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DeLong v. Rhode Island Sports Center, Inc.

Supreme Court of Rhode Island

May 8, 2018

Ian DeLong
Rhode Island Sports Center, Inc., et al.

          Providence County Superior Court Providence County Superior Court (PC 14-611)

          For Plaintiff: Mark B. Morse, Esq.

          For Defendants: Charles F. Gfeller, Pro Hac Vice Stephen Adams, Esq. Jenna Rae Pingitore, Esq.

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



         The plaintiff, Ian DeLong, a former college hockey player, alleged that he inhaled noxious fumes while playing in a game at an arena owned by the defendant DRF Arena, LLC, and operated by the defendant Rhode Island Sports Center, Inc. He claimed that he, along with several other teammates, became ill upon returning to school after a hockey game against Johnson & Wales University at the defendants' arena. The plaintiff alleged that he began coughing up blood the next morning and sought medical treatment. He ultimately brought a negligence suit against the defendants, who filed and prevailed on a motion for summary judgment. The plaintiff timely appealed to this Court.

         This case came before the Supreme Court, sitting at Lincoln High School, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After considering the parties' written and oral submissions, and after reviewing the record, we conclude that cause has not been shown and that this case may be decided without further briefing or argument. For the reasons set forth in this opinion, we vacate the judgment of the Superior Court and return the case thereto for trial.

         I Facts and Travel

         In the complaint that he filed in the Superior Court, plaintiff alleged that on February 17, 2011, defendants negligently maintained their ice rink facility in North Smithfield by allowing noxious fumes to permeate the air. This, according to plaintiff, created a dangerous condition on the premises, and defendants failed to exercise reasonable care or provide adequate warnings. As a result, plaintiff claimed, he became ill with acute respiratory problems, including carbon monoxide and nitrogen dioxide poisoning. The defendants answered, denying that plaintiff was entitled to relief.

         Discovery ensued, and on May 13, 2015, defendants filed a motion for summary judgment. They argued that there were no genuine issues of material fact regarding (1) the existence of a dangerous or defective condition; (2) the notice to defendants of any such condition; and (3) the causal connection between that condition and any injury that may have been sustained by plaintiff. Indeed, defendants maintained that plaintiff had failed to put forth evidence of any of those elements, all of which are necessary to establish a premises liability claim. Therefore, defendants asserted, they were entitled to judgment as a matter of law.

         To support their motion, defendants pointed to plaintiff's deposition statement that he neither saw nor smelled any unusual fumes while playing hockey at defendants' ice rink. They further highlighted the dearth of scientific evidence as to the air quality in the arena on the night of the game. In fact, defendants proffered evidence that the carbon monoxide levels in the facility that night were zero, as demonstrated by the ice rink attendant's twice-daily notation of the air quality reading and the Rhode Island Department of Health's confirmation the following day. Therefore, defendants argued, plaintiff had no proof that there was a dangerous or defective condition present in the arena, thus failing to prove even the first element of his claim.

         Continuing to the remaining elements, defendants maintained that they had no notice, actual or constructive, of any potential defect, even assuming one were to have existed. In making that assertion, they relied on the deposition testimony of two employees: Rick Beauregard, the facilities manager, and David L'Etoile, who was responsible for operating a Zamboni to resurface the ice before, during, and after games.[1] Each stated that he was not aware of any complaints ever having been made regarding noxious fumes, and L'Etoile attested that he never observed or smelled any fumes while resurfacing the ice rink. Finally, as to causation, defendants underscored plaintiff's own deposition statements. The plaintiff admitted that, despite his assumption and belief that it was noxious fumes within the arena that caused his injury, he could not say with complete certainty what it was that made him fall ill. And, according to defendants, even if plaintiff were to prove that he was exposed to airborne toxins, he had no evidence that that exposure occurred on defendants' premises.

         The plaintiff opposed defendants' motion for summary judgment. By way of background, he explained that, after a game between his team, Curry College, and Johnson & Wales University at defendants' ice rink, "[p]laintiff and a large number of his teammates suffered respiratory illnesses" from nitrogen dioxide, a toxin that can be emitted by Zambonis. On the night in question, the Curry College hockey team traveled to the game by bus, and plaintiff said he detected no fumes during the ride. Once at the rink, the team went into the visitors' dressing room, outside of which were situated two propane-fueled Zambonis; one was stored out in the open next to the locker room, the other in a garage near the locker room. One of those Zambonis was used to resurface the ice between the first and second periods, between the second and third periods, and at the end of the game. After the game, the team remained in the rink for a little over half an hour before returning to Curry College on the same bus that had transported them to the rink. Later that evening, one of plaintiff's teammates asked plaintiff- who himself was already coughing-to bring him to the hospital because he was coughing up blood. By the next morning, plaintiff, too, was coughing up blood and he went to the emergency room. A number of plaintiff's teammates reportedly also experienced the same symptoms. At the hospital, the plaintiff was diagnosed with an acute lung injury resulting from carbon monoxide and nitrogen dioxide poisoning.

         The plaintiff responded to defendants' summary-judgment arguments with evidence of his own. In terms of proof of a defect, and to rebut defendants' contention that the Department of Health air quality report was dispositive of the issue, plaintiff offered a regulation showing that the Department of Health does not require testing for nitrogen dioxide and that it does not do so itself. Furthermore, the arena was not tested for carbon monoxide by the Department of Health until the next day, and simply opening doors or windows can properly ventilate a facility and improve air quality, as James Bruckshaw, an official from the department, acknowledged in his deposition. The plaintiff also provided an affidavit from the head coach of his hockey team, Robert Davies. Coach Davies submitted that, based on a lifetime spent in ice rinks, he can immediately discern air quality when entering a rink. He said that, upon walking into defendants' facility on February 17, 2011, he could smell some kind of gas. In addition, Coach Davies noted that the Zamboni broke down while it was resurfacing the ice during an intermission, causing a delay in the action. He further swore that this Zamboni produced a gaseous odor that progressively worsened over time and that it "released a thick blue film that permeated the air." Coach Davies thereafter heard several of his players begin to cough. In that regard, plaintiff produced affidavits from two of his teammates who recounted smelling gas in the air inside the arena and experiencing symptoms similar to plaintiff's upon returning to Curry College. And lastly, as further evidence of the presence of a dangerous or defective condition, plaintiff pointed to defendants' purchase of a new ...

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