--- Am. Tribal Law ----, 2024 WL 2862464 (Mohegan Gaming Trial Ct.)
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Mohegan Gaming Disputes Trial Court.
Kim MINERVA
v.
MOHEGAN TRIBAL GAMING AUTHORITY
7 G.D.R. 106
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GDTC-T-16-116-JAM
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June 4, 2024
MEMORANDUM OF DECISION
McNamara, J.
SUMMARY
The trial of this action under the Mohegan Torts Code was ordered to be bifurcated with the issues of liability and damages be tried separately. In the initial liability hearing, the Plaintiff established that she slipped and fell in a puddle of water in front of the Concierge Desk in the Mohegan Sun Hotel lobby. Testimony and exhibits established that there was a visible puddle of water where Plaintiff fell, and that an EVS attendant walked in the same area just prior to the Plaintiff falling yet took no action to remedy this defect. Video footage established that no spill occurred between the time the EVS attendant walked through the area and the Plaintiff fell. The Gaming Disputes Trial Court, McNamara, J., held that the defect was in existence when the EVS attendant, an individual vested with the duty or responsibility to take action, failed to do so. Judgment entered for the Plaintiff as to liability with a finding of 33% comparative negligence. Damages will be determined in the next phase of the trial.
I. Factual Background
This matter was commenced by the filing of a Summons and Complaint with the Gaming Dispute Trial Court on August 29, 2016.
The Complaint alleges that on April 16, 2016, the Plaintiff, Kim Minerva, was a guest and business invitee at the Mohegan Sun Casino and was caused to slip and fall due to an accumulation of water and/or liquid substance where she was walking, resulting in personal injuries.
It is further alleged that the Defendant was negligent in one or more of the following ways in that it:
a. Failed to remedy the unsafe condition upon said floor which it either created, knew it existed, and/or should have discovered with reasonable inspection due to the period of time it existed;
b. Failed to warn the plaintiff of the unsafe condition;
c. Failed to employ a wet floor sign or any form of visual aid to alert the Plaintiff as to the dangerous condition;
d. Failed to properly inspect said floor;
e. Failed to properly maintain said floor; and
f. Otherwise failed to take reasonable and proper precautions to avoid the probability of harm to invitees using the Defendant’s premises, including the Plaintiff.
The Defendant, through its Answer, has admitted that MTGA owned the premises known as the Mohegan Sun Casino, that the Plaintiff was lawfully upon the premises at the time of the incident, and that the Defendant owned, possessed, maintained and controlled 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. Additionally, the 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 one or more of the following ways:
a. She failed to make observations of her immediate surroundings;
b. She failed to proceed in a manner to avoid any liquid or substance on the floor; and
c. She failed to properly utilize her faculties and senses.
The Defendant filed a Motion to Bifurcate the issue of liability from the issue of damages. The Plaintiff consented to said motion, and the Court granted said motion; therefore, the only issue before this Court surrounds liability.
The testimony and evidence, including a video tape of the actual incident, established the following facts relevant to the decision in this case.
The Plaintiff arrived at Mohegan Sun Casino on April 15, 2016. She traveled to the Casino with her friend and her children to see a concert. After the concert was over, she spent the night at the hotel at Mohegan Sun Casino and was planning on checking out of the hotel at approximately 10:00 a.m. on April 16, 2016. The Plaintiff vacated her hotel room and proceeded to the lobby of the hotel. As the Plaintiff was walking through the concierge area of the lobby, she slipped and fell. The Plaintiff did not observe any substance on the floor prior to falling, but after she fell, she noticed a puddle of water where she fell.
The Plaintiff testified that she had no idea as to how long the wet substance had been on the floor before she slipped and fell on it. There was no evidence as to how the wet substance came to be on the floor or the length of time it was there.
II. Analysis
The Defendant does not dispute that the Plaintiff was lawfully on its premises when she slipped and fell. The Defendant further recognizes that it owed the Plaintiff, as a business invitee, a duty to exercise reasonable care to maintain its premises in a reasonably safe condition for reasonable anticipated use by its patrons and invitees. Davenport v. Quinn, 53 Conn. App. 282, 730 A.2d 1184 (1999). It is also undisputed that if the Defendant breached this duty and had actual knowledge of the defect or a reasonable time to remedy it, the Plaintiff can recoup for her injuries. Morris v. King Cole Stores, Inc., 132 Conn. 489, 45 A.2d 710 (1946).
The parties also agree that the Defendant must have had actual or constructive notice of the presence of the liquid for the Plaintiff to prevail. LaFaive v. DiLoreto, 2 Conn. App. 58, 60, 476 A.2d 626 (1980). There is no evidence that the Defendant caused or allowed the water to be placed on the floor, nor is there any evidence that the Defendant had actual notice of its presence.
With respect to constructive notice, case law requires that the Plaintiff establish that the water in question was on the floor for a sufficient period of time such that the Defendant should have, in the exercise of reasonable care, discovered it and corrected the condition. Lehner v. MTGA, GDTC-T-03-106 (August 13, 2014, Eagan, J.).
The Mohegan Gaming Dispute Trial Court has considered the issue of constructive notice on several occasions. Miller v. Mohegan Tribal Gaming Authority, 2 G.D.R. 149, 6 Am. Tribal Law 543 (August 30, 2005); Lehner v. Mohegan Tribal Gaming Authority, 2 G.D.R. 76, 5 Am. Tribal Law 322 (August 13, 2004); Fernandez v. Mohegan Tribal Gaming Authority, 5 G.D.R. 9, 12 Am. Tribal Law 201 (September, 2011); Sirrico v. Mohegan Tribal Gaming Authority, 6 G.D.R. 82, 14 Am. Tribal Law 435 (2017). In each of these cases, the Plaintiff was unable to prove constructive notice. However, in Witham v. Mohegan Tribal Gaming Authority, 4 G.D.R. 112, 10 Am. Tribal Law 239 (2011), the Court (Manfredi, J.) found that the existence of syrup on the floor of the Season’s Buffet at the Mohegan Sun Casino for at least 20 minutes constituted constructive notice.
In the instant case, there appears to be little doubt that a liquid substance was present on the floor and was the cause of the Plaintiff’s fall. Therefore, the issue before this Court is one of constructive notice and whether there is sufficient evidence to find that the liquid substance on the floor had existed for such a duration of time that the Defendant’s employees should have discovered it. The Plaintiff claims that a Mohegan Environmental Services (EVS) Attendant was posted to the lobby area at the time of the fall and was seen in the video traversing the area where the Plaintiff fell just prior to the time of the incident.
Christopher Zawada, the concierge attendant, testified that he was present when the Plaintiff fell. While he did not witness the fall, he immediately went to the Plaintiff to assess her injuries. He stated that there was a visible water puddle in front of the Concierge Desk. While he could not see it prior to the Plaintiff’s fall, he did discover it once he went to the location of her fall.1 Security Supervisor, Joseph Lanour, was dispatched to the area where the Plaintiff fell. He stated in the Incident File Full Report that he observed several spots of what appeared to be water on the floor in front of the Concierge Desk. He explained that the water was very hard to see because of the color of the tile.2 Further, Christopher Zawada testified that based on the video, an EVS Attendant walked in the area just prior to the Plaintiff falling. He further confirmed that no other individual walked through the lobby area between the time the EVS worker walked through and when the Plaintiff fell.
Section 3-245 of the Mohegan Torts Code states, “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. With respect to Actual or Constructive Notice to a Mohegan Entity, the information about an act or defect must be available to a person who is vested by such Mohegan Entity with a duty or responsibility to take action in response to such notice; provided, however, that no Constructive Notice shall be imputed to a Mohegan Entity on the basis of the Entity’s mode of operation.”
Plaintiff Exhibit P-2a is a video of the area where the Plaintiff fell on the day in question. The Court observed the video during testimony and in preparing this decision. The video commences at 9:40 a.m. and highlights the area of the fall for a full 20 minutes until the Plaintiff fell. The Court counted at least fifteen people pass through the area where the Plaintiff fell during the twenty minutes preceding the fall. The Court could not specifically identify any one person who created the spill; however, the Court did notice numerous individuals carrying cups or bottles near the location where the Plaintiff fell. It is not possible for this Court to determine the origin or time that the spill occurred. This case is very similar to the facts of both Sudol v. Mohegan Tribal Gaming Authority, 6 G.D.R. 61, 14 Am. Tribal Law 127 (2016) and Tomassetti v. MTGA, 7 G.D.R. 22, 17 Am. Tribal Law 140 (2021), where this Court determined that the Plaintiff failed to establish that the condition existed for a sufficient period of time such that the Defendant should have discovered it.
However, what distinguishes this case from both Sudol and Tommassetti, is that an EVS employee walked in the exact location where the water was located immediately prior to the Plaintiff’s fall. Christopher Zawada testified that after he left the Concierge Desk to assist the Plaintiff, he had no trouble seeing a visible puddle (trial transcript pg. 25).
If the concierge attendant was able to see a visible puddle of water on the floor where the Plaintiff fell, the EVS worker who is charged with maintaining the condition of the area should have discovered the defect given its size and scope. The video evidence clearly demonstrates that the EVS attendant did have an opportunity to take corrective action prior to when the Plaintiff encountered the spill. This defect occurred in a high-traffic area within the hotel lobby, adjacent to the concierge desk and actively monitored by an assigned EVS employee.
Although constructive notice is often analyzed through the measure of time, the mere passage of time is not the only factor considered in whether a Defendant has constructive notice. For example, in Witham v. Mohegan Tribal Gaming Authority, 4 G.D.R. 112, 10 Am. Tribal Law 239 (2011) the Court noted that prior to the Plaintiff’s fall “two of the defendant’s employees are observed in the area of the fall without discovering the area of syrup that must have existed there at the time.” Id. The Court further opines, “And yet, after the fall, other employees of the defendant who came to the scene clearly saw the defect, confirming for the Court that when the employees had previously walked through that area, the defect was there and able to be observed.” Id. Based on said circumstances, the Court in Witham found that the Defendant had constructive notice of the spilled syrup.
In the instant case, similar to the facts established in Witham, the puddle of water had to exist when the EVS worker walked through the lobby area prior to the Plaintiff’s fall. Importantly, the EVS employee failed to take any corrective measures or warn the public of the defect.
Based upon the foregoing, the Court finds the Defendant liable for the injuries sustained in her fall on April 16, 2016. The Court also finds that the Plaintiff was comparatively negligent in the amount of 33%. The nature and amount of damages shall be determined at the damage portion of this trial.
All Citations
--- Am. Tribal Law ----, 2024 WL 2862464
Footnotes |
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See Defendant’s Exhibit D-F. |
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See Plaintiff’s Exhibit P1. |
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