Stephanie Flynn et al.
Nickerson Community Center et al.
Providence County Superior Court (PC 13-4669) Richard A.
Licht Associate Justice
Plaintiffs Angelo R. Simone, Esq. John E. Sylvia, Esq.
Michael St. Pierre, Esq.
Defendant Rajaram Suryanarayan, Esq. Kevin N. Rolando, Esq.
Present Suttell, C.J., Flaherty, Robinson, and Indeglia, JJ.
Gilbert V. Indeglia Associate Justice
plaintiffs, Stephanie Flynn and Louis Silva, individually and
in their capacity as co-administrators of the Estate of
Alexis Silva (Alexis), and Stephanie Flynn (Flynn) and Dennis
Coelho, individually and as parents, natural guardians, and
next friends of Nevaeha Coelho (Nevaeha) (collectively
plaintiffs), appeal from the Providence County Superior Court
hearing justice's grant of summary judgment in favor of
the defendant, Nickerson Community Center (Nickerson or
defendant). This appeal arises from a tragically fatal car
accident in Providence caused by a juvenile after he stole a
van from Nickerson's premises. The plaintiffs
subsequently brought a negligence action against Nickerson.
After a summary judgment hearing, the hearing justice granted
the defendant's motion on the grounds that the defendant
did not owe a duty to the plaintiffs. On appeal, the
plaintiffs argue that genuine issues of material fact remain
in dispute, and therefore the hearing justice erred in
concluding that the defendant did not owe a duty to the
plaintiffs. For the reasons set forth in this opinion, we
affirm the judgment of the Superior Court.
September 25, 2010, a fourteen-year-old boy stole a red
transport van-emblazoned with "Nickerson Community
Center" on its side-and took it for a joyride, hitting a
car on Manton Avenue in Providence and fleeing the scene in
the vehicle. Next, attempting to evade police, the juvenile
sped onto Route 10 heading southbound, by way of Westminster
Street. The juvenile drove faster, headed toward Union
Avenue, striking a black Honda. The van then crossed over
into the northbound side of the expressway, colliding with a
was driving the silver Nissan, and three passengers were in
the car, including her two minor daughters, Nevaeha and
Alexis. After the vehicle was hit by the red van, Alexis
sustained fatal injuries, and Flynn and Nevaeha were
transported to the hospital with severe injuries.
that day, Providence police officers responded to a report of
a breaking and entering at Nickerson, which is a nonprofit
organization located in the Olneyville section of Providence.
The organization provides social services to residents in the
area, including day care, after-school programs, and services
for veterans; the building also houses a food pantry and
clothing donation center. At the time of the break-in,
Nickerson was closed for the weekend.
the police officers arrived at the property, a Nickerson
employee, Kingray Rojas, met them. Rojas told the police that
a rear window screen had been broken and an individual had
entered the building. Rojas stated that the person had gone
into an office and rummaged through a cabinet that had been
left open. Additionally, Rojas told police, the thief had
taken the keys to the van that were stored on a hook on a
closet door and had stolen the van, later identified as the
red van involved in the Route 10 accident. The juvenile was
subsequently charged in the Family Court.
September 18, 2013, plaintiffs filed a complaint alleging
negligence in Providence County Superior Court against
Nickerson and Aetna Bridge Company. The plaintiffs contended
that Nickerson owed a duty of care to them and that it
breached its duty by failing to secure the van's keys.
Nickerson filed a third-party complaint against the juvenile
9, 2015, Nickerson filed a motion for summary judgment,
arguing that it did not owe a duty to plaintiffs because it
did not have a special relationship either with plaintiffs or
with the juvenile who stole the van and caused the accident.
In support of its motion, Nickerson submitted, inter
alia, an affidavit from Lisa D'Ambra, the
then-President of Nickerson's Board of Directors and
acting Executive Director at the time of the 2010 incident.
In the affidavit, D'Ambra stated that Nickerson had been
closed during the September break-in and that the juvenile
had gained access to the building by breaking a window screen
and "forc[ing] open a window." The affidavit also
described Nickerson employees' observations of the
building after the break-in as "ransacked" in
areas. Further, D'Ambra attested to the fact that the van
keys were always kept in a closet in Nickerson's
reception area when they were not being used. She also stated
that no Nickerson-owned vehicle had ever been stolen prior to
response, plaintiffs submitted their opposition to
Nickerson's motion for summary judgment, supporting it
with various exhibits, including two conflicting statements
from the juvenile: one statement that he had made to a Rhode
Island State Police detective shortly after the accident, and
one statement that he had made to a Department of Children,
Youth and Families (DCYF) social worker more than a month
after the accident, neither of which was a sworn statement.
In his interview with the detective, the juvenile said that
an unidentified Nickerson employee had told him where the van
keys were located inside the building. Then, when the
juvenile was assessed by the social worker as part of a court
evaluation, he contended that he had seen the keys in the
van's ignition, prompting him to steal it.
plaintiffs also attached to their objection numerous police
reports evidencing unrelated criminal activity at the
Nickerson property. The plaintiffs argued that this
documentation of rampant crime, particularly break-ins at
Nickerson and reports of vehicles broken into and stolen from
Nickerson's premises gave Nickerson notice that the theft
of the van and subsequent fatal motor vehicle accident were
possible. Additionally, plaintiffs submitted that the
deposition of Mario Cabral, a Nickerson employee for sixteen
years, revealed that, prior to this incident, Nickerson vans
had been vandalized, including broken windows and stolen
plaintiffs provided evidence of Nickerson's security
protocols in an attempt to demonstrate that, had those
policies been followed, there would have been no way for the
juvenile to access the keys. For example, in a witness
statement to police, Betty Ann Palmisciano, a board member at
Nickerson, explained that the van keys were stored in the
reception area of the building in "a closet with a lock
box." In her deposition, D'Ambra also
described this policy, stating that the reception area itself
was also locked at the end of the night, in an effort to
prevent the keys from ending up with the wrong person.
February 23, 2016, the hearing justice heard arguments on
defendant's motion for summary judgment, and he
ultimately granted the motion. The hearing justice
highlighted the parties' different versions of events
that purportedly occurred on the day of the accident. The
defendant, the hearing justice acknowledged, maintained that
the building was locked on the day in question and that the
juvenile broke in and stole the van keys from a closet
located in an "employee's [sic] only"
area. Then, defendant averred, the juvenile used those keys
to access the van parked in the parking lot, and he drove the
van off the premises.
plaintiffs countered defendant's rendition of the events,
asserting that there were at least three plausible
scenarios that might have occurred before the
juvenile caused the accident on Route 10. The three scenarios
are as follows: (1) a Nickerson employee informed the
juvenile where he could find the keys, which is what the
juvenile told police after the accident; (2) Nickerson could
have failed to follow its security protocols in the building,
which would have allowed the juvenile easier access to the
keys inside the building; or (3) a Nickerson employee could
have left the keys in the van's ignition.
the hearing justice recognized that a motion for summary
judgment can only be based on admissible evidence. He first
focused on determining whether defendant owed a legal duty to
plaintiffs. The hearing justice concluded that there was no
special relationship between Nickerson and plaintiffs or
between Nickerson and the juvenile. The hearing justice also
determined that there was no evidence that the keys were made
available to the juvenile.
even assuming that the keys had been left in the van's
ignition, the hearing justice declined to expand the current
duty that vehicle owners owe to the public, absent this
Court's extension of existing case law or the adoption of
new legislation. Accordingly, the hearing justice ruled that,
because there was no relationship between Nickerson and the
juvenile, Nickerson had no duty to control the juvenile's
actions, and the theft "was an unforeseeable independent
cause of [p]laintiff[s'] harm." Consequently, the
hearing justice granted Nickerson's motion for summary
plaintiffs timely appealed to this Court.
appeal, plaintiffs first contend that there are a number of
genuine issues of material fact that must be resolved by a
jury. The plaintiffs posit three factual scenarios that
arguably could have been catalysts for the van theft, and
they argue that there are factual issues as to whether
Nickerson violated its security policies and whether one of
its employees informed the juvenile of the keys'
location. Additionally, plaintiffs maintain that the juvenile
stated at one point that the keys were in the van's
ignition when he stole it. Therefore, plaintiffs urge this
Court to adopt a test used in some other jurisdictions that
imposes a duty on defendants who leave their keys in their
vehicle's ignition, eventually resulting in an accident,
when other factors are at issue, such as location in a
defendant counters that only one of the three factual
scenarios proposed by plaintiffs is supported by admissible
evidence: that the juvenile broke into Nickerson's
building through a back window, stole the van keys from
inside a closet, and then stole the red van. Alternatively,
defendant avers that, even if this Court considers
plaintiffs' other factual scenarios, Rhode Island law
does not support the existence of a legal duty in those
situations. Furthermore, defendant argues that Rhode
Island's negligence case law does not support the
adoption of the "special circumstances" test used
by other jurisdictions and promoted by plaintiffs in this
appeal. Additionally, defendant contends that, even if there
were a duty, there is no evidence that Nickerson proximately
caused plaintiffs' injuries.
reviewing the granting of a motion for summary judgment, this
Court engages in a de novo review, 'apply[ing]
the same standards and rules as did the motion
justice.'" Danforth v. More, 129 A.3d 63,
68 (R.I. 2016) (quoting Narragansett Indian Tribe v.
State, 81 A.3d 1106, 1109 (R.I. 2014)). Although
"summary judgment is a drastic remedy, it is
nevertheless appropriate when, 'viewing the facts and all
reasonable inferences therefrom in the light most favorable
to the nonmoving party, the court determines that there are
no issues of material fact in dispute, and the moving party
is entitled to judgment as a matter of law.'"
DePasquale v. Cwiek, 129 A.3d 72, 75 (R.I. 2016)
(quoting Pichardo v. Stevens, 55 A.3d 762, 765 (R.I.
2012)). Generally, "claims sounding in negligence are
appropriately resolved through a trial, but summary
adjudication is proper when the 'facts suggest only one
reasonable inference.'" Cruz v. DaimlerChrysler
Motors Corp., 66 A.3d 446, 451 (R.I. 2013) (quoting
DeMaio v. Ciccone, 59 A.3d 125, 130 (R.I. 2013)).
"[W]e will not hesitate to affirm a grant of summary
judgment if the ...