Kemp v. PJC of R.I., Inc.

184 A.3d 712

Charles KEMP

v.PJC OF RHODE ISLAND, INC., d/b/a Rite Aid of Rhode Island, Inc., et al.

No. 2017–43–Appeal.

No. 2017–50–Appeal.

PC 15–2153

Supreme Court of Rhode Island.

June 6, 2018

Corrected June 7, 2018

For Plaintiff: Ronald J. Resmini, Esq.

For Defendants: Darryl Dayian, Esq., Lauren D. Wilkins, Esq., Gregory A. Carrara, Esq., Dennis S. Baluch, Esq.

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

Justice Indeglia, for the Court.

The plaintiff, Charles Kemp (plaintiff or Kemp), appeals from a Providence County Superior Court grant of summary judgment in favor of one of the defendants, PJC of Rhode Island, Inc., d/b/a Rite Aid of Rhode Island, Inc. (Rite Aid), in a slip-and-fall action. Additionally, in these consolidated appeals, the plaintiff appeals from a denial of his motion for a new trial regarding defendants Riverside Plaza Associates, LP (Riverside), which owned the shopping center where the Rite Aid was located, and Venditelli & Sons, Inc. (Venditelli).¹ This case came before the Supreme Court on May 9, 2018, pursuant to an order directing the parties to appear and show cause why the issues raised in these appeals should not be summarily decided. After hearing the parties' arguments and reviewing their memoranda, we are satisfied that cause has not been shown. Accordingly, we shall decide these appeals at this time without further briefing or argument. For the reasons set forth herein, we affirm the order and judgment of the Superior Court in these appeals.

IFacts and Travel

On February 5, 2014, the plaintiff drove his truck to a Rite Aid store in East Providence while it was snowing. After parking his truck in the lot, he walked into the store to buy cigars. Then, returning to his truck, he located a prescription, and he went back to the store.² It was during this second venture back to the store that he tripped and fell over a cement parking stop located in front of his truck in the parking lot. As a result, Kemp injured his right knee, requiring hospitalization, nursing home care, and physical therapy.

At his deposition, Kemp recalled tripping in the parking lot:

"I pulled [my truck] in head first * * * and there was a big pile of snow on the left so that, you know, there's kind of a walk space between the cars, and because of that big pile of snow, I had to move a little more to the right when I parked the car because the space was narrowed down. * * * [T]hey have those concrete things * * * I had to move over that way, and part of it was sticking out, and I was squeezing * * * this little path like that. * * * I went in the store and I must have just missed the thing because it was just hanging out maybe that much on the side, * * * which if I had been able to park the car where I should, it would be more over to the left."

At trial, Kemp testified that the pile of snow was "[p]robably five [feet] high" and about fifteen feet wide.

Keith Reed, an employee of Riverside, explained in his deposition that, in 2013 and 2014, he was responsible for "snowblow[ing] with the snowblower all the sidewalks [at the shopping center], and then * * * put[ting] salt down and clear[ing] the entrances to all the stores." Moreover, Reed stated that he put salt down on sidewalks and any paths that he shoveled, including the pathways in between the parking stops in front of Rite Aid. Additionally, for the 2013-2014 winter season, Riverside had hired Venditelli to perform snow removal at the shopping center, which included the Rite Aid store. At trial, the owner of Venditelli, Andrew Venditelli, testified that the snow pile Kemp had described as about five feet tall was actually only "[m]aybe two to three feet" high.

On May 21, 2015, Kemp filed a complaint against defendants Rite Aid, Riverside, and Venditelli, alleging negligence. On October 2, 2015, Rite Aid moved for summary judgment, contending that it owed no duty of care to plaintiff.

As the basis for its argument, Rite Aid pointed to a section in its lease agreement with Riverside—the owner of the property where the store was located—which provided as follows:

"Landlord shall, at its sole cost and expense (subject to the following paragraph), keep and maintain the Common Areas in good condition and repair, including but not limited to, restriping (when necessary); repairing and replacing paving and the sub-strata thereof (Landlord hereby agreeing that it will repave the Common Areas at least once every ten (10) years); keeping the Common Areas properly policed, drained, free of snow, ice, water, rubbish and obstructions, and in a neat, clean, orderly and sanitary condition ; * * * and maintaining any plantings and landscaped areas. Landlord shall begin to remove accumulated snow and ice from the Common Areas and diligently prosecute the removal thereof . Landlord may deposit accumulated ice and snow on portions of the non-exclusive parking areas and other parts of the Common Areas to the extent necessary under the circumstances, but in no event shall any such deposit materially interfere with or otherwise materially disrupt Tenant's use of the Premises, the visibility of the premises from Willett Avenue, and/or the operation of the Tenant's business." (Emphasis added.)

After a hearing on the matter on January 26, 2016, the hearing justice granted Rite Aid's summary-judgment motion. However, no final judgment entered pursuant to Rule 54(b) of the Superior Court Rules of Civil Procedure; and, on September 6, 2016, the eve of trial, Rite Aid filed a motion for judgment as a matter of law pursuant to Rule 50 of the Superior Court Rules of Civil Procedure, relying on the same grounds that were presented at the summary-judgment hearing. At the close of all the trial evidence, the trial justice granted this motion.³

At the trial, plaintiff pursued his remaining claims against Riverside and Venditelli. There, plaintiff attempted to introduce three photographs that depicted snow in the parking lot. One of the pictures was taken four weeks after plaintiff's fall, and two were taken approximately a year later. The trial justice granted defendants' motion in limine to preclude the photographs, explaining that "one of the photographs was taken after a 24-inch snowstorm, [while] another photograph shows substantially less snow * * *." He stated that "for the purpose of the plaintiff's burden of proof in this case, [he did not] feel that the probative value of the[ ] photos, taken long after the incident in question, outweigh[ed] the prejudicial effect [they] could have on the jury."

At the end of the trial, the jury returned with a verdict in favor of defendants. The plaintiff then moved for a new trial, which was denied. The plaintiff appealed the grant of the motion for summary judgment in favor of Rite Aid, as well as evidentiary rulings made by the trial justice, and the trial justice's denial of his motion for a new trial.⁴

IIDiscussion

AMotion for Summary Judgment

On appeal, plaintiff contends that Rite Aid owed him a duty based on his status as an invitee, regardless of any indemnification agreement Rite Aid may have had with Riverside.⁵

It is a core principle that we review a hearing justice's grant of a motion for summary judgment de novo . High Steel Structures, Inc. v. Cardi Corporation , 152 A.3d 429, 433 (R.I. 2017). We affirm the hearing justice's decision "only if, after reviewing the admissible evidence in the light most favorable to the nonmoving party, we conclude that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law." Boucher v. Sweet , 147 A.3d 71, 73 (R.I. 2016) (quoting Newstone Development, LLC v. East Pacific, LLC , 140 A.3d 100, 103 (R.I. 2016) ). "Summary judgment is appropriate when no genuine issue of material fact is evident from the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits if any, and the motion justice finds that the moving party is entitled to prevail as a matter of law."

Providence Journal Co. v. Rhode Island Department of Public Safety ex rel. Kilmartin , 136 A.3d 1168, 1173 (R.I. 2016) (quoting Beacon Mutual Insurance Co. v. Spino Brothers Inc. , 11 A.3d 645, 648 (R.I. 2011) ).

"To establish a negligence claim, a plaintiff must demonstrate ‘a legally cognizable duty owed by a defendant to a plaintiff, a breach of that duty, proximate causation between the conduct and the resulting injury, and the actual loss or damage.’ " Flynn v. Nickerson Community Center , 177 A.3d 468, 476 (R.I. 2018) (quoting Wells v. Smith , 102 A.3d 650, 653 (R.I. 2014) ). Thereafter, for a plaintiff to survive summary judgment on a negligence claim, he or she "must show that he or she is owed a legal duty by the defendant before the three other elements of his or her negligence claim will be considered." Id. "[W]hether a defendant is under a legal duty in a given case is a question of law." Brown v. Stanley , 84 A.3d 1157, 1162 (R.I. 2014) (quoting Willis v. Omar , 954 A.2d 126, 129 (R.I. 2008) ).

In Rhode Island, owners and possessors of property have a duty "to exercise reasonable care for the safety of persons reasonably expected to be on the premises * * * include[ing] [sic ] an obligation to protect against the risks of a dangerous condition existing on the premises, provided the landowner knows of, or by the exercise of reasonable care would have discovered, the dangerous condition." Lucier v. Impact Recreation, Ltd. , 864 A.2d 635, 639 (R.I. 2005) (quoting Kurczy v. St. Joseph Veterans Association, Inc. , 820 A.2d 929, 935 (R.I. 2003) ). With respect to liability of landlords, "a landlord is not liable for injuries that the guest of a tenant suffers on the leased premises, unless the injury results from the landlord's breach of a covenant to repair in the lease, or from a latent defect known to the landlord but not known to the tenant or guest, or because the landlord subsequently has assumed the duty to repair."...