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.
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.
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.
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).
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.
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
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.
There was no caution sign posted, to bring it to a patron’s attention.
If the water was a permanent condition it should have been monitored. If
it could not be fixed on a weekend, at least, a caution sign should have been
posted. Someone finally covered the area with a rug, so there definitely was
something on the floor.
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
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.
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
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.
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.
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.
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).
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.
B. Press, Esq., for Plaintiff
W. Gasser, Esq., for Defendant