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Kemp v. PJC of Rhode Island, Inc.

Supreme Court of Rhode Island

June 6, 2018

Charles Kemp
v.
PJC of Rhode Island, Inc., d/b/a Rite Aid of Rhode Island, Inc., et al.

          Providence County Superior Court (PC 15-2153) Joseph A. Montalbano Associate Justice.

          For Plaintiff: Ronald J. Resmini, Esq.

          For Defendants: Darryl Dayian, Esq. Lauren D. Wilkins, Esq. Gregory A. Carrara, Esq. Dennis S. Baluch, Esq.

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

          OPINION

          Gilbert V. Indeglia Associate Justice.

         The plaintiff, Charles Kemp (plaintiff or Kemp), appeals from a Providence County Superior Court grant of summary judgment in favor of one of the defendants, PJC of Rhode Island, Inc., d/b/a Rite Aid of Rhode Island, Inc. (Rite Aid), in a slip-and-fall action. Additionally, in these consolidated appeals, the plaintiff appeals from a denial of his motion for a new trial granted in favor of defendants Riverside Plaza Associates, LP (Riverside), which owned the shopping center where the Rite Aid was located, and Venditelli & Sons, Inc. (Venditelli).[1] This case came before the Supreme Court on May 9, 2018, pursuant to an order directing the parties to appear and show cause why the issues raised in these appeals should not be summarily decided. After hearing the parties' arguments and reviewing their memoranda, we are satisfied that cause has not been shown. Accordingly, we shall decide these appeals at this time without further briefing or argument. For the reasons set forth herein, we affirm the order and judgment of the Superior Court in these appeals.

         I

         Facts and Travel

         On February 5, 2014, the plaintiff drove his truck to a Rite Aid store in East Providence while it was snowing. After parking his truck in the lot, he walked into the store to buy cigars. Then, returning to his truck, he located a prescription, and he went back to the store.[2] It was during this second venture back to the store that he tripped and fell over a cement parking stop located in front of his truck in the parking lot. As a result, Kemp injured his right knee, requiring hospitalization, nursing home care, and physical therapy.

         At his deposition, Kemp recalled tripping in the parking lot:

"I pulled [my truck] in head first * * * and there was a big pile of snow on the left so that, you know, there's kind of a walk space between the cars, and because of that big pile of snow, I had to move a little more to the right when I parked the car because the space was narrowed down. * * * [T]hey have those concrete things * * * I had to move over that way, and part of it was sticking out, and I was squeezing * * * this little path like that. * * * I went in the store and I must have just missed the thing because it was just hanging out maybe that much on the side, * * * which if I had been able to park the car where I should, it would be more over to the left."

         At trial, Kemp testified that the pile of snow was "[p]robably five [feet] high" and about fifteen feet wide.

         Keith Reed, an employee of Riverside, explained in his deposition that, in 2013 and 2014, he was responsible for "snowblow[ing] with the snowblower all the sidewalks [at the shopping center], and then * * * put[ting] salt down and clear[ing] the entrances to all the stores." Moreover, Reed stated that he put salt down on sidewalks and any paths that he shoveled, including the pathways in between the parking stops in front of Rite Aid. Additionally, for the 2013-2014 winter season, Riverside had hired Venditelli to perform snow removal at the shopping center, which included the Rite Aid store. At trial, the owner of Venditelli, Andrew Venditelli, testified that the snow pile Kemp had described as about five feet tall was actually only "[m]aybe two to three feet" high.

         On May 21, 2015, Kemp filed a complaint against defendants Rite Aid, Riverside, and Venditelli, alleging negligence. On October 2, 2015, Rite Aid moved for summary judgment, contending that it owed no duty of care to plaintiff.

         As the basis for its argument, Rite Aid pointed to a section in its lease agreement with Riverside-the owner of the property where the store was located-which provided as follows:

"Landlord shall, at its sole cost and expense (subject to the following paragraph), keep and maintain the Common Areas in good condition and repair, including but not limited to, restriping (when necessary); repairing and replacing paving and the substrata thereof (Landlord hereby agreeing that it will repave the Common Areas at least once every ten (10) years); keeping the Common Areas properly policed, drained, free of snow, ice, water, rubbish and obstructions, and in a neat, clean, orderly and sanitary condition; * * * and maintaining any plantings and landscaped areas. Landlord shall begin to remove accumulated snow and ice from the Common Areas and diligently prosecute the removal thereof. Landlord may deposit accumulated ice and snow on portions of the non-exclusive parking areas and other parts of the Common Areas to the extent necessary under the circumstances, but in no event shall any such deposit materially interfere with or otherwise materially disrupt Tenant's use of the Premises, the visibility of the premises from Willett Avenue, and/or the operation of the Tenant's business." (Emphasis added.)

         After a hearing on the matter on January 26, 2016, the hearing justice granted Rite Aid's summary-judgment motion. However, no final judgment entered pursuant to Rule 54(b) of the Superior Court Rules of Civil Procedure; and, on September 6, 2016, the eve of trial, Rite Aid filed a motion for judgment as a matter of law pursuant to Rule 50 of the Superior Court Rules of Civil Procedure, relying on the same grounds that were ...


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