Tara J. Cancel, as Administratrix of the Estate of Ira Lukens
City of Providence et al.
Providence County Superior Court (PC 15-4204) Associate
Justice Maureen B. Keough
Plaintiff: Andrew O. Resmini, Esq. Ronald J. Resmini, Esq.
Defendants: Jillian H. Barker, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
SUTTELL, CHIEF JUSTICE
plaintiff, Tara J. Cancel (Cancel), as Administratrix of the
Estate of Ira Lukens (Lukens), appeals from a Superior Court
summary judgment entered in favor of the defendants, the City
of Providence and various city officials (collectively the
city). Cancel asserts that there remain genuine
issues of material fact regarding whether the city knew of
the dangerous condition of a pothole on a street in Roger
Williams Park (the park) and whether it "willfully
and/or maliciously failed to warn" of the pothole, which
would strip the city of the protection against liability
afforded under Rhode Island's Recreational Use Statute,
G.L. 1956 chapter 6 of title 32 (RUS). This case came before
the Supreme Court pursuant to an order directing the parties
to appear and show cause why the issues raised in this appeal
should not be summarily decided. After considering the
parties' written and oral submissions and 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 herein, we affirm the
judgment of the Superior Court.
Facts and Procedural History
9, 2014, Lukens was thrown from his bicycle after striking a
pothole on a road in the park. Cancel filed a complaint on
September 28, 2015, wherein she alleged that Lukens suffered
serious personal injuries as a result of the city's
negligence in maintaining the park. Cancel subsequently filed
an amended complaint alleging, in addition to negligence,
willful and/or malicious failure to warn, inspect, and/or
repair the roadway within the park. The amended complaint
further asserted that the city's conduct was a direct and
proximate cause of Lukens' injuries.
January 20, 2017, the city filed a motion for summary
judgment. The matter was argued in the Superior Court on
April 19, 2017, after which the hearing justice deferred her
ruling so that Cancel could depose the Superintendent of the
City of Providence's Department of Parks. The matter was
heard again on July 17, 2017, and the hearing justice
thereafter granted the city's motion for summary
judgment. Judgment entered on August 11, 2017. Cancel filed a
timely notice of appeal.
Standard of Review
Court will review the grant of a motion for summary judgment
de novo, employing the same standards and rules used
by the hearing justice." Newstone Development, LLC
v. East Pacific, LLC, 140 A.3d 100, 103 (R.I. 2016)
(quoting Daniels v. Fluette, 64 A.3d 302, 304 (R.I.
2013)). "We will affirm a [trial] court's decision
only if, after reviewing the admissible evidence in the light
most favorable to the nonmoving party, we conclude that no
genuine issue of material fact exists and that the moving
party is entitled to judgment as a matter of law."
Id. (quoting Daniels, 64 A.3d at 304).
"Furthermore, 'the nonmoving party bears the burden
of proving by competent evidence the existence of a disputed
issue of material fact and cannot rest upon mere allegations
or denials in the pleadings, mere conclusions or mere legal
opinions.'" Id. (quoting Daniels,
64 A.3d at 304). "[S]ummary judgment should enter
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case * * *." Id. (quoting
Lavoie v. North East Knitting, Inc., 918 A.2d 225,
228 (R.I. 2007)).
argues that genuine issues of material fact exist as to
whether the city "knew of the dangerous condition and
willfully and/or maliciously failed to warn against it."
Under § 32-6-3,
"an owner of land who either directly or indirectly
invites or permits without charge any person to use that
property for ...