2024 WL 4481488 (Mash. Pequot Tribal Ct.)
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Mashantucket Pequot Tribal Court.
 
James THIBAULT, Plaintiff
v.
MASHANTUCKET PEQUOT GAMING ENTERPRISE, Defendant
 
No. MPTC-CV-PI-2022-133
|
AUGUST 1, 2024

 

MEMORANDUM OF DECISION

JEAN M. LUCASEY, JUDGE

The plaintiff James Thibault filed his complaint on July 28, 2022, alleging that on March 5, 2022, he slipped and fell on snow and/or ice on a patio at Foxwoods due to the negligence of the defendant and its employees. He claims that he injured his lower back, neck, head and left knee, and he seeks damages, including costs for medical treatment and follow-up, diagnostics including x-rays, chiropractic treatment, medical devices, and pain medication, among others.

The defendant filed its answer on August 30, 2022, denying all allegations of negligence and including a special defense that the plaintiff’s injuries were caused by his own carelessness and negligence and that his failure to take reasonable care bars his recovery.

The Court heard the matter on February 28, 2024, and the parties thereafter submitted post-trial briefs.

 

I. Background/Facts

It is undisputed that the plaintiff, a frequent bingo patron at Foxwoods over the years, slipped and fell on a patch of ice near a pillar on the patio near the bingo hall when he was outside smoking a cigarette. It is further undisputed that the defendant’s smoking policy at the time of the incident permitted patrons to smoke only in outdoor areas or in hotel rooms and that the outdoor area near the bingo hall was the only area where bingo patrons were permitted to enjoy a cigarette. Tr. 13, 99. Although it is unclear from the Record how many times the plaintiff actually crossed the same icy patio that day to take his cigarette breaks (Tr. 43 through 45), it is undisputed that he crossed it several times and that he did not notice the ice on the patio before he fell (Tr. 74:21–75:10). The plaintiff made it clear that he wasn’t looking at the ground before he slipped because he looks “straight ahead” when he walks, “every time,” (Tr. 57), and that nothing prevented him from looking down onto the patio to see where he was walking before he fell1 (Tr. 58). After his fall, the plaintiff helped himself up slowly and was escorted inside, where he received medical attention from EMTs. Ex. P1, P2, P3, P4.

Two members of the security team at Foxwoods testified at hearing. Mr. Roy Cote, a security supervisor for the defendant for about 10 years, proved to be a credible witness, confident and forthright in his sworn answers. While he did not witness the incident firsthand, as the security supervisor on duty in the Rainmaker area on March 5, 2022, he was dispatched to the lounge in the bingo lobby in response to a report of a patron’s slipping on ice on the patio. Tr. 107 through 112. He went out onto the patio and took pictures of the location of the fall. Tr. 112, 113. He recalled observing thin, crusty remnants of snow or ice there and other remnants located sporadically on the bingo patio. He also recalled calling “command” to contact “grounds” to “treat the area,” explaining that “grounds” is responsible for maintaining the outside areas of the premises. Tr. 113:12–18. Mr. Cote did not recall seeing any salt or sand on the patio at the time of the incident. Tr. 114. It is undisputed that no Foxwoods employees were seen in the area of the patio putting down salt, sand, or any warning signs to mitigate or warn of the icy conditions on the patio at the time leading up to the plaintiff’s accident. Ex. P2; Tr. 120.

At trial, the plaintiff testified that he suffered severe pain after his fall. Tr. 16:14–16. He experienced pain in his neck, lower back, and left knee. Tr. 17:6–23. He said his neck pain felt as though somebody were stabbing him in the neck with a knife. Tr. 34:9–14. He had extreme back pain and when he arrived at the hospital; he was brought in on a wheelchair because he could not walk with the pain in his knee. Tr. 31:21–23:1. Hospital records show that during triage he described his pain as a 10 out of 10. Ex. P5A, p. 11. The plaintiff received treatment at Testa Chiropractic for three months, from March 9 to June 8, 2022. The plaintiff testified that during his recovery he was in constant pain, that he was unable to do household chores, and that he also experienced pain from walking too far or sitting for too long. Tr. 35:21–24. By the end of his treatment at Testa Chiropractic, he was fully recovered from his injuries related to the incident. Tr. 35:4–13.

 

II. Discussion

A. Negligence and Liability

For a cause of action in negligence, the plaintiff must show that (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty of care; (3) the defendant’s negligent acts constituted both the factual and proximate cause of the plaintiff’s injuries; and that (4) the plaintiff suffered actual damages. Celentano v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 189, 191–92 (2014); Hazard v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 354, 357 (2016). It is for the plaintiff to prove these elements by a preponderance of the evidence. Hazard at 357.

The Mashantucket Pequot Court of Appeals has repeatedly held that the Gaming Enterprise “is not an insurer of invitees to its facilities.” See Mathews v. Mashantucket Pequot Gaming Enterprise, 2023 WL 11158881, at *1 (Mash. Pequot Tribal Ct. Sep. 14, 2023) (citing Malouf v. Mashantucket Pequot Gaming Enterprise, 6 Mash.App. 19, 21 (2014); Senatore v. Mashantucket Pequot Gaming Enterprise, 4 Mash.App. 34, 38 (2006)). “The mere fact in and of itself that the plaintiff was injured on the premises does not constitute a lack of due care - or negligence - on the part of the defendant.” Id. (citing Ruffo v. Mashantucket Pequot Gaming Enterprise, 1 Mash.App. 3, 6 (1994)). On the other hand, if the Gaming Enterprise “failed to comply with the degree of care which would have been exercised by a reasonably prudent casino owner under similar circumstances, a lack of due care – or negligence – would be established on the part of the defendant.” Id. (citing Ng v. Mashantucket Pequot Gaming Enterprise, 2 Mash.Rep. 138 (1997)). The required degree of care is that “which would have been exercised by a reasonably prudent casino operator under similar circumstances.” Id.; Caruso v. Mashantucket Pequot Gaming Enterprise, 5 Mash.App. 45, 48 (2010) (citing Ruffo at 6). When a plaintiff is considered a business visitor, or an invitee, of the defendant, that defendant “owe[s] her the duty to have the premises reasonably safe for her travel and use.” Malouf at 21 (citing Ruffo at 6). This duty of care further requires the defendant to “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.” Id. at 22 (quoting Martello v. Mashantucket Pequot Gaming Enterprise, 1 Mash.Rep. 193, 194 (1996)).

The court in Mathews, supra, explained that under the Mashantucket Pequot Tort Claims (Gaming Enterprise) Law, a “dangerous condition” is “a physical aspect of [the casino] which constitutes an unreasonable risk to human health or safety.” 4 M.P.T.L. ch. 1 § 1(e). The law also provides that a dangerous condition must have been known to exist, or “should have been known to exist” by the Gaming Enterprise, “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.” 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 at 22 (quoting Martello at 194). 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)).

The plaintiff claims that the defendant breached its duty to maintain a safe environment on the patio, including its “responsibility to remove or mitigate known hazards” when it failed to mitigate the icy/snowy conditions on the outdoor patio and to warn the plaintiff of the same icy/snow conditions. Pl.’s Post-Trial Br. 1–2. Plaintiff asserts that his falling accident and injury were a direct and proximate result of the defendant’s negligence. While the defendant admits that its “patio area should not have contained any snow/ice remnants” in the “areas where patrons were allowed to congregate,” it argues that “patrons must use reasonable care to avoid injury” to themselves and must use their “faculties and senses as a reasonable prudent person” would have done “under the same circumstances,” concluding that the plaintiff “disregarded his obligation to be watchful of his surroundings.” Def.’s Post-Trial Br. 1–2.

The defendant’s policy required its guests to smoke in designated outdoor areas. The plaintiff obeyed the defendant’s directive and went to the outdoor patio area near the bingo hall to smoke cigarettes several times during his time playing bingo. Despite the fact that the plaintiff had crossed the patio multiple times that day, he did not notice that there were icy patches on the patio. It is reasonable to infer that the patch of ice was present on the patio the entire day of the incident, yet the defendant had made no efforts to warn the its guests of the fact that there was ice on the patio nor had the defendant treated the icy area where the plaintiff ultimately fell. Accordingly, the Court finds that the defendant had constructive notice of the ice on the patio because there was sufficient time for the defendant to have discovered the ice and remedy it. The Court further finds that the defendant owed a duty of care to the plaintiff to warn him of the dangerous condition that existed for hours on the patio. And the Court finds that the defendant breached its duty not only when it failed to mitigate the conditions despite its opportunity to do so over a number of hours but also when it failed to warn the plaintiff of the dangerous condition presented by the untreated ice on the patio.

It is undisputed that the area was covered with icy patches and that the defendant failed to warn the plaintiff of the danger presented by the ice. The Court finds that failure caused the plaintiff to slip and fall on the ice, causing the plaintiff’s injuries. Thus, the defendant is liable for the plaintiff’s damages.

 

B. Comparative Negligence

Mashantucket law permits the Court to find plaintiff’s comparative negligence in negligence suits against the MPGE. In cases where the MPGE is liable, any “award for damages to a person shall be reduced in proportion to the person’s contributory negligence.” 4 M.P.T.L. ch. 1 § 4(e)(5). If the plaintiff’s contributory negligence exceeds the MPGE’s negligence (i.e. if the contributory negligence exceeds 50%), then the plaintiff recovers nothing. Id.

The general rule for plaintiffs is that “[t]he Plaintiff must use reasonable care to avoid injury to himself, and must make such use of his faculties and senses as a reasonable prudent person would have made under the same circumstances.” Misuraca v. MPGE, 5 Mash.Rep. 406, 411 (2011). Thus, there are two duties. First, the plaintiff must use reasonable care to avoid injury and, second, the plaintiff must make reasonable use of his faculties and senses. Comparative negligence arises from a breach of one or both of those duties.

The defendant argues the Court should find that the plaintiff’s “overwhelming comparative negligence ... prevents his recovery” as he is “more at fault than any potential negligence of the Gaming Enterprise.” Def.’s Post-Trial Br. 2. The Court disagrees. As the parties explained at trial, the patio contained remnants of snow/ice in an area where patrons were allowed to congregate. As the defendant educed at trial, the plaintiff traversed the patio many times for his cigarette breaks over a period of hours on the day of the accident. Further, the defendant’s employees who witnessed the scene following the accident saw neither evidence of sand or salt to decrease the hazard nor warning measures to alert patrons to avoid the slippery areas. As part of his duties as security supervisor, Mr. Cote called security command after the accident to arrange for the patio to be treated.

Consider Desai v. Mashantucket Pequot Gaming Enterprise, 5 Mash.Rep. 422 (2012), where the plaintiff was not looking at the ground in front of him but looking straight ahead when he slipped and fell on snow and ice on a sidewalk outside the casino. In Desai, the court attributed 25% comparative negligence to the plaintiff, in part for not looking at the ground in front of him but also for wearing sneakers, which the court called “inappropriate footwear.” The situation is similar in the case at bar. Mr. Thibault admitted at trial that he was looking straight ahead when he slipped and fell, which prevented him from noticing the patch of ice that he slipped on. In contrast to Desai, the record here is silent on Mr. Thibault’s footwear, and the defendant makes no argument to suggest footwear contributed to the accident. Further, the Court credits Mr. Thibault’s testimony as it related to the accident. His account never wavered, and he set forth the events in a clear, straightforward manner.

The situation at bar is also similar to Jones v. Mashantucket Pequot Gaming Enterprise, 2020 WL 4280726 (2020). The plaintiff in Jones was walking from one side of the lobby in a straight line to the exit doors on the other side of the lobby. As she walked toward the front doors, she remembers stepping down, falling, and hitting her knee on something hard. The evidence established that the plaintiff fell when she stepped into a landscaping bed that began at the same level as the tile floor. The defendant had been working on the bed and had left the work area unattended with no signs or barriers. The plaintiff’s resulting injuries included a fractured knee and permanent surgical scarring. The court found that the plaintiff bore some small degree of responsibility for not noticing the different composition between the tile floor and the small triangular area of a green moss carpet. The court declined to fault the plaintiff for walking in a straight line to her destination when it found her to be a credible witness and assigned the plaintiff 10% comparative negligence.

Considering that Mr. Thibault is partly at fault for not looking at the ground in front of him and further considering that the Court finds him to be a credible witness, the Court assigns 10% comparative negligence to Mr. Thibault and will reduce the damages by 10% as a result.

 

C. Damages

1. Actual Damages

It is undisputed that the plaintiff’s total medical bills amount to $10,651.25. Ex. P6A, P6B, and P6C; Pl.’s Post-Trial Br. 7. Plaintiff provided medical bills from three providers: (1) Rhode Island Hospital; (2) Rhode Island Medical Imaging; and (3) Americo Testa (chiropractor).

(1) The bill for Rhode Island Hospital totals $5,030.25.

(2) The bill for Rhode Island Medical Imaging totals $405.00.

(3) The bill for Americo Testa (chiropractor) totals $5,216.00.

As the Court has found the defendant liable for the accident, the defendant is responsible for $10,651.25 in actual damages here.

 

2. Pain and Suffering

The plaintiff also claims damages for pain and suffering. In addition to physical pain, this Court has “awarded pain and suffering damages based on the medical procedures endured.” Jones v. Mashantucket Pequot Gaming Enterprise, 2024 WL 3157295, at *6 (Mash. Pequot Tribal Ct. Jan. 8, 2024) (quoting House v. Kent Worldwide Machine Works, Inc., 359 F. App’x 206, 210 (2d Cir. 2010)); accord Stack v. Mashantucket Pequot Gaming Enterprise, 2021 WL 3792939, at *10 (Mash. Pequot Tribal Ct. Aug. 4, 2021) (“The Court recognizes the inconvenience associated with scheduling and attending appointments and obtaining medical treatment.”). “While there is no precise rule for determining pain and suffering, courts are bound by a standard of reasonableness in light of all the evidence.” Jones, 2024 WL 3157295, at *6 (citing Estevez v. United States, 72 F.Supp.2d 205, 208 (S.D.N.Y. 1999)).

Here, in light of the evidence and the circumstances, including that the plaintiff suffered pain, often severe, for his injuries for the three months of necessary treatment, and also endured the inconvenience of visiting the chiropractor’s office 36 times (Ex. P6C), the Court awards the plaintiff $5,000.00 for pain and suffering.

 

III. Conclusion

In light of the evidence and the circumstances discussed above, the total award for actual damages ($10,651.25) and pain and suffering ($5,000.00) is $15,651.25. The plaintiff’s recovery must be reduced by his 10% contributory negligence, and such adjustment results in a net award of $14,086.13.

Judgment enters for the plaintiff in the amount of $14,086.13.

Should the defendant desire a hearing on collateral sources, it shall file a request with the clerk within 15 days from the date hereof.

It is so Ordered.

All Citations
2024 WL 4481488


Footnotes

1

The plaintiff’s answers on cross-examination, as well as his demeanor while answering same, demonstrated his confusion at the line of questioning. See also Tr. 81:10–19. Upon re-direction at trial, the plaintiff clarified that he did not know how many times he actually crossed the patio to smoke on the day of the incident, just that it was “a bunch” (Tr. 74:21–75:10), and that he had been “guessing” when he agreed with defendant’s counsel on cross-examination that he may have traversed the patio nine times that day. Although plaintiff’s counsel led his client to say that he was “kind of guessing” as to the precise number of times (id.), the Court credits the plaintiff’s answer on re-direct as it matched the impression the Court had of the plaintiff’s answers to the entire line of questioning during cross-examination at trial.