Cosenza v. Mashantucket Pequot Gaming Enterprise, (2020)

• Decision Date: 20 August 2020
• Docket Number: MPTC-CV-PI-2017-163
• Parties: VIRGINIA COSENZA v. MASHANTUCKET PEQUOT GAMING ENTERPRISE
• Court: Mashantucket Pequot Tribal Court

VIRGINIA COSENZA v. MASHANTUCKET PEQUOT GAMING ENTERPRISE

No. MPTC-CV-PI-2017-163

Mashantucket Pequot Tribal Court

August 20, 2020

James M. Harrington, Esq., for the Plaintiff

Edward W. Gasser, Esq., for the Defendant

MEMORANDUM OF DECISION

EDWARD B. O'CONNELL, JUDGE

The plaintiff, Virginia Cosenza, brings this one count negligence action sounding in premises liability against the defendantMashantucket Pequot Gaming Enterprise(the "Gaming Enterprise"), for injuries she sustained while she was at Foxwoods Casino (the "Casino.").^[1]The plaintiff alleges that she slipped and fell on a trail of clear liquid-like substance while she was walking through the Casino's concourse.She alleges that the Gaming Enterprise allowed this dangerous condition to exist on the floor.

On July 16, 2017, the plaintiff was walking through the Casino's concourse in the area near the David Burke Wine Tower when she felt her feet slip, causing her to fall to the floor.When the Casino security personnel responded to the scene they observed that there was a trail of liquid (possibly water), which extended approximately two feet directly behind where the plaintiff was laying on the floor.The plaintiff was bleeding from her nose and complaining of pain in her right shoulder.Security called an ambulance, which transported her to Backus Hospital.

Security Supervisor Nicholas Bianchi had the responsibility of reviewing and preserving camera coverage of the area.He discovered that two surveillance cameras had captured parts of the incident.However, the trail of liquid that the plaintiff slipped on was outside of the view of either camera.The plaintiff is already falling when she enters the frame of both surveillance cameras.Supervisor Bianchi testified that several people could be seen on the videos walking through the area with cups in their hands, but, in his opinion, it could not be determined when or whether the liquid may have been spilled.Although a much longer period of surveillance camera security footage was available to Supervisor Bianchi prior to the plaintiff's fall, when he finished reviewing the footage and making his conclusions he preserved less than a minute of security footage (about 45 seconds).

The major issue in this matter is whether the Court should infer that the defendant had notice that the trail of liquid was on the floor for a length of time sufficient for the defendant to take notice of and remedy it."Within the scope of the defendant's duty of reasonable care is the requirement to warn or otherwise protect the plaintiff from any dangerous condition or hazard of which it had actual or constructive knowledge, or which it might reasonably have anticipated."Lin v. Mashantucket Pequot Gaming Enterprise, 4 Mash.Rep. 393, 396(2006)(citingRuffo v. Mashantucket Pequot Gaming Enterprise, 1 Mash.App. 3, 6(1994))."[A] dangerous condition should have been known to exist if it is established that the condition has existed for such a period of time and was of such a nature that, in the exercise of reasonable care, such condition and its dangerous character should have been discovered."4 M.P.T.L. ch. 1 § 1(e).

"Failure to [preserve surveillance footage] may result in an adverse finding, such that, in a fall down case, that the defendant had constructive notice...."Reid v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 226, 231(2009).In Reid, the court observed that the footage leading up to a slip, trip, or fall must be preserved.Thereafter this observation was codified in the defendant's own policies, which require that at least 20 minutes of footage leading up to a fall be preserved.^[2]In this case, the plaintiff argues that she is entitled to an adverse inference that the trail of liquid had been on the floor long enough for there to be notice and an opportunity to clean it up because Supervisor Bianchi intentionally chose not to preserve the 20 minutes of footage leading up to the plaintiff's slip and fall, in violation of Reid and the defendant's own policies.The defendant responds that an adverse inference is not appropriate in this case.

Under the adverse inference rule, "the court'may draw an inference from the intentional spoliation of evidence, that the destroyed evidence would have been unfavorable to the party that destroyed it.'"Reid v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 226, 230(2009) (quoting Miller v. Mohegan Tribal GamingAuthority, GDCA-T-05-501(MoheganCt.App. Sept. 28 2006).^[3]In Miller, the Mohegan Gaming Disputes Court of Appeals adopted the three part adverse inference test found in Beers v. Bayliner Marine Corp., 226 Conn. 769 at 778-779(1996).This Court follows the Reidcourt and also adopts the Beers three part test discussed below.

In order to arrive at an adverse inference the Court must find that all three parts of the Beers test have been proven.It must be shown that: "(1) spoliation was intentional; and (2) the destroyed evidence was relevant to showing that the Defendant had constructive notice of a dangerous condition; and (3) that the Plaintiffs acted with due diligence with respect to the spoliated evidence."Reidat 231;Beersat 275-277.

To satisfy the first step of the Beers test it must be shown that "the spoliation was intentional...."Reid, 5 Mash.Rep.at 231.Here, Supervisor Bianchi testified that he intentionally saved less than one minute of footage from the two cameras that captured the plaintiff's fall.He testified that he knew the rule was that 20 minutes of footage prior to falls had to be preserved.He intentionally chose to preserve less than a minute of footage because he subjectively believed the trail of liquid was outside the frames of both cameras.The defendant argues that Supervisor Bianchi innocently chose to preserve less footage than the"20-minute rule" required.In its post-trial brief the defendant states that, "Mr. Bianchi's decision not to save more video was done with his honest belief that any prior video was irrelevant."That does not matter.Intent in this context "[does] not mean that there must have been an intent to perpetrate a fraud by the party or his agent who destroyed the evidence but, rather, that the evidence had been disposed of intentionally and not merely inadvertently."Beers, 236at 777(footnote omitted).Supervisor Bianchi intentionally chose to preserve such a small amount of footage because of his subjective belief that the 20 minutes leading up to the fall would not contain any pertinent information.The first step of the Beers test has been met.

The second step of the Beers test asks whether "the destroyed evidence was relevant to showing that the Defendant had constructive notice of a dangerous condition...."Reid, 5 Mash.Rep.at 231.The defendant argues that the footage that Supervisor Bianchi chose not to preserve would not have been relevant to showing that it had constructive notice of the trail of liquid because that defect was outside the frames of the cameras.The plaintiff responds that 20 minutes of footage leading up to the fall could have contained multiple indications of the origin or existence of the trail of liquid.In the ordinary course, that footage might not be important to proving constructive notice of the trail of liquid when the defect is far away from the frame of a camera.Here, however, the defect could not have been more than a few feet outside the frames of the cameras because the plaintiff is already in the process of falling when she is first seen in the videos.The plaintiff posits five examples of ways in which the origin or existence of a defect just outside of the video coverage could be observed in the 20 minutes leading up to the fall: (1) observing a spill of liquid which began in the frames of the cameras, but then moved outside of them; (2) observing other patrons slip and slide into the frames of the cameras; (3) observing other patrons stepping over or walking around the liquid; (4) observing other patrons pointing or glancing down towards where the liquid is; and (5) observing patrons looking back towards the liquid behind them.The surveillance footage Supervisor Bianchi opted to delete is relevant to a showing that the trail of liquid had been on the floor long enough for the defendant to discover and remedy it.Without that footage the plaintiff has no way of proving this.This satisfies the second step of the Beers test.

To establish the third and final step of the Beers test, "the party who seeks the inference must have acted with due diligence with respect to the spoliated evidence.For example, the spoliator must be on notice that the evidence should be preserved."Beer sat 778 (footnote omitted).The Gaming Enterprise argues that the plaintiff did not act diligently with respect to the deleted footage.It points out that there is no evidence that the plaintiff notified it that she intended to assert a claim before the footage was deleted in the ordinary course.The plaintiff responds that the third step of the Beers test looks at whether the party being accused of spoliation was aware that it needed to preserve the evidence.Here, the existence of the "20-minute rule" put the Gaming Enterprise on notice that it should have preserved 20 minutes of footage leading up to the plaintiff's fall.The Reidcourt had generally noted that additional footage must be preserved, Reidat 231, and the Gaming Enterprise had enshrined that in its policy with the "20-minute rule."Furthermore, Supervisor Bianchi testified that he was aware of the rule when he was reviewing the footage of the plaintiff's fall and opted to preserve less than a minute of coverage because he subjectively believed that additional footage would be useless.The third step of the ...