Raymond Oliver et al.
Narragansett Bay Insurance Company et al.
Newport County Superior Court (NC 13-59) Walter R. Stone
Plaintiffs: Thomas M. Dickinson, Esq.
Defendants: Joseph A. DiMaio, Esq. George M. Trutza, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
A. SUTTELL CHIEF JUSTICE.
case originates with the tragic death of four-year-old
Nicholas Gear, who drowned in a swimming pool owned by his
grandmother, Laura Gear (Gear), on May 27, 2012. His parents,
the plaintiffs Raymond Oliver and Tiffany Gear (plaintiffs),
appeal from a judgment of the Superior Court granting summary
judgment in favor of the defendant, NAMCO, LLC (NAMCO or
defendant), the company that sold the swimming pool to Gear.
On appeal, the plaintiffs argue that genuine issues of
material fact exist as to whether: (1) NAMCO negligently
failed to warn Gear about the safety features of the pool
ladder and its locking mechanism; (2) Gear considered the
installer to be NAMCO's agent; and (3) NAMCO negligently
failed to properly vet and supervise the installers listed on
a document given to purchasers of pools. For the reasons set
forth in this opinion, we vacate the judgment of the Superior
March 19, 2012, Gear purchased an above-ground swimming pool
and accompanying "'Slide & Lock' A-Frame
Pool Ladder" from a NAMCO store in Seekonk,
Massachusetts. Gear returned to the store on April 4, 2012,
to pay the remaining balance on the pool. While she was at
the store on that date, Gear inquired as to how to have the
pool installed at the property where she resided in
Portsmouth, Rhode Island. A NAMCO employee provided Gear with
a document entitled "Swimming Pool Installation
Information," which listed several pool-installation
companies and installation prices based on the size of the
pool. On the opposite side of the list of
installers, the document read, in part:
"The attached list of swimming pool installers and their
prices is provided for customer convenience. Proper pool
installation is important to the long-term enjoyment of your
pool and the choice of installer is the customer's right.
NOTE: YOU ARE UNDER NO OBLIGATION TO USE ANY OF THE
INSTALLERS ON THIS LIST AND WE ENCOURAGE YOU TO RESEARCH YOUR
DECISION THOROUGHLY." (Emphasis in original.)
deposition, Gear testified that, after receiving the
document, she was under the impression that the installers
listed "were subcontractors that worked for themselves,
but Namco ha[d] used them. And, I guess, they have a
relationship * * * that's the impression I got."
calling two or three pool installers on the list without
success, Gear contacted Lot-2 Enterprises (Lot-2). Gear spoke
to Mary Dominique, one of the co-owners of Lot-2, to set up
the pool installation. Lot-2 requested that Gear obtain written
permission for the installation from the owner of the
property, Paul Seddon (Seddon), which Gear provided to the
company. Additionally, Lot-2 sent Gear a contract for the
pool installation in the mail, which was signed on the day of
21, 2012, Lot-2 installed the pool. John Dominique, owner and
primary contractor of Lot-2, testified at his deposition that
he did not ask Gear to see a building permit prior to the
pool installation, but "thought [he] saw [a permit] in
the window" of the house. As to the installation
process, Gear testified at her deposition that the installers
dug an area for the pool, set the pool in the ground, began
filling the pool with water, and then instructed Gear to
"check [the water] and shut it off at night." Gear
testified that she understood that the company installed only
the pool itself, and not the ladder or the fencing
surrounding the pool. A valid permit to install the pool was
never obtained by the installer, Seddon, or Gear. The
following day, a friend of Gear's assembled the ladder.
Both the swimming pool and the safety ladder were packaged
with instructions from the manufacturer.
27, 2012, Nicholas was left in Gear's care. That morning,
Gear departed her house to do errands, leaving her then
fourteen-year-old daughter to look after Nicholas. While Gear
was away from the premises, Nicholas gained access to the
pool and drowned.
plaintiffs filed a complaint in Superior Court on February 1,
2013, which was subsequently amended to include negligence
claims against five defendants, including Seddon's
insurance companies,  NAMCO, and John and Mary Dominique
(collectively, defendants). The plaintiffs alleged, in part,
that defendants negligently installed or allowed the pool to
be installed without proper permitting and in violation of
Portsmouth town ordinances, the Rhode Island building code,
and Rhode Island Department of Health regulations. The
plaintiffs further alleged that defendants negligently
installed the safety ladder.
September 3, 2015, NAMCO filed a motion for summary judgment,
arguing that, because NAMCO did not install the pool or the
ladder, and because Lot-2 was not its agent, NAMCO had no
duty to plaintiffs regarding installation of the pool.
Furthermore, NAMCO asserted, plaintiffs could not prove that
its actions were the proximate cause of Nicholas's death.
The plaintiffs filed an objection to NAMCO's motion,
arguing that a question of fact existed as to whether Lot-2
acted with apparent or inherent agency authority on behalf of
NAMCO. Moreover, plaintiffs contended that NAMCO
had "failed in its duty to warn Gear of the dangers of
not utilizing the sliding safety lock mechanism and safety
padlock system" of the ladder.
hearing on defendants' motions for summary judgment was
held on February 1, 2016. At the hearing, plaintiffs
additionally argued that "NAMCO did nothing to vet Lot 2
Enterprises[, ]" and further that "NAMCO owns the
list that was given and Lot 2 was on the list." The
hearing justice commented that plaintiffs were "skating
on thin ice when this comes to NAMCO." At the conclusion
of the hearing, the hearing justice denied the motions for
summary judgment as they related to the four other
defendants. The hearing justice stated that he was
"really close to granting summary judgment for
NAMCO," but he reserved judgment on the motion until a
later date. On June 6, 2016, while hearing arguments on
unrelated motions, the hearing justice revisited NAMCO's
motion for summary judgment. The hearing justice stated that,
after reviewing his notes regarding NAMCO's motion for
summary judgment, he "thought [he] made a mistake"
in not granting the motion in the first instance. Then, with
little or no explanation, he granted NAMCO's motion for
summary judgment. Final judgment in favor of NAMCO entered on
June 28, 2016, and plaintiff timely appealed.
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." Cancel v. City of
Providence, 187 A.3d 347, 349 (R.I. 2018) (quoting
Newstone Development, LLC v. East Pacific, LLC, 140
A.3d 100, 103 (R.I. 2016)). "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. at 350 (brackets omitted) (quoting
Newstone Development, LLC, 140 A.3d at 103).
"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 Newstone
Development, LLC, 140 A.3d at 103). "Summary
judgment should enter ...