Peter Wyso v. Full Moon Tide, LLC.Peter Wyso v. Full Moon Tide, LLC.
Kevin S. Cotter, Esq., Audra L. Medeiros, Esq., Providence, for Defendants.
Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.
OPINION
Justice FLAHERTY, for the Court.
The plaintiff, Peter Wyso, appeals from summary judgment entered against him and in favor of a tenant and property owner in a personal injury action. Wyso contended that he sustained injuries when he tripped and fell on a public sidewalk that was uneven and replete with cracks. On October 2, 2013, this case came before the Supreme Court pursuant to an order directing the plaintiff to appear and show cause why the issues raised should not summarily be decided. We have considered the record and the written and oral submissions of the parties, conclude that cause has not been shown, and proceed to decide the appeal without further briefing or argument. For the reasons set forth in this opinion, we affirm the order of the Superior Court.
Facts and Travel
On September 6, 2007, Wyso, who was vacationing on Block Island, was walking along a public sidewalk in the Town of New Shoreham1 when he tripped and fell on a cracked and uneven section of the sidewalk that abutted 104 Water Street. The plaintiff contended that he suffered injuries as a result of the fall. The property that abuts the sidewalk at 104 Water Street is owned by Frederick and Deborah Howarth (the Howarths) and was leased to retailers Full Moon Tide, LLC and Strings & Things, Inc. (Full Moon Tide).2
The plaintiff filed suit in Washington County Superior Court on September 1, 2010, alleging that defendants’ negligence was the proximate cause of his injuries. The complaint alleged that defendants “negligently failed to inspect, repair, and/or maintain its premises free from defect and/or dangerous condition causing * * * plaintiff to fall and suffer injuries * * *.” It is significant that Wyso did not allege that defendants were responsible for creating or causing the defects in the sidewalk. On November 14, 2011, Full Moon Tide filed a motion for summary judgment, arguing that there were no genuine issues of material fact and that defendant was entitled to judgment as a matter of law. On January 5, 2012, plaintiff filed a motion to amend his complaint, alleging in that proposed amendment that, in addition to the negligence claim, defendants owed plaintiff a duty to warn of the dangerous condition of the sidewalk.
On January 17, 2012, the trial justice granted Full Moon Tide‘s motion for summary judgment. He found that plaintiff had not raised a genuine issue of material fact and further that he had failed to demonstrate that Full Moon Tide owed plaintiff a duty of care. The trial justice also denied plaintiff‘s motion to amend the complaint, reasoning that there was no duty to warn plaintiff of the condition of the sidewalk.3 Wyso filed a timely appeal to this Court.
On March 5, 2012, the Howarths filed their own motion for summary judgment.
Before this Court, plaintiff advances two arguments. Wyso first maintains that the trial justice erred when he granted summary judgment because there are genuine issues of material fact. Second, he contends that defendant breached a duty of care.
Standard of Review
“[T]his Court reviews a grant of summary judgment de novo.” Sullo v. Greenberg, 68 A.3d 404, 406 (R.I. 2013) (quoting Sacco v. Cranston School Department, 53 A.3d 147, 149-50 (R.I. 2012)). “Examining the case from the vantage point of the trial justice who passed on the motion for summary judgment, ‘[w]e view the evidence in the light most favorable to the nonmoving party, and if we conclude that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law[,]’ we will affirm the judgment.” Id. at 406-07 (quoting Sacco, 53 A.3d at 150). “Although summary judgment is recognized as an extreme remedy, * * * to avoid summary judgment the burden is on the nonmoving party to produce competent evidence that ‘prove[s] the existence of a disputed issue of material fact[.]‘” Id. (quoting Mutual Development Corp. v. Ward Fisher & Co., 47 A.3d 319, 323 (R.I. 2012)).
Discussion
To maintain “a claim for negligence, ‘a plaintiff must establish 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.‘” Willis v. Omar, 954 A.2d 126, 129 (R.I. 2008) (quoting Mills v. State Sales, Inc., 824 A.2d 461, 467 (R.I. 2003)). Although we have frowned upon the disposition of negligence claims by summary judgment, the existence of a duty is nonetheless a question of law. See Ouch v. Khea, 963 A.2d 630, 633 (R.I. 2009) (whether a defendant owes a plaintiff a duty of care “is a question of law to be determined by the court” (citing Martin v. Marciano, 871 A.2d 911, 915 (R.I. 2005))); see also Gliottone v. Ethier, 870 A.2d 1022, 1028 (R.I. 2005) (noting difficulties that can arise when disposing of negligence claims through summary judgment).
In the absence of such a duty, “the trier of fact has nothing to consider and a motion for summary judgment must be granted.” Holley v. Argonaut Holdings, Inc., 968 A.2d 271, 274 (R.I. 2009) (quoting Banks v. Bowen‘s Landing Corp., 522 A.2d 1222, 1225 (R.I. 1987)). The existence of a duty of care is a legal question reserved for the trial justice, not for the jury. Banks, 522 A.2d at 1224. “Only when a party properly overcomes the duty hurdle in a negligence action is he or she entitled to a factual determination on each of the remaining elements: breach, causation, and damages.” Ouch, 963 A.2d at 633.
The plaintiff‘s complaint alleged that defendants owed him a duty to maintain the
On appeal, plaintiff argues that a duty should be recognized because this Court has taken an ad hoc approach to determine a duty. In Banks, we established a five-factor approach that considers all relevant circumstances, including foreseeability of harm, closeness of connection between a defendant‘s conduct and a plaintiff‘s injury, and the consequences of imposing a duty to exercise care with resulting liability for breach of the duty. Bucki v. Hawkins, 914 A.2d 491, 495 (R.I. 2007) (citing Banks, 522 A.2d at 1225).
However, we believe that plaintiff‘s reliance on Banks is misplaced for two reasons. First, we have cautioned that the factors in Banks were “case specific and should not be taken or construed to limit the scope of factors that we shall consider in future cases involving different factual situations.” Ferreira v. Strack, 636 A.2d 682, 685 n. 2 (R.I. 1994). In Ferreira, which involved a claim of a property owner‘s duty of care to pedestrians on a public highway, we considered factors that differed from those outlined in Banks because the public highway was not owned, possessed, or controlled by the defendants. Id. We concluded in Ferreira that the defendants owed no duty of care to the plaintiffs because the injuries that were claimed occurred in an area that was beyond the property owner‘s control. Id. at 685.
Second, Banks was a premises-liability negligence claim against property owners that was lodged by an invitee who was on the landowner‘s property at the time of the injury. See Id. at 1223-24. A property owner owes a duty of care to those whom he can reasonably expect to be on his property. O‘Brien v. State, 555 A.2d 334, 338 (R.I. 1989). The rationale for the imposition of this duty rests firmly on the landowner‘s possession of the premises and his or her attendant right and obligation to control the premises. Ferreira, 636 A.2d at 685. Here, however, plaintiff‘s injuries occurred on a public sidewalk that was not within defendants’ control or possession.
Undaunted, plaintiff next argues that the source of defendants’ duty of care arises from Section 15(a) of the Town of New Shoreham Ordinances, which addresses maintenance and repair of sidewalks.5 In our opinion, this analysis also
The plaintiff next argues that the defendants owed him a duty to warn of the condition of a defective sidewalk.6 This argument also falls short because a property owner who owes no duty of care to an individual also owes no duty to warn those individuals. See Berman, 991 A.2d at 1048. In another case from Block Island, we held that a moped lessor owed a lessee no duty to warn of dangerous conditions on public roadways. Ohms v. State Department of Transportation, 764 A.2d 725, 727 (R.I. 2001). A sidewalk is not a road, but it is nevertheless a public way about which an abutting property owner does not have a duty to warn those who use the sidewalk.7
Conclusion
For the foregoing reasons, we affirm the judgment of the Superior Court, and the record in this case shall be remanded to that tribunal.
Justice INDEGLIA did not participate.
Notes
“All owners or agents of owners with property abutting and fronting upon any plaza, street, or alley within the corporate limits of the town are required to keep the public sidewalks including the authorized installations thereon and therein and the curb, and curb and gutter immediately abutting their property in good order and repair. Each such owner shall be liable to the town for all losses to the town or recoveries from the town for damages to person or property of others caused by his failure or that of his agents to repair and keep in good order and reasonable safe condition of all such sidewalks abutting and fronting his property upon any plaza, street, or alley within the corporate limits of the town.”