Berman v. Sitrin

• Citation: 101 A.3d 1251
• Decision Date: 10 November 2014
• Docket Number: 2012–116–Appeal.,Nos. 2011–266–Appeal,2012–77–Appeal,s. 2011–266–Appeal
• Parties: Simcha BERMAN et al. v. Laura SITRIN, in her capacity as Finance Director for the City of Newport et al.
• Court: United States State Supreme Court of Rhode Island

101 A.3d 1251

Simcha BERMAN et al.

v.Laura SITRIN, in her capacity as Finance Director for the City of Newport et al.

Nos. 2011–266–Appeal

2012–77–Appeal

2012–116–Appeal.

Supreme Court of Rhode Island.

Nov. 10, 2014.

Ronald J. Resmini, Esq., Providence, Kevin P. Gavin, Esq., Portsmouth, for Plaintiffs.

James R. Lee, Department of Attorney General, for Defendants.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Justice INDEGLIA, for the Court.

The plaintiffs, Simcha Berman and Sarah Berman,¹ appeal from (1) a judgment entered after a jury verdict in favor of the defendant, the State of Rhode Island, in the plaintiffs' civil action seeking damages and (2) the trial court's denial of motions for judgment as a matter of law, a new trial, and to vacate judgment. The defendant cross-appeals the denial of its motion for judgment as a matter of law. For the reasons set forth below, we affirm the judgment of the Superior Court.

IFacts and Travel

This is the second time this case comes before us; however, on this occasion, the matter arises in an entirely new posture. While we assume the reader's familiarity with our prior opinion, Berman v. Sitrin, 991 A.2d 1038 (R.I.2010) (Berman I ), by way of background we trace succinctly the winding path of this long and tragic tale.

On August 17, 2000, Simcha Berman fell while descending on a beaten path that abuts the paved portion of the Cliff Walk.² As a result of this fall, Simcha sustained a severe spinal cord injury

that has rendered him a quadriplegic.

In 2003, an action was commenced by Simcha and his then-wife, Sarah, in the Newport County Superior Court. Originally, the Preservation Society of Newport County (society), the City of Newport (city or Newport), the Cliff Walk Commission (commission), and the State of Rhode Island (state) were all named as defendants. The plaintiffs alleged that Simcha's injuries were caused by defendants' negligent failure to properly inspect, maintain, and repair the location where Simcha fell and that defendants knew of defects in the location and failed to guard or warn against such defects.

In 2005, all defendants moved for summary judgment on the ground that they were immunized from liability under Rhode Island's Recreational Use Statute (RUS), G.L.1956 chapter 6 of title 32. A first hearing justice denied each of the motions for summary judgment. However, a second hearing justice later granted summary judgment in favor of both the society and the city in light of the RUS. The plaintiffs timely appealed to this Court. Meanwhile, the state, which had not been granted summary judgment, was left on the sidelines during the pendency of the appeal to this Court. The state requested that the Superior Court reconsider its decision. The state argued that it had been placed in a “legal Catch 22” whereby it was still somehow potentially exposed to liability for possibly having a sufficient degree of control over the location where the injury occurred, yet, nonetheless, was unable to avail itself of owner immunity under the RUS. See § 32–6–3. The Superior Court ratified its earlier decision and denied the state's motion to vacate or otherwise reverse the previous ruling.

Accordingly, on this case's previous sojourn before us, we addressed only whether it was appropriate for the city and the society to have been granted summary judgment. Berman I, 991 A.2d at 1041. In that appeal, we affirmed the entry of summary judgment for the society,³ but we vacated the grant of summary judgment for the city and remanded the case to the Superior Court for trial against the remaining defendants. Id. at 1053.

Prior to the commencement of the jury trial on April 5, 2011, the trial justice sifted through a variety of pretrial motions. The plaintiffs moved for a change of venue or change of venire, arguing that such was necessary to prevent local prejudice from inhibiting plaintiffs' opportunity to obtain a fair trial. The motion was denied by the trial justice. Additionally, the trial justice denied plaintiffs' motion for partial summary judgment on the issue of liability, holding that there were still factual issues to be resolved regarding breach and causation.

The day after the jury was empaneled, the jury, along with the trial justice and counsel, took a view of the Cliff Walk at the location where Simcha sustained injury. After conducting the view, the trial justice inquired on the record if any matter should be addressed. The plaintiffs now contend that they took issue with certain aspects relating to the jury view, though no such objection appears in the record. Following opening statements, plaintiffs settled with the city and the commission, leaving the state as the sole remaining defendant. The trial justice instructed the jury, without any objection, that it not speculate as to the reason the city and the commission were no longer parties.

The trial continued on for a week. During the examination of Keith Stokes, a former Newport City Councilman and member of former Governor Bruce Sundlun's administration, plaintiffs sought to introduce a 1987 letter from Sister Lucille McKillop, written while she was President of Salve Regina College (now Salve Regina University) which discussed the death of a Salve student on the Cliff Walk earlier that year. The trial justice expressed concerns that the letter potentially constituted hearsay and that its value as notice to the state of the circumstances that gave rise to Simcha's accident was lacking. He noted that there was insufficient supplementary evidence to establish that the incident discussed in the letter was sufficiently similar in time, location, condition, or circumstances to that of Simcha's fall. Further, he pointed out that the letter was addressed to the then-City Manager of Newport as opposed to the state. Accordingly, the trial justice declined to allow the document to be entered into evidence as a full exhibit.

Prior to the end of its case-in-chief, the state sought to introduce evidence, pursuant to Rule 411 of the Rhode Island Rules of Evidence, that the city had insurance coverage on the Cliff Walk. Earlier in the trial, plaintiffs had introduced into evidence as a full exhibit a document discussing a meeting that took place between city, state, and federal officials regarding damage to the Cliff Walk as a result of a hurricane. That document mentioned that the city had liability insurance and that the attorney for the liability insurer attended the meeting and was active in the discussion. The plaintiffs conceded that the city had liability insurance covering the Cliff Walk at the time of Simcha's fall. In light of this concession and the trial justice's finding that plaintiffs had opened the door by introducing into evidence the document indicating that the city had liability insurance, the trial justice informed the jury that the city had insurance covering the Cliff Walk at the time of Simcha's fall. He then instructed the jury that such information was offered simply for the purpose of demonstrating the city's ownership or control of the Cliff Walk.

At the appropriate times, both parties moved for judgment as a matter of law, but the judge reserved decision. Counsel gave closing arguments, and afterwards the trial justice proceeded to charge the jury. Included in his charge, was an explanation that the state owed a duty to plaintiff to exercise reasonable care in connection with the state's actions regarding the Cliff Walk. The trial justice inquired if counsel had any objections to his charge. The only exception raised by plaintiffs was to an illustration about burdens of proof, which the trial justice promptly clarified. No other exceptions were raised.

On April 13, 2011, the jury returned a verdict for defendant finding that the state was not negligent, and the Superior Court entered judgment accordingly.⁴ On May 19, 2011, the trial justice denied both parties' renewed cross-motions for judgment as a matter of law and plaintiffs' motion for a new trial, thereby allowing the jury verdict to stand. Both sides filed timely notices of appeal. Subsequently, plaintiffs filed a motion to vacate the judgment and order a new trial based on newly-discovered evidence and other grounds pursuant to Rule 60(b) of the Superior Court Rules of Civil Procedure, which the trial justice denied after a hearing on February 17, 2012.

The plaintiffs filed another timely notice of appeal and we then consolidated the three appeals before this Court. Additional facts will be provided, as needed, to resolve the issues raised on appeal.

IIStandards of Review

AChange of Venue or Venire

We review the denial of a motion to change venue for abuse of discretion. State v. Burns, 79 R.I. 130, 132, 84 A.2d 801, 802 (1951). So too shall we review a denial of a motion to change venire. See State v. Baumruk, 280 S.W.3d 600, 613 (Mo.2009) (en banc ) (“When evaluating whether to grant or deny a change in venire, the same standards apply as when evaluating whether to grant or deny a change in venue.”). The party requesting such a change must “establish by reasonably clear and convincing evidence that because of prejudice in the county in which the case was commenced he could not have a fair trial.” Burns, 79 R.I. at 132, 84 A.2d at 802.

BJury View

“It is well settled that the taking of a view is addressed to the discretion of the court * * *.” DiMaio v. Del Sesto, 102 R.I. 116, 120, 228 A.2d 861, 863 (1967). Accordingly, our review of the trial justice's decision to grant a view is limited to “whether or not in the circumstances here the granting of the motion for a view was an abuse of discretion.” Ajootian v. Director of Public Works, 90 R.I. 96, 102, 155 A.2d 244, 247 (1959).

CAdmissibility of Evidence

We have consistently held that “the admissibility of evidence is within the sound discretion of the trial justice, and this Court will not interfere with the trial justice[']s decision unless a clear abuse of that...