--- Am. Tribal Law ----, 2023 WL 6890762 (Mohegan Gaming Trial Ct.)
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Mohegan Gaming Disputes Trial Court.

Michael PATWELL
v.
MOHEGAN TRIBAL GAMING AUTHORITY

7 G.D.R. 73
|
DOCKET NO. GDTC-T-20-101-JAC
|
October 9, 2023

MEMORANDUM OF DECISION

Collins, J.

SUMMARY

The Defendant Mohegan Tribal Gaming Authority moved for summary judgment in Plaintiff’s action claiming damages under the Mohegan Torts Code for injuries allegedly sustained when he slipped during a concert at the Mohegan Sun Casino. The Gaming Disputes Trial Court, Collins, J., noting that such motions are ill-suited to negligence actions and that material issues of fact remain as to how and why Plaintiff slipped, the adequacy of the lighting at the stairs where he fell, and whether constructive notice on the part of the Defendant had been established, denied the motion and sustained the Plaintiff’s objection.

Procedural Status

The defendant, Mohegan Tribal Gaming Authority (MTGA) filed its Motion for Summary Judgment (#114) along with a supporting Memorandum of Law and attached exhibits on November 14, 2022. The plaintiff, Michael Patwell, filed his Objection to Motion for Summary Judgment (#117) on January 18, 2023. This matter came for argument before the court on June 13, 2023.

Standard of Review

The law in this area is well settled. “Motions for summary judgment are governed by MRCP (Mohegan Rules of Civil Procedure) § 49(h) (and its almost identical State counterpart, Conn. Practice. Bk. § 17-49)” Shaevitz v. Mohegan Tribal Gaming Authority, GDTC-T-18-102-PMG (2019). As appropriate, the parties essentially agree as to the legal standards governing this motion. Thus, MRCP § 49(h) reads:

Judgment shall be rendered if the pleadings and any other proof show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

The initial burden on a party seeking summary judgment has been described by the Gaming Disputes Court as follows:

The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. (Citations omitted; internal quotation marks omitted.) Gargano v. Mohegan Tribal Gaming Authority, 11 Am. Tribal Law 149, 151 (2003) [(2013)], quoting Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004).

Indeed, “in passing on a Motion for Summary Judgment, the trial court is to determine whether an issue of fact exists but may not try that issue if it does exist.” Yarasavich v. Mohegan Tribal Gaming Authority, 10 Am. Tribal Law 176, 178 (2010), quoting Wallace v. Mohegan Tribal Gaming Authority, 2 G.D.R. 51, 5 Am. Tribal Law 295 (2004). See also Nolan v. Borkowski, 206 Conn. 495, 538 A.2d 1031 (1988). “In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist” Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).

As noted by the defendant, “while the existence of actual and/or constructive notice is often times a question of fact, see Vendrella v. Astriab Family Ltd. Partnership, 133 Conn. App. 630, 659 (2012), aff’d, 311 Conn. 301, 36 A.3d 707 (2014), courts have routinely entered summary judgment in favor of a defendant where the plaintiff has presented no evidence that the defendant had actual or constructive notice of the alleged defect. See, e.g., James v. Valley-Shore Y.M.C.A., Inc., 125 Conn. App. 174, 178-83, 6 A.3d 1199 (2010).”1 The plaintiff correctly observes that “the courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.” (Citations omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004); Rockwell v. Quintner, 96 Conn. App. 221, 228, 899 A.2d 738 (2006).2

Of course, “the party seeking summary judgment has the burden of showing the non-existence of any material fact.” Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). As noted, in deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Connell v. Colwell, 214 Conn. 242, 571 A.2d 116 (1990). Most significantly, “Summary judgment procedure is especially ill-adapted to negligence cases ...” Spencer v. Good Earth Restaurant Corporation, 164 Conn. 194, 198-199, 319 A.2d 403 (1972), (citations and internal quotation marks omitted). Accord, Murphy v. Mohegan Tribal Gaming Authority, GDTC-T-04-116-TBW.

Brief Factual Allegations and Legal Claims

For purposes of this Motion for Summary Judgment, the plaintiff adopts3 the defendant’s statement of facts4, which the court further adopts in part as to relevant liability issues, as set forth below:

“Plaintiff is a disabled New York City Police officer. He was disabled when his police cruiser hit a very large pothole/manhole cover in New York City in 2002. See Patwell Depo. at 9:4-20 .... Plaintiff claims that he slipped while at the Casino during a Justin Moore concert. Although Patwell claims the fall occurred at approximately 8:30, 8:45 in the evening on February 7, 2019, he testified that he did not know he scraped his shines until sometime between 4:00 or 4:30 the next morning when he went to his room and saw some cuts and scrapes. See Patwell Depo. at 91:8-17; 99:15-24. Patwell then claims he went to the front desk to request bandages. Id. at 88:16-22. Plaintiff claims a variety of injuries attributable to this slip, including “emotional distress and mental anguish, bruises and contusions, severe shock to his whole body and nervous system, serious injuries to both legs, including his shins and knees, severe erythema, cellulitis requiring hospitalization, and injuries to his hips.” See Complaint at Para. 9.”

The defendant, in a well-written brief, argues that the plaintiff did not know what caused him to fall, assumed it was liquid but did not know the color or size of the liquid spill, and did not know whether something else caused him to slip.5 Defendant further argues that the plaintiff has not proven that the defendant had actual or constructive notice of the presumed liquid at the time of the plaintiff’s fall6, and that the claimed inadequate lighting of which the defendant had notice7 is unsupported by factual evidence. Of note, as to adequate lighting, the defendant cites to Peluso v. Mohegan Tribal Gaming Authority, GDTC-T-14-106-PMG, 14 Am. Tribal Law 110 (2016) and Cwiertiewicz v. Mohegan Tribal Gaming Authority, GDTC-T-13-100-PMG, 12 Am. Tribal Law 271 (2013), in support of its Motion for Summary Judgment, yet the foregoing decisions were trial court judgments subject to a different standard.

The plaintiff argues that deposition excerpts offered by the defendant were taken out of context and that “he slipped with (his) left foot on some kind of a liquid”.8 Further, the plaintiff notes that an arena employee was almost right in front of him, witnessed his fall, and “probably” would have been able to see the liquid that caused his fall.9 Finally, as to adequate lighting, the plaintiff claims that the arena was “pitch dark” and that there was no lighting on the stairs. The contrary affidavit of Ms. Mary Lou Morrissette10 claims there was no change to the lighting of the stairs since the relevant concert, raising a material question of fact as to whether there was, indeed, lighting on the stairs.

Given that “summary judgment procedure is especially ill-adapted to negligence cases ...” Spencer, Id., Murphy, Id., the court find that material questions of facts exists as to all issues raised. Whether the plaintiff can successfully prove persuasive facts at trial, where different standards apply, remains to be seen.

Decision

In viewing the proffered evidence in the light most favorable to the non-moving party (i.e. the plaintiff), and recognizing that summary judgment is ill suited for negligence cases, the court concludes that material facts exist as to whether the defendant had actual or constructive notice of the claimed subject defect(s) prior to the plaintiff’s fall. See: Gargano v. Mohegan Tribal Gaming Authority, 11 Am. Tribal Law 149, 151 (2013), quoting Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004) and Spencer v. Good Earth Restaurant Corporation, 164 Conn. 194, 198-199, 319 A.2d 403 (1972).

Order

WHEREFORE, the defendant’s Motion for Summary Judgment (#114) is denied and the plaintiff’s Objection to Defendant’s Motion for Summary Judgment (#117) is sustained.

All Citations
--- Am. Tribal Law ----, 2023 WL 6890762

Footnotes
1	No. 114, p. 5.
2	No. 117, p. 2.
3	No. 117, p. 1.
4	No. 114, p. 2-3.
5	No. 114, p. 6-8, Patwell Depo at 91:21-24, 75:15-20, 70:13-20.
6	No. 114, pp. 8-10.
7	No. 117, p. 12. The defendant conceded that claims of inadequate lighting were created by the defendant, only for purposes of this summary judgment motion.
8	No. 117, p. 3, Patwell Depo at 59:14-23. The court is aware of claimed contradictory testimony of the plaintiff as to the liquid.
9	No. 117, p. 3 Patwell Depo at 119:12:25, 120: 1-9.
10	No. 114, Exhibit A.