Michaela Symonds, by and through her mother and natural guardian, Rhonda Symonds v. City of Pawtucket et al.
No. 2012-171-Appeal. (PC 05-514)
Supreme Court
November 3, 2015
No. 2012-171-Appeal.
(PC 05-514)
Michaela Symonds, by and through
her mother and natural guardian,
Rhonda Symonds
:
:
:
v. :
City of Pawtucket et al. :
NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone 222-3258 of any typographical or other formal errors in order that corrections may be made before the opinion is published.
No. 2012-171-Appeal.
(PC 05-514)
Michaela Symonds, by and through
her mother and natural guardian,
Rhonda Symonds
:
:
:
v. :
City of Pawtucket et al. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
O P I N I O N
Justice Indeglia, for the Court. In this personal injury action, the plaintiff, Michaela Symonds (Symonds or plaintiff), appeals from an order granting summary judgment entered against her and in favor of the City of Pawtucket (city). Symonds contends that she sustained injuries when she received a splinter while playing on a wooden jungle gym at a park in the city. On September 29, 2015, this case came before the Supreme Court pursuant to an order directing the parties to appear and show cause why the issues raised should not be summarily decided. After hearing the arguments of counsel and reviewing the memoranda submitted on behalf of the parties, we are satisfied that cause has not been shown. Accordingly, we shall decide the appeal at this time without further briefing or argument. For the reasons set forth herein, we affirm the judgment of the Superior Court.
I
Facts and Travel
On March 23, 2003, plaintiff, who was a minor at the time, was playing on a wooden jungle gym at Slater Memorial Park in Pawtucket, Rhode Island, when a sliver of the jungle gym
The plaintiff’s mother, Rhonda Symonds (Rhonda), contacted the city’s Parks and Recreation Department (the department) and advised an employee of the plaintiff’s injury. According to Rhonda, the employee informed her that the department was unaware that it was responsible for maintaining the jungle gym or other objects in the playground area. Approximately twelve to sixteen months after Rhonda contacted the department, the wooden jungle gym was replaced with a jungle gym consisting of non-wood material.
On February 2, 2005, plaintiff, by and through her mother and natural guardian, Rhonda Symonds, filed a complaint sounding in negligence against the city and Ronald L. Wunschel, in his capacity as Treasurer and/or Finance Director of the city (collectively defendants). Some years later,1 on July 19, 2010, defendants moved to amend their answer to include an affirmative defense of immunity under
On June 10, 2011, defendants filed a motion for summary judgment, arguing that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law on the grounds that it was immune from suit because the playground had been opened to the public for recreational purposes and it did not act in a willful or malicious manner in failing to guard or
On October 11, 2011, the hearing justice determined that the city was qualified as a landowner that can be entitled to immunity under the RUS and that plaintiff “ha[d] produced no evidence to suggest that the wooden jungle gym was damaged, deteriorated or dangerous, and * * * [no] evidence to show any wanton or malicious conduct.” Accordingly, the hearing justice granted defendants’ motion for summary judgment. The plaintiff appealed to this Court.
II
Standard of Review
This Court reviews the grant of a motion for summary judgment de novo, “apply[ing] the same standards and rules as did the motion justice.” Narragansett Indian Tribe v. State, 81 A.3d 1106, 1109 (R.I. 2014) (quoting Beauregard v. Gouin, 66 A.3d 489, 493 (R.I. 2013)). “We view the evidence in the light most favorable to the nonmoving party.” Id. “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.” Swain v. Estate of Tyre ex rel. Reilly, 57 A.3d 283, 288 (R.I. 2012) (quoting Beacon Mutual Insurance Co. v. Spino Brothers, Inc., 11 A.3d 645, 648 (R.I. 2011)).
III
Since the promulgation of the RUS by the General Assembly in 1978, this Court has had several occasions to interpret its provisions. We have recognized that its purpose is to “encourage private landowners to make their land free and open to the public for recreational purposes.” Berman v. Sitrin, 991 A.2d 1038, 1043 (R.I. 2010) (Berman I)4; see
However, we also have recognized that this immunity is not absolute. See Hanley, 837 A.2d at 713. Specifically, in an exception to the RUS,
In Berman I, 991 A.2d at 1042, the plaintiff was injured while visiting the Newport Cliff Walk when the ground beneath him gave way, rendering him quadriplegic. There, a majority of this Court held that the City of Newport had notice of the defective and dangerous condition of the Cliff Walk, as there had been several death-resulting falls caused by the ground giving way in the past. Id. at 1049-50. This Court concluded that a factfinder could determine that the City of Newport acted willfully by “voluntarily and intentionally fail[ing] to guard against the dangerous condition, knowing that there existed a strong likelihood that a visitor to the Cliff Walk would suffer serious injury or death.” Id. at 1052. Accordingly, because a jury could determine that the City of Newport acted with willful or malicious disregard of actual or constructive knowledge of the dangerous condition of the Cliff Walk, the exception to the RUS could be applicable. See id. at 1053.
In the case at bar, plaintiff has not set forth any evidence to show that the city had knowledge of the dangerous condition of the jungle gym. The plaintiff contends that the city had notice of the dangerous condition of the jungle gym, citing:
The plaintiff claims that these circumstances provided notice to the city of the dangerous condition similar to that in Berman I, such that the city had knowledge of a strong likelihood that a user of the jungle gym would suffer injury.
However, plaintiff’s contention is misplaced. In Berman I, 991 A.2d at 1051, we “emphasize[d] that we [were] not confronted with a single injury in a given location,” but instead, we were confronted with “multiple incidents of death and grievous injury * * *.” Unlike in Berman I, plaintiff’s injury on the wooden jungle gym was the first notice of any injury of this kind, and none of the evidence pointed to by plaintiff suggests that the city had actual knowledge of a dangerous condition prior to her injury. The presence of a dangerous condition alone is not enough to fall within the exception to the RUS. Compare Cain v. Johnson, 755 A.2d 156, 162-64 (R.I. 2000) (holding that the City of Newport was immune under the RUS because it did not discover the plaintiff in a position of peril where it had no notice of a dangerous condition), with Berman I, 991 A.2d at 1051-53 (holding that the City of Newport was not protected by the RUS where it had notice of a dangerous condition based on prior reported incidents of death and serious injury). Instead, to constitute willfulness within the meaning of
The record before us lacks any suggestion that defendants had any knowledge of the dangerous condition at the time of the injury. The wooden material of which the jungle gym was composed, even if such material was of inferior quality, is insufficient to provide the city with knowledge of a dangerous condition. Similarly, while plaintiff points to the defective condition of the wooden bars as a form of notice to the city, she does not provide any evidence that such condition was reported to the city prior to her injury.7
The plaintiff contends that the city’s knowledge of the alleged dangerous condition is supported by the department employee’s acknowledgment that he did not believe that the city
Without knowledge on behalf of the landowner of either the particular defect or similar injuries, we cannot conclude that the landowner willfully disregarded a known risk of injury. Therefore, it was not error for the hearing justice to determine that the exception of
IV
Conclusion
For the reasons set forth above, we affirm the grant of summary judgment for the defendant.
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: Michaela Symonds, by and through her mother and natural guardian, Rhonda Symonds v. City of Pawtucket et al.
CASE NO: No. 2012-171-Appeal. (PC 05-514)
COURT: Supreme Court
DATE OPINION FILED: November 3, 2015
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: Associate Justice Gilbert V. Indeglia
SOURCE OF APPEAL: Providence County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Sarah Taft-Carter
ATTORNEYS ON APPEAL:
For Plaintiff: Kara M. Fay, Esq.
For Defendants: Frank J. Milos, Jr., Esq.
Stephen Schonhoff, Esq.
Notes
“Except as specifically recognized by or provided in
“(1) Extend any assurance that the premises are safe for any purpose;
“(2) Confer upon that person the legal status of an invitee or licensee to whom a duty of care is owed; nor
“(3) Assume responsibility for or incur liability for any injury to any person or property caused by an act of omission of that person.”