275 A.3d 567
R.I.2022Background:
- Plaintiff Flavia Borgo, age 18, trespassed into a National Grid electrical substation in Providence while photographing for an art project and entered the building through a roof opening.
- Inside the substation she contacted equipment in a cabinet, suffered a massive electrical injury, spent two months hospitalized, and lost her left hand.
- Borgo sued National Grid for negligence alleging the utility owed a duty to maintain the substation safely; she advanced premises-liability and alternative theories based on Public Utilities Commission (PUC) safety regulations and National Grid’s distribution activities.
- The Superior Court granted National Grid’s summary-judgment motion solely on the ground that, as an adult trespasser, Borgo was owed no duty absent actual discovery in peril.
- Borgo appealed; the Rhode Island Supreme Court reviewed the duty question de novo and affirmed the grant of summary judgment.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether National Grid owed a premises-liability duty to an adult trespasser absent actual discovery | Borgo: constructive knowledge of repeated trespass (beaten-path) or analogous authority (Berman) creates duty | National Grid: under Rhode Island law an adult trespasser is owed no duty unless actually discovered in peril; beaten-path exception is not recognized | Held: No duty; adult trespasser owed duty only upon actual discovery in peril; Berman is distinguishable and limited |
| Whether constructive discovery (frequent trespass) can substitute for actual discovery | Borgo: evidence of repeated use (ladder, student reports) shows constructive notice and creates duty | Nat’l Grid: Rhode Island caselaw rejects beaten-path/constructive-discovery rule for trespassers | Held: Rejected — constructive discovery does not create duty to adult trespasser |
| Whether PUC safety regulations or National Grid’s power-distribution role create an independent duty | Borgo: PUC regulations adopting national electrical codes impose a duty to protect foreseeable public harm from utility operations | Nat’l Grid: Those regulations do not indicate they were meant to protect members of the general public on utility property; no statutory class of protected persons shown | Held: Rejected — regulations do not demonstrate intent to protect trespassers here; Borgo falls outside protective orbit |
| Whether plaintiff’s expert affidavit created a genuine factual dispute about breach | Borgo: Affidavit shows a breach of applicable standards and creates triable issue | Nat’l Grid: Even if breach evidence exists, there is no duty to breach; summary judgment proper as matter of law | Held: Affidavit immaterial because no duty was established; summary judgment affirmed |
Key Cases Cited
- Berman v. Sitrin, 991 A.2d 1038 (R.I. 2010) (municipal duty in Recreational Use Statute case where repeated catastrophic incidents gave rise to notice)
- Cain v. Johnson, 755 A.2d 156 (R.I. 2000) (landowner owes trespasser no duty until actually discovered in peril)
- Burton v. State, 80 A.3d 856 (R.I. 2013) (reaffirming limited duty to trespassers and discovery requirement)
- Paquin v. Tillinghast, 517 A.2d 246 (R.I. 1986) (statutory/regulatory violations admissible as evidence of negligence only for the class the statute was designed to protect)
- Banks v. Bowen's Landing Corp., 522 A.2d 1222 (R.I. 1987) (factors to consider when determining whether a duty exists)