842 A.2d 1063 (R.I. 2004), 2003-218, D'Allesandro v. Tarro

Docket Nº:2003-218-Appeal.
Citation:842 A.2d 1063
Opinion Judge:WRITTEN BY: Per Curiam
Party Name:Edward R. D'ALLESANDRO et al. v. Ronald TARRO, in his capacity as treasurer of the Town of Barrington et al.
Attorney:Michael S. Kiernan, Esq., for plaintiff., Melody A. Alger, Esq., for defendant., Present: WILLIAMS, C.J., FLANDERS, GOLDBERG, FLAHERTY, and SUTTELL, JJ. ATTORNEYS: For Plaintiff Michael S. Kiernan, Esq., ATTORNEYS: For Defendant Melody A. Alger, Esq.
Case Date:February 02, 2004
Court:Supreme Court of Rhode Island

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842 A.2d 1063 (R.I. 2004)

Edward R. D'ALLESANDRO et al.


Ronald TARRO, in his capacity as treasurer of the Town of Barrington et al.

No. 2003-218-Appeal.

Supreme Court of Rhode Island

February 2, 2004.

Page 1064

Michael S. Kiernan, Esq., for plaintiff.

Melody A. Alger, Esq., for defendant.




The plaintiff,1 Edward R. D'Allesandro (D'Allesandro or plaintiff), appeals from an entry of summary judgment in favor of the defendant, Ronald Tarro, in his capacity as treasurer of the Town of Barrington (the town).2 The plaintiff argues that the hearing justice erroneously concluded that he assumed the risk of falling when he walked

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backwards without looking behind him and fell over a large rock within a town right-of-way. We affirm the judgment of the hearing justice.

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 summarily be decided. After hearing the arguments of the litigants and examining the record and the memoranda filed by the parties, we are of the opinion that cause has not been shown, and we proceed to decide the appeal at this time.

The hearing justice issued her oral decision granting summary judgment against plaintiff on February 27, 2003, and a written order was entered on March 18, 2003. The plaintiff filed a notice of appeal on March 12, 2003. At that time, the record did not contain a final judgment under Rule 54(b) of the Superior Court Rules of Civil Procedure. When this case came before this Court, we remanded to the Superior Court for entry of final judgment, which occurred on November 6, 2003. We treat the appeal, therefore, as if it had been filed after the entry of judgment. Dovenmuehle Mortgage, Inc. v. Antonelli, 790 A.2d 1113, 1114 n. 1 (R.I.2002) (per curiam).

This Court reviews the granting of a motion for summary judgment on a de novo basis. DiBattista v. State, 808 A.2d 1081, 1085 (R.I.2002). We will affirm a summary judgment "if, after reviewing the admissible evidence in the light most favorable to the nonmoving party, we conclude that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law." Id. (citing Woodland Manor III Associates v. Keeney, 713 A.2d 806, 810 (R.I.1998)).

Furthermore, "a litigant opposing a motion for summary judgment has 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." Santucci v. Citizens Bank of Rhode Island, 799 A.2d 254, 257 (R.I.2002) (per curiam) (citing Rotelli v. Catanzaro, 686 A.2d 91, 93 (R.I.1996); Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1225 (R.I.1996)).

D'Allesandro alleges that, on May 1, 2000, he fell over a rock across the street from his home and suffered an injury to his shoulder. The rock was on a grassy public right-of-way owned by the town,3 approximately six feet from the roadway designated as Orchard Avenue in Barrington, Rhode Island. He acknowledges that at the time of injury, he was walking backwards while looking in a forward direction, but alleges in his complaint that the town "negligently failed to maintain and keep safe the land adjacent to the roadway * * * by permitting large rocks to remain on said roadway and creating an unsafe passageway for pedestrians."

Initially, the town raised three arguments to support its position that this Court should affirm the judgment of the hearing justice. First, it averred that D'Allesandro assumed the risk of injury by walking backwards even though he was

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aware of the risk created by the presence of the rocks. Secondly, it asserted that the rocks were a natural condition on the land, and thus the landowner owed no duty to "discover...

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