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Limoges v. Nalco Co.

Supreme Court of Rhode Island

April 4, 2017

Stephen F. Limoges et al.
v.
Nalco Company et al.

         Source of Appeal Kent County Superior Court No. KC 10-827, Associate Justice Bennett R. Gallo

          For Plaintiffs: Shad Miller, Esq. Amato A. DeLuca, Esq.

          For Defendants: Timothy M. Zabbo, Esq. Timothy M. Bliss, Esq.

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

          OPINION

          Flaherty, Justice

         This case arose out of a chemical leak that, according to Stephen F. Limoges, one of the plaintiffs, caused him to suffer respiratory injuries. The plaintiffs brought suit against three defendants and now appeal the Superior Court's grant of summary judgment in favor of one of the defendants, Arden Engineering Constructors, LLC. Before this Court, the plaintiffs argue that the hearing justice erred because he made an improper credibility assessment about the affidavit of their expert and because he overlooked material issues of fact that were in dispute. The matter came before this Court for oral argument on February 23, 2017, pursuant to an order directing the parties to appear and show cause why this appeal should not summarily be decided. After considering the parties' oral and written arguments and after thoroughly reviewing the record, it is our opinion that cause has not been shown and that this case should be decided at this time without further briefing or argument. For the reasons set forth in this opinion, we vacate the judgment of the Superior Court.

          Facts and Travel

         The plaintiff[1] was employed by the State of Rhode Island as an Assistant Administrator to Facilities and Operations. His duties included overseeing the heating, ventilation, and air conditioning (HVAC) systems in the state's courthouses. According to plaintiffs' complaint, [2] on August 8, 2008, a pipe that carried bromine into the HVAC system at the Garrahy Judicial Complex in Providence ruptured, causing a chemical spill. When the pipe burst, plaintiff rushed to the scene to stop the leak. The plaintiff asserts that, while he was engaged in that effort, he inhaled bromine, which, in turn, caused him to suffer significant pulmonary injuries.

         The plaintiffs brought suit against three different entities, Nalco Company, Arden Engineering Constructors, LLC, and JMB Mechanical, Inc., alleging that they were individually and collectively responsible for plaintiff's injuries because each defendant was negligent, each was strictly liable, and each had committed a breach of warranty. After discovery had been initiated, JMB moved for, and was granted, summary judgment on all three counts against it.[3]Subsequently, Arden also moved for summary judgment on all the counts that had been lodged against it. After an initial hearing in January 2015, an order entered granting Arden's motion for summary judgment as to the strict liability and breach-of-warranty counts.[4] At that time, plaintiffs were not prepared to argue against the summary-judgment motion on the negligence count because they had not, as of that time, secured an expert to provide testimony or an affidavit that would assist in establishing a prima facie negligence case. The hearing justice graciously decided "to treat [plaintiffs'] argument as a request under [Rule] 56(f) [of the Superior Court Rules of Civil Procedure] for some [more] time, " and he allowed plaintiffs an additional two weeks to prepare their opposition to summary judgment.

         In the early afternoon of the day that the second hearing was scheduled to be held, plaintiffs filed a supplemental memorandum and an expert's affidavit that set forth the standard of care required of Arden and its breach thereof. The hearing, which had been scheduled for that morning, was delayed a day by the court, apparently because of weather. The affidavit said, in relevant part:

"3. It is more likely than not that Arden Engineering Constructors, LLC ('Arden') is responsible for causing the bromine chemical solution leak in the mechanical room located on the 6th floor of the Garrahy Judicial Complex on or about August 8, 2008, as follows:
"(a) Arden, by and through its agents, employees, and assigns, had a duty to carefully and professionally remove, replace, and/or re-align the piping connecting the chemical feed system to the chillers when it replaced the chillers in 2006; and
"(b) Arden, by and through its agents, employees, and assigns, had a duty to carefully and professionally inspect the piping connecting the chemical feed system to the chillers when it replaced the chillers in 2006; and
"(c) Arden either caused the crack in the piping when it replaced the chillers in 2006, at which time it removed, replaced, and/or re-aligned the piping connecting the ...

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