Ballard v. Mashantucket Pequot Gaming Enterprise, (2019)

• Decision Date: 21 August 2019
• Docket Number: MPTC-CV-PI-2018-137
• Citation: Ballard v. Mashantucket Pequot Gaming Enterprise (Mashantucket Pequot Tribal Ct. 2019)
• Parties: IRAY BALLARD v. MASHANTUCKET PEQUOT GAMING ENTERPRISE, ET AL.
• Court: Mashantucket Pequot Tribal Court

IRAY BALLARD v. MASHANTUCKET PEQUOT GAMING ENTERPRISE, ET AL.

No. MPTC-CV-PI-2018-137

Mashantucket Pequot Tribal Court

August 21, 2019

M Joseph Strafaci, Esq., for the Plaintiff.

Edward W. Gasser, Esq., for the Defendant.

MEMORANDUM OF DECISION

Thomas J. Londregan, Judge.

I.BACKGROUND

In his one-count complaint against the defendantMashantucket Pequot Gaming Enterprise, the plaintiff, Iray Ballard, alleges that on April 27, 2017, as he was exiting his daughter's vehicle from the front passenger seat, a van owned and operated by the defendant backed into his daughter's vehicle.The plaintiff's daughter, Shamekia Ballard, was dropping the plaintiff off at the valet area of the Great Cedar Hotel so that he could catch a bus to take him to New York for a doctor's appointment.She put her car into park to let the plaintiff out when the defendant's van backed into her.At trial on May 29, 2019, the plaintiff testified that he had one foot out of the car, one foot in the car, and his head was out of the car when the collision occurred.He claims that his neck and shoulder were hit by the frame of the car door, where it is hinged, thereby causing injury to his neck.

II.DISCUSSION

The essential elements of a cause of action in negligence are well established.In order for the plaintiff to prevail in a cause of action alleging negligence, he or she must prove by a preponderance of the evidence that (1)the defendant owed a duty to the plaintiff; (2) that the defendant breached that duty; (3) that the breach of said duty was the proximate cause of the plaintiff's injuries; and (4) that the plaintiff suffered actual damages.Mashantucket Pequot Tribal Nation v. Castellucci & Assoc., Inc., 4 Mash.Rep. 21, 33(2002);Hazard v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 354, 357-58(2016).

The defendant concedes that there was an incident that involved a collision like the complaint describes.However, the defendant vigorously argues, based upon the credibility of the witnesses, that it could be that the plaintiff wasn't even in the vehicle, and even if he was in the vehicle, he did not sustain any injuries.

“[I]t is well established that the evaluation of a witness' testimony and credibility is wholly within the province of the trier of fact.”Opotzner v. Bass, 63 Conn.App.555, 564-65(Conn.App.Ct.2001)(quotingSzczerkowski v. Karmelowicz, 60 Conn.App.429, 434(Conn.App.Ct.2000)).

A.There Was a Collision.

The defendant's incident report (Plaintiff's Exhibit 4) was prepared by a security officer, James Cholewa.He went to the scene of the accident and was told by the driver of the defendant's vehicle that he put the vehicle "in reverse and struck the vehicle in back of him."Plaintiff's Exhibit 4, page 1.While the incident produced no damage to the defendant's vehicle, the security officer noted in his report that the plaintiff's vehicle "sustained damage to the front bumper and license plate."Plaintiff's Exhibit 4, page 1.The front license plate holder of the plaintiff's car was detached and on the ground as a result of the collision.Plaintiff's Exhibit 4, page 2;Plaintiff's Exhibit 5.

The Connecticut uniform police crash report (Plaintiff's Exhibit 5, page 2;Defendant's Exhibit G) states that police officer Anthony Holloman confirmed the account of how the accident occurred, writing that the defendant's vehicle "accidentally backed into"the plaintiff's vehicle.Plaintiff's Exhibit 5, page 2.The driver of the defendant's vehicle had not realized that the plaintiff's vehicle "had pulled in behind him prior to the accident."Id.

B.The Plaintiff Was In the Vehicle.

The Court finds, based upon the direct trial testimony of the plaintiff and his daughter, the owner of the vehicle, that he was in fact in the car, in the passenger seat.The defendant contests this fact on the basis that the plaintiff was not mentioned as a passenger in the car in the police report or in the defendant's incident report.In addition, when the plaintiff left after the accident to go visit his doctor in New York, the doctor's medical report of April 27, 2017, the day of the accident, makes no mention of a motor vehicle accident earlier that day, no mention of any neck pain, and no referral to the hospital emergency room where the plaintiff went the following day.The defendant argues that if the plaintiff was in the automobile he would have been mentioned in the aforesaid reports.The defendant urges this Court to find that the plaintiff was not even in the car based on him not being mentioned in any reports of the accident.

The Court heard the testimony of the plaintiff, who testified that he was a passenger in the automobile.The Court heard testimony from the plaintiff's daughter, the driver of the automobile, who also testified that her father was seated in the passenger seat.She testified that her father was present when the accident occurred.She stated that he was at the scene of the accident for about ten minutes before he got on the bus to New York.She could not recall whether the plaintiff spoke with the police, but she did state that the police were there before her father boarded the bus.The plaintiff testified that he was not present when the police arrived.The defendant argues that because of this inconsistency the Court should question the credibility of the plaintiff in this regard.The Court will not make a finding based upon what is not in a police report, incident report, or in medical records.Based upon a preponderance of the evidence presented, the Court finds that the plaintiff was in fact in the automobile at the time of the incident.

C.The Plaintiff Was Injured.

The defendant questions whether the plaintiff was injured at all.The defendant bases this belief on the inconsistent statements of the plaintiff that call into question his credibility.For example:

(1) At the trial he remembered where his niece and granddaughter

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