterprise, 1 Mash.Rep. 121, 124, 1 Mash. 88 (1995)).

“Pain and suffering includes the emotional consequences of an injury, which in turn includes the frustration and anguish caused by the incident.” Jones, supra at 6 (citing Furey v. United States, 458 F.Supp.2d 48, 56 (N.D.N.Y. 2006)). “[C]ourts have awarded pain and suffering damages based on the medical procedures endured.” Jones, supra at 6 (citing House v. Kent Worldwide Machine Works, Inc., 359 F. App’x 206, 210 (2d Cir. 2010)).

The plaintiff testified about the changes that this injury has affected on his life. Prior to the injury and through trial, the plaintiff worked as a project manager at a fullservice construction company which specialized in luxury backyards. As a project manager, the plaintiff testified that as part of his duties in this role he would need to assist his crew with physically demanding tasks such as helping his team lay patios, build retaining walls, and helping move heavy equipment.

The plaintiff testified how this injury has impacted his ability to do this. The plaintiff could no longer drive any of the companies “big dump trucks,” couldn’t move heavy equipment like he used to, and generally struggled moving around job sites. In one instance, the plaintiff brought his nephews with him to a jobsite in order to assist him with such tasks. The plaintiff’s testimony was buttressed by testimony from the owner of the company the plaintiff works for. The owner testified that the plaintiff has always been a hard worker and a good employee, and that these characteristics of the plaintiff have remained. However, the owner testified that based on his observation, it has clearly became more physically demanding for the plaintiff to complete the same work tasks since plaintiff suffered the subject injury. The Court finds both the testimony from the plaintiff and plaintiff’s employer on this point to be credible.

Plaintiff also testified how this injury has impacted his personal life. He remains able to hike, but now hikes with poles. He has not gone snowboarding since the injury because of how the injury has impacted his mobility. Based on the 20% permanency rating of plaintiff’s knee injury by Dr. Arciero, it is likely the plaintiff will continue to deal with this injury in some capacity for the rest of the plaintiff’s life.

Based on the above, considering the “pain, suffering, inconvenience, disability and loss suffered” as well as the “emotional consequences” of the injury, the Court finds that the plaintiff’s pain and suffering exceeds 200% of the actual damages incurred. Therefore, pursuant to Tribal Law 4 M.P.T.L ch. 1, § 4(d)(1) the plaintiff’s pain and suffering is reduced to 200% of the plaintiff’s actual damages. Accordingly, the Court awards plaintiff 200% of his economic damages as pain and suffering. This constitutes $123,271.96.

Judgment in the amount of $184,907.94 shall enter for the plaintiff as follows:

Actual Damages: $ 61,635.98 Pain and Suffering: +$123,271.96 Amount of Judgment: $184,907.94

Costs shall be taxed in favor of the plaintiff.

Should the defendant consider that a collateral source hearing is necessary, a request for same shall be made to the clerk of the court within 15 days from the date hereof.

BY THE COURT:

All Citations
2024 WL 4578902

Footnotes
1	The plaintiff knew after he fell that the floor was wet because he saw the man mopping with a mop and the area where he fell was wet. He noticed an odor to the water. It smelled like dirty water.
2	Said tile sign is discussed infra.
3	The defendant produced Jack LaBombard from the Engineering Department. He testified that there was a tile embedded in the floor just outside the entrance to the restroom that says “wet floor caution “ (Exhibit F). This tile is a fixture in the floor. It is present 24/7 whether or not the restroom is being mopped and cleaned. The defendant’s reliance on this tile for satisfying its duty to warn a patron that a restroom is being mopped and cleaned is not persuasive. The tile merely states the common knowledge that any restroom may have water spilled on its floor. Such a notice, in a tile on the floor, is an inadequate warning of a dangerous condition. Here, the defendant’s employee was deliberately putting water on the floor to clean it. Patrons do not walk looking down at each tile in front of them. Perhaps that is why only three of the 128 restrooms on the defendant’s property have such tiles.