*1 voluntarily his Miranda waived Joseph rights. AUBIN Furthermore, we are that the satisfied knowing waiver was intel- defendant’s REALTY, LLC.

ligent. The read his detective Miranda (PC 12-495) 2016-42-Appeal No. form; rights rights to him from a ini- he right each form after tialed was read Supreme of Rhode Court Island. however, noteworthy, to him. It is that the June “no” rights checked off form following after the two statements: no police prom-

“The threats or have made me”; my rights.”

ises to and “I understand hearing justice found that both detec- they

tives indicated that understood the in response

defendant’s “no” to be

statement police had made no or promises

threats to him. The hearing that he concluded had confidence credibility detectives. Even after him,

reading rights his the detective the defendant several

asked times whether his each rights understood time he Additionally, that he

indicated did.

opening of the typed state-

ment, signed, which he indi- initialed

cated defendant did understand rights.

his considering totality After circumstances, we conclude that is

record of evidence devoid that would

suggest that the com- defendant failed to

prehend rights nature of

consequences abandoning them.

Conclusion

For the forth in opinion, reasons set affirm Superior

Court. The record shall remanded to

that court. *2 Tallo, Kelly M. Fracas- Esq., C.

Richard sa, Plaintiff. Esq., for Tienhoven, for Esq., De- Richard A. van fendant. C.J., Suttell, Goldberg,

Present: Robinson, Indeglia, JJ. Flaherty, OPINION for Court. Flaherty, Justice case, are In this called slip-and-fall justice the trial upon to determine whether granted the defen- misstepped when she a matter motion dant’s Aubin, alleged plaintiff, Joseph law. The patch “black ice” slipped on a adjacent to his paved parking area building, which was owned apartment defendant, Realty, LLC. in a his fall plaintiff claimed that resulted surgery required torn rotator cuff plaintiff to be unable work caused the plain- period for a of several months. the trial argues appeal tiff issues of fact remained erred because and, reviewing the facts dispute; plaintiff, light most favorable prevail for the possible was negligence action. for oral came before us This matter 27, 2017, pursuant to an argument April directing parties appear order not why appeal this should show cause considering summarily be After decided. arguments parties’ oral and written record, reviewing thoroughly after H45 gence opinion it is our that cause has direct proximate been cause this case of plaintiffs shown and that decided injury. shoulder an briefing without further complaint January time amended filed in forth in argument. counts, For the reasons set several including added *3 allegations opinion, vacate the of that judgment the defendant violated the Act, Superior Residential Landlord Court. Tenant G.L. 34, 1956 of chapter specifical- 18 title and Facts and Travel § ly, 34-18-22, by keep failing to the 2010, During plaintiff, Joseph December common of premises areas the in a clean Aubin, wife, Aubin, and his Jennifer were (counts 4). and safe condition 3 and living at Avenue in 208 Wood Woonsocket. Eventually, trial; the matter to came a apartment building “triple-deck- The awas spanning place trial took days three defendant, by er” that owned plain- December 2015. At of the close LLC, Realty, time relevant to the case, tiffs judgment for moved The Aubins lived case. law, a pursuant as matter of 50 to Rule of eight years, they occupied or nine and the Superior the Court Rules of Civil Proce- apartment. second floor dure. argued plaintiff The defendant 25, 2010, On December the Aubins went presented no evidence that defendant get-together to a to family celebrate was on the notice of black ice there- Christmas at William home. Mr. Gilman’s fore, law, as a of matter claim Gilman is brother-in-law and also must trial justice initially fail. The re- a Realty, member of MAG LLC. At that served that motion. At the of conclusion family plaintiff gathering, and Mr. Gilman case, defendant’s defendant renewed its plans go together made to Lowe’s to the of judgment motion for as a matter law. following morning purchase plywood to so jury, Before the case to the sending the plaintiff flooring the replace could trial granted defendant’s motion apartment. his Judgment from the bench. entered 26th, morning plaintiff of On the appealed to day, same timely and adjacent went out to to his this Court. Gilman,

apartment building to meet Mr. as of Standard Review planned. the two had walked towards truck to his wallet retrieve and justice’s review of a trial “Our so, keys, and, doing slipped he as was. decision on motion for as a judgment a patch plain- on a of black ice. The fell Bailey, matter of de novo.” v. law is Giron tiff landed with a thud on his left shoulder. (R.I. 1003, (quoting 985 A.2d 1007 fall, according plaintiff, resulted Associates, Gianquitti v. Atwood Medical cuff, a torn required surgery rotator which Ltd., 2009)). (R.I. “In 589 973 A.2d Also, recovering repair. while from his justice’s reviewing a trial decision a injury, plaintiff required that he contended law, motion for as a matter daily living assistance with activities and this Court the same is bound follow period a that he was unable to work for legal govern rules and standards as five or six months. Ventura, justice.” trial v. Lemont Estate of Roy (R.I. 2017) February plaintiff brought (quoting 157 A.3d 36 State, (R.I. 2016)). defendant, single-count against “The alleg- suit Court, ing negligently justice, consequently trial maintained light premises must ‘the evidence in the negli- examine reasonably premises, nonmoving party, expected most be on favorable obligation to that duty weighing the evaluat includes an without of a protect against dangerous the risks witnesses, credibility ] and draw[ premises, provid- existing condition from the record all reasonable inferences of, or by ed knows nonmoving landowner support position ” Roy, care 488). exercise of reasonable party.’ (quoting Id. A.3d discovered, dangerous condition. See “Thus, judg trial justice should enter ment, Friendly Corp., Cream Tancrelle v. Ice a matter law the evi ‘when Beyond the com- legitimate only one permits dence conclu ” imposed mon duty, Legislature law has Roy, regard sion outcome.’ higher enact- standard for landlords Hough McKiernan, (quoting at 488 *4 ing the Tenant Act. Landlord Residential (R.I. 2015)). 1030, 1035 108 A.3d Giron, 34-

See 985 at Section A.2d 1008. Analysis 18—22(a)(3)mandates, among things, other * * * [k]eep all “[a] that shall landlord “It is that to on prevail well settled in premises common a clean areas negligence plaintiff a of a es claim must act “super- and safe condition[.]” legally cognizable duty by a a tablish owed relating rules any sede[s] common-law of that plaintiff, to a a breach defendant and landlords conflict residential tenants duty, proximate causation the between LaMountain, provisions.” its Errico v. resulting injury, the conduct the 1998). (R.I. A.2d 713 794 Lemont, damage.” loss 157 A.3d áctüal Wray Green, at (quoting A.3d 126 37 Here, that is clear us defen it 2015)), (R.I. “Of the four well- 479 dant, landlord, as a capacity its owed negligence, only duty of is a worn elements areas, keep a common duty to the Alston, 154 question of law.” Williams area, “in including a parking the clean and (R.I. 2017). remaining “[T]he 34-18-22(a)(3).1 safe Section condition[.]” ** * negligence of a claim three elements suggest only “the facts Accordingly, unless ** * are ‘[trial] fact-based inference[,]” one case reasonable this must may of negligence treat' the issue as a factfinder, which, presented to the if only suggest only the facts matter of law Hall, case, jury. this was a ” City one of reasonable inference.’ Hall v. Berard, 64 A.3d at (quoting Newport, 138 A.3d trial, At plaintiff offered that testimony HCP, Inc., (quoting Berard v. 64 A.3d plow grassy onto a defendant snow would (R.I. 2013)). 1215, 1218 blacktopped park- area that above temperatures Consequently, of lot. when Under common law Rhode day, Island, freezing has climbed above duty to exercise a landowner and water for the snow and melt persons of ice would safety reasonable care However, fall, briefs, plaintiff's only space of defendant time In its devoted at the Rule,” discussing "Connecticut which ab were trace of recorded. Never- amounts snow rogates duty keep theless, landlord's surfaces plaintiff alleges slipped that - ice and of natural of .clear accumulations previous night, black ice had formed the that during a snow berg, storm. See Benaski v. Wein freshly not snow. Given fallen (R.I. 2006). 502-03 before,us, posture we must of case assume case, this weather that was into data admitted plaintiff's allegation Accordingly, is that true. n indicated substan evidence that was a review, the purpose for the of our Connecticut began day late on tial snowstorm inapplicable. Rule is 26, 2010, day plaintiff fell. .December Then, parking changed. opinion, across the run area. In our it be im- temperature overnight, dropped practical to the re- burden tenant with refreeze on paved parking water would sponsibility to every day call landlord area, ice, resulting patches of cre- black to give patches notice new ice .in ating a dangerous condition. order to satisfy requirement the notice aof premises Rather, liability claim. bur- contends that den is providing sustained notice of the prevail as a matter law because there recurring And, if we credit condition. Ms. presented was no evidence that there were Aubin’s testimony, as .'must slipped2 snowbanks at time motion, furthermore, purpose this Rule 50 then the no there was evidence inescapable dangerous conclusion that defendant defendant had notice of a is dangerous, notice of the making icy condition. In condition argument, how- ever, overlooks Aubin’s existed in the parking Ms. tes- area. trial,

timony. At Ms. Aubin testified that Because weigh we do the evidence grassy there were on the snowdrifts area motion, when analyzing a it is Rule our day above the opinion enough that there was Furthermore, plaintiff injured himself. Ms. send the jury. *5 Aubin that had com- testified plained at to defendant on least two occa- Conclusion forming parking sions ice about the lot. herein, For the forth reasons set that, argues The defendant further be- vacate judgment the of the Superior Court. only plaintiff complained generally cause The that record shall be tri- remanded icy occurring park- about conditions in the bunal. area, specific patch never but about the on, of ice he fell not that defendant did Robinson, dissenting. Justice dangerous have of sufficient notice I respectfully dissent, so but I do rather Therefore, condition. asserts defendant vigorously. I that this is concede' a readily that, law, as of it prevail. a matter said, long case. being close That after argument. are not persuaded We’ reflection, intense I have concluded that Court, in This Dawson v. Rhode Island presided the trial the jury who over Auditorium, Inc., 116, 128, R.I. when, “got right” in this at trial it (1968), A.2d 414-15 that the held de- evidence, granted close of she de- owner, building though fendant even had fendant’s a matter motion for as given specific never been notice of the leak of pursuant Superior law of the Rule 50 plaintiffs that no- injuries, caused simply I Court Rules of Civil Procedure. of tice leak in its because the roof perceive any for fail basis the record previously notice defendant that' its concluding jury a' could that reasonable leaky during roof generally heavy was legitimately have found the defendant lia- Here, analogous. rains. the situation is The at presented ble under facts as trial. icy defendant had notice that conditions I am jurisprudence of our present its well aware property were cer- weather, justice, types icy whereby tain of under the trial and that condi- Rule Court, go tions come “examine the weather indeed this must argument 2. The concedes “when is that no snowbanks snow area, parking was from the removed it was fell. existed at the time However, deposited grassy onto the area.” meaningful light in the most favorable to the evidence on which reasonable nonmoving party “draw[] from the could have such a juror reached conclu- sup- all inferences that record reasonable sion. nonmoving party.” port position of the Climatological “Local Data” admit- The Ventura, Lemont Estate at trial the fact that ted established (R.I. 2017) (internal quotation marks days preceding in the was no snowfall two omitted). I am aware that trial likewise Additionally, plaintiff him- December judgment as a matter justice should enter not any- self that he “notice testified did legally is no only when “there suffi- law thing” parking lot when returned for a evidentiary basis reasonable cient wife, home on December 25. for party to find that issue.” Aubin, also that she Jennifer testified did 50(a)(1). However, not I do believe Rule any parking not ice on the observe this case surmounts even that rather home on she and returned bar. low approximately midnight December jurisdiction The courts day her fall. before husband’s More- years to “the Connecticut many adhered over, respect plaintiffs testimony with dealing Rule” when landlord’s piles, melting the existence of snow falling ongoing in the duties context which, according to plaintiff, resulted in Weinberg, precipitation. Benaski See lot, does not puddles aid rele 502-03 he also case due the fact that aspect of Rule has been well

vant he slipped testified that area where general “[A]s summarized as follows: completely “a area than [the different rule, duty to any a natural accumula clear puddling area] where the occur.” triggered of ice and before tion snow is *6 after the storm ends.” reasonable time I as well that Aubin’s testimo- note Ms. Louangxay, 1288, Berardis ny respect on cross-examination with Benaski, 2009) (R.I. (citing grassy the snow she area observed Climatological Data” at The “Local was, my judgment, in on December At by the recorded National Oceanic insufficient to even the surmount rather F. mospheric at Association Theodore forgiving criterion established Rule 50. an Airport, was as Green which admitted that, the Au- She testified when she left trial, it at the fact that exhibit reflected outside, bins’ apartment and went she De snowing 5:00 on began around a.m. seeing grass remember when “d[id]n’t De and continued into cember yard.” into the When she was [she] walked 27, resulting in a substantial snowf cember snow,” replied if she “saw she asked Thus, justice recognized, all.1 as the trial something, follows: “Or because Rule,” Real under the “Connecticut addition, grass.” been would have ty arguable duty have an would testimony: her followingwas if respect only at issue said black ice * * * Do prior “[DEFENSE COUNSEL]: formed to the start of the ice was any you being piles at a.m. on December 26. remember there snowfall 5:00 * * * However, my along you in snow can judgment, thorough re the area see any grass pavement? fails to abuts the view record reveal ly testimony 1. We note that reflects 10:00 a.m. on December approximate- the fact that his at fall occurred

H49 at probably day AUBIN]: There were what time “[MS. she observed snow- drifts; she similarly could remem- snow drifts there. ber or long the size how snowdrifts Okay. “[DEFENSE COUNSEL]: they been Accordingly, there. it is your There drifts there to were snow Aubin entirely conceivable that Ms. could recollection? very have observed small snowdrifts late Yes. “[MS. AUBIN]: morning, afternoon, in the or Okay. Do “[DEFENSE COUNSEL]: evening of which December could have high you they how remember were? been result of the snowfall on Decem- time, At that “[MS. no. AUBIN]: Additionally, opinion ber 26. it is my (( sfs n # utterly vague statement about the exis- * * * lot, tence of ice the parking which Ms. Do “[DEFENSE COUNSEL]: relayed Aubin testified was the landlord you long remember how those snow occasions, previous two is sim- least drifts had been there? ply inadequate to have met bur- No, I do not. “[MS. AUBIN]: testimony den. Ms. Aubin’s does not even you “[DEFENSE Do re- COUNSEL]: state such a communication was when have member when last storm would made to the landlord—whether was a been so that there would have been the earlier, month, few days earlier in the snow drifts there? year, in the in some previ- earlier even No.” “[MS. AUBIN]: year.2 ous Significantly, Ms. Aubin also testified require in this The evidence go cross-examination she did not out- speculate exactly how about immedi- parking side and observe area days preceding weather conditions ately to her after her “indicated” husband 26 could have resulted in the December However, that he had fallen. she stated necessary to melting refreezing go she did outside and observe created the black ice at issue before the point lot at some later on Decem- morning plain- of December on which 26, although was at trial to ber she unable tiff later slip. See Scittarelli v. Prov- just Co., recall was. she When idence Gas if later asked cross-examination she (holding neg- “[t]he *7 observed the on “the ligence speculation afternoon remain[ed] matter 26th,” replied: It is “Possibly.” she conjecture” because the failed testimony introducing far from clear from Ms. Aubin’s to burden of meet her evidence Dawson, majority jority 2. The cites Island in the us. In Dawson v. Rhode relies case before Auditorium, Inc., R.I. building been the defendant had aware owner (1968), stating that case a "de held that years building’s in roof for the leaks owner, building though it fendant even had prior the incident at in case. Id. at to issue given specific never been notice of the leak Indeed, 126-27, 242 A.2d at 413-14. at one injuries, plaintiff’s that caused the notice had point "approximately roof 387 leaks.” roof of the leak in because its the defendant Moreover, 126, 242 Id. at A.2d at 414. gener previously notice its roof was building owner had taken measures ally heavy do leaky during rains.” I While attempt years to preceding over the "resur- statement, quibble majority's a read leaking "chronic condition fac[e]” [the] conclu of Dawson leads ineluctable According- roof.” Id. at 242 A.2d at sion that which the facts established that is, my ly, in the factual situation Dawson building owner in was on Dawson judgment, easily distinguishable from the in- leaky distinguishable roof are notice of the stant case. vague ma- from the comments which the negligence- consequently, entered a justice have directed trial should favor); also in the see

verdict defendant’s Co., 418 Narragansett Electric

Montuori (holding 10-11 that the produce than more

“plaintiff was unable direct establish

minimal evidence that, therefore,

element of causation” and granted the justice trial verdict). motion a directed perceptively case justice in this

As the trial jury have to make

stated: “[T]he concerning the rate which

assumptions melt, freeze;

snow, ice, might and water various con

evaporate during the weather meteorological data

ditions shown in reason, expert the lack of

charts.” For that

testimony support striking.

is was correct The trial

stating asked beyond findings that their ex

“make are lay I how

pertise as fail see persons.” juror could in the

any reasonable find pre favor based engaging imper trial

sented at without conjecture speculation.

missible

Accordingly, my respectful I record but

vigorous dissent.

Amberleigh HUDSON AGENCY,

GEICO INSURANCE

INC., General GEICO d/b/a Company.

Insurance (PC 12-6179) 2016-15-Appeal

No.

Supreme Court Rhode Island.

June