--- Am. Tribal Law ----, 2024 WL 1253577 (Mohegan Gaming Trial Ct.)
Only the Westlaw citation is currently available.
Mohegan Gaming Disputes Trial Court.
Sabrina BOLDEN
v.
MOHEGAN TRIBAL GAMING AUTHORITY
7 G.D.R 89
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GDTC-T-19-132-JAM
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March 5, 2024
MEMORANDUM OF DECISION
McNamara, J.
I. Factual Background:
SUMMARY
The Plaintiff, while attending a Winefest at Mohegan Sun, suffered injuries when she tripped and fell over a flatbed cart that had been placed behind her, without her knowledge, as she stood at a table holding souvenirs for Winefest guests. The Gaming Disputes Trial Court, MacNamara, J., held that placing the cart in such a position created a hazardous condition that caused the plaintiff to fall. The Court further held that the Plaintiff, who turned around but failed to notice the cart then in front of her, was also negligent and assigned a proportional share of the negligence of thirty three percent. Judgement entered for the Plaintiff with a reduction for comparative negligence pursuant to MTC ยง 3-251(b).
This matter was commenced by the filing of a Summons and Complaint with the Gaming Dispute Trial Court on December 30, 2019.
The Complaint alleges that on January 27, 20191, at approximately 5:00 p.m., the Plaintiff, Sabrina Bolden, was a guest and business invitee at the Mohegan Sun Winefest and was caused to trip and fall over a cart that was being used to transport boxes of alcoholic beverages. Said fall resulted in the Plaintiff’s personal injuries.
It is further alleged that the Defendant was negligent in one or more of the following ways in that it:
(a) Failed to properly control the cart and avoid physical contact with invitees upon the premises, especially in an area it knew or should have known was primarily used for pedestrian travel;
(b) Failed to warn the plaintiff of the cart’s position even though it knew or should have known the cart was dangerously close to the plaintiff’s body and constituted a tripping hazard;
(c) unreasonably safe position given the pedestrian traffic then and there existing;
(d) Was inattentive to patrons in and around the area where the cart was left;
(e) Overloaded the cart in such a manner that it could not be adequately controlled;
(f) Otherwise failed to maintain a safe premises for invitees, including the plaintiff.
The Defendant, through its Answer, has admitted that the Mohegan Tribal Gaming Authority owned the premises known as Mohegan Sun Casino, and that the Plaintiff was lawfully on the premises at the time of the incident. The remainder of the allegations of the Complaint were either denied or left to the Plaintiff’s proof.
The Defendant also affirmatively alleged as a Special Defense that any alleged injuries or losses sustained by the Plaintiff were caused by her negligence and/or carelessness in that she:
(a) Failed to keep a proper lookout for the conditions alleged in the Complaint or the general conditions then and there existing;
(b) Failed to exercise due care for her own safety and proper use of her senses;
(c) Failed to use reasonable care for her own safety commensurate with the existing circumstances and conditions;
(d) Failed to notice a condition which was or should have been open and obvious to her;
(e) Failed to take the appropriate precautions given the circumstances then and there existing; and
(f) Failed to act in a reasonable and prudent manner by, inter alia, not watching where she was walking.
The Defendant also alleged as Special Defenses that the Plaintiff failed to mitigate her damages. If she sustained injuries as alleged in the Complaint, the Defendant lacked notice of the condition that caused her injury, and that the condition complained of was open and obvious to her.
Testimony and evidence, including a video tape of the actual incident presented to the Court, established the following facts relevant to the decision in this case.
The Plaintiff arrived at the Mohegan Sun Casino on January 26, 2019, at approximately 1:30 p.m. Ms. Bolden was meeting friends and was planning on attending the Mohegan Sun Winefest which was located in the Expo Center. She spent a few hours with friends visiting different tastings, sampling various wines, and acquiring favors and souvenirs provided to the guests of the Festival. At approximately 5:00 p.m. when the festival was ending, she walked to a table to obtain a souvenir. As she turned to walk back towards her friends, she tripped and fell over a stationary flatbed cart that was transporting alcohol to and from the event.
After she fell, she immediately felt pain in her right ankle and had pain in her left palm. She remained in a sitting position at the location of the cart and an Event Services Supervisor was the first person to come to her assistance. Soon thereafter, a member of Emergency Medical Services arrived and assessed the Plaintiff’s injuries.2 Said report indicated that the Event Services Supervisor, Susan DiMaggio, responded to an incident involving patron, Sabrina Bolden. Banquet Shift Manager, Greg Chamberlain, stated in said report he left a beverage cart near the Jim Bean Vendors when he observed Patron Bolden fall over the cart. Emergency Medical Services indicated that Patron Bolden refused transportation to the hospital. Ms. Bolden testified that she preferred to go home to Massachusetts and be seen at her local urgent care center.
On January 27, 2019, the Plaintiff went to Mercy Medical Center where she was evaluated and treated by Physician Assistant Nicholas Carro. He performed an x-ray of her right leg which revealed no acute fractures or dislocation. He also performed an x-ray of her left hand which affirmed that there was no acute fracture or dislocation.3 Nicholas Carro concluded that she had swelling and tenderness on her left hand and a contusion on her right leg. He recommended that she consult with her primary care physician and referred her to Baystate Hand Surgery for further evaluations.
Ms. Bolden consulted with her primary care physician who referred her to Wing Hospital and Medical Center for an orthopedic consult. Dr. Sinelnikor performed additional diagnostic tests of her left wrist which revealed no acute fracture or malalignment and moderate to severe degenerative changes of the triscaphe joint.4
In addition to undergoing physical therapy sessions for approximately six weeks, Ms. Bolden also received a cortisone injection to her left hand which did provide improvement in her discomfort.
Ms. Bolden continued to have issues with her left hand and was referred by her primary care doctor to Dr. Aron for a second opinion regarding surgical options. Dr. Aron diagnosed Ms. Bolden with left thumb carpometacarpal arthritis and recommended a left thumb CMC arthoplasty and left wrist tendon transfer. On February 12, 2020, Dr. Aron performed said surgery. Ms. Bolden wore a splint on her hand for approximately two months post-surgery and attended physical therapy for approximately two months.
The Plaintiff testified that this injury has greatly affected her quality of life. She has difficulty holding items in her hand, has pain along the site of the surgery, and has difficulty gardening and wearing her wedding ring.
The evidence established that the total medical and rehabilitative expenses arising from this fall were $26,251.13. The Defendant claims that Ms. Bolden’s left wrist injury predates this accident and a significant portion of her medical bills are not related to this incident.
II. Analysis
On the day in question, the Plaintiff was a patron at the Mohegan Sun Casino, and as such, was a business invitee to whom the Defendant owed the duty of exercising reasonable care.
This action is governed by the Mohegan Torts Code. It provides that “tort” means an injury to a person caused by a breach of a legal duty to that person, that “duty” means an obligation to conform to a particular standard of conduct and that “negligence” means conduct that falls below the standards established by law or custom for the protecting of others against risk of injury or harm. The standard of conduct to which a person must conform to avoid being negligent is that of a reasonable person under similar circumstances. The Code also provides that a claimant shall recover nothing if his contributory negligence is determined to be greater than fifty percent of any negligence of the Defendant.
The Defendant owes the invitees, including the Plaintiff, the duty to exercise reasonable care to keep the premises reasonably safe for reasonable anticipated uses. Wright, Fitzgerald and Ankerman, Connecticut Law of Torts, Sec. 49 (3rd ed. 1991).
The Plaintiff has the burden of proving the existence of a defective condition which rendered the premises not reasonably safe. Sung Cha Son v. Mohegan Tribal Gaming Authority, 10 Am. Tribal Law 153, 157, 2009 WL 8579076 (2009).
The Plaintiff in this matter asserts that the defendant created a transient, hazardous condition which caused the Plaintiff to fall. More specifically, she alleges that wheeling a sled-style cart into an area where patrons were still gathered and leaving said cart unattended created a hazardous condition. A defect or unreasonably dangerous condition makes the premises not reasonably safe for the reasonably anticipated uses of the premises. Masterson v. Atherton, 149 Conn. 302, 306, 179 A.2d 592 (1962).
Therefore, the issue before the Court is whether utilizing a sled-style cart in the manner used in this case, falls below the standard of care by creating an unsafe condition.
Mr. Chamberlin, who was operating the cart, and is an employee of the Defendant, testified that he was responsible for retrieving cases of alcohol and other product from the Winefest and transporting those cases to the Celebrity Chef event using a flatbed cart. The Celebrity Chef event was occurring in a different part of the Casino, and Mr. Chamberlain had approximately one hour to move the alcohol from the Winefest to the Celebrity Chef event.
At the time of the incident, the flatbed cart had twelve boxes of wine on it, and Mr. Chamberlain was in the process of picking up six to ten more cases of alcohol from the Jim Beam Vendor. He testified that he needed to move a table to get the cart behind the table to better access the alcohol that he would be transporting to the other event. He further testified that he did not expect that it would take him more than a few seconds to move the table so that he could position the cart close to the cases of alcohol that he was retrieving. He also testified that he has used a flatbed cart in and around patrons throughout events and in transporting product on a regular and consistent basis over the past thirteen years. It should be noted that the Plaintiff is not alleging that Mr. Chamberlain struck her with the cart but rather he left the cart in a dangerous location so that patrons such as herself could trip over it.
The Plaintiff testified that she did not see the cart that caused her to fall until after she had tripped over it. She claims that she went to a table that was handing out souvenirs to the guests of the event. When she turned to walk back towards her friends, she tripped and fell over the cart. She further claims that the cart was not there when she went to the table but was placed there while she was obtaining her souvenir.
Plaintiff Exhibit P-2 is a video of the area where the Plaintiff fell on the day in question. The Court observed the video during testimony and in preparing this decision.
At 4:58:54 p.m., Mr. Chamberlain is seen pulling the flatbed cart into the area where the Plaintiff was located. At approximately the same time, the Plaintiff is seen a distance away from the flatbed cart retrieving what may be a party favor from the Jim Beam Vendor booth. Soon thereafter, the Plaintiff turns to walk towards her friends and trips and falls over the cart. While the cart had not been stationary for a lengthy period of time, it was located in an area where patrons would have to walk around it to avoid coming in contact with it.
The use of a flatbed cart to transport product from one location to another location in the Casino is not by itself a negligent act. Mr. Chamberlain explained that while using a flatbed cart around patrons, he does so with a certain protocol aimed at using it safely. The Court does not question his ability to operate the flatbed cart in a prudent manner nor does it question his goal of operating it safely. The Court does, however, question leaving the cart unattended to move a table while there were still patrons in the area. Mr. Chamberlin testified that he looked around to make sure people nearby had ample space in between them and the cart and made eye contact with the people in the Plaintiff’s party to confirm, at least in his mind, that all the patrons in the area were aware of the existence of the cart. Unfortunately, Ms. Bolden did not see the cart when she turned to be with her friends.
The Court finds that the operation of the flatbed cart in the manner described created a hazardous condition which caused the Plaintiff to fall.
Based upon the foregoing, the Court finds the Defendant liable to the Plaintiff for the injuries sustained in her fall on January 26, 2019. The Court also finds that the Plaintiff was comparatively negligent in the amount of thirty-three percent.
III. Damages
As a result of her fall at the Mohegan Sun Winefest, the Plaintiff incurred medical bills in the amount of $26,251.13. The Defendant contends a significant portion of the Plaintiff’s medical bills are not related to her fall at Mohegan Sun Casino. More specifically, they claim that the need for a CMC Arthroplasty and wrist tendon transfer and her alleged symptoms were not proximately caused by the incident at the Casino. The Defendant’s expert witness, Dr. Mastella, testified that the need for those procedures and treatment were not due to the fall at the Casino, but were instead because of longstanding complaints and arthritic conditions in the CMC joint which predates the incident. Dr. Aron, an orthopedic surgeon who treated the Plaintiff and eventually performed the surgery, diagnosed the Plaintiff with CMC arthritis which was worsened by a fall.5
While it is clear that the Plaintiff had CMC arthritis, her fall on January 26, 2019, more likely than not was a substantial factor in her need for surgery, and her preexisting condition was worsened by the additional trauma to the CMC joint she sustained in her fall at the Casino.
The Court finds the actual economic loss due to medical and health care expenses related to her fall at the Casino total $26,251.13.
Pursuant to Section 3-251 (a)(3), non-economic damages may not exceed 200% of actual damages prior to any reduction for collateral source payments. Non-economic damages are assessed at $42,000.00.
The award for damages is therefore, as follows:
Actual damages
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$ 26,251.13
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Non-economic damage
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$ 42,000.00
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Total Damages:
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$ 68,251.13
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Less 33% comparative negligence
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$ 20,477.33
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NET AWARD:
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$ 47,775.80
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Judgment may enter on behalf of the Plaintiff and against the Defendant in the amount of $47,775.80.
All Citations
--- Am. Tribal Law ----, 2024 WL 1253577
Footnotes |
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While the Plaintiff’s Complaint states the date of the incident was January 27, 2019, according to both the Incident File Full Report and the Employee Incident Report, the date of the incident was actually January 26, 2019. |
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See Plaintiff’s exhibits 1 titled Incident File Full Report. |
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See plaintiff exhibit P3A. |
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See plaintiff exhibit P3C. |
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See plaintiff exhibit P3F. |
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