Providence
County Superior Court PC 06-5374 Associate Justice Richard A.
Licht
For
Plaintiff: Daniel J. Neal, Esq.
For
Defendants: Megan K. DiSanto, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
Indeglia, JJ.
OPINION
Maureen McKenna Goldberg Justice
Because
the state and its cities and towns are immune from liability
for injuries suffered by members of the public who use public
recreational facilities, the claim brought by this mother on
behalf of her seriously injured child must fail. This case
came before the Supreme Court on January 26, 2017, pursuant
to an order directing the parties to appear and show cause
why the issues raised in this appeal should not be summarily
decided. The plaintiff, Carmen Rohena (plaintiff), as parent
and natural guardian of Josue Espinal (Josue), brought suit
to recover damages for injuries that Josue suffered while
sliding into home plate at Corliss Park in Providence. The
plaintiff appeals from a grant of summary judgment in favor
of the defendant, the City of Providence (the city or
defendant). This case was a home run for the city because the
General Assembly has provided the state and its cities and
towns with immunity from liability under Rhode Island's
Recreational Use Statute, G.L. 1956 chapter 6 of title 32.
After hearing the arguments of counsel and examining the
memoranda submitted by the parties, we are of the opinion
that cause has not been shown and that this case should be
decided without further briefing or argument. For the reasons
set forth herein, we affirm the judgment of the Superior
Court.
Facts
and Travel
On June
17, 2006, Josue, a member of the North End Wanskuck Little
League, was participating in a baseball game at Corliss
Park[1]
in Providence. While sliding into home plate, his right foot
and lower shin allegedly slid under a corner of the plate
that was lifted. When he attempted to stand up, his leg broke
in two places.
On
October 13, 2006, plaintiff filed suit against the city,
alleging that defendant failed to properly maintain the
field. On August 7, 2014, [2] defendant filed a motion for summary
judgment, arguing that it was not liable pursuant to the
Recreational Use Statute. The plaintiff filed an objection,
contending that discovery was incomplete and that she had
been unable to determine if a genuine issue of material fact
existed. However, on November 18, 2014, at the hearing on the
motion, both parties conceded that discovery was complete.
The plaintiff did not press an objection, but asked that the
Superior Court justice "note the objection * * * based
upon the recreational use statute." The Superior Court
justice held that "there is no allegation here that the
city charges[] to have a baseball game played on the
park" and "[t]he owner of the land is not liable
unless there is an allegation of some kind of willful
misconduct and there is none here[.]" The
defendant's motion for summary judgment subsequently was
granted, and final judgment entered on December 16, 2015. The
plaintiff appealed.
Standard
of Review
"This
Court reviews de novo a trial justice's decision
granting summary judgment." Sola v. Leighton,
45 A.3d 502, 506 (R.I. 2012) (quoting Lynch v. Spirit
Rent-A-Car, Inc., 965 A.2d 417, 424 (R.I. 2009)).
"[S]ummary judgment is a drastic remedy, and a motion
for summary judgment should be dealt with cautiously."
Cruz v. DaimlerChrysler Motors Corp., 66 A.3d 446,
451 (R.I. 2013) (quoting DeMaio v. Ciccone, 59 A.3d
125, 129 (R.I. 2013)). "Summary judgment is appropriate
only when the 'pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as [a] matter of law.'" Sola, 45
A.3d at 506 (quoting Plunkett v. State, 869 A.2d
1185, 1187 (R.I. 2005)). "Only when a review of the
admissible evidence viewed in the light most favorable to the
nonmoving party reveals no genuine issues of material fact,
and the moving party is entitled to judgment as a matter of
law, will this Court uphold the trial justice's grant of
summary judgment." Id. (quoting National
Refrigeration, Inc. v. Standen Contracting Co., 942 A.2d
968, 971 (R.I. 2008)).
Analysis
It is
undisputed that defendant owns Corliss Park, which is public
and open without charge, and that Josue was participating in
a recreational activity when he was injured. Before this
Court, plaintiff contends that defendant's conduct falls
outside the scope of the Recreational Use Statute because the
city willfully or maliciously failed to guard or warn against
a known dangerous condition. As support, plaintiff avers
that, on June 21, 2006, an individual identified as Zenaida
Martinez (Ms. Martinez) provided a hand-written statement to
plaintiff's attorney. Ms. Martinez wrote that,
approximately one week before the child's injury, she
informed Nicholas J. Narducci Jr. (Mr. Narducci), the
President of the North End Wanskuck Little League and a
member of the Providence City Council, about the poor
condition of Corliss Park, including the bases. Mr. Narducci
allegedly responded that it would be too expensive to repair
the park. Our careful review of the record indicates that
this argument was not raised in the Superior Court.
This
Court has staunchly adhered to the "raise-or-waive"
rule. "It is well settled that a litigant cannot raise
an objection or advance a new theory on appeal if it was not
raised before the trial court." State v. Bido,
941 A.2d 822, 828-29 (R.I. 2008); see also
Hydro-Manufacturing, Inc. v. Kayser-Roth Corp., 640 A.2d
950, 959 (R.I. 1994) ("[A] party may not 'advance
new theories or raise new issues in order to secure a
reversal of the lower court's determination.'"
(quoting Nedder v. Rhode Island Hospital Trust National
Bank, 459 A.2d 960, 963 (R.I. 1983))). Moreover,
"[t]his directive will not be disturbed unless
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