Musial v. Mohegan Tribal Gaming Authority, (2020)

1 G.D.A.P. 107

VICKI MUSIAL, Appellant v. MOHEGAN TRIBAL GAMING AUTHORITY, Appellee

No. GDCA-T-19-500

Mohegan Gaming Disputes Court of Appeals

November 24, 2020

SUMMARY:

In an appeal from the Gaming Disputes Trial Court's judgment in favor of the Defendant in a Mohegan Torts Code action centering on the issue of constructive notice of a liquid spill, Plaintiff argued that appellate review should be plenary in that the appeal presented a mixed question of law and fact. Plaintiff further urged the Gaming Disputes Court of Appeals to adopt the continuity presumption (that if it the Plaintiff establishes that a condition exists at one point in time, it is presumed to continue to exist unless the Defendant presents substantial countervailing evidence that the presumption is no longer valid). The Court of Appeals held that there was no inconsistency between the Trial Court's findings and its legal conclusion, and that appellate review in this case was therefore not plenary. Further, the claimed shifting of the burden of proof on the issue of constructive notice that would accompany the application of the continuity presumption (actually the presumption of backward relation) would not only violate all precedent on this issue in the Gaming Disputes Court as well as in Connecticut State Court, but also would go beyond the limited waiver of sovereign immunity contained in the Mohegan Torts Code.

M John Strafaci, Esq. for Appellant

Zisca St. Clair, Esq. for Appellee

DECISION ON APPEAL

GUERNSEY, C.J.

In this action under the Mohegan Torts Code seeking damages for injuries sustained when the Plaintiff slipped on a liquid substance on the floor of the concourse of the Mohegan Sun Casino, the Plaintiff appeals from the judgment of the Gaming Disputes Trial Court, McNamara, J., holding that the Plaintiff failed to establish that the substance had been present for a period of time sufficient to establish constructive notice.^[1] In her appeal Plaintiff challenges this decision, invoking two legal theories not previously considered by the Mohegan Court System. First, Plaintiff claims that this appeal presents a mixed question of law and fact, arguing that the facts found by the Trial Court are insufficient to support its legal conclusion, and that this Court's review is therefore plenary. Commissioner of Public Health v. Colandrea, 175 Conn.App. 254, 167 A.3d 471 (2017). Additionally, inasmuch as the evidence relating to constructive notice is almost solely the twenty-minute video up to and including Plaintiff's fall, Plaintiff argues that this Court can watch and analyze it as well as the Trial Court and therefore the usual deference should not apply.

Second Plaintiff argues that the continuity presumption should be applied to the burden of proof on the issue of constructive notice.^[2]O'Dea v. Amodeo, Et Al., 118 Conn. 58, 170 A.486 (1934). Under this theory, inasmuch as it is undisputed that the spilled substance was present at the moment that Plaintiff fell, it must be presumed that the substance existed for a period of time prior thereto, unless the Defendant presents "substantial countervailing evidence" that the presumption of existence was no longer warranted. Plaintiff admits to being aware of no authority that has adopted the continuity presumption in the context of the burden of proof on the issue of constructive notice.

I Standard of Review

Defendant correctly argues that in every instance where this Court has reviewed the Gaming Disputes Trial Court's decision regarding constructive notice, the clearly erroneous standard was followed. See, e.g., Alday v. Mohegan Tribal Gaming Authority, 1 G.D.A.P. 25, 6 Am. Tribal Law 476 (2005), which adopted Conn. Prac. Bk. § 60-5 as the standard for appellate review:

Sec. 60-5. Review by the Court; Plain Error Preservation of Claims. The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law. Conn. Prac. Bk. Section 60-5.

Under this standard, the appellate review by this Court is limited:

Under the "clearly erroneous" standard of review, a factual finding by the Trial Court must stand unless clearly erroneous as a matter of law. The function of this court is not to determine whether the trial court could have reached a different conclusion other than the one reached, but rather could it reasonably have reached the one that it did. Allen v. Nissley, 184 Conn. 539, 542, 440 A.2d 231 (1981).

Alday, supra, at 479.

Alday, however, did not involve video evidence such as was before the Gaming Disputes Trial Court in the instant case. The use and scrutiny of this type of evidence began with Judge Eagan's decision in Miller v. Mohegan Tribal Gaming Authority, 2 G.D.R. 149, 6 Am. Tribal Law 543 (2005) which held prospectively that video images prior to the Plaintiff's fall must be preserved; if not, the Court had the discretion to adopt an adverse inference from the failure to preserve such prior images.^[3]The most significant case involving the use of video evidence on the issue of constructive notice, and to date the only case in which constructive notice was held to be established by such evidence, is Witham v. Mohegan Tribal Gaming Authority, 4 G.D.R. 112, 10 Am. Tribal Law 239 (2011), aff'd. 1 G.D.A.P. 68 (2011). In Witham, the Gaming Disputes Trial Court, Manfredi, J., held:

Based upon this Court's observation of the video entered into evidence, it is the court's conclusion that the area of syrup on the floor had been there for at least 20 minutes prior to the plaintiff's accident. The Court carefully observed the video from 10:30 a.m. through 10:50 a.m. and saw no evidence of any one spilling or dropping anything on the floor in the area of the plaintiff's fall during that period of time. Therefore, the court must conclude that the spill occurred prior to 10:30 a.m.

Witham, 4 G.D.R. at 112, 10 Am. Tribal Law at 243.

Upon appeal, in reviewing the Trial Court's judgment in favor of the Plaintiff, the Court of Appeals employed the "clearly erroneous" standard."^[4] This standard of review has been followed consistently by this Court except in cases of statutory construction.^[5]See, e.g., Crenshaw v. Mohegan Tribal Gaming Authority, 1 G.D.A.P. 71, 72 (2012).

Plaintiff, however, asserts that the instant case presents a mixed question of fact and law, i.e., that the facts found by the Trial Court are insufficient as a matter of law to support its conclusion, and therefore this Court's review must be plenary. Specifically, Plaintiff argues that:

. . . [T]he Trial Court's findings established that no one is seen causing the spill during the twenty minutes prior to the fall as evidence by the video footage of the scene. There was neither evidence nor any legitimate inferences drawn from evidence to support the Trial Court's conclusion that someone caused the spill a short time prior to the Plaintiff's fall, and the Trial Court's conclusion in this regard was based solely on speculation and conjecture." Plaintiff's Brief at 7.

An examination of the Trial Court's decision reveals that it reached no such conclusion. In describing its examination of the video images, the Court noted:

The video commences at 10:38 a.m. and highlights the area of the fall for a full 20 minutes until the plaintiff fell at 10:58 a.m. The Court counted at least forty (40) people passing through the area where the plaintiff fell during the twenty minutes preceding the fall. The Court could not specifically identify any one person who created the spill; however, the Court did notice numerous individuals carrying cups or bottles near the location where the plaintiff fell. Eight minutes prior to the plaintiff's fall, a gentleman walked directly through the location where the plaintiff fell. He was swinging his arms with what appeared to be a bottle in his hand, containing water or some other substance. It is conceivable that said gentleman could have caused the spill which resulted in the Plaintiff's fall.

After discussing the Trial Court's finding in Witham that the Defendant "had sufficient time to have discovered the area of syrup and cleaned it up prior to plaintiff's fall," The Trial Court specifically found the opposite:

In the instant case, the Court is unable to make that conclusion. While it is possible the spill occurred prior to the twenty minutes shown on the video, it is equally possible that the spill occurred by someone walking in the area just prior to the incident. It should be noted that the Plaintiff testified that the substance was not splattered on the floor and was the size of a small plate. With the amount of foot traffic in the area of where the plaintiff fell, it is unlikely that a puddle of water the size of a small plate would be undisturbed for a period of time in excess of twenty minutes.

In other words, the Trial Court held that the video images didnot resolve the issue of when the spill occurred, not that the images resolved that the spill did not occur during the twenty minutes preceding Plaintiff's fall.

The Trial Court's conclusion that the Plaintiff failed to establish that the condition had existed for a period of time sufficient to warrant a finding of constructive notice is not inconsistent with its finding of that the video images did not resolve this issue. Plenary review is therefore not appropriate in this case.

II Discussion

As previously noted, "the function of this court is not to determine whether the Trial Court could have reached a different conclusion other than the one reached, but rather could it reasonably have reached the one that it did" (citation omitted). Alday, supra, at 479...