JENNIE A. CHRISTOFARO and DAVID CHRISTOFARO
SHAWS SUPERMARKETS, INC., BIMBO BAKERIES USA, INC., and DONALD PELLEGRINO, JR.
Plaintiff: Brittanee N. Bland, Esq.
Defendant: Thomas A. Pursley, Esq. David R. Walsh, Esq.
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.
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).  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.
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.
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. ¶
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
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.
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)).
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 ...