--- Am. Tribal Law ----, 2025 WL 1156911 (Mohegan Gaming C.A.)
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Mohegan Gaming Disputes Court of Appeals.
 
Anh Que DUONG, Appellant
 
v.
 
MOHEGAN TRIBAL GAMING AUTHORITY, Appellee
 
1 G.D.A.P 122
|
GDCA-T-24-501
|
March 28, 2025

 

DECISION ON APPEAL

COLLINS, J.

SUMMARY

Plaintiff/Appellant appealed from the judgment of the Gaming Disputes Trial Court, Manfredi, J., in favor of the Defendant/Appellee in Plaintiff’s action for damages under the Mohegan Torts Code resulting from her fall as the result of a liquid substance on the floor at the Season’s Buffet in Mohegan Sun Casino. On appeal, the Plaintiff/Appellant challenges both the Trial Court’s factual findings and application of law, wherein the Trial Court held that the Defendant/Appellee’s actions to correct the defect were reasonable even if it had actual notice of the defect.

The decision of the Gaming Disputes Trial Court is affirmed.

This case arises out of an appeal by Anh Que Duong against the Mohegan Tribal Gaming Authority from a Memorandum of Decision of the Gaming Disputes Trial Court (Manfredi, J.) filed on April 12, 2024.1 Oral argument was heard on December 2, 2024.2 For reasons set forth below, the judgment of the trial court is AFFIRMED.

 

PROCEDURAL BACKGROUND

By way of a Complaint dated February 5, 2018,3 the plaintiff, Anh Que Duong, brought claims alleging that on February 6, 2017 she had slipped on an “accumulation of liquid on the floor”4 on the defendant’s premises (Season’s Buffet) due to the negligence of the defendant, and that she had sustained injuries resulting from the fall. The defendant acknowledged jurisdiction, denied the allegations of negligence and/or left the plaintiff to her proof, and raised special defenses alleging comparative negligence by the plaintiff, which negligence was denied by the plaintiff.5

On appeal, plaintiff argues that the trial court generally erred in its factual findings and its application of the law. The plaintiff suggests that the trial court’s decision was clearly erroneous in finding that “in this matter the issue of negligence revolves around the issue of constructive notice.”6 She further argues it was clearly erroneous for the trial court to find that “even if we assume that the defendant had actual knowledge.... (the) Defendant immediately took action to investigate and correct the condition ...”7 The plaintiff, argues that the evidence support a finding of actual notice for which the defendant did not take reasonable steps to correct the alleged defect.”8

On appeal, the defendant argues that the plaintiff did not prove that the defendant acted unreasonably and that the trial court’s decision was not clearly erroneous,9 and that the plaintiff failed to preserve public policy considerations as to constructive notice.10 The defendant further argues that there is no public policy reason to link actual and constructive notice Cases,11 and that the video evidence supports a finding of no actual notice herein.12

 

DISCUSSION

This appeal addresses well-known concepts of constructive notice, actual notice, burden of proof, and the discretion afforded the trial to determine the underlying facts and this court’s determination as to whether those findings were clearly erroneous. Preliminarily the court notes that the plaintiff’s brief incorrectly refers to 14:50 as 2:30 PM, and not 2:50 PM, as referenced elsewhere in her brief.13

The plaintiff raises for the first time on appeal public policy considerations14 not raised before the trial court.15 PB Sec 60-5 requires that such a claim must be “distinctly raised at the trial or arose subsequent to the trial.” Connecticut exceptions include subject matter jurisdiction (Foote v. Commissioner of Correction, 170 Conn. App. 747, 751-52, 155 A.3d 823 (2017)), constitutional claims (State v. Golding, 213 Conn. 233, 234-40, 567 A.2d 823 (1989)), modified, In re Yasiel R., 317 Conn. 773, 779, 781, 120 A.3d 1188 (2015), plain error for extraordinary situations (State v. Ruocco, 322 Conn. 796, 803, 144 A.3d 354 (2016)), and related to the court’s supervisory powers (Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, 311 Conn. 123, 84 A.3d 840 (2014)). There are no reported Mohegan decisions relative to public policy arguments on appeal. Given the limited grant of authority under the Mohegan Torts Code the court believes that public policy considerations are best left to the Mohegan Tribe for its considerations and, accordingly, declines to address the suggested public policy considerations herein.

Under well-established Mohegan and Connecticut case law, in a slip and fall incident as occurred to the plaintiff herein, the plaintiff bears the burden of proving that the defendant knew or should have known of the defect that caused her fall. LaFaive v. DiLoreto, 2 Conn. App. 58, 60, 476 A.2d 626 (1984). The defendant has a duty to keep its premises reasonably safe for invitees and a breach of that duty renders the defendant liable for resulting, causally related injuries. Morris v. King Cole Stores, Inc., 132 Conn. 489, 494, 45 A.2d 710 (1946). Of course, reasonableness “is a question of fact for the trier to determine based on all of the circumstances” Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 580, 657 A.2d 212 (1005).

In this matter, the trial court factually found that “the fall had occurred at approximately 3:05 p.m. although the exact time is unclear” and the defendant had notice of a spill in the area at approximately 2:50 p.m., again not an exact time.”16 The court further noted that there is simply insufficient evidence from which the court can conclude when the substance appeared on the floor and “can only conclude that someone called in a spill at 2:50 p.m.”17 The court further found that the “defendant’s conduct in response to the notice (of the spill) was reasonable and appropriate and did nothing to expose the plaintiff to an unreasonable risk of harm.”18

 

STANDARD OF REVIEW

The plaintiff and the defendant agree that that the standard of review in such matters is not plenary but clearly erroneous; they disagree as to whether the trial court’s findings and application of law are clearly erroneous. Thus, the plaintiff notes that “the finding of the Gaming Disputes Trial court must stand unless they are clearly erroneous”19 The defendant agrees and observes that “appellate review of findings of fact is limited to deciding whether such findings were clearly erroneous” and that “it is not the function of this court to sit as the seventh juror when we review the sufficiency of the evidence.”20

As previously noted by the court “with regard to the trial court’s factual findings, the clearly erroneous standard of review is appropriate.... A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made.... Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses....” Miller v. Guimaraes, 78 Conn. App. 760, 766-67, 829 A.2d 422 (2003). “In applying the clearly erroneous standard of review, [a]ppellate courts do not examine the record to determine whether the trier of fact could have reached a different conclusion. Instead, we examine the trial court’s conclusion in order to determine whether it was legally correct and factually supported ... This distinction accords with our duty as an appellate tribunal to review, and not to retry, the proceedings of the trial court.” (Internal quotation marks omitted.). DeMattio v. Plunkett, 199 Conn. App. 693, 711, 238 A.3d 24 (2020). “Under the clearly erroneous standard of review, a finding of fact must stand if, on the basis of the evidence before the court and the reasonable inferences to be drawn from that evidence, a trier of fact reasonably could have found as it did.” Wells Fargo Bank, N.A. v. Lorson, 183 Conn. App. 200, 192 A.3d 439 (Conn. App. 2018). As noted in Musial v. MTGA, 1 G.D.A.P. 107 (2020), “a factual finding by the Trial Court must stand unless clearly erroneous as a matter of law. The function of this Court is not to determine whether the Trial Court could have reached a different conclusion other than the one reached, but rather could it reasonably have reached the one that it did.” Allen v. Nissley, 184 Conn. 539, 542, 440 A.2d 231 (1981). See also, Alday v. Mohegan Tribal Gaming Authority, 1 G.D.A.P. 25, 6 Am. Tribal Law 476 (2005), which adopted Conn. Prac. Bk. § 60-5 as the standard for appellate review.”

 

BURDEN OF PROOF

The plaintiff has the burden of proving facts by a preponderance of the evidence. Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 702, 651 A.2d 1286 (1995); Holmes v. Holmes, 32 Conn. App. 317, 318, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993). The plaintiff asserts that the time period for EVS to walk around the Seasons Buffett established the standard of care attempting, unsuccessfully, to avoid the Mohegan tribal code prohibiting mode of operation claims. See MTC Sec. 3-245. The issues as to an invitee such as the plaintiff herein, is that she “must establish that the defendants had notice, actual or constructive, of the specific defective condition, the “very defect,” which caused him to fall, and that the condition had existed for a sufficient length of time to have to have afforded the defendants, in the exercise of reasonable care, an opportunity to discover it and either remedy it or give warning of its presence.” CONNECTICUT LAW OF TORTS, Wright, Fitzgerald and Ankerman, Sec 49. (Emphasis added).

 

NOTICE

“Actual notice would be proved by evidence which shows that the Defendant, in fact knew of the defect in question prior to the event causing the injuries and had sufficient time in which to correct it.” Young v. Mohegan Tribal Gaming Authority, 3 G.D.R.103, GDTC-T-03-115-PMG, 7 Am. Tribal Law 455 (2008).21 Constructive notice claims, very-well known to this court, often address whether the alleged defect was in existence for greater than 20 minutes so as to prove that the defendant had constructive knowledge of the defect. See Witham v. Mohegan Tribal Gaming Authority, 4 G.D.R. 112, GDTC-T-08-102-FAM, 10 Am. Tribal Law 239 (2011), Tomassetti v. Mohegan v. Tribal Gaming Authority, 7 G.D.R. 22, GDTC-T-18-138-JAM, 17 Am. Tribal Law 140 (2021).22

 

CONCLUSION

In this matter the absence of evidence left more questions than answers. There were no live witnesses. The plaintiff testified by deposition only. The trial court was unable to conclude when the substance upon which the plaintiff fell first appeared on the floor. There was no evidence as to how long it took to dispatch someone to clean the floor or even the exact time (approximately 2:50 p.m.) when the defendant had notice of the claim. The trial court found that the time of the fall was unclear. Video evidence reflected a fall at 3:01; the court found a fall at approximately 3:05. While the plaintiff repeatedly and skillfully argues that an 11 minute span between 2:50 and 3:01 is simply too long a period of time for the defendant to remedy the defect, the underlying difficulty with the plaintiff’s argument is her inability to prove anything other than approximations. The trier of fact was left with no evidence as to whether the differential between notice and response time was 11 minutes or 6 minutes or 3 minutes given the inability of the plaintiff to offer anything other than an approximately 2:50 p.m. notice. As such, it is not the function of this court to sit as the “seventh juror,23 and accordingly the findings of the trial court are not clearly erroneous.24 This court, mindful of the “20 minute rule” as to constructive notice, declines to adopt a similar rule as to actual notice in this matter given the uncertainties of the actual involved time frames. The absence of time-accurate proof noted by the trial court was fatal to the plaintiff’s claim.

The decision of the trial court is AFFIRMED.

In this opinion, Judge McNamara concurs.

All Citations
--- Am. Tribal Law ----, 2025 WL 1156911

Footnotes
1	Record No. 7.
2	The appellate panel consisted of McNamara, J. and Collins, J. Guernsey, J. did not participate in the hearing or instant decision.
3	Record No. 1.
4	Record No. 1, Complaint, para. 4.
5	See generally, Record No. 2.
6	Brief of Plaintiff, p. 8.
7	Brief of Plaintiff. pp.8, 12, 13, 17.
8	Brief of Plaintiff, pp. 8, 13.
9	Brief of Defendant, p. 7.
10	Brief of Defendant, p. 14.
11	Brief of Defendant p. 15.
12	Brief of defendant p. 17.
13	Brief of Plaintiff, p.2.
14	Brief of Plaintiff, pp.15-17.
15	See Plaintiff’s Post Memorandum of Law, No.120.
16	Record, No. 7 at p. 58.
17	Record, No. 7 at pp58-59.
18	Record, No. 7 at p. 59.
19	Citing to: Witham v. Mohegan Tribal Gaming Authority, 4 G.D.R. 112, 10 Am. Tribal Law 239 (2011); Plaintiff’s brief, p.9.
20	See Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 645, 904 A.2d 149 (2006); Defendant’s Brief, pp.7-8.
21	As defined by the Mohegan Tort Code Sec. 3-245 “Actual Notice” means, with respect to an Act or Defective Condition, information about such act or condition that is reasonably available to a person.
22	As defined by the Mohegan Tort Code Sec. 3-245, “Constructive Notice means, with respect to an Act or Defective Condition, notice of such act or condition that, based on the circumstances including location, timing, magnitude, and opportunity to obtain information, is sufficient to impute to a person adequate notice so as to permit corrective action....”.
23	See: Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 645, 904 A.2d 149 (2006).
24	Inasmuch as the trial court found that the “defendant’s conduct in response to the notice was reasonable and appropriate,” and the plaintiff essentially asserts same was clearly erroneous, such finding was harmless error given the trial court’s conclusion that the plaintiff failed to carry her burden of proof since “the court had no way of knowing when the substance appeared or how long it took to dispatch someone thereafter.” Record No. 7, p.59.