Barreto v. Mohegan Tribal Gaming Auth., (2022)

• Docket Number: GDTC-T-17-132-FAM
• Decision Date: 27 April 2022
• Citation: 7 G.D.R 39
• Parties: EDILBERTA BARRETO v. MOHEGAN TRIBAL GAMING AUTHORITY
• Court: Mohegan Gaming Disputes Court

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7 G.D.R 39

EDILBERTA BARRETO v. MOHEGAN TRIBAL GAMING AUTHORITY

No. GDTC-T-17-132-FAM

Mohegan Gaming Disputes Court

April 27, 2022

SUMMARY

The Plaintiff alleged she slipped and fell as the result of water or other liquid on the floor in the front of a self-service counter at the Season's Buffet in Mohegan Sun Casino.At Trial, she testified that she had not seen the substance before falling, but that after falling, her pants were wet where she landed.The Gaming Disputes Trial Court reviewed video images in which neither the liquid substance nor the occurrence of any type of spill could be discerned.The Court noted numerous patrons walking through the place where Plaintiff fell without incident or appearing to notice any defect, and held that the Plaintiff had not sustained her burden showing constructive notice or that the alleged defect was produced by an act on the part of the Defendant's employees, and entered judgment for the Defendant.

John M. Strafaci, Esq., for Plaintiff

Zisca R. St. Clair, Esq., for Defendant

MEMORANDUM OF DECISION

MANFREDI, J.

This case was brought pursuant to a complaint dated December 21 2017.Plaintiff filed a Motion to Amend on November 10, 2021 and Defendant answered and replied to the Amended Complaint on January 19, 2022.The complaint alleges that the plaintiff sustained personal injuries as a result of a fall at the Season's Buffet on January 16, 2017, and the Amended Complaint, in addition to other allegations of negligence adds Paragraph 10(g) claiming the Defendant"caused the accumulation of water or substance on the floor."Defendant has denied all allegations of negligence and asserted a Special Defense of contributory/comparative negligence by the Plaintiff.

Plaintiff claims that she fell on water or other substance that was on the floor in front of a self-service counter at the buffet and that the defendants knew or in the exercise of reasonable care, should have known of the hazardous and dangerous condition caused by the substance and either negligently caused it to be on the floor or failed to correct or remedy it.

This matter was tried to the court on November 9, 2021 and trial briefs were submitted by the parties on January 20, 2022.

DISCUSSION:

This case is brought pursuant to the Mohegan Torts Code, Article IV of the Mohegan Tribe of Indians Code.Under the 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."

Although the Code has defined negligence, it also has pursuant to Section 3-52 determined that the law to be applied by this court is the law set forth in the Mohegan Tribal Ordinances or Regulations, the Connecticut General Statutes, and; the Connecticut common law, insofar as the state laws and cases do not conflict with any Mohegan Tribal law.

This case is what is ordinarily termed as a matter of premises liability.Premises liability is concerned with the circumstances under which the possessor of land or "premises" will be held liable for damages to persons who are on or using the premises.

The law of premises liability as developed in Connecticut has been adopted by this Court, except for the mode of operation as noted above.Generally, the liability hinges upon the status of the person on the premises, i.e, is the person an invitee, licensee, or a trespasser.Here, it is clear that the Plaintiff is an invitee.An invitee is "[a] person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land."Restatement of the Law 2d, Torts, Section 332(3).In discussing premises liability this Court has stated:

"As noted in Connecticut Law of Torts, 3^rd Ed., Wright, et al., Section 49, the possessor of the land owes a duty to invitees to inspect the premises and is liable for defects which would be discovered by a reasonable inspection.However, "even an invitee must show that the defect has been present for a sufficient period of time so that the land possessor has had the opportunity to discover it."

This court has had several occasions to interpret and apply the doctrine of constructive notice in the past....In orderto successfully prosecute a claim such as the Plaintiff's there must be more evidence than the mere presence of a foreign substance on the floor.There must be some evidence to conclude that the object or substance had been on the floor for a "sufficient period of time so that the land possessor had the opportunity to discover it."Schiff v. Mohegan Tribal Gaming Authority, 2 G.D.R. 117(2005)(internal citations omitted).

FINDINGS OF FACT:

The Plaintiff and her husband are both retired and prior to this incident had been regulars at both Foxwoods and Mohegan Sun Casinos since they opened but would go to the Mohegan Sun more than Foxwoods.They would play slots and frequent the casino restaurants including the Seasons Buffet.They would visit the casinos once or twice per week and at the time of trial were still regular customers at the casinos.

On January 16, 2017, the Plaintiff and her husband had arrived at the Mohegan Sun at approximately 11:00 A.M. to play slots.Around 2:00 P.M., they went to the Seasons Buffet to eat.Based on the time records of the Video Surveillance records admitted into evidence as Plaintiff's Exhibit 6 and Defendant's Exhibit E, it appears that the actual incident occurred at approximately 2:03 P.M. Plaintiff testified that they paid for the buffet, were seated and ordered non-alcoholic drinks.Customers must order drinks from a server as there are no drinks in the buffet line.Plaintiff then got up, got a plate and went to the buffet line for Sushi.She got some Sushi, was holding her plate in her right hand, and was walking back to her table when slipped and fell.She held onto her plate to keep it from hitting her in the face.Prior to the incident, she noticed an employee putting dishes out on the patron's side of the buffet line, unloading the dishes from a cart.When she fell the employee was 4-5 feet from her right side.

After falling, another patron helped her up.She felt dizzy, was trembling and held onto the counter.An employee moved the dish cart over the area where she fell.Afterwards she noticed that her "butt" was wet but she did not see any water before she fell.She testified that she saw water after she fell.She was wearing pants and shoes with a wedge heel.She told a supervisor who came to investigate that she slipped in water.

The surveillance video noted above was played for the court during Plaintiff's testimony and during cross-examination.The court has also carefully reviewed this video in the process of reviewing evidence for its decision herein.

The video viewed by the Court appears to be taken from a camera from above and behind the serving area of the Season's Buffet.It shows a more or less, u-shaped aisle which appears to be some sort of tile flooring.The flooring is a light tan color and the aisle appears to be 8 to 10 feet wide although this is just an estimate based upon the video.The serving area runs parallel to the aisle and appears to be a case or shelf which the food choices are set on and there is a clear barrier over the food which allows the customer to see the food and apparently to protect the food from debris or contamination.

The view of the aisle on the video is unobstructed and the floor is clearly visible throughout the period of the recording.The video recording viewed by the Court started at approximately 1:43 P.M. on the date of the incident and was viewed through 2:05:10 P.M.The fall occurred at approximately 2:03:24 P.M.The court viewed this recording several times.Focusing...