Providence County Superior Court No. 13-5924 Associate
Justice Richard A. Licht
For
Plaintiff: Rondal J. Resmini, Esq.
For
Defendant: Douglas L. Price, Esq. Matthew Ryan O'Connor,
Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
Indeglia, JJ.
OPINION
Maureen McKenna Goldberg, Associate Justice
This
case came before the Supreme Court on December 5, 2017,
pursuant to an order directing the parties to appear and show
cause why the issues raised in this appeal should not be
summarily decided. The plaintiff, Karen Dent (plaintiff or
Dent), appeals from a final judgment granting the motion of
the defendant, PRRC, Inc. d/b/a Price Rite (defendant or
Price Rite), for summary judgment on count one of the
plaintiff's complaint, and also granting the
defendant's motion to dismiss the remaining four counts.
After hearing the arguments of counsel and examining the
memoranda submitted by the parties, we are of the opinion
that cause has not been shown and that this case should be
decided without further briefing or argument. We affirm in
part and vacate in part the judgment of the Superior Court.
Facts
and Travel
On
August 22, 2012, plaintiff was shopping with her husband at
the Price Rite store located at 325 Valley Street in
Providence. The plaintiff's husband placed two bottles of
a beverage identified as Sunny Delight[1] into their
shopping cart. The product was displayed in aisle six of the
store, and plaintiff then separated from her husband to
locate a restroom. Shortly thereafter, plaintiff returned to
aisle six in search of her husband, but she slipped on a
"brownish oily substance" and was immobilized.
Meanwhile, a porter[2] was mopping up liquid in an adjacent
aisle.[3] Coincidentally, plaintiff's husband
noted that one of the bottles of Sunny Delight in his
shopping cart had been leaking, and that some of the contents
of the bottle had spilled out as he continued to shop.
David
Walmsley (Walmsley), a store manager at Price Rite, testified
at a deposition that the Sunny Delight bottles arrive at the
store in boxes and are then transported on pallets to the
area of the store where they will be displayed. Also, Jeffrey
Sparfven (Sparfven), a former Price Rite manager, testified
at his deposition that the boxes arrive from the warehouse
shrink-wrapped in cellophane and are unwrapped and inspected
by a manager to verify that the quantity and quality of the
items are correct.[4] According to Sparfven, the receiving
manager then shrink-wraps the boxes and places them in
storage until they are needed, at which point a store
employee once again removes the shrink-wrap with a box
cutter. Walmsley also testified that, typically, fifty boxes
of Sunny Delight, with eight bottles in each box, are stacked
on top of each other on the wooden pallet. According to
Walmsley, none of the Price Rite employees are asked to
inspect products for defects before they are sold in the
store. Finally, Walmsley explained that the store's
protocol for spills is: "If [an employee] see[s]
something on the floor, the protocol is for them to stand at
that spot until they can get [the] attention of a porter, and
they stay there until the porter arrives."
On
November 20, 2013, plaintiff filed a three-count complaint
against defendant; she subsequently amended that complaint in
February 2016. The amended complaint consisted of five
counts: negligence; breach of contract; "mode of
operation"; failure to warn; and breach of the implied
warranties of merchantability, fitness for use, and fitness
for a particular purpose. Prior to the filing of
plaintiff's amended complaint, defendant had moved for
summary judgment on the negligence claim, arguing that Price
Rite could only be liable under a theory of negligence if it
knew or should have known that the dangerous condition
existed for a sufficient period of time within which to
remedy the dangerous condition, and that not enough time had
elapsed such that defendant could be liable under the theory
of constructive notice. The plaintiff objected to the motion
for summary judgment, arguing that defendant had to have
known of the dangerous condition because a porter was
cleaning up the spill, and that there was no question that
the bottle was defective. After a hearing, the trial justice
granted defendant's motion with respect to the negligence
count, stating:
"[A] plaintiff who has fallen must present evidence to
prevail against the owner of the premises showing that he or
she fell because of an unsafe condition on the premises of
which the defendant was or should have been aware and that
the condition existed for a long enough period of time so the
owner or occupier of the premises should have taken steps to
correct the condition * * *.
"Dent has failed to show that there was any notice given
to the defendant. * * * [O]bviously it wasn't so
obvious that it would call attention to somebody."
(Emphasis added.)
After
plaintiff was granted leave to file an amended complaint,
defendant moved to dismiss the remaining counts under Rule
12(b)(6) of the Superior Court Rules of Civil Procedure. In
its motion, defendant argued that: (1) because the parties
were not in a contractual relationship, the
breach-of-contract claim should be dismissed; (2) mode of
operation is not a cause of action, but merely a means of
proving notice with respect to negligence, a count which had
already been dismissed; (3) the duty-to-warn claim should
fail because the court had already decided that Price Rite
did not have notice of the leaking bottle; and (4) the
breach-of-warranty claims should be dismissed because no sale
had occurred. In response to defendant's motion,
plaintiff filed a motion for reconsideration of the order
granting summary judgment, [5] and also moved for summary
judgment under a theory of strict product liability. A
hearing was held in March 2016 on defendant's motion to
dismiss the remaining counts, plaintiff's Rule 60 motion,
and plaintiff's motion for summary
judgment.[6] The trial justice granted defendant's
motion to dismiss counts 2 through 5 of plaintiff's
complaint, and accordingly denied both of plaintiff's
motions. The plaintiff timely appealed.
On
appeal, plaintiff argues that the question of whether
defendant knew or should have known of the dangerous
condition from the broken bottle is a disputed issue of
material fact, and therefore summary judgment should not have
been granted. As to her breach-of-contract claim, plaintiff
argues that defendant has a responsibility to maintain the
property in a safe manner for its intended business invitee
guests. Turning to the mode-of-operation count, plaintiff
argues that this Court should adopt mode of operation as a
distinct cause of action. As to her failure-to- warn claim,
plaintiff argues that a retailer has a duty to warn consumers
of dangerous or defective conditions that it knows of, or
reasonably should have known of, and therefore the trial
justice erred in dismissing this claim. Finally, plaintiff
contends that her breach-of-warranty claims were properly
pled; she therefore asks this Court to reverse the trial
justice and enter summary judgment in her favor on this
count. We address these issues seriatim.
Standard
of Review
This
Court reviews a trial justice's decision granting summary
judgment de novo. See Sola v. Leighton, 45 A.3d 502,
506 (R.I. 2012); Lynch v. Spirit Rent-A-Car, Inc.,
965 A.2d 417, 424 (R.I. 2009). It is well established that
"[s]ummary judgment is a drastic remedy, and a motion
for summary judgment should be dealt with cautiously."
Cruz v. DaimlerChrysler Motors Corp., 66 A.3d 446,
451 (R.I. 2013) (quoting DeMaio v. Ciccone, 59 A.3d
125, 129 (R.I. 2013)). Moreover, "[s]ummary judgment is
appropriate only when the 'pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as [a] matter of law.'"
Sola, 45 A.3d at 506 (quoting Plunkett v.
State, 869 A.2d 1185, 1187 (R.I. 2005)). This Court has
held that "complaints sounding in negligence generally
are not amenable to summary judgment and should be resolved
by fact finding at the trial court * * *." Berard v.
HCP, Inc., 64 A.3d 1215, 1218 (R.I. 2013); see
Martin v. Marciano, 871 A.2d 911, 915 (R.I. 2005).
In
passing on a Rule 12(b) motion to dismiss, "this Court
applies the same standard as the trial justice."
Narragansett Electric Co. v. Minardi, 21 A.3d 274,
278 (R.I. 2011). "We thus are confined to the four
corners of the complaint and must assume all allegations are
true, resolving any doubts in plaintiff's favor."
Id. Additionally, "[a] motion to dismiss may be
granted only 'if it appears beyond a reasonable doubt
that a plaintiff would not be entitled to relief under any
conceivable set of facts[.]'" Id. (quoting
Estate of Sherman v. Almeida, 747 A.2d 470, 473
(R.I. 2000)).
Analysis
Negligence
It is
well-settled jurisprudence that "to prevail on a claim
of negligence 'a plaintiff must establish a legally
cognizable duty owed by a defendant to a plaintiff, a breach
of that duty, proximate causation between the conduct and the
resulting injury, and the actual loss or damage.'"
Habershaw v. Michaels Stores, Inc., 42 A.3d 1273,
1276 (R.I. 2012) (quoting Holley v. Argonaut Holdings,
Inc., 968 A.2d 271, 274 (R.I. 2009)). Specifically, with
respect to a slip-and-fall claim, a plaintiff "must
present evidence of an unsafe condition on the premises of
which the defendant was aware or should have been aware, and
that the condition existed for a long enough time so the
owner of the premises should have taken steps to correct
[it]." Id. (quoting Bromaghim v.
Furney, 808 A.2d 615, 617 (R.I. 2002)); see also
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