--- Am. Tribal Law ----, 2024 WL 5182474 (Mohegan Gaming Trial Ct.)
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Mohegan Gaming Disputes Trial Court.
 
Stacie PALMA
v.
MOHEGAN TRIBAL GAMING AUTHORITY
 
7 G.D.R. 117
|
GDTC-T-20-115-JAC
|
November 22, 2024

 

MEMORANDUM OF DECISION

Collins, J.

SUMMARY

The Plaintiff sought damages for injuries sustained when she fell as the result of water on the floor leading from the Mohegan Sun Hotel lobby area. As she approached the spot where she fell, she observed a hotel employee gesturing and possibly giving directions to other patrons. This employee claimed in a statement that he warned her of the spill, which Plaintiff denied. By agreement of the parties, the case was bifurcated between liability and damage issues. In the liability phase, the Gaming Disputes Trial Court, per Collins, J., held that the evidence established actual knowledge of the defect on the part of the Defendant for a time prior to Plaintiff’s fall reasonably sufficient to allow measures to be taken to warn of the defect. The Court further found comparative negligence on the part of the Plaintiff in failing to notice the defect, assigning a 30% reduction as a result. Damages and causation will be addressed in subsequent proceedings.

 

INTRODUCTION

This matter involves a slip and fall immediately outside of the lobby of Sky Hotel and adjacent to stairs and escalators on November 23, 2019, from which the Plaintiff sustained claimed injuries.1 The Defendant denied same by way of its Answer and Special Defense,2 which Special Defense the Plaintiff denied.3 The parties filed a Joint Stipulation and Motion to Bifurcate on June 29, 2023,4 which was subsequently granted by the court.5 This matter was tried before the court on June 18, 2024. The court received testimony from the only witness, Stacie Palma, along with evidentiary submissions. The court, sua sponte, conducted a brief site visit where the court, in the presence of and absent objection by counsel, had the opportunity to inspect the subject premises.6 The court’s site visit was for directional familiarity as it related to the below mentioned video. The court drew no conclusions as to whether walls were in the same locations as on the day of the accident. No testimony was taken at the site visit. Counsel submitted simultaneous post-trial briefs on August 19, 2024.7

 

TESTIMONY

Prior to testimony the parties stipulated that witness Athan Tasoulas, a security officer shown in the video at EX. P4, is no longer employed at Mohegan. The court advised the parties on two occasions of his prior representation of Mr. Tasoulas’ brother in a dispute over their father’s estate, and counsel waived any conflict.8

The plaintiff, a resident of Doylestown, Pennsylvania, testified that she had visited the Mohegan Sun multiple times per year for greater than 20 years when she had resided in Glastonbury, Connecticut. Every November her husband has Thanksgiving with friends (aka Friendsgiving) from college; she would drop him off and spend time with her friends. On the day of the accident, she left her Mohegan hotel room intending to go down and get coffee, and thereafter leave the premises to join her husband and his friends. She experienced no issues walking. She took a left from the hotel lobby area. She recalled a man in a black shirt talking to a mom with kids; his back was to her. She kept on walking and next thing she knew she was on her back with her head on the ground. Her entire body hit the floor. When she was on the floor she assumed she was in water. She was drenched and very wet. There were no wet floor signs. The man in the black shirt helped her up but she had no traction and she went back down on her leg. She indicated that no one warned her of the spill. Her eyes were looking forward at the time of her fall. She was not in a rush. When shown EX. P2, a statement from Athan Tasoulas, she disagreed with his statement that he warned her of the spill. She was unaware that he was diverting traffic. She identified her fall as depicted in EX. P4.1 and EX. P4.2.

On cross-examination, she indicated that her plan was to leave by 10:00 a.m. and be on the road after check-out to meet her husband and his friends in Palmer, Massachusetts. She wanted to get to Palmer Massachusetts by noon; she was not on a schedule. The court, upon offer by the defendant, took judicial notice that the distance from Mohegan to Palmer, Massachusetts was approximately 56 miles with a drive time of 1 hour and 18 minutes, noting that traffic conditions can vary.9 See: Horn v. Commissioner of Corrections, 321 Conn. 767, 138 A.3d 908 (2016), Fn 15. She further advised that prior to her fall she saw a man about 60’ away, who appeared to be telling people where to go. She did not hear any conversations. She did not know why he was redirecting people. She did not know if they were asking for directions. Her deposition testimony indicated that she saw him pointing to avoid the area of the spill before she fell.10 She did not slow her pace down. She walked a normal pace heading to the escalator. She again disagreed with Mr. Tasoulas’ statement that he had warned her and suggested that it may have been a different woman he had warned. She did not see another woman fall but did see a group of people avoid the area.

On re-direct and re-cross she noted that she was not pressed for time that day. She acknowledged that if her goal was to get there by noon, she was running behind schedule. She did see Mr. Tasoulsas redirecting individuals. Her deposition testimony was somewhat inconsistent with her trial testimony.

 

ARGUMENT

The plaintiff claims that the defendant was negligent and that such negligence was a proximate cause of her injuries.11 In particular, the plaintiff avers that the defendant “failed to warn the plaintiff of the unsafe condition then and there existing.”12 The plaintiff claims that the defendant knew of the subject claimed defect. Defendant denies same and also argues that the plaintiff was responsible for her own injuries.13

 

LEGAL STANDARD

The plaintiff has brought a negligence claim. “Negligence means conduct that falls below the standard established by law or custom for the protection of others against unreasonable risk of injury or harm. The standard of conduct to which a person must conform to avoid being negligent is that of a reasonable person under similar circumstances. Where applicable, the rule of actual or constructive notice shall be applied to determine negligence; negligence shall not be deemed to arise from the mode of operation.” Galanos v. Mohegan Tribal Gaming Authority, 7 G.D.R 57, 17 Am. Tribal Law 266 (2023). MTC § 3-245.

“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).... [T]he 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. 489-94, 45 A.2d 710 (1946).” Tomassetti v. Mohegan Tribal Gaming Authority, 1 G.D.A.P. 118, 17 Am. Tribal Law 260 (2022).

As to actual notice, “Actual Notice means, with respect to an Act or Defective Condition, information about such act or condition that is reasonably available to a person.” Emphasis added. MTC Sec. 3-245. As this Court has held, “[a]ctual notice would be proved by evidence which shows that the Defendant, in fact, knew of the defect in question prior to the event causing the injuries and had sufficient time in which to correct it.” Young v. Mohegan Tribal Gaming Authority, 3 G.D.R. 103, 7 Am. Tribal Law 455 (Mohegan Gaming Disputes Court 2008). Most importantly, with respect to actual notice, the Mohegan Tribal Code defines “Act” as: “conduct and actions and includes inactions and omissions.”14

 

FINDINGS OF FACT

Per the stipulation of the parties, the court’s role herein is to focus only on liability of the plaintiff and defendant, if any. The court had the opportunity to hear from the plaintiff and found her testimony to be credible, although with some inconsistencies. Clearly, she testified that she saw Mr. Tasoulas redirecting at least one group of pedestrians but consistently claims she was not aware of a spill. Tasoulsas, as she claimed, could have been offering directions. The video testimony shows the arrival of Mr. Tasoulas, who also appeared to slip on the spilled substance, and the eventual departure of his coworker and the ultimate fall by the plaintiff. Tasoulsas was actively gesticulating with use of his arms from the time of his arrival to the time of the fall.

The question before the court is whether a reasonable person, seeing but perhaps not hearing Mr. Tasoulas, should have had a heightened awareness that a spill might have occurred, and whether the MTGA, acting through its agents was negligent.

The video evidence, specifically EX. P4.1, reveals the following timeline:

10:29:15 cooler falls

10:29:14 individuals pick up items from cooler

10:29:30 man in black, wearing a lanyard, walks away with the cooler, and another individual remains behind

10:31:20 2nd person arrives, slips and remains behind

10:31:42 man who had remained behind at 10:29:30 walks away

10:32:06 plaintiff falls

Viewing the video, taken in context with the statement provided by Tasoulsas,15 leads to the conclusion that the man who remained behind at 10:29:30 was a Mohegan EVS employee. See Tasoulas statement. The court further concludes, acknowledging the stipulation of the parties, that Athan Tasoulas is the individual who arrived at 10:31:20, and who described the defect as a “very large spill.”16 The court viewed the video17 closely on 3 occasions and found that 58 people traversed the area near the fall and were re-directed by one or both Mohegan employees from 10:29:30 to 10:32:06, some 2:36 minutes. It was a busy area. Rather than maintain two employees to redirect individuals arriving from three different directions, the EVS employee left the area, leaving re-direction to Tasoulas in a high traffic area. Had the EVS employee not left the area, the additional manpower would more than likely have been available to better warn pedestrians, including the plaintiff herein, of the danger posed by the spill from the cooler.

In short, Tasoulas was presented with attempting to re-direct and/or warn multiple individuals approaching from 3 different directions, a recipe for disaster with a “very large spill”. In his statement, Tasoulas claims to have verbally warned the plaintiff of the spill; the plaintiff denied same in her testimony. The defense argues that the defendant acted reasonably and cleaned up the large spill within a timely manner. Where the defendant was negligent, however, was not in attending to the clean-up in a timely manner but in not properly warning passersby of the defect, of which it was clearly aware, to avoid injury to the plaintiff as may have occurred in this matter.

The court examined the subject area in person and finds that a clear water spill on the high marble-type gloss floor, as found during its inspection and on video18 and photographs19, would likely not have been open and obvious, as the defendant has claimed, to passersby. The defendants’ reliance on Duong v. Mohegan Tribal Gaming Authority, 7 G.D.R. 103, GDTC-T-18-103-FAM, 18 Am. Tribal Law 6 (2024) as to the actions of the defendant is misplaced and factually dissimilar to the instant matter. Moreover, the defendant’s reliance20 on Lowy v. Mohegan Tribal Gaming Authority, 7 G.D.R. 65, GDTC-T-18-127-JAC, 17 Am. Tribal Law 315 (2023) is similarly misplaced where the court found the plaintiff had not proven actual notice. The court also credits the plaintiff’s testimony that she was not and did appear to be pressed for time, nor was she rushing at the time of the fall. After reviewing the video, the court finds that she was not walking particularly fast nor faster than others at the time of her fall. Indeed, the court was left with the extremely clear impression that joining her husband and his friends in Palmer, Massachusetts for Friendsgiving by 12:00 p.m. was not a high priority.

 

DECISION

After examining the totality of the circumstances in this matter, the court finds that the plaintiff has proven that the defendant was negligent in that it had actual knowledge of the claimed defect within a reasonable time before she slipped and failed to take measures to properly warn the plaintiff of same. The inaction or failure to act by MTGA employees as a reasonable person, as envisioned by the Mohegan Tribal Code, led to the plaintiff’s fall. However, the defense has also sustained its burden of establishing that the plaintiff was negligent in that a reasonable person should have seen and reacted to the windmill-type actions of Tasoulas. Accordingly, judgment may enter for the plaintiff on liability only at this time, with a 30% reduction for the plaintiff’s own negligence. The court, given bifurcation in this matter, makes no finding at this time as to any causal connection between the plaintiff’s claimed injuries and her fall. Further proceedings will take place as delineated in the aforementioned Stipulation and Motion to Bifurcate filed by the parties. Absent timely appeal by either party the court will schedule a follow-up pretrial conference, trial management conference and trial.

All Citations
--- Am. Tribal Law ----, 2024 WL 5182474

Footnotes
1	No. 100.
2	No. 104.
3	No. 105.
4	No. 115.
5	No. 116.
6	No. 127.
7	No. 134, 135.
8	TR. pp. 5-6.
9	TR. p. 39.
10	TR. p. 46-49.
11	No. 100.
12	No. 100, para. 6(d).
13	No. 104.
14	MTC Sec. 3-245.
15	EX. P2.
16	EX. P2.
17	EX. P4.1.
18	EX. P4, D-J.
19	EX. P5, D-D.
20	No. 121 Defendant’s Post-Trial Memorandum, p.8.