Dawn K. Roy, in her capacity as the administratrix of the estate of Brett A. Roy, et al.
The State of Rhode Island et al.
County Superior Court (PC 09-2874) Associate Justice Susan E.
Plaintiffs: Patrick C. Barry, Esq. Douglas E. Chabot, Esq.
State: Rebecca T. Partington Department of the Attorney
General, Adam J. Sholes Department of the Attorney General.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
A. SUTTELL, CHIEF JUSTICE
jurist once wrote:
"This is a hard case-hard not in the sense that it is
legally difficult or tough to crack, but in the
sense that it requires us * * * to deny relief to a plaintiff
for whom we have considerable sympathy. We do what we must,
for 'it is the duty of all courts of justice to take
care, for the general good of the community, that hard cases
do not make bad law.'" Burnham v. Guardian Life
Insurance Co. of America, 873 F.2d 486, 487 (1st Cir.
1989) (Selya, J.) (quoting United States v. Clark,
96 U.S. 37, 49 (1877) (Harlan, J., dissenting)).
indeed such a hard case. Tragically, on July 10, 2008,
twenty-nine-year-old Brett A. Roy broke his neck when diving
into the pond at World War II Veterans Memorial Park in
Woonsocket, resulting in his paralysis from the neck down.
Roy's injuries were vast and undeniable. Roy and his
wife, Dawn K. Roy (plaintiffs), individually and as the
parents of their two children, filed this action against the
state, the Rhode Island Department of Environmental
Management (DEM), and two individuals in their official
capacities as DEM employees (collectively, the state),
alleging several counts of negligence and premises liability.
After a multi-week trial and lengthy deliberations, a jury
returned a verdict for the state, finding that the state had
not "fail[ed] to guard or warn against a dangerous
condition, use, structure or activity" or against a
"non-obvious, latent dangerous condition" at the
pond. Subsequently, both parties filed renewed motions for
judgment as a matter of law, which the trial justice denied.
However, the plaintiffs also filed a motion for a new trial,
which was granted. Thereafter, the state brought the instant
appeal arguing that the trial justice erred in granting the
plaintiffs' motion for a new trial, and that, as a matter
of law, the state owed no duty to Roy. The plaintiffs filed a
cross-appeal arguing that their motion for judgment as a
matter of law should have been granted and that the trial
justice erred in denying their motion for additur or
alternatively their motion for a new trial on damages only.
For the reasons set forth herein, we vacate the judgment of
the Superior Court.
Facts and Travel
World War II Veterans Memorial Park and Pond
2008, the pond at World War II Veterans Memorial Park in
Woonsocket was one of several bodies of water operated by the
state as a recreational facility. At trial several state
workers testified to the condition and maintenance of the
park and pond.
director of DEM at the time of the incident, W. Michael
Sullivan, testified that the man-made pond was "filled
mechanically" and "treated much like a swimming
pool." Sullivan testified that, in June 2008, he made
the decision to fill the pond, and he appeared at a press
conference where he announced his decision. Sullivan stated that, in July 2008, there
were "no swimming" signs posted, but DEM
"expected that there would be people * * * using the
park." Sullivan explained that facilities such as the
bathhouses were open, but he stated that he "did not
ever consider the beach to be open." Sullivan agreed
that it was prohibited under DEM rules to operate the pond on
a "swim-at-your-own-risk" basis, and he explained
that, "if there were not lifeguards present at a
swimming facility, that the swimming facility was
closed." Sullivan explained that, in July 2008, staff
on-site at the park had been directed "to tell people
that the beach -- that the water was closed to swimming, to
point to signage and refer them to that, but it was not
expected that they would stand there and order people out [of
the water] * * *."
Associate Director of Natural Resources for DEM, Larry
Mouradjian, also testified at trial. He described the pond,
explaining that there was a designated lap pool, a swim area,
and a diving platform. He testified that he had seen the pond
with and without water, and, based on his opinion, diving
near the wall into the lap pool would be dangerous because it
was too shallow. Mouradjian testified that the pond was
typically not filled "until such time as we were able to
fully staff the * * * swim area and invite the public to swim
at the pond * * *." Mouradjian stated that he thought
the decision to fill the pond was untimely "[b]ecause
the things normally done to prepare the pond to be open to
the public had not been done * * *." He testified that
he had spoken to Sullivan and recommended that the pond be
drained or left empty until DEM "beg[a]n to acquire the
Chief of the Rhode Island Division of Parks and Recreation,
Robert Paquette, and the Deputy Chief, John Faltus, also
testified at trial. Paquette confirmed that Mouradjian was
hesitant to open the pond and that Mouradjian told him that
"we should really look into this." However,
Paquette testified that "[Sullivan] was ordering [him]
to open up the facility." Paquette also testified that
he had never been told that "there was ever a problem
with shallow water [along the wall of the pond]." Faltus
testified that he was never "officially informed"
that people were diving at the pond, but he had "heard
hearsay that there's possible diving activity after
hours." Faltus stated that generally they did not
"allow diving at any [state] swimming areas."
However, he also admitted that "[p]eople [were] allowed
to possibly do some shallow entry dives, " explaining
that whether diving was allowed "[d]epends on how you
Mitchell Jr., the Regional Park Manager for DEM in 2008,
testified that there was no "system that was in place to
warn people of the depth of the water." However, he
stated that "if a patron * * * ask[ed] an employee * * *
they would advise them as to the depth of the water, [and] if
they asked about diving, [they] would tell them the rules and
regulations * * *." Mitchell agreed that Roy's
injury was "[g]enerally" the type of thing that he
could foresee and he was concerned that it was the kind of
injury that would happen when he was told to fill the pond
before lifeguards had been hired.
Lambert, a DEM caretaker supervisor who was employed at World
War II Veterans Memorial Park from 1990 to 2008, testified at
trial extensively about the physical characteristics and
operation of the park and pond. He explained that, as the
caretaker supervisor, he was the "acting park manager,
" testifying that he "handled pretty much
everything that had to do with the park itself: scheduling
the staff, supervising the lifeguards, interviewing park
rangers, interviewing seasonal people, assigning various work
to people." Essentially he either directly worked on or
helped supervise everything that needed to be done at the
described the park as "16 acres * * * in the center of *
* * Woonsocket [with] a man made [sic] pond, * * *
two tennis courts, a playground area, horseshoe pits, * * *
[an] Olympic pool area, * * * and the beach area * * *."
Lambert described the water depth near the wall where the
Olympic pool met the beach area as being "pretty
consistent over the years." He testified that, when the
pond was drained, he would try to "smooth the
bottom" of it. Lambert explained that the pond
"wouldn't be perfectly level like a pool, " but
testified that he "would try to eliminate any erosion,
any heels, any high spots." He testified that he was
unable to do "any preparatory work to the bottom"
of the pond in 2008 because he had been "informed that
the park was closing and the beach wouldn't be opened
that year, and [his] job was being eliminated." However,
Lambert also explained that he did not rake the pond every
year because "there were years when there was very
little shifting on the bottom." Subsequently, Lambert
testified about the diving policies at the pond. He stated
that diving had "never [been] allowed." However, he
admitted to seeing "people periodically dive * * * off
of [the] wall on the pool area, [but] not during hours that
[the pond was] in operation."
Events of July 10, 2008
Henderson, a seasonal laborer for DEM who worked as a
groundskeeper at the park in 2008, testified at trial that he
was working on July 10, 2008. Henderson stated that he saw
"about half a dozen" people swimming in the pond
that day but did not tell them that swimming ...