Shaevitz v. Mohegan Tribal Gaming Auth., (2023)
| Docket Number | GDTC-T-18-102-PMG |
| Decision Date | 26 September 2023 |
| Parties | 7 G.D.R. 69 v. MOHEGAN TRIBAL GAMING AUTHORITY VALERIE SHAEVITZ |
| Court | Mohegan Gaming Disputes Court |
SUMMARY
Plaintiff sought damages under the Mohegan Torts Code for injuries sustained in a fall at the Seasons Buffet at Mohegan Sun Casino, alleging that she slipped on a liquid substance on the floor and claiming both constructive notice on the part of the Defendant and negligence on the part of the Defendant's employees for failure to discover and clean the substance as they passed over it during their routine inspections/cleaning. The Gaming Disputes Trial Court Guernsey, C.J., held that the evidence presented, including preserved video recordings, failed to establish both how long the substance had been present and whether the employees were negligent in failing to discover it, and entered judgment for the Defendant.
M John Strafaci, Esq for the Plaintiff
M Joseph Strafaci, Esq. for the Plaintiff
Anthony J. Natale, Esq. for the Defendant
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]
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]
The event that is the subject of this action took place on April 1, 2017, prior to the 2021 amendment to the Mohegan Torts Code[6] regarding constructive and actual notice. See Galanos v Mohegan Tribal Gaming Authority, 17 Am. Tribal Law 266, 2023 WL2054387 (2023).
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:
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...
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