2024 WL 3157295 (Mash. Pequot Tribal Ct.)
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Mashantucket Pequot Tribal Court.
 
IAN JONES, Plaintiff,
v.
MASHANTUCKET PEQUOT GAMING ENTERPRISE, Defendant.
 
NO. MPTC-CV-PI-2022-117
|
JANUARY 8, 2024

 

MEMORANDUM OF DECISION

Thomas J. Londregan, Judge

 

I. FACTS

On March 28, 2021, the plaintiff Ian Jones visited the Foxwoods Resort Casino operated by the defendant Mashantucket Pequot Gaming Enterprise (the “Gaming Enterprise”). He drove to the casino that day from Stamford, Connecticut. He was playing craps in the Grand Pequot Casino when, suddenly and without warning, an object fell from the casino ceiling and hit him on the head.

The object that fell from the ceiling of the Grand Pequot Casino was a plastic security camera dome (“camera dome”). Two other security cameras captured the incident and the videos were presented at trial. The videos show a camera dome and its bracket falling from the ceiling. The bracket lands on a wide overhead television display in a pit area for the table game of “dice,” commonly known as “craps.” The camera dome bounces off of the television display, falls towards the plaintiff, and hits him on the top of the head. The bounce off of the television display must have made some noise because many patrons and Foxwoods employees immediately look towards the area before the camera dome struck the plaintiff. The plaintiff was not incapacitated by the impact, and he told nearby patrons and a security guard that he was okay. He declined the security guard’s offer to call an ambulance. The plaintiff went back to playing craps until he began to feel nauseous. Then he drank a cup of coffee and went home.

At the trial held on October 11, 2023, a tinted camera dome was admitted into evidence. Other than the tinted color, there is no difference between the camera dome in evidence and the one that struck the plaintiff. The camera dome is a plastic cover that protects a security camera. It is a round dome almost seven inches in diameter at the bottom and about four inches in height. Around the base of the dome is a flange protruding about three-quarters of an inch, which is likely used to fasten the camera dome to the ceiling with a bracket.

MPTN Assistant Director of Surveillance Brian Procious testified that the defendant is responsible for inspecting and maintaining the security cameras. According to his testimony, no other entity is responsible for inspecting or maintaining the security cameras, it is the defendant’s duty to ensure the brackets and camera domes are secure to the ceiling, and, unsurprisingly, camera domes are not supposed to fall off of surveillance cameras.

The plaintiff was hit in the head at approximately 11:18 p.m. on March 28, 2021. The plaintiff developed a headache either while he was still in the casino during the midnight hours between March 28 and 29 or during “the next day,” which the Court takes to mean March 30. This was the first headache the plaintiff remembers having in his 46 years of life. Although initially he did not think he needed to see a doctor because “a piece of plastic [like] that can’t really do too much damage to a strong guy like me,” his girlfriend told him a headache could become serious and convinced him to have it checked out.

So, on March 31, 2021, two days after he was hit, the plaintiff went to the Tully Center.1 He reported that the plastic cover of a fixture fell on top of his head, that he developed a headache the next day, and that the headache pain level was a 4 out of 10. He was treated by PA Katherine Chase, whose primary impression was a “[m]inor head injury,” qualified as an “[u]nspecified injury of head.” He was given a Tylenol and discharged with two informational packets, with referrals to the Concussion Center and to his primary care provider, and with advice to take Tylenol or Motrin as needed for his headaches.

The plaintiff never went to the Concussion Center. But about a month later, on April 19, 2021, he met via Zoom with Dr. Lu Yu, whom he described as his primary care physician. The plaintiff reported having headaches at night and sometimes in the morning. He reported pain of 4 out of 10 and sometimes 7 or 8 out of 10. He reported never having this kind of headache before. Dr. Yu’s assessment was post-traumatic headache, not intractable, unspecified chronicity pattern. She ordered a CT scan.

The plaintiff completed the CT scan on April 22, 2021, and then returned for a follow up with Dr. Yu via Zoom on April 28. She found the scan unremarkable. She referred him to a neurologist and a neuropsychologist and said he could try Excedrin.

The plaintiff never went to the neuropsychologist. But on June 23, 2021, he met via Zoom with the neurologist Dr. Kung. The plaintiff reported experiencing headaches 15–20 days per month. In addition to Dr. Yu’s assessment, Dr. Kung added an assessment of chronic tension-type headache, not intractable. His treatment orders to the plaintiff were to take vitamin B-2 tablets and magnesium bisglycinate tablets, to keep a headache calendar, and to decrease his Excedrin intake.

The plaintiff did not take the vitamin B-2 tablets or the magnesium bisglycinate tablets and he did not keep a headache calendar because he was “busy most of the time.” The plaintiff continued to take Excedrin when his headaches were “unbearable.”

On July 28, 2021, he returned via Zoom to Dr. Kung. The plaintiff reported greater than 80% improvement. Dr. Kung told gave him the same orders and told him to follow up as needed.

The plaintiff’s total claimed medical expenses are $5,148.10. The visit to the Tully Center cost $395.55. The appointment with Dr. Yu cost $135 and the follow-up cost $135. The CT scan cost $3,962.55. The appointment with Dr. Kung cost $385 and the follow-up cost $135. The plaintiff does not have medical insurance.

The plaintiff testified at the trial that he “never had headaches before.” That changed when the approximately-two-ounce surveillance camera dome cover hit him in the head. The plaintiff testified that in the days and weeks after the incident he experienced headaches “probably every other night or every night sometimes.” Other times he would get two headaches in a day. In July 2021, four months after the incident, he was still having “regular headaches” that “were not going away” and were sometimes “unbearable.” And by the time of trial in October 2023, he was still having headaches “every now and again.”

The plaintiff operates a valet parking business and works as an Uber driver. He claims $1,050 to $1,500 in damages for lost income because, as he testified, he missed “probably about a week” of work “around [the] time” of the incident. He did not provide exact dates or the number of days missed. He did not explain why he could not work those days. The plaintiff’s method for calculating his lost income is muddled, possibly because it was more like a best-guess, but his testimony indicates he estimated his lost income by taking three months’ worth of income and “divid[ing] it weekly.” The only record that was admitted into evidence at trial was his 2021 income tax return. The tax return does not list his income in three-month increments. The plaintiff acknowledged that Uber provides its drivers with weekly income statements, but he did not offer such a statement at trial.

In addition to actual damages, the plaintiff seeks damages for pain and suffering. His headaches prevented him from going outside. He missed opportunities to play soccer with his son because he was having a headache. He drives for a living, and sometimes when he gets a headache he has to pull over to take a break from driving.

Thereafter the plaintiff brought this action against the Gaming Enterprise. The plaintiff alleges that the Gaming Enterprise was negligent for failing to properly install, inspect, and maintain the camera dome. The plaintiff alleges that, as a result of the camera dome hitting his head, he suffers from headaches causing him considerable pain. He also alleges expenses for medical care and treatment as well as missed work. The plaintiff submitted, by agreement, a life expectancy table showing his life expectancy to be 31.7 years. The defendant responds that the plaintiff’s injuries are subjective and the only basis for his medical treatment was what he told his medical providers.

The issue in this case is whether the defendant’s negligence caused the plaintiff’s damages.

 

II. LIABILITY

The essential elements of a cause of action in negligence are well established. In order to prevail, a plaintiff must prove by a preponderance of the evidence that: (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty of care; (3) the defendant’s conduct that comprised the breach was both the factual and the proximate cause of the plaintiff’s injuries; and (4) the plaintiff suffered actual damages. Hazard v. Mashantucket Pequot Tribal Nation, 6 Mash.Rep. 354, 357 (2016).

 

A. DUTY

The defendant owes invitees to its premises the duty to have the premises reasonably safe for their travel and use. Ruffo v. Mashantucket Pequot Gaming Enterprise, 1 Mash.App. 3, 6 (1994). Here, the defendant affixed camera domes to the ceiling of its casino far above the heads of its invitees, including the plaintiff. Attaching an object to the ceiling carries inherent risks. The object may fall from the ceiling because the bracket fails or for another reason. If so, it may fall upon a patron. The defendant understood the risk because it assumed the responsibility of inspecting and maintaining the security cameras to ensure they are secure to the ceiling. The Court finds that the defendant had a duty to ensure the camera dome would not fall from the ceiling while the plaintiff was underneath it.

 

B. BREACH

The plaintiff argues the defendant was the only person who had control over the camera dome before it fell from the ceiling and hit him. He further argues common experience suggests the camera dome would not have fallen from the ceiling in the absence of negligence. “Thus, the [p]laintiff argues the doctrine of res ipsa loquitur.” Sebastian v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 429, 432 (2017). The defendant was on notice of this doctrine and addressed it in its post-trial brief.

The defendant contends that the plaintiff did not offer any evidence of negligence. The defendant argues that no evidence shows why the camera dome fell from the ceiling, and without proving why it fell, the plaintiff cannot prove it fell because of some breach of duty by the defendant. The defendant is correct in that the plaintiff did not show what specific negligent act caused the camera dome to fall, but this is not dispositive under the doctrine of res ipsa loquitur. “In a negligence action, a plaintiff may claim specific acts of negligence and/or may claim negligence based on circumstantial evidence. The latter approach is commonly referred to as res ipsa loquitur.” Digirolamo v. Otis Elevator Co., 6 Mash.Rep. 381, 384 (2016). The defendant overlooks this “latter approach.” Id. Res ipsa loquitur permits the plaintiff to “sustain the burden of providing that the defendant was more probably negligent than not, by showing how the accident occurred, without offering any evidence to show why it occurred.” Id. (emphasis in original).

The plaintiff’s evidence shows how the accident occurred: a camera dome fell from the ceiling and hit him in the head. Additionally, the evidence and common sense suggest camera domes should not fall from the defendant’s ceiling. Therefore, the Court will apply the doctrine of res ipsa loquitur.

Res ipsa loquitur “allows the court to infer negligence based on the circumstances of the incident even though no direct evidence of negligence has been introduced.” Sebastian, 6 Mash.Rep. at 433 (quoting Kelleher v. MPGE, 4 Mash.Rep. 511, 513 (2007)). Relying on circumstantial evidence to prove negligence “is the plaintiff’s risk to take.” Digirolamo, 6 Mash.Rep. at 384. The elements of res ipsa loquitur are that the “instrumentality that has caused the injury complained of was under the control or management of the defendant and that the occurrence resulting in the injury was such as in the ordinary course of things would not happen if those who had its control or management used proper care....” Sebastian, 6 Mash.Rep. at 433 (quoting McDonald v. Mashantucket Pequot Gaming Enterprise, 2 Mash.Rep. 157, 159 (1997), aff’d, 2 Mash.App. 7 (1998)). Res ipsa loquitur is “a rule of common sense....” Id. (quoting Digirolamo, 6 Mash.Rep. at 384).

Here, Mr. Procious testified that the defendant, and the defendant alone, is responsible for inspecting and maintaining the security cameras. In other words, the defendant had exclusive control over the camera dome. It is unlikely that an unknown, unauthorized third party caused the camera dome to fall, as any unauthorized interference with the camera dome would have occurred at the casino ceiling in plain view of every patron, employee, and surveillance officer in the casino. Mr. Procious further testified that camera domes are not supposed to fall off of surveillance cameras. His testimony is consistent with common sense. In light of this testimony presented by the plaintiff, the defendant’s argument that the plaintiff did not offer any evidence of the defendant’s negligence lacks both credibility and common sense. Moreover, the defendant did not offer any alternative evidence or explanation as to why the camera dome fell. This is not a case where the accident “may be attributable to one of several causes.” Id. (declining to find negligence under res ipsa loquitur because the accident might have happened as a result of one of two causes). The Court finds it more likely than not that the camera dome fell because the defendant failed to properly install, inspect, or maintain it. The Court further finds that the camera dome was under the control or management of the defendant and that its fall from the ceiling would not happen in the ordinary course of things if the defendant used proper care to install, inspect, and maintain it.

The elements of res ipsa loquitur are satisfied. The Court finds that the defendant breached its duty to ensure the camera dome would not fall from the ceiling while the plaintiff was underneath it. The defendant’s argument to the contrary is unavailing.

 

C. CAUSATION

The Court must decide the nature and extent of the plaintiff’s damages that were proximately caused by the plastic dome hitting the plaintiff’s head. The legal definition of “proximate caus[e] requires the plaintiff to prove that the defendant’s conduct was a substantial factor in causing the injuries alleged.” Esteves v. Mashantucket Pequot Gaming Enterprise, 2020 WL 8024886, at *7 n.2 (Mash. Pequot Tribal Ct. Nov. 23, 2020) (citing Natale v. Wal-Mart Stores East, LP, 2019 WL 2603220, at *16 (Conn. Super. Ct. May 21, 2019)), aff’d, 2021 WL 5003438 (Mash. Pequot Ct. App. Oct. 11, 2021). “The Court may not guess or speculate, but must base its decision upon reasonable probabilities in light of the evidence at trial.” Id. at *9. Medical evidence, whether by a medical expert or medical records, must demonstrate “to a reasonable degree of probability that the damages were caused by the defendant’s conduct.” Id.

Here, despite being “a strong guy,” the plaintiff went to the emergency room because he was concerned that his head injury could become serious. The Court is inclined to agree with the plaintiff’s initial assumption that “a piece of plastic [like the camera dome] can’t really do too much damage,” but the Court must acknowledge that it was not the Court’s head at stake. The Court cannot fault the plaintiff for his concern that an object falling from the ceiling of a casino and impacting the top of his head warranted a doctor’s visit. The plaintiff went to the Tully Center, who referred him to his primary care provider, who sent him for a CT scan and then referred him to a neurologist. The fact that he was also referred to the Concussion Center and to a neuropsychologist does not change the fact that he went to the ER out of a justified concern for his wellbeing and then to the other medical providers based on an unbroken chain of doctors’ referrals.

That being said, the Court notes that the impact was moderate at best. The plaintiff was not incapacitated. He reported that he was okay and declined medical intervention. No medical records establish any bruising in the area where the contact occurred. The medical records refer to an “[u]nspecified injury” to the head. Pl.’s Ex. 4 at 24. The medical records from March 31, 2021, note a “[m]inor head injury,” id., no distress, id., and that the plaintiff was alert and oriented, id. at 17. Other medical records state findings and observations that were generally “normal” and “negative.” The evidence did not disclose any objective findings by a medical provider to support a diagnosis of a concussion other than the plaintiff’s complaint of headache after being struck in the head with a plastic dome. The medical records merely state that the plaintiff was given patient instructions for concussion and was referred to the Concussion Center, which he never went to. The medical records do not provide any basis to suggest that the plaintiff’s current complaints are causally related to the incident on March 28, 2021.

In addition to reviewing the medical records, the Court has considered the credibility of the plaintiff, notably his failure to comply with the medical instructions as to treatment and medications. The Court finds that the plaintiff had appropriate concerns about what had happened to him, and it was appropriate for him to seek medical treatment. The Court finds that the plaintiff proved that his treatment through July 2021 was proximately caused by the negligence of the defendant. The Court finds that subsequent medical records refer to a concussion, but such records do not provide any basis to suggest that the plaintiff’s complaint of headaches were causally a result of the incident on March 28, 2021.

 

D. DAMAGES

The plaintiff may recover an award for actual damages. 4 M.P.T.L. ch. 1 § 4(a). In addition, the Court may enter an award for pain and suffering or mental anguish, provided any such award “shall not exceed 200% of the actual damages sustained.” Id. at § 4(d)(1). The plaintiff’s burden of proof to recover damages is a fair preponderance of the evidence. See Esteves, 2020 WL 8024886, at *5 (discussing proximate cause of damages). The Court’s decision must be based on “reasonable probabilities in light of the evidence presented at trial.” Id. at *9. In other words, there must be an evidentiary basis for the damages—plaintiff and witness testimony and/or all medical and financial records. See Kyle v. Green Bird, LTD, 2023 WL 7385143, at *2 (N.D.N.Y. Nov. 8, 2023).

The plaintiff submitted medical records from the Tully Health Center, Dr. Yu, the CT scan radiologist Dr. Bauman, and Dr. Kung. He also submitted medical bills from those providers claiming $5,148.10 in total medical expenses. The Court finds that the plaintiff has met his burden of proof on his claim for medical expenses.

In addition to medical expenses, the plaintiff seeks damages for lost wages. At trial, the plaintiff did not list the dates he could not work. He did not explain why he could not work. He did not offer any business records as a basis for the amount of lost income claimed (for example, a record showing that he had canceled an event while he could not work, or a record that he had hired someone to work an event while he could not work). Although he acknowledged that he receives weekly income statements from Uber, he did not offer the weekly income statement for the week that he says he could not work, nor did he offer weekly income statements from other weeks to establish a basis for estimating the amount of income he missed during the week he says he could not work. In short, the plaintiff says that he missed some amount of income because he could not work some number of days sometime around the time of the incident for some unspecified reason. The Court finds that the plaintiff has not met his burden of proof on his claim for lost income.

In addition to his medical expenses, the plaintiff also claims damages for pain and suffering. Pain and suffering includes the emotional consequences of an injury, which in turn includes the frustration and anguish caused by the incident. See 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....” House v. Kent Worldwide Machine Works, Inc., 359 F. App’x 206, 210 (2d Cir. 2010). In this case, the Court has found that it was reasonable for the plaintiff to see various doctors. As a result of their instructions, he endured a CT scan procedure. Consequently, the Court finds that the plaintiff is entitled to damages for pain and suffering. While there is no precise rule for determining pain and suffering, courts are bound by a standard of reasonableness in light of all the evidence. See Estevez v. United States, 72 F.Supp.2d 205, 208 (S.D.N.Y. 1999). The Court, having considered the testimony of the plaintiff, the medical records, the credibility of the plaintiff, and the argument of the parties, awards $1,500.00 for pain and suffering.

 

III. CONCLUSION

The plaintiff’s medical expenses for treatment through July 2021 was $5,148.10. The Court awards the plaintiff actual damages for said medical expenses. In addition, the Court may enter an award for pain and suffering and mental anguish. The Court awards the plaintiff $1,500.00 for such damages. Judgment shall enter for the plaintiff in the amount of $6,648.10.

Should the defendant desire a hearing on collateral sources, it shall file a request with the clerk within 15 days from the date hereof.

All Citations
2024 WL 3157295

Footnotes

1

The plaintiff also testified that he went back to the emergency room the day after he went to the Tully Center, but after reviewing the medical records the Court finds that the plaintiff did not go to the emergency room the day after he went to the Tully Center. The record is clear that the defendant went to the Tully Center on March 31, 2021. He arrived at 7:35 p.m. and he departed at 7:54 p.m. The only records from the next day are a note by PA Chase created on April 1, 2021, at 7:31 a.m. and an electronic signature by Dr. Alan Weiner on April 1, 2021, at 7:31 a.m. Both are associated with the Tully Center record that PA Chase had electronically signed on March 31, 2021, at 7:46 p.m. during the plaintiff’s visit to the Tully Center (Dr. Weiner was available for consultation). Thus, the signatures dated April 1, 2021, do not indicate a separate, subsequent visit to the Tully Center. Nevertheless, this does not affect the plaintiff’s damages, as his own medical expense summary, Pl.’s Ex. 7, does not claim an emergency room expense other than the one for the Tully Center on March 31, 2021. The plaintiff does not claim any expenses from April 1, 2021.