Palmer v. Mohgan Tribal Gaming Auth., (2023)
| Citation | 7 G.D.R. 61 |
| Docket Number | GDTC-T-18-135-JAC |
| Decision Date | 08 June 2023 |
| Parties | CHRISTINE PALMER v. MOHGAN TRIBAL GAMING AUTHORITY |
| Court | Mohegan Gaming Disputes Court |
SUMMARY
The Plaintiff, who alleged that a liquid foreign substance on the floor at the Season's Buffet caused her to fall and sustain numerous injuries, brought this action under the waiver of sovereign immunity contained in the Mohegan Torts Code. The only witnesses were the Plaintiff and the Defendant's Director of Risk Management, and the evidence included such video evidence as was available. The Gaming Disputes Trial Court found that the vide images were not of sufficient quality to allow a determination of whether the spill of the substance on which the Plaintiff slipped occurred during the twenty-minute period prior to her fall whether the defect resulted from anything carried or pushed by the Defendant's employees. Judgement entered for the Defendant.
Joseph T. Coppola, II, Esq., for Plaintiff
Zisca R. St. Clair, Esq., for Defendant
FULL TEXT, Collins. J.
This case arises out of an incident on or about on December 27 2017 at approximately 4:30 p.m. when the plaintiff Christine Palmer was walking in the Season's Buffet when she slipped on "a liquid foreign substance" on the ground and fell, thereby sustaining her alleged injuries as a result of claimed negligence by the defendant. (Complaint No.100, August 21, 2018, para 5.). The defendant, by way of an Answer and Special Defense denied plaintiff's allegation for want of knowledge and alleged that the plaintiff's negligence was the cause of her injuries discussed below (No.105, February 14, 2019). The court has reviewed the subject trial transcripts and associated Exhibits referenced below.
This matter came before this Court on September 26, 2022 and December 1, 2022 at which time the plaintiff and defendant were ably represented by counsel. Well written briefs were submitted by counsel for the court's consideration on February 22, 2022 (No. 120, 121). Two witnesses testified Christine Palmer and Mary Lou Morrissette. In addition, the court received into evidence numerous Exhibits (No. 117).
The plaintiff, now known as Christine Blardo, testified on direct examination that she is an entrepreneur of multiple businesses associated with landscaping and snow removal, and a radio station and related marketing activities, all in or about Connecticut, where she resides with her husband of five years (TR @ 10-12)[1]. She suffers from fibromyalgia from a 1990's car accident in her neck, shoulders and back (TR @ 13). She is a self-described health nut with no prior physical limitations before the subject incident (TR @ 14). On the day of the incident, she had checked into her hotel room with plans to eat the Seasons Buffet, which were curtailed when she walked toward the center of the buffet to get a plate and slipped on something she "felt" under her foot and fell to the floor (TR @ 16). She subsequently felt disgusting slimy juice with her hand, which was also present on her legs and knees, occasioned by a slide into the substance. She did not see anything on the floor before her fall. She struck her left shoulder, head, knee and hip, did not see any warning signs and later hobbled in pain back to her table (TR @ 17-18, 22). She was taken by wheelchair to a waiting ambulance with excruciating left knee pain (TR @ 20, 28). She identifies Exhibit P-4 as a video that fairly reflects her fall, found at the 16:20:08 mark (TR @ 25-26). She was taken by ambulance to William W. Backus Hospital for treatment with later treatment at UConn Health Center and other providers, and still suffers from low back, and shoulder pain (TR @ 33-38) as reflected in admitted Exhibits. She saw no wet floor signs or employees posted around the buffet (TR @ 29). She testified as to injuries sustained in the accident and presented medical records in support of her claim (Exhibits P-7, P-7-B-P-7-E, P-8A-P-8G). Her claimed medical bills total $7,971.08 (Exhibit P-8).
On cross examination the plaintiff testified that she did not look at the floor as she walked toward the buffet plates (TR 42-43), which was not her first visit to the buffet that day, and that she advised the security officer that she had injured her left shoulder, upper left arm and knee (TR @ 46). She further testified that despite prior deposition testimony she did not recall what part of her head hit the floor. The referenced video refreshed her recollection that it was the back of her head, although she could not see herself falling in the video (TR 47). She reviewed Exhibit D-E wherein she denied back pain to the attending EMT (TR 49). She denied neck or back pain or striking her head when treating at William W. Backus Hospital and UConn Health Center on December 2017, and December 28, 2017 (TR 51-54, Exhibit P-7C) but did complain of back pain to her chiropractor on January 2, 2018 (TR 57-58). She also treated at Med Care Express on two occasions for treatment she acknowledged was unrelated to the subject incident (TR 60-61).
The plaintiff rested her case in chief and Mary Lou Morrissette, Vice President of Risk Management for Mohegan Sun, testified for the defense. By way of a stipulation (TR2 @ 20-23) her testimony was also considered as part of the plaintiff's case in chief during plaintiff's cross-examination of Ms. Morrissette as to the defendant's procedures in acquiring the 20-minute video (Exhibits P-4, D-D), and for crossexamination. She has served as Director of Risk Management, and Vice President for 24 of her 26 years employed by Mohegan (TR2 @ 24). She testified that a review of records reflected that 248 patrons entered Season's Buffet from 4-5 p.m. on the day of the incident (TR2 @ 26)[2]. It was the defendant's procedure, well known to this court, to save 20 minutes of video prior to the fall (TR2 @ 28). [3] The defendant moved for a directed verdict (TR2 @ 37). The court previously reserved decision on the motion and denies same now.
Christine Blardo was called by the defendant in its case in chief. Ms. Blardo performs marketing for a radio station through social media (TR2 @ 39) which contain videos of the plaintiff offered by the defense as "rebuttal evidence" (TR2 @ 44). The various videos and photographs offered by the defense purport to show the plaintiff as engaged in activities which were/are inconsistent with her claims of impairments arising from this incident.[4]
The plaintiff argues that she has sustained her burden of proof that she sustained injury as a consequence of the defendant's negligence. The defense argues that the plaintiff has failed to prove her claim and, alternatively, that she is comparatively negligent in causing her own injuries.
The plaintiff has brought a negligence claim. Galanos v. Mohegan Tribal Gaming Authority, 7 G.D.R 57 (2023). MTC §3-245.
The defendant has explicitly waived its inherent sovereign immunity by virtue of MTC §3-250(b), and its adoption thereof, subject to the limitations on damages found at MTC §3-251.
The defendant has raised the issue of contributory negligence on the part of the plaintiff pursuant to MTC §3-251(b).
Tomassetti v. Mohegan Tribal Gaming Authority, 1 G.D.A.P. 118 (2022).
Lastly "In determining liability where there is no direct evidence as to how long a defect has existed, as described by the Connecticut Supreme Court." "[T]he controlling question is that of constructive notice: whether the condition had existed for such a length of time that the defendants' employees should, in the exercise of due care, have discovered it in time to have remedied it." ...
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