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Roach v. State

Supreme Court of Rhode Island

April 18, 2017

Victoria Roach
State of Rhode Island et al.

         Providence County Superior Court (PC 09-4465) Associate Justice Patricia A. Hurst.

          For Plaintiff: Brian R. Cunha, Esq.

          For 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 Indeglia, JJ.


          Gilbert V. Indeglia Associate Justice.

         This 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, the state).

         The 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, 373.66.

         The 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.


         Facts and Travel



         The Veterans Home serves as a nursing home for many of Rhode Island's veterans.[1]Statutorily 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.

         Of 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.[2] As such, a charge nurse, [3] a staff nurse, [4] and several Certified Nursing Assistants[5] (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 a.m.

         At the start of a 4 p.m. shift, CNAs went directly to their respective room assignments and checked whether residents needed washing or changing.[6] 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.


         The Accident

         On 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[7] 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.

         Roach 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.[8] 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 room.

         Roach 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.

         Walking 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.[9] 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 way down.

         While 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.

         At the 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.


         Bathroom Access

         While 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.

         In particular, Heritage Healthcare Company (Heritage or housekeeping) cleaned the Home's rooms and bathrooms daily, including on November 10.[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.

         Beyond 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.[11] 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.

         Regarding 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.

         Because 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.[12] 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.

         CNA Mr. 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 negative.[13]

         Finally, 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 visited.


         The Aftermath

         As a 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.

         Roach 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 working.

         After 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.


         Standards of Review


         Public-Duty Doctrine, Statutory Tort Cap, and Prejudgment Interest

         This 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)).


         Motion for Judgment as a Matter of Law

         "Our 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.


         Jury ...

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