--- Am. Tribal Law ----, 2023 WL 6388357 (Mohegan Gaming Trial Ct.), 7 G.D.R. 69
Mohegan Gaming Disputes Trial Court.
 
VALERIE SHAEVITZ
v.
MOHEGAN TRIBAL GAMING AUTHORITY
 
DOCKET NO. GDTC-T-18-102-PMG
|
SEPTEMBER 26, 2023

 

MEMORANDUM OF DECISION

FULL TEXT, Guernsey, CJ.

I

Procedural Status

Pursuant to her Amended Complaint, Plaintiff seeks damages under the Mohegan Torts Code for injuries suffered in a fall in the Seasons Buffet at Mohegan Sun Casino, alleged to be the result of an accumulation of a “foreign slippery substance”.1 Video images of the fall and twenty minutes prior thereto were preserved pursuant to Miller v. Mohegan Tribal Gaming Authority, 2 G.D.R. 149, 6 Am. Tribal Law 143 (2005), entered into evidence, and have been carefully and repeatedly reviewed by the Court.

Prior to trial, Defendant moved for summary judgment, claiming that the Plaintiff will be unable to prove either actual or constructive notice,2 and that medical evidence showed Plaintiff allegedly suffered an exacerbation of a prior injury, a claim not included in the original complaint. Over objection, the Court allowed the Plaintiff to amend her complaint to allege aggravation and exacerbation of a pre-existing condition, following Miller v. Fishman, 102 Conn. App. 286, 925 A. 2d 441 (2001).3 Plaintiff’s Post Trial Brief sets forth two separate theories for establishing the Defendant’s liability. First, that the spilling of the “foreign slippery substance” is shown in the video at 5:08:52 where a man wearing dark clothing, after ladling soup into a bowl at the buffet, turns to walk away and appears to lose control of the bowl and tries to catch the spill with his right hand. Thereafter, at 5:12:40 and again at 5:13:42 an EVS employee conducts routine inspections of the floor, passing over the spot where Plaintiff would shortly thereafter slip and fall at 5:14:40. In neither inspection does the EVS employee appear to notice, much less remedy, any spill.4

 

II

Plaintiff’s Theories of the Case

Second, in the event that the Court does not accept Plaintiff’s interpretation of the video showing the spill as having occurred as described above, Plaintiff argues that in the twenty-minute video prior to Plaintiff’s fall “there is no indication of anyone causing a spill where Plaintiff slipped and fell.” The Court should therefore find that it was created prior to that period, thus establishing constructive notice. Witham v. Mohegan Tribal Gaming Authority, 10 Am. Tribal Law 239, 2011 WL 7446477 (2011).5

 

III

Discussion

The event that is the subject of this action took place on April 1, 2017, prior to the 2021 amendment to the Mohegan Torts Code6 regarding constructive and actual notice. See Galanos v. Mohegan Tribal Gaming Authority, 17 Am. Tribal Law 266, 2023 WL2054387 (2023).

“To establish liability, Plaintiff must prove the Defendant’s was conduct negligent under the strict definition of negligence in the Mohegan Torts Code:

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.

MTC § 3-245 (prior to 5/5/2021). Galanos v. Mohegan Tribal Gaming Authority, 7 G.D.R. 7, 17 Am. Tribal Law 266, 2023 WL 2054387 (2023).

In analyzing Plaintiff’s claim of negligent failure to detect and remedy the hazard created by the spilled substance, the relevant portions of the preserved video images and their timestamps are as follows:

4:58:42 EVS employee with dustpan and rag walks over spot where Plaintiff would fall;

5:08:52 Man in dark clothing ladles soup or other liquid, walks away, appears to attempt to catch a spill with his right hand. Although not precisely at the spot where Plaintiff would slip, the proximity appears to be not more than a foot or more away;

5:12:40 EVS employee with dustpan and rag walks over spot where Plaintiff would fall;

5:13:59 Woman with rose sweatshirt, after ladling food, walks through area with difficulty, swaying from side to side; no actual spill visible;

5:13:42 EVS employee steps on precise location of where Plaintiff would fall;

5:14:40 Plaintiff slips and falls.

Three things are firmly established by these video images. First, that Plaintiff slipped on a substance of some kind, the location of which she immediately pointed out to Defendant’s employees who had rushed to assist her and who promptly placed a dish cart over the spot to which she pointed.

Second, that the area of Season’s Buffet shown where Plaintiff fell was regularly inspected by Defendant’s EVS employees.

Third, that no one, whether in Plaintiff’s party, other patrons, or EVS employees, can be observed behaving in any manner that would indicate awareness or observation of the spill in which Plaintiff slipped. In short, no one noticed the spill until Plaintiff had fallen and pointed it out to Defendant’s employees who came to assist her.7 Without the images of Plaintiff’s fall, which conclusively establish that she slipped on a “foreign slippery substance,” a close examination of the twenty-minute period preceding Plaintiff’s fall would most likely yield the conclusion that there was no slippery substance present. This case is, regrettably, a stark reminder of the limits of video images where the offending substance is not visible and there is no circumstantial evidence (e.g., the behavior of other patrons) of its existence.8

Plaintiff’s claim that the EVS employee was negligent in failing to detect the spill that was there at some point but never seen by anyone, presents a difficult issue. No spill is ever seen in the video, even when Plaintiff is pointing to it after her fall. Neither Plaintiff, her daughter, nor her friend Annette Cloutier Maynard saw the substance prior to Plaintiff’s fall nor does it appear that any of the numerous patrons passing by and through the location where Plaintiff would slip. The Court is mindful that, of all these individuals, only the EVS employee had a duty to inspect the floor for any type of hazard. Nevertheless, even assuming that the spill was present during any one of the EVS employee’s inspections, the Court finds the evidence insufficient to establish that the EVS employee’s failure to observe and eliminate the spill constituted negligence9 in light of the fact that despite multiple patrons traversing the area, there is no evidence that anyone else observed or took any notice of the spill.

Although the video and testimonial evidence establishes the existence of the spill/hazard, it does not establish when the hazard was created, or that whether it was present during the inspections performed by an EVS employee or would have been visible during such inspections. In Musial v. Mohegan Tribal Gaming Authority, 1 G.D.A.P. 107, 17 Am. Tribal Law (2020) the Gaming Disputes Court of Appeals rejected the continuity (actually, backwards relation) presumption, under which if a condition existed at one point in time it is presumed to have existed prior to that point. Even if it were to be assumed that the spill more probably than not existed at the time of one or more EVS inspections, there is insufficient evidence to establish that the failure by the EVS employee to detect a substance on the floor, undetected and unnoticed by anyone else, constituted negligence.10

Judgment shall enter for the Defendant.

All Citations
--- Am. Tribal Law ----, 2023 WL 6388357, 7 G.D.R. 69

Footnotes
1	Plaintiff’s Amended Complaint, June 10, 2019, Paragraph 4.
2	This claim was predicated on Plaintiff’s admission that she had not seen the substance prior to falling, and that a Casino employee was conducting routine maintenance in the “exact area where plaintiff fell just minutes prior to Plaintiff’s fall.” As will be seen infra, after trial Plaintiff’s emphasis shifted, without abandoning her claim of constructive notice, to the alleged negligence of this EVS employee in not discovering and eliminating the hazard posed by the substance. The claim of negligence is adequately pleaded in Plaintiff’s Amended Complaint.
3	In Miller, the Connecticut Appellate Court held that it was reversible error for a trial court not to consider a proposed amendment to a complaint that addressed a defect raised in a motion for summary judgment prior to considering the motion.
4	Plaintiff properly cites the testimony of the EVS Supervisor at the time, Anita Garcia, that inspecting for spills and slipping hazards is the job of the EVS attendants. Ms. Garcia described it thus: A: [EVS Attendants] have to keep around and around [the Buffet line] to check and make sure, you know, there’s no debris on the floor and they have a dustpan and a broom, and I mean they have cloth, some rags, you know, if there is anything on the floor, they make sure it’s clean and the floor is dry. ... Ms. Garcia further testified that although the attendants do not carry a mop and bucket, upon discovering a spill other than a tiny one that could be cleaned with the rag, the procedure is to place a wet floor sign and obtain the necessary equipment.
5	Despite language in the Trial Court’s Witham opinion that if the spill cannot be seen in the twenty-minute period preceding a fall, the Court “must” find that it occurred prior to that period, this has never been viewed as mandatory, given the wide differences in quality of image, viewpoint and other variables that can make it impossible to determine whether or not a spill is present in the recorded video images. The present case is an excellent example of this. It is in the discretion of the trial judge to determine whether or not the video images of this period of time are sufficiently detailed and reliable to make such a determination.
6	In any event, the portion of the amendment, dealing with the position and responsibilities of the MTGA employee alleged to have actual notice, would be inapplicable here. In this case, Plaintiff claims the individual shown in the video is an EVS employee, and the Court heard testimony from Ms. Anita Garcia, EVS Manager, that clearly established that this employee was “vested by such Mohegan Entity with a duty or responsibility to take action in response to such notice.”
7	What the images fail to establish is the source of the spill on which Plaintiff slipped. Plaintiff is correct that the aforementioned patron in dark clothing appears to be holding out his hand to catch what might be spilling soup. A close inspection reveals that this occurred approximately two feet from the spot where Plaintiff would fall, and that thereafter numerous patrons walk over the precise location of her slipping, without incident or noticing anything amiss. Also passing over the place of her slipping were numerous dish carts, raising the possibility of spillage from them. The Court finds that the evidence insufficient to establish when or how the spill was created.
8	Occasionally, but rarely, is the substance a pink milkshake as in Ortiz v. Mohegan Tribal Gaming Authority, 7 G.D.R. 18, 17 Am. Tribal Law 130, 2021 WL 8999530 (2021), thus making the Court’s task much easier.
9	It is somewhat surprising that if the spill actually was the size of the plastic plate 10 inches in diameter, introduced as Defendant’s Exhibit D-BB, that it could have gone completely undetected by anyone prior to Plaintiff’s fall.
10	“ On the contrary, ‘it must be emphasized that ‘a store owner is not an insurer of its customers’ safety.’ ”Kelly v. Stop and Shop, Inc., Conn. 768,790, 918 A2d 249 (2007).