--- Am. Tribal Law ----, 2024 WL 3895434 (Mohegan Gaming Trial Ct.)
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Mohegan Gaming Disputes Trial Court.
John Scott LEAHY
v.
MOHEGAN TRIBAL GAMING AUTHORITY
7 G.D.R. 110
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GDTC-T-22-115-PMG
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August 13, 2024
MEMORANDUM OF DECISION
Guernsey, C.J.
SUMMARY
The Plaintiff, a frequent visitor to the Mohegan Sun Hotel pool, brought suit under the Mohegan Torts Code for injuries sustained when he slipped and fell on the walkway adjacent to the pool next to stairs used by swimmers exiting and entering the pool, several feet from a yellow caution sign and floor drain. The Gaming Disputes Trial Court, Guernsey, C.J., noting that the only evidence produced was the video of the event and the Plaintiff’s testimony, held that the Plaintiff failed to prove that water on the walkway adjacent to the swimming pool was a defective condition within the meaning of the Torts Code. The Court further held that the Defendant had actual notice, not of the “actual defect” causing the Plaintiff’s injuries, (the collection of water at the time he fell) but rather of conditions naturally productive of such a defect. Although questioning the wisdom of the long-established precedent thus invoked, the Court felt bound to follow precedent.
I. Factual Background
In this action brought pursuant to the Mohegan Torts Code, the Plaintiff seeks to recover damages for injuries sustained as the result of his slipping and falling in pool water in the perimeter of a swimming pool at the Mohegan Sun Hotel. The trial was brief, with the Plaintiff the sole witness. No expert or other additional testimony (or report) was offered, and the Defendant MTGA presented no witnesses. Plaintiff’s post-trial brief makes clear that liability is based on a claim of actual, rather than constructive, notice.
As the post-trial briefs point out, Plaintiff had walked over the spot where he slipped several times before slipping.1 This spot was immediately adjacent to stairs used by swimmers entering and exiting the pool.2 There is a drain perhaps three to four feet from the stairs, and, according to testimony and photographic exhibits, a yellow CAUTION sign approximately three to four feet from the drain.3 Plaintiff argues that this shows actual knowledge of the hazardous condition created by swimmers in wet bathing suits. Defendant references numerous decisions holding, essentially, that water on a walkway adjacent to a pool is not a hazardous condition which the failure to remedy would constitute actionable negligence.
The scarcity of evidence is further complicated in that the Plaintiff did not notify the Defendant that he had fallen until the next day,4 so there is no security incident report to help guide the Court or detailed report describing the condition causing Plaintiff to fall. The Court must rely on surveillance video footage showing numerous swimmers exiting the pool via that stairway and, presumably, dripping water while doing so, the still images taken therefrom, and the testimony of the Plaintiff.
II. Issues Presented
1. Whether the water on the walkway adjacent to a swimming pool constituted a “defective condition” within the meaning of the Mohegan Torts Code;
2. If so, whether the evidence established actual notice of the specific hazardous defect on the part of the Defendant;
3. If both of the foregoing issues are all found in the affirmative, whether the Plaintiff is chargeable with comparative negligence.
III. Analysis
A.
DEFECTIVE CONDITION
Prior to examining the issue of notice, the threshold inquiry, raised and well documented in Defendant’s post-trial brief, is whether the evidence establishes that there even existed a “defective condition” as defined in the Mohegan Torts Code5 (i.e., water on the walkway adjacent to a swimming pool) of which notice should have to be taken.
Defendant cites numerous authorities to the effect that water on a walkway adjacent to a swimming pool is not a defective condition, but rather an expected and anticipated event.6 Although the Court is persuaded that this is and should be the general rule, the Court declines to extend this to an absolute rule that there can never be liability for an accumulation of water on a swimming pool walkway.
As to the actual condition of the walkway where Plaintiff fell, the only evidence before the Court is the video recording (and still photographs taken therefrom), which understandably does not show the amount of water7 in which Plaintiff fell, and the testimony of the Plaintiff, the trial’s sole witness. This testimony established that, prior to his fall, the Plaintiff walked over the place where he fell four times;
Q. Okay, So, in total sir, prior to the time you fell, you walked over the specific area you fell in about four times, and you didn’t notice any type of slip or trip hazard in that specific area on those four occasions, did you, sir?
A: Yes, I didn’t fall.8
Plaintiff’s testimony also established that he had been to the same pool approximately 61 times prior to the occasion at issue, as well as that he was well aware that there would be water on the floor around the pool deck:
Q. And you would expect given your experiences, there would be water on the floor around the pool deck of the pool?
A. Yes.9
Thus, the evidence establishes that the Plaintiff walked over the spot where he fell four times prior to his accident without incident or even noticing any hazard. Missing, is any evidence showing a change in the wetness of the walkway between the Plaintiff’s last traversal (12:37:04) and his fall (12:44:25). Again, the Court is hampered by the fact that the incident was not reported until the next day, making a security investigation impossible.
The Court finds that the evidence presented during the brief trial of this case does not establish the existence of a “defective condition” as defined in the Mohegan Torts Code.
B.
Actual Notice
Nevertheless, in anticipation of appellate review and as an alternate basis for this decision, the issue of actual notice will be addressed below:
The event causing injury in this case took place on August 1, 2022, subsequent to the 2021 amendment to the Mohegan Torts Code restricting the range of Defendant’s employees whose actual knowledge of a hazardous condition can be attributed to the MTGA. While there was testimony as to the presence of Defendant’s employees at the scene, the issue is not dispositive. The presence of the yellow CAUTION sign is sufficient for the Court to draw the reasonable inference that an employee of the Defendant, with authority to act, (who in fact DID act) placed the sign based on knowledge:
As to actual notice, the Plaintiff aptly observes, “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, 7 Am. Tribal Law 455 (Mohegan Gaming Disputes Ct. 2008).
Lowy v. Mohegan Tribal Gaming Authority, 7 G.D.R. 65, 17 Am. Tribal Law 315 (2023). Inasmuch as the yellow caution sign was present for the entire time the Plaintiff was at the pool, and the drain probably from the time of the pool’s construction, the reasonable inference is that the above requirement for actual notice has been met.
The essential question raised, therefore, is whether the notice is/was of the “actual defect” causing Plaintiff’s fall, or of conditions “naturally productive of the defect.” Young v. Mohegan Tribal Gaming Authority, 7 Am. Tribal Law 455, 458 (2008).10 That is, of what did the Defendant’s employee who placed the Caution sign have notice?11 The evidence clearly does not establish that such knowledge was of the actual defect existing at the moment Plaintiff slipped and fell (despite references to the presence of Defendant’s employees around the pool). Rather, the close proximity of the stairs used by swimmers to exit the pool to the drain strongly suggest knowledge not of the actual defect (the wet floor at the spot where and at the time Plaintiff fell), but rather of “conditions naturally productive of that defect even though subsequently in fact producing it” Young, supra. In the absence of a security report and being forced to rely only on the Plaintiff’s testimony, the Court must conclude that actual notice of “conditions naturally productive of the defect” has been established but not notice of the “specific defect” causing Plaintiff’s fall.
C.
Comparative Negligence
In light of the foregoing, it is unnecessary to determine the degree, if any, of Plaintiff’s comparative negligence. However, for the sake of appellate review, given that the evidence shows Plaintiff’s repeated traversing of the spot where he fell, his expectation of water being present on the walkway around a pool, and his numerous trips to this very pool, the Court finds fifty percent (50%) comparative negligence.
Judgment shall enter for the Defendant.
All Citations
--- Am. Tribal Law ----, 2024 WL 3895434
Footnotes |
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No evidence or testimony was presented to establish that the condition was in any way different on these prior occasions than when the Plaintiff slipped, or to explain why the Plaintiff did not slip on these prior occasions. |
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Numerous patrons can be seen exiting the pool prior to Plaintiff’s accident. |
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Defendant’s Exhibit D-F-8. |
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Nevertheless, the video evidence firmly establishes that the Plaintiff did experience a fall where he claimed. |
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Defective condition means a condition, whether temporary or permanent, in or upon the premises of a Mohegan Entity, that does or may cause an injury actionable under this Code. See MTC § 3-245. |
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The Defendant quotes Judge Boland’s decision in St. Pierre v. Town of Plainfield, 2015 WL 5315557, aff’d 326 Conn. 420, 165 A.3d 148 (2017). Although that case dealt with the imminent harm exception to the statute concerning municipal immunity, which itself has led to innumerable conflicting opinions, its applicability to water dripped by swimmers exiting a swimming and the nonliability of the proprietor is clearly relevant. |
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Swimmers exiting the pool via the aforementioned stairway can be seen and are presumed to be wet and dripping to an unknown extent. |
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Transcript at 53. |
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Transcript at 54. |
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As the Defendant’s post-trial brief emphasizes, this principle of Connecticut law has long been followed by the Gaming Disputes Court. To be fair, however, this proposition has never made even the slightest amount of sense to the writer of this opinion, and, had appropriate evidence been introduced as to any claimed inadequacy of the warning sign and drain arrangement, such as the failure to provide protective mats, this case would still be have to be decided the same but would be a prime example of the unfairness (and illogic) of this rule. Nevertheless, to paraphrase Judge (now Justice Gorsuch), a judge should not like all his decisions but instead follow the law. |
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The identity of the employee placing the warning sign, and the date on which it was done, are not in evidence. |
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