2025 WL 1119480 (Mash. Pequot Tribal Ct.)
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Mashantucket Pequot Tribal Court.
 
William BORIA, Plaintiff
 
v.
 
MASHANTUCKET PEQUOT GAMING ENTERPRISE, Defendant
 
DOCKET NO. MPTC-CV-PI-2022-149
|
APRIL 14, 2025

 

MEMORANDUM OF DECISION

Edward B. O’Connell, Judge

On the morning of October 15, 2021, at around 8:00 a.m., the plaintiff, William Boria, visited Foxwoods Casino (“Casino”) owned by the defendant Mashantucket Pequot Gaming Enterprise (“the Gaming Enterprise”). He arrived this day with an associate with the intention of gambling during the day and staying the night in a guestroom at the Casino.

The plaintiff and his associate parked in a self-serve parking garage on the premises. The plaintiff’s associate went on ahead of the plaintiff into the Casino. The plaintiff stayed behind and was tasked with carrying the parties’ baggage from the car into the Casino. The plaintiff proceeded to load himself with the parties’ baggage and followed his associate into the Casino.

As the plaintiff was walking towards the only door leading to the Casino, he noticed employees of the Gaming Enterprise “purging” water from fire extinguishers onto the floor of the parking garage. This “purging” created a buildup of water as it ran down towards a nearby drain. This buildup resulted in an accumulation of water perhaps half an inch deep, similar to a puddle, which was situated directly in front of the only door to the Casino and left no alternative path on that floor of the parking garage to enter the Casino other than traversing through the water. To avoid the water completely a person attempting to enter the Casino on this level of the parking garage would have had to go to a different level of the parking garage. The plaintiff attempted to navigate through this puddle while carrying the above-mentioned bags. He was clearly aware of the water before choosing to traverse over it, but was left with no alternative path to enter the Casino other than to navigate this puddle of water resulting from the ongoing “purging” of the fire extinguishers. While the plaintiff attempted to do this, he slipped and fell onto the floor of the parking garage.

The plaintiff brings this action alleging that the plaintiff slipped and fell in an area that constituted a dangerous condition that had been created by the negligence of the defendant’s employees, and that the defendant was negligent in a variety of ways, including leaving the floor in a dangerously wet condition in a high-traffic area, failing to remedy the wet condition, failing to warn of the dangerous wet condition, and in several other respects. The plaintiff also alleges that he sustained injuries as a result of his fall, including exacerbation of previous injuries.

The defendant denies the plaintiff’s allegations, and by way of special defenses asserts that his injuries were the result of his own carelessness and negligence and that the dangerous condition was open and obvious to patrons and needed no special warning.

The essential elements of a cause of action in negligence are well established. In order for the plaintiff to prevail in a cause of action alleging negligence, he must prove by a preponderance of the evidence that: (1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; (3) the breach of said duty was the proximate cause of the plaintiff’s injuries; and (4) the plaintiff suffered actual damages. Martinez v. Mashantucket Pequot Gaming Enterprise, 2024 WL 4586544 at *1 (Mash. Pequot Tribal Ct., 2024) citing Mashantucket Pequot Tribal Nation v. Castellucci & Assoc., Inc., 4 Mash. Rep. 21, 33 (2002); Hazard v. Mashantucket Pequot Tribal Nation, 6 Mash.Rep. 354, 357-58 (2016).

The Gaming Enterprise owes a duty to invitees like the plaintiff to keep its premises “reasonably safe” and “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.” Martinez, supra at 1 citing (Lin v. Mashantucket Pequot Gaming Enterprise, 4 Mash.Rep. 393, 396 (2006). “[A] dangerous condition should have been known to exist if it is established that the condition had 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). For a defect to be considered a “dangerous condition” it must have been “proximately caused by the negligent acts or omissions of the Gaming Enterprise.” Id.

The defendant’s duty to warn or protect the plaintiff from dangerous conditions is limited to those dangerous conditions of which it has “actual or constructive knowledge.” Malouf v. Mashantucket Pequot Gaming Enterprise, 6 Mash.App. 19, 22 (2014) (quoting Martello v. Mashantucket Pequot Gaming Enterprise, 1 Mash.Rep. 193, 194 (1996)). The defendant would have constructive knowledge of the condition if it existed for a “length of time sufficient for the defendant’s employees, in the exercise of due care, to discover [it] in time to have remedied it.” Id. at 23 (quoting Brown v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 79, 81 (2008)). Actual knowledge is shown by proof that the defendant was in fact aware of the dangerous condition by creating it or observing it. Caruso v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 244, 247–48, (2010) citing (Forte v. Mashantucket Pequot Gaming Enterprise, 2 Mash.Rep. 222, 225 (1997).

Here, the Court does not have to determine whether the defendant had constructive notice of the alleged dangerous condition. The claim in this case is that the defendant itself, through its employees, had actual notice of the alleged condition by discharging the fire extinguishers onto the floor of the parking garage while not arranging for adequate drainage, resulting in a buildup or puddle of water in front of the only entrance to the Casino. The parties stipulated at trial that the defendant had notice of the existence of the water as a condition. The parties do not agree, however, on whether or not the water was a dangerous condition. The crux of this case, and the liability of the defendant, hinges on whether the condition of which the defendant had notice was a dangerous condition as defined in 4 M.P.T.L. ch. 1 § 1(e) and tribal case law.

“Warning an invitee against dangers that are either known to him or so obvious to him that he may be expected to discover them is unnecessary.” Caruso, supra at 248–49, citing Lin, supra at 398. The defendant “need not warn patrons of potentially dangerous conditions that are within the purview of the average person.” Caruso, supra at 248 citing Kaplan v. Mashantucket Pequot Gaming Enterprise, 4 Mash.Rep. 503, 510 (2007).

It is clear the condition was open and obvious. The plaintiff himself testified that he saw the defendant’s employees discharging the water out of the fire extinguishers and saw the puddle of water prior to crossing it. This being so, the defendant’s liability cannot be based on a failure to warn. The defendant reasonably could have expected patrons entering the Casino from that floor of the parking garage to observe the puddle of water and the defendant’s employees actively “purging” fire extinguishers onto the floor of the parking garage. If the Court’s analysis stopped here, the defendant would be entitled a decision in its favor.

However, the rationale of an open and obvious defense is that a reasonable person would be able to adjust his or her route to avoid the dangerous condition. See Caruso, supra at 249. There “the Plaintiff knew the floor was being mopped and was likely to be slippery, and had an opportunity to adjust his pace and stride and take reasonable precautions.” Accord, Kaplan, supra at 510 (“[i]n light of his knowledge of a potentially dangerous condition, Mr. Kaplan did not take reasonable precautions for his own safety.”). “An open and obvious condition does not relieve a premises owner of liability for injuries that otherwise may be made safe through reasonable means.” Lin, supra at 398 citing Cupo v. Karfunkel, 1 A.D.3d 48, 767 N.Y.S.2d 40, 43 (N.Y. App. Div. 2003).

The critical fact here is that there was no alternative route for an invitee of the defendant attempting to enter the Casino premises, like the plaintiff in this case, other than by going over the puddle of water created by the purging of the fire extinguishers by the defendant’s employees. It would be unreasonable for the defendant Gaming Enterprise to expect invitees who park on that floor of the parking garage to then go to a different floor of the parking garage to avoid the water in order to enter the premises. If the Gaming Enterprise expected invitees to do this, they should have prevented invitees from parking on this floor of the parking garage. Alternatively, the Gaming Enterprise could have purged the fire extinguishers onto a different location or cleared the drains in the garage so that invitees did not need to traverse a puddle to enter the premises.

Despite the water being open and obvious, the Court finds that the Gaming Enterprise created a dangerous condition in the form of a puddle of water on the floor of the parking garage, which left the plaintiff with no alternative route to enter the premises other than by attempting to traverse over the dangerous condition, and that such dangerous condition caused the plaintiff to slip and fall. The open and obvious condition could have been made safe by the reasonable means of discharging the extinguishers in a different location. The lack of an alternative safe route on that floor of the parking garage militates against the claim that the dangerous condition was open and obvious. See Lin, Caruso, Kaplan, supra.

The plaintiff has proven by a preponderance of the evidence that the defendant breached its duty owed to the plaintiff as an invitee to keep the defendant’s premises reasonably safe by allowing the plaintiff to park on a floor of the parking garage where the only entrance to the Casino on that floor had a dangerous condition in the form of a puddle of water, such that the plaintiff had no alternative route to the Casino other than to traverse over the puddle of water if he was to enter the Casino on the floor on which he was allowed to park.

However, the puddle was capable of being safely traversed with care. A review of the security camera footage prior to the plaintiff’s fall reveals no less than six other invitees of the Gaming Enterprise safely walking through the puddle of water that caused the plaintiff to fall. To claim that these six invitees were extra careful is far-fetched. Instead, a more reasonable conclusion is that the plaintiff could have employed a greater degree of due care. He was carrying baggage when attempting to walk through the puddle of water, and this would make it more difficult for him to do so. Nonetheless, as evidenced by the other invitees who safely walked through the water, the Court concludes that the plaintiff did not fully adhere to the standard of care expected of a reasonable invitee, which warrants an assignment of comparative negligence to the plaintiff.

Based on all the above considerations, including the testimony of the parties and the documentary and video evidence, the Court finds that the negligence of the defendant Gaming Enterprise exceeded that of the plaintiff. The Court finds the defendant Gaming Enterprise liable for 80% of the negligence attributable to the plaintiff’s fall in the parking garage, and assigns to the plaintiff 20% of the negligence for failing to exercise reasonable care as an invitee of the Gaming Enterprise.

Upon a finding of liability, the Court may enter an award for actual damages. 4 M.P.T.L. ch. 1 § 4(a). Actual damages are defined as “the ascertainable loss of money or property sustained as a result of an injury after any reduction for collateral sources.” 4 M.P.T.L. ch. 1 § 1(g). The plaintiff’s burden of proof to recover damages is a fair preponderance of the evidence. Jones v. Mashantucket Pequot Gaming Enterprise, 2024 WL 3157295 at 5 (Mash. Pequot Tribal Ct., 2024). The Court’s decision must be based on “reasonable probabilities in light of the evidence presented at trial.” Id. (quoting Esteves v. Mashantucket Pequot Gaming Enterprise, 2020 WL 8024886 at 5 (Mash. Pequot Tribal Ct., 2020). There must be an evidentiary basis for the damages – “plaintiff and witness testimony and/or all medical and financial records.” Jones, supra at 5 (citing Kyle v. Green Bird, LTD, 2023 WL 7385143, at 2 (N.D.N.Y. Nov. 8, 2023)).

The burden is on the plaintiff to prove to a reasonable degree of medical certainty, by a preponderance of the evidence, what are the ascertainable damages caused by the plaintiff’s fall. “To have a reasonable degree of medical certainty, the belief must be more likely than not.” Waterman v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 345, 350 (2015) quoting Macchietto v. Keggi, 103 Conn.App. 769, 776, 930 A.2d 817 (2007). See also Martinez, supra, at 6.1

Here, the plaintiff was treated by EMS at the scene and was transported to Backus Hospital via ambulance provided by American Ambulance Services, Inc. That this aspect of care was provided immediately after the plaintiff’s fall proves, by a preponderance of the evidence, that it and the damages reflected by the associated bills were caused by the plaintiff’s fall.

The plaintiff then presented to the Family Health Center and Midstate Radiology where he received x-rays and took a strength test after he requested a “referral to see someone for his wrist” which he hurt “a few weeks ago” when he “fell.”2 This aspect of the plaintiff’s medical records proves by a preponderance of the evidence that this care and treatment and the damages reflected by the associated bills were caused by the plaintiff’s fall.

The plaintiff was then referred to a hand surgeon at UMASS Memorial Health. After imaging, the plaintiff received hand surgery and postoperative care. The Court focuses on the following language in the medical records from UMASS Memorial Health: “[f]indings are consistent with a moderate right carpel tunnel syndrome with significant sensory slowing and sensory axonal loss. There is also significant motor slowing. These changes suggest a more chronic process....” (Emphasis added.) The providers at UMASS Memorial Health were clearly conflicted regarding whether the plaintiff’s hand condition, as then presented, was caused by a chronic condition rather than the plaintiff’s fall at the Casino. The Waterman standard requires the plaintiff to prove by a preponderance of the evidence, to a reasonable degree of medical certainty, that the plaintiff’s injuries were caused by the incident claimed by the plaintiff. Here, the UMASS Memorial Health records and the providers themselves did not find to a reasonable degree of medical certainty that the plaintiff’s fall caused the condition for which he was presenting for hand surgery. The Court cannot find that this aspect of care and treatment has been proven by the plaintiff to have been caused by his fall at the Casino. Rather, his hand surgery evaluation addressed “a more chronic process” (i.e., carpal tunnel syndrome). This same analysis applies to the Healthcare Enterprises Surgery Center care. The Court points to the first full sentence of this report which states, “[t]he patient presents with a history of carpal tunnel syndrome that has not improved with conservative treatment. (Emphasis added.) Without additional medical evidence, the Court is not in a position to determine that the plaintiff’s carpal tunnel and associated surgery was caused by his fall at the Casino.

Based on the above evidence, the Court finds that the plaintiff’s fall caused the following care and associated bills as ascertainable damages: the bills associated with the care provided by American Ambulance, William Backus Hospital, Midstate Radiology Associates, and the Family Health Center. The plaintiff has failed to prove by a preponderance of the evidence, to a reasonable degree of medical certainty, that the care provided by UMass Memorial Health Center and Healthcare Enterprises/Surgery Center was caused by the plaintiff’s fall.

The plaintiff’s ascertainable damages totals: American Ambulance $1,173.56 + Backus Hospital + $3,243.86 + Midstate Radiology/Family Health Center $290.10 = $4,707.52.

The plaintiff also claims pain and suffering. In addition to actual damages, the Court may enter an award for pain and suffering, but said amount cannot exceed 200% of the actual damages. 4 M.P.T.L. ch. 1, § 4(d)(1); Waterman, supra at 354. “In assessing an award for pain and suffering the amount awarded should be fair, just and reasonable for the pain, suffering, inconvenience, disability and loss suffered.” Misuraca v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 71, 72 (2013) (citing Moore v. Mashantucket Pequot Gaming Enterprise, 4 Mash.Rep. 317, 324 (2005)). “An award for pain and suffering cannot be computed by mathematical calculations.” Misuraca, supra at 72 (citing Peckham v. Mashantucket Pequot Gaming Enterprise, 1 Mash.Rep. 121, 124, 1 Mash. 88 (1995)).

“Pain and suffering includes the emotional consequences of an injury, which in turn includes the frustration and anguish caused by the incident.” Jones, supra at 6 (citing Furey v. United States, 458 F.Supp.2d 48, 56 (N.D.N.Y. 2006)).

The plaintiff testified about the changes that this injury has affected on his life. Prior to the injury the plaintiff worked as a landscaper. His job was essentially tree removal, but of a substantial type involving climbing up trees and the use of chainsaws. The main issue the plaintiff’s wrist injury has caused in his life has been a reduction in his grip strength. Because of this reduced grip strength, the plaintiff is no longer able to climb up tall trees using a chainsaw due to the risk that the plaintiff will drop the chainsaw. Additionally, the plaintiff no longer engages in activities he used to enjoy such as bowling and water/snow skiing due to the reduction in his grip strength.

The Court is aware that the defendant asserts that the plaintiff’s issues could have been caused by chronic conditions independent of the plaintiff’s fall, such as chronic carpal tunnel syndrome. However, the Court finds the plaintiff has proved by a preponderance of the evidence that the plaintiff’s fall caused by the defendant’s negligence exacerbated his issues with his grip strength, which in turn has caused the plaintiff disability and mental anguish in the form of not being able to pursue his life’s work of tree removal and other activities. The plaintiff is not making a formal claim of permanency. Based on its consideration of all these factors, the Court awards plaintiff 180% of his ascertainable damages as pain and suffering, which is $8,473.54.

Judgment in the amount of $10,544.85 shall enter for the plaintiff as follows:

 

Actual damages:	$4,707.52
Pain and suffering:	8,473.54
Plaintiff’s 20% comparative negligence:	(2,636.21)
Total amount of judgment:	$10,544.85

Costs shall be taxed in favor of the plaintiff.

Should the defendant consider that a collateral source hearing is necessary, a request for same shall be made to the clerk of the court within 15 days from the date hereof.

All Citations
2025 WL 1119480

Footnotes
1	“The statements of the plaintiff’s physicians, while scant and short, must be measured against the total lack of medical evidence submitted by the defendant. The beliefs of the treating physicians are phrased in common language rather than the usual rubric invoked by experts, but they do indicate that the plaintiff’s injuries are ‘most consistent’ and ‘most likely’ the result of her fall. In this respect they track the language of Waterman that their beliefs pertaining to the plaintiff’s injuries ‘must be more likely than not.’ Waterman, supra at 350. The Court finds that the plaintiff’s injuries are casually connected to her fall.”
2	The quoted language comes directly from the medical records in evidence.