Dorothy DIVISANO

 v.

 MASHANTUCKET PEQUOT

GAMING ENTERPRISE

 GAMING ENTERPRISE DIVISION

 

MPTC-CV-97-122

 

JULY 9, 1998

 

SUMMARY

 

          The Mashantucket Pequot Tribal Court renders judgment for the defendant in plaintiff’s claim for damages relating to personal injuries suffered in a slip and fall in defendant’s parking garage, finding that the plaintiff failed to prove that the defendant had either actual or constructive notice of the dangerous condition.

 

FULL TEXT

 

Londregan, J.

 

          The plaintiff, Dorothy Divisano, seeks to recover damages for injuries sustained as a result of a fall on property in the possession of and controlled by the Mashantucket Pequot Gaming Enterprise.  The court granted the plaintiff's motion to bifurcate the issues of liability and damages.  The case was tried on March 11, 25, and 26, 1998, where the parties presented evidence only as to the issue of liability. 

 

          The evidence presented revealed the following facts.  The plaintiff and her husband arrived at the defendant's casino on October 13, 1996 at approximately 7:00 p.m.  The plaintiff and her husband entered the Pequot Garage from the ground level and parked their car.  The plaintiff and her husband proceeded to walk towards the elevators at the entrance level of the building located at and known as "Level C-1."  The plaintiff's husband was approximately 8-10' in front of the plaintiff and moved towards a trash can.  The plaintiff walked directly to the entrance known as "Level C-1."  As she proceeded in the parking garage to the entrance of the building she slipped "on some wet stuff."  She described the "wet stuff" as a puddle 27" long, 2" on end, and approximately 3" in the center.  Her right foot slid on a corner of the spot and as she fell she put her right hand out to break her fall.  The plaintiff suffered a broken wrist among other injuries.  The plaintiff was assisted by the defendant's personnel and placed in a wheel chair.  From her wheel chair she could observe the spot where she fell and described the substance as a "dark substance, water, coffee, or something."  She did not recognize the texture of the fluid upon which she fell.  She did note that the liquid was on her clothes, it had no smell, and did not stain her clothing. The plaintiff was adamant that she did not slip on an oily spot.  The plaintiff's husband did not witness the fall.  He did turn around immediately after the plaintiff's fall and went to her assistance.  The plaintiff immediately got up, went to the casino entrance and called for assistance.  Although the plaintiff and her husband described what the substance looked like, i.e. a dark substance with no texture and no smell, there was no evidence presented as to what it was.  Clearly, the plaintiff testified that it was not an oily substance.

 

After the plaintiff's fall, a number of the defendant's employees and/or members of the Mashantucket Pequot Tribe responded to the scene. The plaintiff asked each individual who responded to cover the spot where she fell.  The area was inspected by the defendant's employees.  A security officer, Robert A. Green, was the first from the security department to arrive on the scene.  After securing the scene he observed a small spill outside the lobby area and then notified both safety and ground transportation to clean the area.  The only spot observed by the defendant's personnel who responded to the scene was an oil spot.

 

The plaintiff was an invitee or business visitor on the defendant's premises.  As such, the defendant owes her the duty to have the premises reasonably safe for her travel and use.  Ruffo v. M.P.G.E., 1 MPR 3, 4 (1994).  The defendant had a duty to warn the plaintiff of any dangerous condition or hazard of which it had actual or constructive knowledge, or which it might reasonably have anticipated.  Id.

 

A puddle of liquid on a garage floor heavily traveled is a "dangerous condition."  A "dangerous condition" is defined by the sovereign immunity waiver ordinance as "a physical aspect of [the casino] which constitutes an unreasonable risk to human health or safety, . . . which condition is proximately caused by the negligent acts or omissions of the Gaming Enterprise . . . ."  IV M.P.T.L. ch. 1, § 2(g).

 

        After proving a "dangerous condition" the plaintiff must show that the defendant had either actual or constructive knowledge of the "dangerous condition."  "[T]ribal law is that [the plaintiff] must prove at trial that the [defendant] had actual or constructive knowledge of the existence of dangerous condition that caused the injury."  Martello v. Mashantucket Pequot Tribal Gaming Enterprise, 1 MPR 28 (1996); IV MPTL, ch. 1, § 2(g). 

 

There is no question that the defendant did not have actual notice of the spill.  No evidence was introduced at trial that the defendant's employees had notice of any spill in the vicinity of the plaintiff's fall. 

 

The issue presented therefore is one of constructive notice; "whether the condition existed for a length of time sufficient for the defendant's employees, in the exercise of due care, to discover the defect in time to have remedied it."  Cole v. Mashantucket Pequot Gaming Enterprise, 2 Mash. 104 (1997) citing Gulycz v. Stop and Shop Companies, Inc., 29 Conn. App. 519, 521, cert. denied, 224 Conn. 923 (1992).  Circumstantial evidence can support a finding of constructive notice.  Tajildeen v. Mashantucket Pequot Gaming Enterprise, 1 Mash. 30 at 31(1994).  There must be evidence to support a conclusion that a proper inspection of the area would have discovered the defective condition.  See McDonald v. Mashantucket Pequot Gaming Enterprise, 1 MPR 45, 47 (1998) citing Prodigy Services Company v. South Broad Associates, 64 F.3d 48, 53 (2nd Cir. 1995) (constructive notice may be inferred where there is evidence that the defect existed for such a length of time that the defendant should, in the exercise of due care, have discovered it) and Cruz v. Drezek, 175 Conn. 230, 234 (1978) (the defendant may be found to have constructive notice of a defect if a reasonable inspection would have discovered it). 

 

          For the following reasons the court finds that the defendant did not have constructive notice of the dangerous condition.  The plaintiff's complaint alleges the negligence of the defendant as follows:

 

10(a). it [sic] created and allowed to exist a dangerous and unsafe condition by an attendant not noticing a wet spot on the floor, just before the entrance door to the elevator.

 

 

Complaint Paragraph 10(a)(b).

 

The plaintiff failed to identify in her complaint or during trial any attendant that failed to notice the "wet spot on the floor."  Since there was no actual notice there was no duty to post a caution sign to bring the wet spot to the attention of patrons as alleged in her complaint.

 

The plaintiff did introduce evidence that the area of the parking garage where the plaintiff fell was highly traveled and therefore had the potential for wet and slippery spots to occur.  The defendant introduced testimony from its security supervisor that the security department has three "rovers" inspecting the garage on an hourly basis and that a security officer inspected the area in question approximately seven minutes before the plaintiff's injury.  There was no evidence presented by the plaintiff indicating that this frequency of inspections was inadequate or that the inspections as alleged were not performed.  The plaintiff failed to produce any expert witness as to a need for more frequent inspections based upon the volume of vehicular and pedestrian traffic.  The court cannot infer that simply because it was a highly traveled area that the potential for a wet and slippery substance being spilled is likely to exist.  The plaintiff must remove the issue from the realm of conjecture and speculation.  Gulycz v. Stop and Shop Companies, supra at 522.

 

The plaintiff also introduced into evidence the fact that the area where the plaintiff fell was not covered by security cameras within the garage.  The evidence was that there was a "blind spot" in the videotape coverage.  The plaintiff argues that with 140 cameras in the parking garage and two monitors to view the 140 cameras there should be no "blind spot." Had there been no "blind spot" in the defendant's coverage of the parking garage the plaintiff argues that the video would have shown how long the defective condition existed.  The plaintiff argues that because there was a "blind spot" there should be an inference favorable to the plaintiff.  The plaintiff argues that the "blind spot" is prima facie evidence of negligence.  The short answer to this argument is that the plaintiff made no claim in her complaint that the failure to cover the area where she fell with a video camera was an act of negligence.  In addition, the plaintiff introduced no expert testimony that the defendant's surveillance of its garage was inadequate.  The court would be entering into the realm of speculation if it held that the defendant should have had a video camera of the area where the plaintiff fell so it would have observed the wet or slippery spot so as to provide actual notice to the defendant

 

The plaintiff argues that environmental services did not follow their own policy for clean up of an oily substance and therefore the court can infer that there was no oily substance.  The head of environmental services was Michael Van Splinter.  He testified that environmental services is responsible for the interior of the building and not the garage area.  He did state that while cleaning inside the building if employees observed a spill outside in the garage area they would take care of it.  If it were an oily substance the transportation department would be contacted for the clean up.  Michael Van Splinter testified that there were no reports from his department to the transportation department about an oil spill on the day that the plaintiff fell.  The plaintiff wants this court to draw the inference that since there was no report to the transportation department then there was no oily substance on the floor of the garage.  Just because there was no report from the environmental service department to the transportation department does not mean that there was no oily substance on the garage floor.  Clearly the testimony of other employees of the defendant identified an oily substance which was cleaned up by the transportation department. 

 

The plaintiff introduced evidence that the security log showed that a roving security officer reported the garage area secure at approximately 7:13 p.m.  The plaintiff fell at approximately 7:20 p.m.  The plaintiff argues that the court can draw an inference that the "rover" failed to identify and rectify the dangerous condition.  The court is mindful of the fact that it is dealing with a spilled liquid and that it could very well have been deposited after the rover's inspection and before the plaintiff's fall. The court would be speculating if it found that the substance upon which the plaintiff fell was present during the last routine inspection by the "rovers" of the security department and was not deposited between the last inspection and the time of the plaintiff's fall. 

 

The plaintiff further argues that since the defendant's employees were slow to respond to the plaintiff, the defendant's employees were "slow" to inspect the area before the accident.  The court is not prepared to draw such an inference.

 

Based upon the evidence presented the court cannot find that the defendant had constructive notice of the dangerous condition.  The court has examined the totality of the circumstances in this case including, but not limited to, the evidence that the unrecognizable substance was a "dark" substance.  The court cannot infer based upon this evidence that the substance was present for a period of time sufficient for the defendant, in the exercise of reasonable care, to have known of the substance.  The evidence introduced by the plaintiff went no further than to show the presence of a slippery foreign substance on the garage floor.  That fact does not warrant the inference of constructive notice to the defendant.  See Murolo v. First National Supermarkets, Inc. 8 CSCR 499 (May 24, 1993 Leheny, J.); Cruz v. Drezek, 175 Conn. 230 (1978); Morris v. King Cole Stores, Inc., 132 Conn. 489, 494 (1946).

 

Therefore, the court finds that the plaintiff has failed to establish liability on behalf of the defendant and accordingly the court renders judgment for the defendant.

 

Mark B. Press, Esq., for Plaintiff

Edward W. Gasser, Esq., for Defendant

 

 

top of page