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Voccola v. Stop & Shop Supermarket Co., LLC

Supreme Court of Rhode Island

June 11, 2019

Dolores Voccola
The Stop & Shop Supermarket Company, LLC et al.
Xpress Sweeping, Inc.

          Providence County Superior Court, PC 15-5402 Maureen B. Keough Associate Justice.

          For Plaintiff: Richard A. Pacia, Esq.

          For Defendants: Gino Spinelli, Esq. Stanley F. Pupecki, Esq. James S. D'Ambra, Esq.

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


          Maureen McKenna Goldberg Associate Justice.

         The 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.

         Facts and Travel

         In the 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.[1] 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.[2]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 agreement.[3]

         Both 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.

         Standard of Review

         "This 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)).


         On 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.

         It is 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. 2013)).

         To 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.[4] Mr. Cascione expounded further upon the temperature fluctuation and stated that, on February 28, 2013, the day before plaintiff's ...

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