*1 owned ath- IV municipally on a sporting event field, supervision under the active letic Conclusion officials, explaining that such a school special is owed a the student circumstance For the reasons stated in this opinion, Morales, we by the town. duty of care Superior we affirm the developed, field “was found that the soccer The record shall be remanded to Court. school-spon- maintained for utilized and Superior Court. open and that it was not sored athletics” purposes when public for recreational concluded injured; the athlete was we thus Recreational Statute was not Use
controlling. Id. at 731. This Court indi- footnote, however, that “if [the]
cated in a soccer
plaintiff had come the [town] was not play game
field to a soccer or sanctioned the school dis-
organized Barry trict, E. et al. may have been immune DuBOIS town] [the under the [Recreational [U]se [S]tatute.” Id. at 732 n. 11. QUILITZSCH Frederick et al. that Mor-
This Court is to the case at bar. We inapposite ales is 2009-372-Appeal. No. agree with the trial that “[t]he applica- in Morales is limited in its holding Supreme Court Rhode Island. bility clearly distinguishable from the Here, although instant matter.” the soc- June Heights within Kent Park was cer field of the incident
reserved on the
East Parks & Recreation De- Providence soccer, youth the area where
partment game and the
plaintiff observed soccer open pub-
area where fell were to the she Furthermore, considering
lic. the over- activity scope
all nature for which open public, are held to the park,
we find that this of which the soccer only part, qualifies
field indeed up makes being open public
as for recreational
activity. not the simply This same sce- Morales,
nario addressed in which .invoked duty to a student-athlete playing town’s organized sporting desig-
in an event on a
nated athletic field.
Accordingly, grant we affirm the sum-
mary judgment in favor of the defendant ground that the Recreational Use city liability. from
Statute immunizes *2 Gorham, Scituate, Esq.,
Nicholas North for Plaintiff. Providence,
Stanley Pupecki, Esq., F. for Defendant. SUTTELL, C.J.,
Present: GOLDBERG, FLAHERTY, ROBINSON, INDEGLIA, JJ. OPINION SUTTELL, for Chief Justice the Court. DuBois, plaintiff, Barry E. was seri- ously injured by dog, when he was bitten Bear, inauspiciously named while he was attempting inspect pigeon loft on the wife, property. defendants’ He and his DuBois, plaintiff, ap- Susan L. also a now entry peal from the defendants, Quil- in favor of the Frederick itzsch, Quilitzsch, Jr. Sr. and Frederick Court, Supreme came before the This case School, sitting High for oral Classical directing to an loft. In argument pursuant pigeon response order appli- this cation, DuBois, appear why and show cause an environmental offi- parties Pawtucket, City cer for the went appeal the issues raised this should *3 property shortly after noon on summarily reviewing September be decided. After inspect to considering pigeon and the loft. Mr. parties’ the record the submissions, Quilitzsch, time; Jr. was not home at the written and oral we are satis- he had left Bear tethered in the appeal may fied that this be decided with- aforemen- tioned location. DuBois briefing argument. parked out further or For the Mr. in the driveway and then in went to the door of the opinion, reasons set forth this we affirm knocked, and home but there Superior the was no an- Court. swer. Mr. proceeded up DuBois to walk driveway the and pigeon over to the loft. I At deposition, explained, his Mr. DuBois History Facts and Procedural “[ejverything okay, looked but [he did not] Quilitzsch, In Mr. September Jr. any see birds bent [so he] down [to Pawtucket, in a in lived house Rhode Is- look in the to see if there loft] [were] (the property), land which he owned with birds[,] the dog [a]nd was underneath the father, Quilitzsch, Although his Mr. grapevines just [him], and jumped on Quilitzsch, longer Mr. Sr. no lived at the over, knocked right [him] went for [his] loft, property, pigeon he maintained a or face.” Mr. DuBois testified as he coop, premises. Quilitzsch, Mr. Jr. tried get away, to bit his left hand (the an Shepherd owned Australian “right down to the bone” and then bit Bear), which he had obtained when it was through right his calf. puppy. September As of Bear was Quilitzsch, Mr. Sr. arrived at the scene old, years thirty-five
three inches shortly thereafter. Mr. DuBois testified height, weighed forty-seven pounds. and that, upon Quilitzsch, arriving, Mr. Sr. said Quilitzsch, Mr. deposi- Jr. testified at his that he did not anticipate inspector that an tion that he kept often Bear outside next soon, would be there so explained he loft, pigeon piece tethered to a that dog[] usually not “[t]he [is] tied lumber “that goes ground there[;] dog[] reason the [t]he tied [is] caging was on.” The tether was a plastic- Quilitzsch, there is because [Mr. had a Jr.] twenty twenty-five coated steel cable refrigerator being today.” delivered Mr. long. Quilitzsch, feet Mr. Jr. that stated Quilitzsch, Jr. explained day that on the grass was worn and missing through- expecting delivery the incident he was out the area where the tether extended a “machine that picks up leaves” from farthest because the dog frequently 1 p.m., Sears around but he further stated walked over area. There also was a was outside because it awas grapevine “trellis[-]type on a structure” day nice and not because of expected this adjacent “alley” to the loft and an between delivery. loft, grapevine this and the providing a undisputed Quil- It is that neither Mr. shady area for Bear within the reach of itzsch, Quilitzsch, Sr. nor Mr. Jr. knew Mr. Quilitzsch, tether. testified coming inspect someone would be that Bear had been tethered in this loca- incident; pigeon loft on the “[ajlmost
tion daily” puppy. since he awas them, prior no notice had been sent to Quilitzsch, Mr. Sr. Mr. DuBois had not called going before applied property. to renew his license to maintain Sr., did Quilitzsch, argued The defendants Mr.
Additionally, neither strict-liability claim be- Jr., have a viable Mr. DuBois testi- nor within the enclo- any prior cause the attack occurred aware of they were fied that pi- “the property, noting had attacked sure in which Bear incidents clearly within geon coop question Jr. said that someone. can yard” and that anybody “[t]here before” the defendant’s bit[ten] had “never here that this area [was] told that the be no doubt never been that he had The defendants further noted According private.” to Mr. rough. dog was too surrounding most of Jr., that there was a fence store that sold pet *4 yard and that Mr. DuBois had to drive dog’s that the him did not indicate dog to driveway. enter the In past violent the fence to propensi- father had mother or claim, regard negligence defendants Jr. said that Bear ties. that, to under the common argued prevail the same location tethered in had been law, that the defen- plaintiffs “prove had to guests and that would during barbecues knowledge of the any prob- dant had some pet and Bear without approach incident,” that, propensity prior to the stated even vicious lems. here, plaintiffs had failed to do so inspector known that and he had warranting summary judgment. would have left thus coming, he nonetheless location and Bear in the same tethered response, plaintiffs argued In letting been comfortable would have created a suffi- unconnected fence neither by to the loft himself. He did inspector go notice proper cient enclosure nor served as however, was tethered in testify, that Bear private. to indicate that the area was The walk to a location where his father could that, argued even assum- coming without into contact feed the birds existed, there ing proper enclosure dog, dog seeing because “the [his] with the enclo- an issue whether “the [he] father would be all excited and [proper- when the applies] sure defense to knock over [his] wouldn’t want [Bear] person has invited the ty/dog owner] father with the cane.”1 particular Finally, to that area.” come have 2008, plaintiffs argued Mr. DuBois and his wife that defendants did April bite, liability, knowledge dog’s propensity of the alleging filed a civil action strict allegedly purposeful mov- liability, negligence.2 evidenced anticipation of the of the arrival complaint ing defendants answered the discovery. conducted Thereaf- of the Sears man. parties ter, July defendants moved parties’ arguments, hearing After summary judgment, arguing that because justice acknowledged the trial al- within the “alleged attack occurred though “[s]ummary judgment is a drastic enclosure of the home and the defendants granted can be when remedy, it pro- no had are no issues of material there summary pensity, [they entitled to were] justice The trial then addressed the fact.” judgment as a matter of law.” that, with strict-liability claim and found issue, the fence in hearing respect
A
on the motion for
to the enclosure
gave “more than reasonable no-
judgment
was held on
this case
complaint
alleged
2. The
also
that Mrs. Du-
1. Mr.
Jr. had Bear euthanized
damages for loss of consortium
Bois suffered
shortly after this incident.
services as a result
and a loss of homemaker
injuries
suffered
her husband.
I, LP.,
v.
third-parties that
the area
Montiero
Silver Lake
[was]
tice to
(R.I.2003)
(quoting
an
Sobanski v.
third-party [was]
whether the
private,
(R.I.2002)).
Donahue,
justice
not.” The trial
accord-
A.2d
invitee or
when,
“Summary
judgment
appropriate
in favor
ingly granted
strict-liability
viewing
count.
the facts and all reasonable infer-
of defendants on the
light
ences therefrom
most favor-
ad-
proceeded
The trial
then
able to the
nonmoving party,
court
premises-liability
dress the
determines that
there are no issues of
acknowledged that
such
claims. She
fact in dispute,
moving
material
and the
showing
that there was
“require!
claims
]
party
judgment
is entitled to
as a matter
evidence,
knowledge!,]
there was
Airlines,
of law.” Id. (quoting Delta
Inc.
knew or should have
defendant
[that]
(R.I.2001)).
Neary,
propensity
of the animal to
known
parties opposing summary
“The
behavior,”
demonstrate vicious
and she
‘rely
may
upon
allegations
mere
found that “there has been no evidence of
[r]ather,
denials in their pleadings!;]
*5
response
plaintiffs’
that.” In
contention
they
affidavits or otherwise
have an affir-
knowledge
dog’s
pro-
that
vicious
duty
specific
mative
to set forth
facts
moving
pensity was revealed
defendant
showing
genuine
that there is a
issue of
arriving,
man
dog prior
”
material fact.’
Id.
v.
(quoting Bourg Bris-
justice
that
the trial
noted
does not
“[t]hat
Co.,
(R.I.1998)).
tol Boat
705 A.2d
971
genuine
create a
issue of fact that there
knowledge
propensity
of a
of a vicious
III
[Rather,]
dog.
[p]eople may
act
* * *
just
dogs
may
not like
and
not want
Discussion
dogs.”
justice
to be around
The trial
con-
person
“Under the common law a
plaintiffs’ argument
cluded that
was mere-
damages
could recover
from a
bite
ly “unsupported speculation” and that
only
person
prove
that
could
plaintiffs
any
had not come forward “with
dog’s
was aware of the
dangerous
owner
competent evidence to show the [c]ourt
* * *."
Marra,
propensities
Ferrara v.
disputed
regarding
that there
fact
[was]
(R.I.2003).
823 A.2d
1137
In 1889
dog’s propensity
anything.”
to do
(P.L. 1889,
749, 1), however,
§
ch.
Leg
Thus,
justice
granted
the trial
also
sum-
statute,
islature enacted a
now embodied
mary judgment
on the
4-13-16,
§
imposes
G.L.1956
that
strict
premises-liability counts.3
liability in
in which “any
circumstances
Final
in favor of
defendants
* * *
kills, wounds, worries,
assaults,
was entered on
from
bites,
injures any person
or otherwise
plaintiffs timely
which
appealed.
traveling
highway
while
or out
keeper
enclosure
the oumer or
that
II
* *
added.)
(Emphasis
See John
Standard of Review
Poulin,
(R.I.
v.
ston
844 A.2d
713
Ferrara,
2004);
1137;
grant
of sum-
A.2d at
“This Court reviews
Montie
basis,
ro,
981;
Alderson,
mary judgment
apply-
Kelly
on a de novo
vicious a scienter propensities, record, agree view of the we with the trial commonly referred to as the “one- ment justice’s have conclusions. Montiero, bite rule.” See produce competent failed to evidence cre- material appeal, plaintiffs dispute ating On do not issue of fact as to proper occurred within a en- defendants’ this incident grant propensities. and thus do not contest the Jr. testified closure anyone strict-liability that Bear had never attacked be- Rather, incident, plaintiffs argue past fore this and he recalled count. *6 fact, justice finding dog, trial erred in that there was occasions when the in allowed it, genuine guests approach pet no issue of material fact concern- to it and without harm, ing knowledge Quil- whether defendants had while it was tethered. Mr. itzsch, propensities, similarly the violent and thus Sr. and Mr. DuBois did they justice any past contend that the trial erred in not know of incidents in which summary granting judgment prem- dog on the this had attacked someone. ises-liability negligence counts. More Mr. Although DuBois testified that Mr. specifically, plaintiffs aver that defendants’ Quilitzsch, him dog Sr. told that the was alleged effort to isolate the from the in vicinity pigeon tethered of the loft presence stranger, namely, of a the Sears delivery expect- because a Sears man was man, creates a material issue of property, ed to come to the there was no fact their evidence that Bear tethered there be- dog’s propensity strangers. to attack The any cause of violent tendencies. To the plaintiffs contend that Mr. Sr.’s contrary, provided incident, statement after the that “[t]he explaining that sworn statement there[,] dog[ usually tied ] [is] [t]he day was tethered outside on the dog[ reason the tied there is because ] [is] day incident because it was a nice and not a refrigerator [Mr. had be- Jr.] expected delivery. because of this This ing today,” delivered although “inferen- recognized upon Court has a motion tial,” “was evidence nonetheless and the for if the moving party justice] should have allowed the trier [trial demonstrating evidence presents of fact to resolve it.” fact, genuine there is no issue of material
During hearing party opposing on the motion for has summary judgment, duty the trial ad- with respond specif- an affirmative to plaintiffs’ contention ic that would constitute a dressed facts Dynam- aforementioned statement created an issue issue for trial. Volino v. General (R.I.1988). Thus, ics, strict-liability statute pertaining 532-33 to inci- summary judg- enclosures, for to overcome the motion dents outside of or at later case, plaintiffs time, had to recently ment the instant but it has not. As as Montiero, specific tending facts or evidence provide 813 A.2d at this Court that defendants had knowl- to demonstrate species-specific declined create a stan- propensities. The edge bites, of Bear’s pertaining noting dard care Quil- equivocal statement made policy issue “is a matter that is itzsch, does not suffice as evidence better left to [Legislature.” We con- demonstrating that defendants had knowl- tinue to be of the any modifi- n edge violent tendencies. dog-bite cation to our law is best left to the Therefore, failed their plaintiffs to meet Assembly. General burden. Finally, that, plaintiffs argue argue ap The on plaintiffs a person is invited into an enclosed area peal notwithstanding the one-bite owner, property the one-bite rule rule, they proceed should be allowed to preclude should not actions for negligence premis with common-law premises liability. assert es-liability specifically, claims. More that Rhode Island “clearly case law estab should plaintiffs contend this Court duty prevent lishes a on landowners to on-premises dog “allow attacks —with or injury any person invited to foreseeable proof judged without be scienter —to property.” their plain We note that the premises the same fashion as all other submitted demonstrating tiffs no evidence claims,” liability and allow common-law that knew inspector defendants as “an alternative cause negligence claims coming * * * of action to the one-bite/scienter the incident or that the defendants should Additionally, plaintiffs argue standard.” propensity have known the had a that the one-bite rule is on the decline in attack an im approaching stranger. More *7 and should modified the United States be however, portantly, we are of the jurisdictions, in accord with other in which that the common-law one-bite rule applies dog may the owner of a be held liable for notwithstanding injured the person’s sta if injuries dog dog caused the even the an tus as invitee. We therefore decline to plaintiff prove is not vicious the can expand liability in in dog-bite cases that negligent handling keeping the owner’s volve invitees and rather leave such dog injury. caused the Assembly. modification to the General law liability Our state settled, dating bite well with IV is cases that, century, providing back over a so Conclusion within a long proper as the enclo- opinion, For the reasons stated in this owner, here, sure of the as the the judgment Superior we affirm the to under protection defendant is entitled The to Court. record shall be remanded Ferrara, E.g., the “one-bite rule.” 823 Superior the Court. Montiero, 1137;
A.2d at
opinion, context, a material factual courts are re enough pointing to premises liabili respect to dispute quired with to “draw all reasonable inferences so as to make counts ty to the nonmov light in the most favorable Rule of the Su 56 pursuant Grid, disposition Hill v. National ing party.” in Procedure Rules of Civil perior added) (in Court (R.I.2011) (emphasis 113 that a fact- am convinced I appropriate. omitted). quotation ternal marks the owner of the infer that finder could factual narrative con- Turning that was almost an animal question, majority opinion, I note that tained of the incident in tall at the time three feet (an officer em- Mr. DuBois environmental dog’s danger “aware of question, was Pawtucket, City who was ployed Marra, Ferrara v. See propensities.” ous pursuant to a question (R.I.2003).1 1134, 1137 that he request by one of the defendants well written I have read the Court’s pigeon coop inspection conduct an again, but each time opinion over and over property) testified at a de- located on the convinced that this ease I become more shortly position transpired what af- about by a of fact. finder cries out for resolution dog. ter he was attacked is, Summary judgment metaphorically opinion summarizes as follows Court’s sword;” I a “terrible swift speaking, Mr. testimony of DuBois: have that that sword should do believe scene Quilitzsch, “Mr. Sr. arrived an end to bring so swift been wielded Mr. DuBois testified shortly thereafter. of this case. litigation that, upon arriving, repeatedly has indicated This Court that an anticipate said that he did not “[s]ummary an extreme reme judgment is soon, and he inspector would be there so dy cautiously applied.” Ca that must be not usual- explained dog[ that ‘[t]he ] [is] Harnett, Lovett, navan v. Schefrin there[;] ly dog[ reason the ] tied [t]he (R.I.2004); A.2d 783 see also 862 tied there is because [is] [Mr. (R.I. Prescott, A.3d 66 Sharkey v. refrigerator being had a delivered Jr.] 2011); Pike Gas & Conven Plainfield ”2 today.’ ience, Realty Pike LLC v. 1889 Plainfield contrast, By testimony deposition (R.I.2010); John Corp., A.2d (R.I. a different reason gave Poulin, A.2d ston v. *8 2004); dog being for the tethered outside. Sjogren Metropolitan Property v. Co., 608, testimony has summarized that as 703 A.2d Court Casualty Insurance (R.I.1997). corollary prin- to that 610 As a follows: deposition testimony previous opinions are not en- I am aware that the of 1. This Court's why dog as to was Sr. propensi- tirely precisely consistent as to what what Mr. DuBois outside is inconsistent with dog ty a be aware of before the owner of must Quil- had been the of Mr. testified itzsch, statement liability. exposed possible can he or she be arriving shortly upon at the Sr. scene Marra, example, v. 823 A.2d For in Ferrara dog my had Mr. DuBois. In after the bitten 1134, (R.I.2003), spoke this Court of an 1137 opinion, when a involves such inconsis case dog’s dangerous propensi- awareness of "the tencies, req make the a finder of fact should hand, added.) (Emphasis On the other ties.” See, credibility. uisite determinations as to speaks opinion an earlier in the same term Porter, 464, (2d e.g., v. 154 F.2d 469 Arnstein propensi- dog’s of "the Cir.1946) (”[A]s credibility unavoidably in is I, LP., 813 A.2d ties.” Montiero v. Silver Lake volved, pres of material fact issue 978, added). (R.I.2003) (emphasis 981 itself”). ents
383 Giuliano, 386, v. 949 A.2d 394 provided a sworn Giuliano n. “Mr. (R.I.2008) (“The was explaining weight 9 of the evidence statement inci- tethered outside should not be evaluated at the day and not it was a nice judgment stage.”) (emphasis original); dent because delivery.”3 expected because of this Rodrigues DePasquale Building v. Co., 616, (R.I.2007). Realty 926 A.2d 622 attributed to the father The statement deciding In or not summary judg whether Mr. DuBois and the statement sworn granted, ment should be it must all why question as to was the son purpose times be borne in mind that “[t]he 2007 tethered outside on summary-judgment procedure is to cannot be reconciled with each oth- simply identify disputed of fact necessitat issues er. trial, ing not to resolve such issues.” Ro invited undisputed plaintiff It is was (R.I. Catanzaro, telli v. 686 A.2d 93 purpose inspect- for 1996); Giuliano, see also Estate 949 undisput- It further ing pigeon coop. State, 391; Steinberg A.2d at was tethered outdoors in a ed that (R.I.1981). 338, 340 to attack location that allowed the animal in dispute remained as the plaintiff. What Finally, it should be remembered considered the motion for Superior Court context, summary judgment in the courts dog had summary judgment why was required are to “draw all reasonable infer- what of fact been tethered and a finder light ences in the most favorable to the infer from same. could Hill, nonmoving party.” A.3d at 113 my opinion, In a fact-finder would be (internal omitted); quotation marks see credibility entitled to accord to the state- Kaskel, also DeLaire v. (as of Mr. recalled ment (R.I.2004). my opinion, this is not DuBois) the effect that the suggest only a case “where the facts one refriger- tethered because the son “had a and, reasonable rea- inference”— being day. ator delivered” on that It is son, I do not believe that the defendants’ my the fact-finder summary judgment motion for should have (the could then infer that the owner granted. Kennedy been See v. Providence son) knowledgeable dan- Club, Inc., Hockey 119 R.I. gerousness or viciousness. (1977). A.2d certainly pre- I do not know would who reasons, I respectfully For these dissent. go vail if this case were to to trial. But point. is not the See Mitchell v. (R.I.2000) (stat- Mitchell 756 A.2d purpose
ing from
“is to cull out the weak cases waiting
herd of lawsuits to be tried” and *9 stating “only if the case is arrival should the court
legally dead on step granting take the drastic
summary judgment”); see also Estate of however, deposi- present purposes, his be delivered. For 3. Mr. Jr. admitted at expecting tion that he had been expected whether the item it is immaterial question, from Sears but he said on refrigerator picker upper.” was a or "a leaf picker upper” that it was "a leaf that was to