DeMaio v. Ciccone
| Decision Date | 01 February 2013 |
| Docket Number | No. 2011–211–Appeal.,2011–211–Appeal. |
| Citation | 59 A.3d 125 |
| Parties | Roland DeMAIO et al. v. Raymond A. CICCONE et al. |
| Court | Rhode Island Supreme Court |
OPINION TEXT STARTS HERE
Ruth DiMeglio, Esq., Providence, for Plaintiffs.
Kathleen Wyllie, Esq., West Warwick, for Defendants.
Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.
The plaintiffs Roland DeMaio and Linda DeMaio appeal from the entry of summary judgment in favor of the defendants Raymond A. Ciccone and Cheryl A. Breggia.
This case came before the Supreme Court for oral argument pursuant to an order directing the parties to show cause why the issues raised in this appeal should not be summarily decided. After considering the record, the memoranda submitted to this Court on behalf of the parties, and the oral arguments of counsel, we are of the opinion that cause has not been shown and that the appeal may be resolved without further briefing or argument. For the reasons set forth in this opinion, we reverse the Superior Court's grant of summary judgment and vacate the entry of final judgment.
It is undisputed that, on October 18, 2006, a motor vehicle collision involving Mr. DeMaio and Mr. Ciccone occurred on Hartford Avenue in Johnston. At the time of the collision, Mr. DeMaio was riding his motorcycle and Mr. Ciccone was driving a 1995 Volkswagen Jetta that belonged to his girlfriend, co-defendant Cheryl Breggia. On June 18, 2007, Mr. DeMaio and his wife, Linda, 1 filed a complaint naming Mr. Ciccone and Ms. Breggia 2 as defendants. The complaint alleged that Mr. Ciccone had been negligently operating the Jetta at the time of the collision.
The defendants filed a motion for summary judgment on June 25, 2010. In their accompanying memorandum of law, defendants contended that the evidence “established that the plaintiff's motorcycle struck the rear of the defendants' motor vehicle.” Under Rhode Island law, “[w]hen a case includes a claim or defense resulting from a rear-end collision between vehicles, a prima facie case of negligence against the driver of the car in the rear is established * * *.” Maglioli v. J.P. Noonan Transportation, Inc., 869 A.2d 71, 75 (R.I.2005). The defendants argued that the court should grant summary judgment in their favor because Mr. DeMaio was unable to rebut the prima facie evidence of his own negligence, which prima facie evidence arose from the fact of the rear-end collision.
None of the parties identified any witnesses to the collision; accordingly, the motion justice was presented with the conflicting stories of the two motor vehicle operators along with the deposition testimony of Sgt. Christopher Correia (the investigating officer) as well as a police report concerning the collision and police photographs of the scene. At the conclusion of a hearing on November 9, 2010, the motion justice granted defendants' motion for summary judgment, stating that Mr. DeMaio had “struck * * * the Ciccone vehicle from the rear.” The motion justice further stated that, “to rebut the presumption that he was negligent, Mr. DeMaio needs more than just some speculation” regarding Mr. Ciccone's negligence. We shall next proceed to outline in greater detail the evidence presented to the motion justice.
This section of the opinion sets forth pertinent details regarding the night of the collision as provided by Mr. DeMaio in his deposition testimony and in his answers to interrogatories.
Mr. DeMaio testified that he had been “driving bikes for 35 years” 3 and had been involved in only one accident prior to the collision in October of 2006; he thought that the earlier accident had occurred “in the Seventies.” Mr. DeMaio stated that, whenever he rode his motorcycle, “especially at nighttime, [he was] always glancing around.”
Mr. DeMaio further testified that, at approximately 8 p.m. on the night of the collision, he was on his motorcycle heading East on Hartford Avenue. He stated that he was traveling “30, 35 miles an hour” down a straight section of the road with his lights on. He recalled that there was no traffic in the area, and he added that he would have been “looking in the mirrors and checking everything” so as to survey the road. When asked at his deposition what was “the last thing that [he] remember[ed] before the accident,” Mr. DeMaio replied:
Mr. DeMaio testified that his first memory after losing consciousness consisted of “waking up in the rescue” briefly; his next memory was of waking up again at the Trauma Center in Rhode Island Hospital, where “a young doctor * * * was sewing [his] ear.”
Regarding the damage to his motorcycle, Mr. DeMaio stated that “the heavier damage was all on the right-hand side,” noting that “[e]verything was crushed in, the crash bar, the tank, the chrome, the peg was bent up, the foot pegs, and * * * the right front fender was damaged.” Mr. DeMaio further testified that the man who removed the motorcycle from the scene of the collision “said that it looked like the impact was on the right-hand side” of the motorcycle.
At his deposition, Mr. Ciccone painted a different picture of the events on the night of the collision. He testified that he had been at Ms. Breggia's home and then, “right around supper,” he took her car to go to the store. He stated that, while on his way there, he came to the intersection of Harding Avenue and Hartford Avenue. He said that, at that time, he stopped for about five seconds and saw a motorcycle heading East on Hartford Avenue towards the intersection. Mr. Ciccone testified that the motorcycle was the only vehicle that he saw on Hartford Avenue at that time.
Mr. Ciccone testified that he then turned East onto Hartford Avenue so that Mr. DeMaio's motorcycle was “over 200 yards, and maybe more” behind him and traveling in the same direction. He estimated that he traveled for about thirty seconds before he reached the entrance to the convenience store that was his destination. Mr. Ciccone stated that he then “[came] to a complete stop * * * [on Hartford Avenue] because there's usually cars at the convenience store, so you [have] to take a look before you turn in.” He testified that, after stopping, he started to turn right so that the Jetta was “slightly” at an angle, with the nose of the car in the parking lot. Mr. Ciccone maintained that, at that moment, Mr. DeMaio's motorcycle struck the Jetta from behind.
Regarding the resulting damage to the Jetta, Mr. Ciccone testified as follows:
Christopher Correia, a sergeant in the Johnston Police Department who responded to the collision, was also deposed in connection with this case. Sergeant Correia testified that he carried out an investigation of the collision on the night of the incident. Sergeant Correia stated that neither he nor any of the other responding officers were certified accident reconstructionists. Unlike a “full accident reconstruction,” Sgt. Correia testified that the type of investigation he performed would have been based on the “position of the vehicles or vehicle, the operators, what they may have to say, location of damage on the vehicles that could indicate position or where they were traveling from, any time from operators, independent witnesses, those kind[s] of things to try to simulate that and put it all together.”
Sergeant Correia did not interview Mr. DeMaio on the night of the collision because, before an emergency vehicle came to take Mr. DeMaio to the hospital, he “was down and not in condition to speak to.” Sergeant Correia added that he did not want to “push” Mr. DeMaio due to the fact that he had “head injuries and [was] bleeding in the middle of the roadway.” However, Sgt. Correia testified that he did interview Mr. Ciccone, who told him that “he was struck in the rear by the motorcycle.”
After referring to his police report during his deposition, Sgt. Correia testified that “[i]t appears that the motorcycle was also traveling eastbound behind the vehicle, wasn't able to stop and—based on the damage being at that driver's back corner of the vehicle, tried to swerve around and possibly caught the rear corner of the vehicle.” He testified that “on the right side of the [motorcycle] there was red paint transfer across the gas tank as well as the front suspension forks.” Sergeant Correia also identified photographs that were taken at the scene of the accident by a fellow police officer.
The deposition of Sgt. Correia included the following exchange between Mr. DeMaio's attorney and the police officer:
As part of their objection to defendants' motion for summary judgment, plaintiffs presented to the motion justice several photographs taken by the police on the night of the collision, including the...
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