--- Am. Tribal Law ----, 2023 WL 4579048 (Mohegan Gaming Trial Ct.)
Only the Westlaw citation is currently available.
Mohegan Gaming Disputes Trial Court.

HEATHER LOWY
v.
MOHGAN TRIBAL GAMING AUTHORITY

7 G.D.R. 65 | GDTC-T-18-127-JAC
JULY 11, 2023

SUMMARY
In an action brought under the Mohegan Torts Code, MTC § 3-241, the Plaintiff claimed injuries from slipping on a liquid substance, most likely water, on the floor of the lobby of the Earth Hotel at Mohegan Sun Casino. The Gaming Disputes Trial Court, Collins, J., found that the likely cause of the spilled water was another patron’s water cooler which fell, spilling water 1 minute, 54 seconds prior to the Plaintiff’s fall, which the Court held an insufficient period of time to establish constructive notice. As for the claim of actual notice, the Court held that the testimony of an employee of a store in the lobby, credited the employee’s testimony and held that the Plaintiff had not proved the employee witnessed the spill and thus could not find that Plaintiff had proved actual notice on the part of the Defendant.

Judgment entered for the Defendant.
MEMORANDUM OF DECISION
FULL TEXT, Collins. J.

 

INTRODUCTION
This matter involves a slip and fall in the lobby of Earth Hotel on December 28, 2017 from which the Plaintiff sustained claimed injuries.1 The Defendant denied same by way of its Answer and Special Defense,2 which Special Defense the Plaintiff denied.3 The court previously denied the Defendant’s Motion for Summary Judgment.4 This matter was tried before the court on December 12, 2022 and December 13, 2022. The court received testimony from Jared & Heather Lowy, Laurie Sklar, and Kelly Mendez. A motion to conduct a site inspection was granted where the court, in the presence of counsel, had the opportunity to inspect the subject premises.5 No testimony was taken at the site visit. The Defendant moved for a directed verdict, which the court denied.6 Counsel submitted simultaneous post-trial briefs on March 24, 2023.7

 

TESTIMONY
The Plaintiff’s husband, Jared Lowy, testified8 on direct examination that he and his wife, Heather, have been married for 13 years. Before the subject fall they enjoyed doing activities with their children at the mall and at Sesame Place. They came to the Mohegan Sun on December 28, 2017. The subject incident occurred the following morning at approximately 9:00 a.m.. The fall is depicted on video at the 19:27 mark. (Exhibit D-D). He observed Heather on the floor in a lot of pain. They decided to go to the hospital. On their way home she was laid out in back of the car in agony. At home she could barely walk. In the days following the incident she was in pain and stressed out. Often on the weekends they could not do anything; even going to a local mall was painful. Currently, everyday motions are difficult and she has difficulty caring for their 22-month-old son. Mr. Lowy never observed prior knee fluid issues in 2014-2015. On cross-examination, he testified that he did not notice liquid on floor. He saw water on Heather’s pants and butt, and back.

Laurie Sklar testified9 that at the time of the fall she had been employed as a retail sales associate for three months in the Earth Essential lobby store. She was working by herself. There is one entrance into the store identified on video at the 17:08 mark as being at 1:00 on the camera angel. (Exhibit P-14). Exhibit P-5 is identified as her statement and her handwriting. After a patrons’ personal cooler flipped over in the lobby area, she did not call anyone. The entrance of the store to the fall location is about 20 feet. She observed the fall while at the entrance to the store at the 19:27 mark of the video. She retrieved paper towels and wiped the floor. Someone had reported the spill, but she does not recall anyone telling her that the spill was reported; she did not make a call about the spill. The concierge desk is closer to the spill than the Earth Essential lobby store. Flooring in the lobby area is like marble terrazzo. When she looked before the fall she did not see anything that would prompt her to call emergency services or the concierge. She does not 100% recall seeing the cooler. The hotel log indicates that the spill was reported to the shop clerk, but no one reported the spill to her. If someone had reported it to her, she would have put it in her statement.

Heather Lowy testified10 that she was 34 years old at the time of the fall. She was walking from the elevators to the buffet and suddenly she went down. She did not see water before her fall; and she was ultimately sitting in the water. She saw Dr. Leeds in the past for fluid in her knees however, she denied same in discovery responses and in her deposition. The first week post-accident, she was in a lot of pain and very scared. Within a year she was at maximum medical improvement. She feels better but still has knee issues, especially with bending or crouching. She had a subsequent knee injury while working. She testified that Exhibit P-9 reflects bills causally related to the fall, with treatment provided by medical providers as reflected in Exhibits P-8A-8F.

Kelly Mendez, the hotel manager, testified11 for the Defendant. On December 28, 2017 she was the assistant hotel operations manager with responsibly for staffing, concierge desk, bell desk and front desk. She manages employees. The hotel log is usually done at the end of her shift. She testified that she is given initial information from security to complete the log. Once she completes log entries, she does not go back into it to change things. She identifies Exhibit D-H as the only incident that day. She does not recall if she was present when the Plaintiff fell, nor does she recall seeing the plaintiff. KRM at end of the log is her initials. A manager or assistant manager makes entries into the log.

 

ARGUMENT
The Plaintiff claims that the Defendant was negligent and that such negligence as a proximate cause of her injuries.12 The Plaintiff claims that the Defendant knew or should have known of the subject claimed defect. Defendant denies same and argues that the Plaintiff was responsible for her own injuries.13

 

LEGAL STANDARD
The Plaintiff has brought a negligence claim. “Negligence means conduct that falls below the standard established by law or custom for the protection of others against unreasonable 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. Where applicable, the rule of actual or constructive notice shall be applied to determine negligence; negligence shall not be deemed to arise from the mode of operation.” Galanos v. Mohegan Tribal Gaming Authority, 7 G.D.R 57 (2023). MTC § 3-245.

“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 LaFaye v. Diboreto, 2 Conn. App. 58, 60, 476 A.2d 626 (1980).... [T]he 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 Store, 132 Conn. 489-494, 45 A.2d, 710 (1946).” Tomassetti v. Mohegan Tribal Gaming Authority, 1 G.D.A.P. 118 (2022).

As to actual notice, the Plaintiff aptly observes,14 “Actual Notice means, with respect to an Act or Defective Condition, information about such act or condition that is reasonably available to a person.” MTC § 3-245. As this Court has held, “[a]ctual 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 (Mohegan Gaming Disputes Ct. 2008).”

As to constructive notice, the question is “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.” O’Brien v. H. L. Green Co., 128 Conn. 68, 69, 20 A.2d 411 (1941). Poverman v. Mohegan Tribal Gaming Authority, 6 G.D.R. 6, 14 Am. Tribal Law 84 (2015).” Galanos v. Mohegan Tribal Gaming Authority, 7 G.D.R 57 (2023).

 

FINDINGS OF FACT
The Court finds that the Plaintiff, accompanied by her husband, walked through the Earth Hotel lobby at approximately 9:00 a.m. on December 28, 2017. She slipped and fell on clear liquid, likely water, on the marble-type floor between the hotel store and the concierge desk. (Exhibit P-4). The water, more likely than not, came from a cooler, which fell at the 17:33 mark as reflected on the video. (Exhibit D-D). Unfortunately, the Plaintiff walked through the spilled water at the 19:25 mark and fell. (Exhibit D-D). Plaintiff and Defendant agree, and the court so finds, that approximately 1 minute, 52 seconds elapsed from the time of the spill to the Plaintiff’s fall.15

Despite conflicting evidence in the hotel log (Exhibits P-6, D-H) that the shop employee reported the fall, that employee (Sklar) testified that she did not see the spill and did not report same to either EVS or the concierge.16 She did witness the fall. She heard the cooler drop but may or may not have witnessed the cooler fall.17 No one reported a spill to her.18 Indeed Sklar’s statement, written on the day of the incident when recollections were undoubtedly more fresh than at the time of trial testimony,19 specifically notes that she did not witness the spill until after the fall and that thereafter the (unidentified) concierge called EVS. (Exhibit P-4).20 The court finds her testimony to be credible. Neither of the responding EVS attendants Rodriguez and Ovalle (Exhibit P-2) were called to testify as to how they were notified of the fall and the record is accordingly silent as to how they acquired knowledge of the spill. The unidentified concierge was not called to testify. The hotel log was obviously prepared subsequent to the fall. There is no evidence that an author who actually witnessed the spill/fall prepared the log, despite the first-person narrative used in the log. Indeed, security reports reflect that subsequent to the fall Kelly Mendez, the hotel log author, was “apprised of the incident and responded.”21 Consistent with her testimony, she met with the Plaintiff and subsequently provided her with her card. The court finds that her log entries were obviously done post fall and that she likely did not witness the fall. While the entries in the log certainly qualify as a business record, the information provided therein by unnamed individuals, presumably from security officials per Mendez’ testimony, is contradicted by repeated first-hand testimony of Sklar. There is no evidence, absent the log, that Slaar reported the spill to EVS.

The site inspection by the Court was very helpful and revealed a highly polished marble-type floor with bright overhead lighting that reflected off the floor, consistent with proffered photographs (Exhibit P-7A, P-7B, D-D, D-G1-4) and the surveillance video (Exhibit D-D). The court had the opportunity to view the area of the fall from the concierge desk and the shop store doorway, locations on opposite sides of the lobby, as well as from multiple other viewpoints. The court finds that the combination of the marble-type floor, distance and bright overhead lighting reflected off the floor would, more likely than not, have made it difficult for employees at the concierge desk or the doorway of the store from seeing a clear liquid on the floor in the area depicted in photographs and video within the short time frame between the cooler spill and the Plaintiff’s fall.22

As advocated by the Plaintiff, a fair reading of the hotel log indicates that “the spill was first reported by a shop clerk and that during the response time, the Plaintiff slipped and fell suggests clear actual notice of the fall.”23 This is a difficult decision for this court given the statement in the log. The Plaintiff, through counsel has very effectively argued her case. However, after a careful review and re-review of the testimony and proffered evidence, the court credits the testimony of Sklar over contradictory evidence in the log as to whether Sklar witnessed the spill and called EVS immediately prior to the Plaintiff’s fall. There is no persuasive evidence that any employees or individuals observed the spilled liquid before the fall and reported same thereby establishing actual notice, a finding independent of the court’s observation subsequent to its site visit, supra. Accordingly, the Plaintiff has not sustained her burden that the defendant had actual notice of the spill and failed to remedy that defect within a reasonable time.

As to constructive notice, the video reflects a time gap of 1 minute, 54 seconds between the spill and the fall. The court carefully reviewed the video many times and observed more than 30 individuals walking near but not directly through the exact location of the Plaintiff’s fall between the time of the spill and the time of the fall. No person appeared to have observed the subject liquid, including the Plaintiff. Certainly, a different colored liquid, floor type and different overhead lighting may have led to different observations by passersby, and perhaps by employees. The question before the Court is rather straightforward: is 1 minute, 54 seconds sufficient time for the Defendant to have become aware of the liquid defect to impose liability on the Defendant for not addressing same in a reasonable, timely manner. Consistent with prior decisions of this court where relatively short periods of time were deemed insufficient to charge the Defendant with constructive notice, the Plaintiff has similarly not met her burden of establishing that the Defendant had a reasonable time to remedy the defect of which it was unaware. See: Gentile v. Mohegan Tribal Gaming Authority, 1 G.D.R. 76 (2001) (5 minutes), Poverman v. Mohegan Tribal Gaming Authority, 6 G.D.R. 6 (2015)Poverman v. Mohegan Tribal Gaming Authority, 6 G.D.R. 6 (2015) (49 seconds), Ortiz v Mohegan Tribal Gaming Authority, 7 G.D.R. 18 (2021) (3.5 minutes), Fernandez v. Mohegan Tribal Gaming Authority, 1 G.D.A.P. 78 (2013)Fernandez v. Mohegan Tribal Gaming Authority, 1 G.D.A.P. 78 (2013) (10 minutes).

 

DECISION
The Plaintiff has failed to prove that the Defendant knew or should have known of the claimed defect within a reasonable time before she slipped and sustained her injuries. Accordingly, judgment may enter for the Defendant.

All Citations
--- Am. Tribal Law ----, 2023 WL 4579048

Footnotes
1	Pleading No. 100.
2	Pleading No. 106.
3	Pleading No. 107.
4	Pleading No. 122.
5	Pleading No. 130.
6	Transcript (TR.) p. 200.
7	Pleading Nos. 134, 135.
8	TR. pp. 6-37.
9	TR. pp. 38-100.
10	TR. pp. 103-181.
11	TR. pp. 202-222.
12	Pleading Nos. 100, 134.
13	Pleading Nos. 106, 135.
14	Post-trial Brief, No, 134, p.3.
15	Pleading Nos. 134 p. 2, No. 135, p.8.
16	TR pp. 50, 56-57, 87-88.
17	TR. p. 90-91.
18	TR. p. 98.
19	TR. p. 69.
20	The court is mindful of Ms Sklar’s testimony (TR p. 64) where, some 5 years post-accident, she is unsure if the concierge called EVS, which testimony does not diminish her credibility.
21	Exhibit P-1.
22	No evidence was offered by either party establishing that the condition of the premises on the day of the inspection were similar to or the same as the day of the fall, thus the court’s independent conclusion, infra.
23	Pleading No. 134, p.5.