Providence County Superior Court, PC 15-5402 Maureen B.
Keough Associate Justice.
Plaintiff: Richard A. Pacia, Esq.
Defendants: Gino Spinelli, Esq. Stanley F. Pupecki, Esq.
James S. D'Ambra, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
Maureen McKenna Goldberg Associate Justice.
plaintiff, Dolores Voccola (plaintiff or Voccola), appeals
from the entries of summary judgment in the Superior Court in
favor of the defendant, The Stop & Shop Supermarket
Company, LLC (Stop & Shop), and the third-party
defendant, Xpress Sweeping, Inc. (Xpress Sweeping)
(collectively defendants). This case came before the Supreme
Court for oral argument on March 5, 2019, pursuant to an
order directing the parties to appear and show cause why the
issues raised in this appeal should not summarily be decided.
After carefully reviewing the record, we are satisfied that
this appeal may be resolved without further briefing or
argument. For the reasons set forth in this opinion, we
vacate the judgments of the Superior Court.
light most favorable to plaintiff, the facts, as set forth in
the record, are as follows. At approximately 7 a.m. on March
1, 2013, plaintiff parked her car in the parking lot of a
Stop & Shop supermarket located in Smithfield, Rhode
Island. As she was walking from her car to the
entrance of the Stop & Shop, plaintiff slipped and fell
on what she characterizes as black ice, and suffered injuries
to her right hand and wrist. The plaintiff filed suit against
Stop & Shop on December 10, 2015, alleging negligence on
the part of Stop & Shop for her resulting
injuries.Stop & Shop answered plaintiff's
complaint and also filed a third-party complaint against
Xpress Sweeping to defend, indemnify, and hold Stop &
Shop harmless for any claims arising out of Xpress
Sweeping's duty under defendants' snow services
Stop & Shop and Xpress Sweeping filed motions for summary
judgment in accordance with Rule 56 of the Superior Court
Rules of Civil Procedure. Essentially, defendants argued that
plaintiff failed to assert sufficient facts necessary to
satisfy the elements of her negligence claim because
plaintiff testified at her deposition that she did not see,
feel, or in any manner observe ice at or near the location of
her fall. The defendants therefore argued that plaintiff
could only "speculate" that her fall was caused by
black ice. The plaintiff objected to defendants' motions
and claimed that her deposition testimony "was based on
a sound inference clearly supported by scientific fact."
She thus argued that summary judgment was not proper because
this testimony, coupled with meteorologist Steven
Cascione's affidavit and meteorological report, gave rise
to a disputed issue of material fact as to whether there was
black ice in the parking lot of the Stop & Shop where she
fell. The defendants' motions were heard and decided
together on September 20, 2017. After hearing the arguments
of counsel, the trial justice granted both motions, and
separate Rule 54(b) final judgments were entered in favor of
defendants. The plaintiff filed notices appeal from both, and
her appeals were consolidated in this Court.
Court reviews a grant of summary judgment de
novo." Long v. Dell, Inc., 93 A.3d 988,
995 (R.I. 2014) (brackets omitted) (quoting Sullo v.
Greenberg, 68 A.3d 404, 406 (R.I. 2013)). "Summary
judgment is a drastic remedy, and a motion for summary
judgment should be dealt with cautiously." Rohena v.
City of Providence, 154 A.3d 935, 937 (R.I. 2017)
(brackets omitted) (quoting Cruz v. DaimlerChrysler
Motors Corp., 66 A.3d 446, 451 (R.I. 2013)). Summary
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." Plunkett v. State, 869 A.2d 1185, 1187
(R.I. 2005) (brackets omitted) (quoting Wright v.
Zielinski, 824 A.2d 494, 497 (R.I. 2003)). "Only
when a review of the admissible evidence viewed in the light
most favorable to the nonmoving party reveals no genuine
issues of material fact, and the moving party is entitled to
judgment as a matter of law, will this Court uphold the trial
justice's grant of summary judgment." National
Refrigeration, Inc. v. Standen Contracting Company,
Inc., 942 A.2d 968, 971 (R.I. 2008) (quoting Carlson
v. Town of Smithfield, 723 A.2d 1129, 1131 (R.I. 1999)).
appeal, plaintiff argues that the Superior Court erred in
granting summary judgment in favor of defendants because a
genuine issue of material fact exists as to whether there was
black ice in the area of the parking lot of Stop & Shop
where plaintiff slipped and fell. In turn, defendants argue
that this Court should affirm the judgments because plaintiff
failed to produce sufficient evidence, beyond mere
speculation and conjecture, that there was a dangerous
condition in the parking lot of Stop & Shop on March 1,
2013. We disagree with defendants' contention.
well settled 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 the
condition." Bromaghim v. Furney, 808 A.2d 615,
617 (R.I. 2002). "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 * * *.'" Dent v.
PRRC, Inc., 184 A.3d 649, 653 (R.I. 2018) (quoting
Berard v. HCP, Inc., 64 A.3d 1215, 1218 (R.I.
avoid summary judgment, the burden is on plaintiff, the
nonmoving party, to produce competent evidence that
establishes a genuine issue of material fact. Hill v.
National Grid, 11 A.3d 110, 113 (R.I. 2011). One of the
threshold inquiries in a slip-and-fall case is the existence
of a dangerous condition on the premises, and, so, at the
summary-judgment hearing, plaintiff was required to present
evidence that her fall was the result of an unseen danger,
such as black ice. The plaintiff submitted an affidavit
prepared by meteorologist Steven Cascione that analyzed the
weather conditions the day before the incident, as well as
the morning of plaintiff's fall. Mr. Cascione's
affidavit and attached report explained that the temperature
fluctuation on March 1, 2013, with a drop from 33.8 degrees
at 4:15 a.m. to 30.2 degrees at 5:55 a.m., and then back up
to 33.8 degrees at 7:15 a.m., along with little wind and
partly cloudy skies, was an ideal condition for radiational
cooling. Mr. Cascione expounded further upon the
temperature fluctuation and stated that, on February 28,
2013, the day before plaintiff's ...