County Superior Court (PC 09-4465) Associate Justice Patricia
Plaintiff: Brian R. Cunha, Esq.
Defendants: Michael W. Field Department of Attorney General
Matthew I. Shaw Department of Attorney General Adam J. Sholes
Department of Attorney General
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
Gilbert V. Indeglia Associate Justice.
civil matter comes before the Court on appeal from a Superior
Court judgment in favor of the plaintiff, Ms. Victoria Roach
(Roach or plaintiff). The plaintiff slipped and fell while
she was working as a per diem contract nurse at the Rhode
Island Veterans Home (Veterans Home or the Home) on November
10, 2008. She brought suit against the State of Rhode Island
and Gary Alexander in his official capacity as Director of
the Rhode Island Department of Human Services (collectively,
case was tried before a jury beginning on March 12, 2014. At
the conclusion of plaintiff's case-in-chief, the state
moved for judgment as a matter of law pursuant to Rule 50 of
the Superior Court Rules of Civil Procedure, which the state
renewed at the close of the evidence. On March 19, 2014, the
jury awarded plaintiff $500, 000. Under Rule 59(e) of the
Superior Court Rules of Civil Procedure, the state then filed
a motion for new trial, and a motion to amend judgment and
for a remittitur. The trial justice granted a remittitur,
lessening plaintiff's award to $382, 000; however, the
prejudgment interest award increased the judgment to $631,
state asserts multiple arguments on appeal: (1) the
public-duty doctrine shields the state from liability; (2)
the statutory tort cap in G.L. 1956 § 9-31-2 limits
damages to $100, 000; (3) the prejudgment interest award was
improper; (4) the trial justice erred in denying the
state's motion for judgment as a matter of law; and (5)
the trial justice erred in failing to instruct the jury on
comparative negligence. For the reasons set forth below, we
affirm the judgment of the Superior Court.
Veterans Home serves as a nursing home for many of Rhode
organized and governed under Rhode Island's Department of
Human Services, its population generally spans between ages
seventy and eighty, with many residents having served in
World War II and the Korean War. Dispersed in multiple units,
the Home's residents range from totally independent to
bedridden. Each unit includes two wings (sides A and B), with
each side housing about thirty to forty patients.
particular relevance here is Unit N-7 (N-7). A "skilled
unit, " N-7 included residents requiring heightened care
and palliative (end-of-life) residents. As such, a charge nurse,  a staff nurse,  and several Certified Nursing
Assistants (CNAs) staffed the unit
during a typical shift. A supervisory RN oversaw the
Home's nursing operation, including resident-care
oversight and nurse supervision. Nurses worked during three
shifts: 8 a.m. to 4 p.m.; 4 p.m. to 12 a.m.; and 12 a.m. to 8
start of a 4 p.m. shift, CNAs went directly to their
respective room assignments and checked whether residents
needed washing or changing. This was important because residents could
not visit the dining room if soiled and often had not been
checked or cleaned for a few hours. However, the CNAs
prioritized transporting residents to the dining room because
they ate dinner early, around 4:30 p.m. Additionally, CNAs
provided meals and fed the few residents who did not leave
their rooms. Generally, three CNAs assisted residents to the
dining room while one CNA fed residents in their rooms.
November 10, 2008, Roach reported to work for her Veterans
Home assignment, arriving around 3:45 p.m. for the 4 p.m. to
12 a.m. shift. As a contract nurse unacquainted with the Home's
operations, Roach briefly met with N-7's charge nurse,
Ms. Cheryl Kelley. Until about 4:25 p.m., Kelley orientated
Roach with N-7, showing her the treatment cart, medical cart,
bathroom, and kitchen. Then, Roach familiarized herself with
N-7's residents' medications, which she planned to
administer until about 5 p.m. While administering
medications, she traveled down N-7's "B" side
hallway, beginning with Room B-1.
eventually arrived at Room B-7-the room from which the crux
of this case arises. At the time, Room B-7 housed two
resident-patients. Resident 1, a
double amputee, often remained in his wheelchair. He was
capable of pushing himself around the Home and usually
wheeled himself to the dining room at dinnertime. In addition
to being non-ambulatory, Resident 1 was incontinent, so
nurses would assist him in accessing the toilet via a lift,
transporting him from his bed or wheelchair to the toilet,
and back. Resident 2 had end-stage Parkinson's disease.
He rarely left his room or his bed, and he required nurse
assistance to move from his bed to his wheelchair. Due to his
lack of mobility, CNAs assisted Resident 2 with dinner in his
proceeded to administer Resident 2's medication. He
required one medication, which she administered in a
30-cubic-centimeter (cc) cup along with a 90-cc Dixie cup
filled about halfway with water. After he took his pill,
about 30 ccs of excess water remained in his cup. Roach
tossed the medication cup in the trash near B-7's
entrance and approached the bathroom to dump the excess water
in the sink.
towards the bathroom with the water cup in her right hand,
Roach reached inside the room with her left hand and
attempted to flick on the light switch. However, before reaching the sink, she
slipped and fell on the bathroom floor. Wearing her Nurse
Mate sneakers, Roach recalled hydroplaning on liquid and
landing in a split position. Roach felt
"excruciating" pain, and her knee cracked on the
on the floor, Roach felt liquid on both sides of her. It was
enough liquid to dampen both the back and side of her pants.
Based on its smell, Roach believed the liquid was cleaning
solution or soapy water used to bathe residents. Unable to
reach the call light above her on the wall, Roach yelled out
multiple times for help, to no avail. With no one around to
assist, she used her uninjured leg to push herself up and out
of the bathroom. Relying on the medical cart for support,
Roach then made her way down the hall to the nursing station.
nursing station, Roach notified Kelley of her fall. Kelley
provided Roach with an ACE bandage wrap and ice pack. She
also gave Roach an incident report, which Roach completed
shortly thereafter. Kelley retained a mop and bucket and went
to Room B-7 to clean up the spill. Kelley recalled needing
only one mop swipe to clean the liquid. Although plaintiff
remained in pain, which she described as a "ten" on
a one-to-ten scale, she completed her shift.
the jury heard no direct evidence regarding how the liquid
reached the bathroom floor, the parties presented
circumstantial evidence detailing the possible events leading
to Roach's slip and fall. All staff members, including
nurses, CNAs, and housekeeping, could access B-7 and its
bathroom. Additionally, the Home allowed visitors, who could
access the Home and B-7, including the bathroom.
particular, Heritage Healthcare Company (Heritage or
housekeeping) cleaned the Home's rooms and bathrooms
daily, including on November 10. Housekeepers worked between 7 a.m. and 3
or 3:30 p.m. They cleaned bedside tables, floors, and
bathrooms, including the sink, toilet, and floor. Ms. Thelma
Garcia, the Heritage housekeeper who cleaned the Home on
November 10, cleaned N-7's rooms between 9 a.m. and 11:30
a.m. She was also available after 11:30 through the end of
her shift to respond to any calls to clean spills. The
housekeeping manager, Ms. Maria Depina, inspected each room
daily around 1:30 p.m. Depina testified that her staff used
an orange cleaning solution to clean floors-a color that she
claimed was visible both in the cleaning bottle and on the
floor. Housekeeping kept cleaning products locked in a
closet, which Depina testified only the housekeeping manager
and assistant manager could access. Depina said that she
could not recall whether housekeeping received a call to
clean a spill after the November 10 morning cleaning.
housekeeping, nurses and CNAs also accessed unit bathrooms.
Several nurses and CNAs testified that they accessed the
bathroom during the resident-cleaning process. Generally,
CNAs used one of two resident-cleaning methods: either
Perineal (Peri) Spray and disposable wipes, or a bucket of
soapy water and a washcloth. For the latter method, CNAs washed
residents either bedside or over the toilet. When finished,
the CNAs disposed of excess soapy water in the toilet.
B-7, Kelley testified that CNAs washed Residents 1 and 2
either bedside or over the toilet. If over the toilet, Kelley
said that the CNAs cleaned Resident 1 with Peri Spray, while
if they cleaned him at his bedside, they probably used warm
water and soap. Ms. Ursula Souza, the N-7 LPN on duty before
Roach during the 8 a.m. to 4 p.m. shift, testified that CNAs
always washed B-7 residents at their bedsides. She also noted
that CNAs disposed of washing materials and water in
bathrooms. Additionally, Ms. Patricia Brum, a CNA who worked
in N-7 during Roach's shift, testified that she used the
bathroom to wash out any used urinals. Nurses also accessed
bathrooms to wash their hands.
housekeeping staff left around 3:30 p.m., the nurses cleaned
up spills after this time. Employees, including CNAs,
consistently testified that if a CNA or nurse noticed a
spill, they were responsible for cleaning it up. LPN Souza
and CNA Demello covered Room B-7 during the 8 a.m. to 4 p.m.
shift on November 10. Specifically, Demello cared for
Resident 1 and eight to ten other B-wing residents. Souza
testified that she could not recall seeing liquid on
B-7's floor at the end of her November 10 shift; however,
she also could not recall whether she looked in the bathroom.
She did note, though, that if she saw liquid, she would clean
it up. Demello testified that she clearly remembered seeing
no liquid anywhere in B-7 or its bathroom when she finished
her shift. As a "perfectionist, " Souza stated that
she double-checked her residents and rooms
often. She first noted that she
checked every hour, hour-and-a-half at most, but later
testified that CNAs should check residents every two hours.
Allemand (Al) Morantus assisted one of B-7's residents
during the 4 p.m. to 12 a.m. shift on November 10. He could
not recall whether he cared for both B-7 residents. While he
did not remember a spill that evening, he noted the
importance of cleaning spills, stating, "If you
don't [pick up spilled liquid], any nurses see that, you
can get punished for that. That's why everybody have
[sic] a concern about it." Morantus also noted
that resident care during this shift does not begin until
approximately 6:45 to 7 p.m. Another CNA, Ms. Francisca
Pires, never recalled meeting Roach nor did she recall her
falling that day. She stated that if someone fell, she would
have heard about it or seen an ambulance. When asked whether
she remembered visiting B-7 or hearing reports of spills
between 4 and 5 p.m. on November 10, Kelley replied in the
the jury heard testimony regarding visitor access to the Home
and N-7. Although rare, Kelley testified that some Home
residents have had visitors who could access the Home units
almost any time during the day. Further, Kelley recalled that
she never saw family members visit Resident 1 as he did not
have family. She did not remember visitors for Resident 2,
but she recalled that he had an out-of-state daughter. Souza,
however, testified that Resident 2 occasionally had visitors;
though she could not specifically recall the last time
someone visited. Roach testified that on the evening in
question, she did not observe any visitors between 4 and 5
p.m. and claimed that she would have noticed if anyone
result of the fall, Roach saw numerous physicians, underwent
arthroscopic surgery, and engaged in several months of
physical therapy, both before and after surgery. Although
Roach experienced a torn anterior cruciate ligament (ACL) and
torn meniscus, her surgery addressed only her torn meniscus.
did not resume nurse employment for about three-and-a-half
years. When she resumed work in the fall of 2012, she
modified her schedule from forty hours per week to sixteen.
Although she earned approximately $1, 250 before taxes based
on a forty-hour work week, she earned about $450 before taxes
based on a sixteen-hour work week. After her fall, Roach wore
a brace on her injured knee for assistance and support while
hearing arguments and considering all pending motions, the
trial justice issued a bench decision on April 17, 2014. She
denied the state's Rule 50 motion for judgment as a
matter of law, finding that reasonable minds could differ and
that there was sufficient evidence for a reasonable juror to
side with Roach in terms of liability. Additionally, the
trial justice found the public-duty doctrine inapplicable. In
denying the state's Rule 59 motion for a new trial, she
found her jury charge correct, especially regarding her
rejection of a jury instruction on open and obvious dangers,
comparative negligence, and assumption of risk. Finally, the
trial justice granted the state's request for a
remittitur, reducing the jury's award by $118, 000 to
$382, 000. Approximately $250, 000 in prejudgment interest
was added to this amount, giving Roach a total award of $631,
373.66. On April 30, 2014, the state appealed the judgment.
This opinion sets forth further relevant facts as needed.
Doctrine, Statutory Tort Cap, and Prejudgment
Court reviews pure questions of law under a de novo
standard. Drescher v. Johannessen, 45 A.3d 1218,
1227 (R.I. 2012) (citing Lamarque v. Centreville Savings
Bank, 22 A.3d 1136, 1140 (R.I. 2011)).
for Judgment as a Matter of Law
review of a trial justice's decision on a motion for
judgment as a matter of law is de novo."
McGarry v. Pielech, 47 A.3d 271, 279 (R.I. 2012)
(quoting Medeiros v. Sitrin, 984 A.2d 620, 625 (R.I.
2009)). "The trial justice, and consequently this Court,
must examine 'the evidence in the light most favorable to
the nonmoving party, without weighing the evidence or
evaluating the credibility of witnesses, and draw * * * from
the record all reasonable inferences that support the
position of the nonmoving party.'" Roy v.
State, 139 A.3d 480, 488 (R.I. 2016) (quoting Hough
v. McKiernan, 108 A.3d 1030, 1035 (R.I. 2015)).
"Judgment as a matter of law is appropriate, if, after
conducting this examination, the trial justice
'determines that the nonmoving party has not presented
legally sufficient evidence to allow the trier of fact to
arrive at a verdict in his favor.'"
O'Connell v. Walmsley, 93 A.3d 60, 66 (R.I.
2014) (quoting McGarry, 47 A.3d at 280).
"However, the trial justice must deny the motion and
submit the issues to the jury if there are factual issues on
which reasonable people may draw different conclusions."
Medeiros, 984 A.2d at 625.