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Oliver v. Narragansett Bay Insurance Co.

Supreme Court of Rhode Island

April 16, 2019

Raymond Oliver et al.
Narragansett Bay Insurance Company et al.

          Newport County Superior Court (NC 13-59) Walter R. Stone Associate Justice

          For Plaintiffs: Thomas M. Dickinson, Esq.

          For Defendants: Joseph A. DiMaio, Esq. George M. Trutza, Esq.

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



         This 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 Court.

         I Facts and Travel[1]

         On 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.[2] 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.)

         At her 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."

         After 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.[3] 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 installation.

         On May 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.

         On May 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.

         The 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, [4] 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.

         On September 3, 2015, NAMCO filed a motion for summary judgment, [5] 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.[6] 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.

         A 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.

         II Standard of Review

         "This 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 ...

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