2023 WL 11158881 (Mash. Pequot Tribal Ct.)
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Mashantucket Pequot Tribal Court.
 
Dianne MATHEWS
v.
MASHANTUCKET PEQUOT GAMING ENTERPRISE
 
NO. MPTC-CV-PI-2020-138
|
September 14, 2023

 

MEMORANDUM OF DECISION1

Edward B. O’Connell, Judge

On February 16, 2020, the plaintiff Dianne Mathews visited the Mashantucket Pequot Gaming Enterprise’s Foxwoods Resort and Casino to attend a promotional wine-tasting event known as the Royal Rose. The event was held in one of Foxwood’s ballrooms and, as part of the event, the Gaming Enterprise and/or a vendor operating on its behalf, blew artificial rose petals onto the floor. The plaintiff alleges that when she walked through an accumulation of rose petals one of them stuck to her shoe, and when she attempted to remove it, it caused her to lose her balance and fall. After her fall, she suffered a fractured right knee and endured physical pain. To treat her injuries, Ms. Mathews sought medical treatment including emergency medical care, immobilization devices, radiological exams, physical therapy, primary care treatment, and prescription pain killing medication.

Thereafter, Ms. Mathews filed this action against the Gaming Enterprise, claiming to have fallen due to a dangerous condition on the event floor. She asserts that the Gaming Enterprise knew or should have known of this dangerous condition; that it negligently and carelessly allowed the dangerous condition to exist; and that it failed to take action to remedy the dangerous condition. The Gaming Enterprise denies all Ms. Mathews’ claims and asserts that her injuries are due to her own carelessness and negligence.

In negligence cases such as this one, the plaintiff has the burden of proving by a fair preponderance of the evidence that the defendant owed a duty to safeguard the plaintiff from a dangerous condition; that the defendant breached said duty; that the breach of said duty was the proximate cause of the plaintiff’s injuries; and that the plaintiff suffered actual damages as a result of said breach. Hazard v. Mashantucket Pequot Tribal Nation, 6 Mash.Rep. 354, 357-58 (2016); Mashantucket Pequot Tribal Nation v. Castellucci & Assoc., Inc., 4 Mash.Rep. 21, 33, 5 Mash. 227 (2002).

The Mashantucket Pequot Court of Appeals has repeatedly held that the Gaming Enterprise “is not an insurer of invitees to its facilities.” Malouf v. Mashantucket Pequot Gaming Enterprise, 6 Mash.App. 19, 21 (2014) (citing Senatore v. Mashantucket Pequot Gaming Enterprise, 4 Mash.App. 34, 38 (2006)). “The mere fact in and of itself that the plaintiff was injured on the premises does not constitute a lack of due care—or negligence—on the part of the defendant.” Ruffo v. Mashantucket Pequot Gaming Enterprise, 1 Mash.App. 3, 6, 1 MPR 3 (1994). On the other hand, if the Gaming Enterprise “failed to comply with the degree of care which would have been exercised by a reasonably prudent casino owner under similar circumstances, a lack of due care – or negligence – would be established on the part of the defendant.” Ng v. Mashantucket Pequot Gaming Enterprise, 2 Mash.Rep. 138, 3 Mash. 15 (1997) (quoting Ruffo, supra, at 6, 1 MPR 3).

The required degree of care is that “which would have been exercised by a reasonably prudent casino operator under similar circumstances.” Caruso v. Mashantucket Pequot Gaming Enterprise, 5 Mash.App. 45, 48 (2010) (citing Ruffo at 6, 1 MPR 3). When a plaintiff is considered a business visitor, or an invitee, of the defendant, that defendant “owe[s] her the duty to have the premises reasonably safe for her travel and use.” Malouf at 21 (citing Ruffo at 6, 1 MPR 3). This duty of care further requires the defendant to “warn or otherwise protect the plaintiff from any dangerous condition or hazard of which it had actual or constructive knowledge, or which it might reasonably have anticipated.” Malouf at 22 (quoting Martello v. Mashantucket Pequot Gaming Enterprise, 1 Mash.Rep. 193, 194, 1 Mash. 145 (1996)).

According to Mashantucket Pequot (Gaming Enterprise) Tort Claims Law, a “dangerous condition” is “a physical aspect of [the casino] which constitutes an unreasonable risk to human health or safety ...” 4 M.P.T.L. ch. 1 § 1(e). The law also provides that a dangerous condition must have been known to exist, or “should have been known to exist” by the Gaming Enterprise, “if it is established that the condition had existed for such a period of time and was of such a nature that, in the exercise of reasonable care, such condition and its dangerous character should have been discovered.” Id.

The defendant’s duty to warn or protect the plaintiff from dangerous conditions is limited to those dangerous conditions of which it has “actual or constructive knowledge.” Malouf at 22 (quoting Martello at 194, 1 Mash. 145). The defendant would have constructive knowledge of the condition if it existed for a “length of time sufficient for the defendant’s employees, in the exercise of due care, to discover [it] in time to have remedied it.” Malouf at 23 (quoting Brown v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 79, 81 (2008)).

Here, the plaintiff must show that, at the time of her fall, the rose petals on the floor were a dangerous condition. The plaintiff must also show that the defendant had at least constructive knowledge of the rose petals being a dangerous hazard, that the defendant had time to remedy it, and that it was the proximate cause of her sustained injuries.

The plaintiff fell while attending the Royal Rose wine testing event at Foxwoods Resort and Casino. At the Royal Rose, there were several “stations” set up around the event space on either side of an aisle or walkway used by the patrons. Some stations were for food or wine testing, and others were designated for photo opportunities. The photo opportunity stations allowed patrons to take photos of themselves at the event. At one of these photo opportunity stations there were loose, artificial rose petals which were blown into the air from a machine as a prop for the patrons. Some of those petals landed on the surface of the aisle or walkway between the stations.

The plaintiff, who was walking around the event space, started to walk through the artificial rose petals that had accumulated and were scattered on the floor of the aisle next to the photo station, having been blown there by the machine. She noticed a petal on the tip of her shoe. She wanted to remove the petal out of a “fear of falling,” as she believed that the petal stuck to her shoe could have caused her to slip.

While still walking, the plaintiff attempted to remove the petal “in one swoop” from her right shoe. She stated that she bent her right knee and reached with her left arm to attempt to remove the petal from her right shoe. In her right hand, she was holding a drink. On her right shoulder, she held a bag. And under her right arm, she held her jacket. The plaintiff claims that the “momentum” of her continuing to walk and simultaneously attempting to remove the petal caused her to fall.

The entirety of the fall was recorded on video security footage. It shows the area of the photo opportunity station and the petals in the adjacent aisle. There was a thick accumulation of petals close to the station; the petals are more scattered farther from the station. The video depicts the plaintiff as she walks through the area, starts to reach for her foot, and then falls forward to the floor, her drink flying out of her right hand.

The first issue this Court must address is whether the petals on the floor were a “dangerous condition” that were “an unreasonable risk to human health or safety.” 4 M.P.T.L. ch. 1 § 1(e). The defendant argues that the petals were not a dangerous condition, as a review of the video reveals that approximately 708 people walked over the area where the plaintiff fell without incident. The defendant further asserts that it was the plaintiff’s actions that caused her fall because if she had continued to walk normally with the rose petal on the tip of her shoe, she would not have fallen. The plaintiff counters with her own review of the video, observing that although no one else fell due to the accumulation of petals, they were still a potential hazard that caused an unreasonable risk to safety. She notes that in the hour preceding her fall, at least nine people can be seen on the video footage wiping their shoes, stomping their feet, or shaking their feet to remove petals.

There was no expert testimony presented whether the specific type of artificial rose petals themselves were inherently dangerous. Although video footage and testimony show that the petals may have stuck to people and their shoes, there was no expert testimony regarding whether the petals could affect traction in any manner. The Court cannot speculate on this issue, as its “findings cannot be the result of supposition or conjecture, and must be based on the evidence presented.” Vella v. Mashantucket Pequot Gaming Enterprise, No. MPTC-CV-PI-2017-142, ––– Mash.Rep. ––––, ––––, 2019 WL 2484273, at *2 (Mash. Pequot Tribal Ct., 2019) (quoting Bolling v. Mashantucket Pequot Gaming Enterprise, 4 Mash.Rep. 110, 112, 6 Mash. 55 (2003)); see also Green v. Mashantucket Pequot Gaming Enterprise, 1 Mash.Rep. 487, 489, 2 Mash. 93 (1997).

The Court must determine whether the rose petals on the floor were a dangerous condition based on the evidence presented. The defendant did not place any warning signs near the photo opportunity station, nor was the portion of the aisle adjacent to that station cordoned off to prevent patrons from walking through the petals. Two of defendant’s employees were scheduled to sweep and clean the area in question and to return petals back to the station. But none of the defendant’s employees swept, cleaned, or returned scattered petals to the photo opportunity station in the hour leading up to the plaintiff’s fall.

Based on the evidence presented, the Court finds that the accumulated rose petals on the floor of the aisle adjacent to the photo opportunity station was a “dangerous condition.” The photo opportunity station was designed to encourage patrons to interact with the petals, so the defendant knew they may spread across the adjacent aisle. This is confirmed by the assignment of two employees to sweep and clean the area and to return petals to the station.

“To charge the defendant with constructive notice, the notice would have had to be of the dangerous condition itself, and not merely conditions naturally productive of it.” Ruffo v. Mashantucket Pequot Gaming Enterprise, 1 Mash.Rep. 33, 38, 1 Mash. 26 (1994), aff’d, 1 Mash.App. 3, 1 MPR 3 (1994). “[T]he plaintiff must allege and prove that the defendant had actual or constructive knowledge of the specific dangerous condition which caused her fall.” Benoit v. Mashantucket Pequot Gaming Enterprise, 3 Mash.Rep. 152, 156, 4 Mash. 24 (1999) (citing Cole v. Mashantucket Pequot Gaming Enterprise, 2 Mash.Rep. 11, 13, 2 Mash. 104 (1997), aff’d, 1 Mash.App. 47, 1 MPR 49 (1997)). As the video showed, there were nine people in the hour preceding the plaintiff’s fall who were seen attempting to remove petals from their shoes. The defendant’s employees assigned to clean the station can be seen in the video witnessing these patrons, but not sweeping or cleaning the area. If the defendant considered that the accumulated artificial rose petals did not present a hazard to patrons walking in the aisle, they would not have assigned two employees to keep the area clear of the petals. This evidence demonstrates that the defendant had knowledge of the dangerous condition and that its employees had time to remedy it.

The Court finds by a preponderance of the evidence that the artificial rose petals on the aisle adjacent to the photo opportunity station were a dangerous condition of which the defendant had knowledge for a length of time sufficient to remedy it.

The next issue this Court must address is whether the dangerous condition, the petal on the toe of the plaintiff’s shoe, was the proximate cause of the plaintiff’s sustained injuries. The defendant argues that the plaintiff’s own behavior and actions were the cause of her fall. The defendant observes that the plaintiff took multiple medications before going to the Royal Rose where she consumed alcohol. The plaintiff responds that she was not “intoxicated” at any point in the day of her fall, and the alcohol was dispensed in small amounts. The Court heard no expert testimony regarding intoxication, and did not see any evidence of alcohol or drug influence in the video. The Court does not ascribe any consumption of alcohol or drugs as the cause of the plaintiff’s fall.

At the time of the fall, the plaintiff did not stop or sit down to remove the petal. She continued walking at her standard pace and attempted to remove the petal from her right shoe by bending with her right knee and reaching with her left hand in “one swoop.” She had a drink in her right hand, a bag on her right shoulder, and a jacket under her right arm. The defendant contends that the plaintiff’s attempt to remove the petal with the “momentum” of her walking while encumbered by the items in her right hand and arm and shoulder constitutes negligence which is the proximate cause of her injuries. The plaintiff responds that she was attempting to remove the petal from her shoe out of a fear of falling, and if she had fallen because she did not attempt to remove the petal, the defendant would argue she was negligent for not trying to remove it.

“It is axiomatic that a plaintiff must use reasonable care to avoid injury and must make such use of one’s facilities and senses as a reasonably prudent person would have made under the same circumstances.” Stack v. Mashantucket Pequot Gaming Enterprise, No. MPTC-CV-PI-2018-190, ––– Mash.Rep. ––––, ––––, 2021 WL 3792939, at *5 (Mash. Pequot Tribal Ct., 2021) (citing Jones v. Mashantucket Pequot Gaming Enterprise, No. MPTC-CV-PI-2017-125, ––– Mash.Rep. ––––, ––––, 2020 WL 4280726, at *3 (Mash. Pequot Tribal Ct., 2020)). Here, the video shows that all of the patrons who attempted to remove petals from their shoes and legs before the plaintiff did so by first stopping. None attempted to remove a petal from under their shoe “in one swoop” while continuing to walk at their usual pace. The plaintiff, however, continued to walk at her normal pace after noticing the petal on the top of her right shoe. While carrying a drink in her right hand, a bag on her right shoulder and a jacket on her right arm, she raised her right leg and attempted to remove the petal from her shoe with her left hand. This maneuver left her standing on one foot with her momentum going forward, unable to balance because of the items carried in her right hand, arm and shoulder. Not surprisingly, she lost her balance and fell forward, seriously injuring her right knee.

Taking into account the testimony and demeanor of the witnesses and the other material evidence, including the video, and the oral and written arguments of the parties, the Court finds by a preponderance of the evidence that the accumulation of artificial rose petals on the floor of the aisle adjacent to the photo opportunity station was a dangerous condition and the proximate cause of the plaintiff’s fall. But for the rose petal at the tip of the plaintiff’s shoe, she would not have fallen. However, while continuing to walk at an unbroken pace the plaintiff stood on her left foot while carrying an array of items in her right hand, arm and shoulder. She attempted to remove a petal attached to her right shoe “in one swoop” with her left hand, but this maneuver caused her to lose her balance and fall forward. Considering all the circumstances, the Court finds by a preponderance of the evidence that the actions of the plaintiff were a factor in her fall and constituted contributory negligence. The plaintiff was 50% responsible for the fall.

As a result of her fall, the plaintiff sustained a fractured right patella. Prior to the incident, she had a history of right knee pain which she had described as “tolerable”, and did not inhibit her from engaging in the usual activities of daily life. The video confirms that her gait was normal prior to the fall.

After she fell, the plaintiff was taken by ambulance to Backus Hospital in Norwich, where her knee was x-rayed and she received a foam brace and was directed to follow up as needed. Three days later she went to Orthopedic Associates of Middletown, when her condition was “getting ugly.” Dr. Kuhn confirmed her kneecap was broken and placed the plaintiff in a full thigh to ankle “immobilizer,” which she had to wear for the next four to five weeks while using crutches to get around. Thereafter, she reverted to the brace for an additional “couple of months,” and slowly returned to work as a hospice nurse, starting on light duty. During this time she received physical therapy at Middlesex Hospital, where she was employed as a nurse.

Dr. Kuhn opined that the plaintiff’s right knee fracture was directly and casually related to her fall, as was a sprain of her posterior cruciate ligament.

The plaintiff suffered a subsequent injury to her right knee in September of 2022, when she was getting on an airplane and her knee “popped.” She does not claim any treatment expenses after that date, but asserts that the changes in her life which began after the fall at the Royal Rose event continue to this day. Her right knee flares up and she feels a burning sensation; she has difficultly kneeling when caring for patients as a nurse or spending time with her grandchildren; her leisure activities such as dancing and golf have declined. This plaintiff did not attempt to assign a percentage of these ailments and effects to the February 16, 2020 Royal Rose fall vis-à-vis the September, 2022 airplane incident.

The plaintiff’s treatment expenses between February 16, 2020 and September, 2022, which are not contested by the defendant, may be summarized as follows:

American Ambulance	$ 1,097.52
Backus Hospital	2,709.82
Midstate Radiology Associates	55.00
Orthopedic Associates of Middletown	6,424.61
Middlesex Hospital	6,960.00
Radiologic Assoc. of Middletown	498.00
	$17,744.95

The plaintiff makes no claim for lost wages. Accordingly, her economic damages, or “actual damages” as described in 4 M.P.T.L. ch. 1 § 1(g) are $17,744.95.

“In addition to an award for actual damages, the court may enter an award for pain and suffering or mental anguish in an amount which shall not exceed 200% of the actual damages sustained.” 4 M.P.T.L. ch. 1 § 4(d)(1). “An award for pain and suffering cannot be computed by mathematical calculations. 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. The statutory restriction of 200% of the actual damages sustained is simply a limitation above which any amount found for pain and suffering must be reduced. Only if the amount found for pain and suffering exceeds 200% of the actual damages would the court be obligated to reduce the amount awarded for pain and suffering to the statutory maximum.” Licciardello v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 399, 408 (2017) (citations and quotation marks omitted).

Taking into account all the circumstances and evidence, including that the plaintiff was on crutches and in a thigh to ankle brace for five weeks and in a foam brace thereafter, and gradually regained use of her knee while suffering residual pain until September, 2022 while resuming work and some leisure activities but still suffers from some portion of residual pain, the Court awards $35,000.00 for pain and suffering.

The total award for actual damages ($17,744.95) and pain and suffering ($35,000.00) is $52,744.95. The plaintiff’s recovery must be reduced by her 50% contributory negligence. This adjustment results in a net award of $26,372.48.

Judgment enters for the plaintiff in the amount of $26,372.48.

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
2023 WL 11158881

Footnotes
1	After the court trial and while the undersigned was in the process of reviewing the file and the arguments of the parties and preparing his decision he fell ill, requiring his hospitalization and subsequent rehabilitation. The undersigned appreciates the patience of the parties in this matter.