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Christofaro v. Shaws Supermarkets, Inc.

Superior Court of Rhode Island, Washington

January 10, 2020

JENNIE A. CHRISTOFARO and DAVID CHRISTOFARO
v.
SHAWS SUPERMARKETS, INC., BIMBO BAKERIES USA, INC., and DONALD PELLEGRINO, JR.

          For Plaintiff: Brittanee N. Bland, Esq.

          For Defendant: Thomas A. Pursley, Esq. David R. Walsh, Esq.

          DECISION

          TAFT-CARTER, J.

         Before this Court for decision is Defendant Shaws Supermarkets, Inc.'s (Defendant) Motion for Summary Judgment. Defendant seeks judgment with respect to all counts of the Complaint dated April 26, 2018. Plaintiffs Jennie A. Christofaro and David Christofaro (collectively, Plaintiffs or the Christofaros) object to Defendant's motion. Jurisdiction is pursuant to Super. R. Civ. P. 56.

         I

         Facts and Travel

         This action arises from injuries that Jennie A. Christofaro (Jennie) sustained on August 30, 2016 while shopping with her mother at Shaws Supermarket on Old Tower Hill Road in Wakefield, Rhode Island. Compl. ¶¶ 5, 12. While in the bread aisle, Jennie was struck on the back of her leg by a dolly stacked with pallets of bread products. Id. ¶ 5. The dolly was being pushed by Donald Pellegrino, Jr. (Mr. Pellegrino), a distributor hired by Bimbo Foods Bakeries Distribution, LLC (Bimbo Bakeries). [1] Id. ¶¶ 5-6; Def.'s Mem. Supp. Mot. Summ. J. at Ex. C. At the time of the incident, Mr. Pellegrino was using the dolly to stock store shelves. Pls.' Mem. Opp'n. Mot. Summ. J. at 1. After the incident, Jennie was treated at South County Hospital for a laceration to her left ankle. Id. at 2. Jennie eventually underwent surgery to her Achilles tendon. Id.

         Plaintiffs filed the instant action on April 26, 2018, alleging two counts. See Compl. In Count I of the Complaint, the Christofaros allege that Bimbo Bakeries is liable for their injuries because Mr. Pellegrino was an agent or employee of Bimbo Bakeries and was operating equipment within the scope of his employment or agency when Jennie was injured. Compl. ¶ 6. Jennie seeks damages from Mr. Pellegrino and Bimbo Bakeries for medical expenses, lost wages, and pain and suffering, and David Christofaro (David) seeks damages for loss of consortium. Compl. ¶¶ 7, 8.

         In Count II, the Christofaros allege that Defendant owed them a duty of care to keep its premises reasonably safe for persons reasonably expected to be on the premises; that Defendant breached that duty of care; and Defendant caused their injuries. Id. ¶¶ 14-16. Jennie seeks damages from Defendant for medical expenses, lost wages, and pain and suffering. Compl. ¶ 17. David seeks damages from Defendant for loss of consortium. Id. ¶ 18.

         Defendant filed its Motion for Summary Judgment on August 8, 2019. Plaintiffs filed their objection to the instant motion on October 8, 2019. The parties appeared before the Court for argument on November 18, 2019. The Court reserved its decision.

         II

         Standard of Review

         "Summary judgment is appropriate when no genuine issue of material fact is evident from 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' and the motion justice finds that the moving party is entitled to prevail as a matter of law." Swain v. Estate of Tyre ex rel. Reilly, 57 A.3d 283, 288 (R.I. 2012) (quoting Beacon Mutual Insurance Co. v. Spino Brothers, Inc., 11 A.3d 645, 648 (R.I. 2011) (internal quotation omitted)). The moving party "bears the initial burden of establishing the absence of a genuine issue of fact." McGovern v. Bank of America, N.A., 91 A.3d 853, 858 (R.I. 2014) (citation omitted). The Court "views the evidence in the light most favorable to the nonmoving party[, ]" Mruk v. Mortgage Electronic Registration Systems, Inc., 82 A.3d 527, 532 (R.I. 2013), and "does not pass upon the weight or the credibility of the evidence[, ]" Palmisciano v. Burrillville Racing Association, 603 A.2d 317, 320 (R.I. 1992). Thereafter, "'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.'" Mruk, 82 A.3d at 532 (quoting Daniels v. Fluette, 64 A.3d 302, 304 (R.I. 2013)).

         "'The existence of a legal duty is purely a question of law, and the court alone is required to make this determination.'" Volpe v. Gallagher, 821 A.2d 699, 705 (R.I. 2003) (quoting Kuzniar v. Keach, 709 A.2d 1050, 1055 (R.I. 1998)); see also Rock v. State, 681 A.2d 901, 903 (R.I. 1996) (explaining that "as a general rule the existence of a duty is a question for the court and not for the jury") (citation omitted)). "'[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. . . .'" Newstone Development, LLC v. East Pacific, LLC, 140 A.3d 100, 103 (R.I. 2016) (quoting Lavoie v. North East Knitting, Inc., 918 A.2d 225, 228 (R.I. 2007)).

         III

         Analysis

         A

         Vicarious Liability

         The crux of this dispute involves the Court answering the question of whether Mr. Pellegrino is an employee of the Defendant or an agent of Bimbo Bakeries. Def.'s Mem. Supp. Mot. Summ. J. at 7; Pls.' Mem. Opp'n. Mot. Summ. J. at 3. Defendant argues that it is not vicariously liable for Mr. Pellegrino's alleged negligence because Mr. Pellegrino was not its employee or agent. Def.'s Mem. Supp. Mot. Summ. J. at 7. Defendant reasons that its position is supported by the lack of contractual privity between it and Mr. Pellegrino; its lack of control over the means and methods of Mr. Pellegrino's work; and the existence of the distribution agreement between Bimbo Bakeries and Mr. Pellegrino. Id. Plaintiffs, on the other hand, argue that Defendant is not entitled to summary judgment as there is a genuine issue of material fact regarding whether Mr. Pellegrino is an independent contractor. Pls.' Mem. Opp'n Mot. Summ. J. at 3. They argue that the distribution agreement between Bimbo Bakeries and Mr. Pellegrino does not define the relationship between Defendant and Mr. Pellegrino; and Article 7 of the distribution agreement gives Defendant the ...


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