Antonakos v. Providence Institution for Sav., 10346

• Decision Date: 17 May 1962
• Docket Number: No. 10346,10346
• Citation: 94 R.I. 382,181 A.2d 101
• Parties: Nicholas G. ANTONAKOS v. PROVIDENCE INSTITUTION FOR SAVINGS. Ex.
• Court: Rhode Island Supreme Court

Page 101

181 A.2d 101

94 R.I. 382

Nicholas G. ANTONAKOS v. PROVIDENCE INSTITUTION FOR SAVINGS.

Ex. No. 10346.

Supreme Court of Rhode Island.

May 17, 1962.

Gunning & LaFazia, Raymond A. LaFazia, Edward L. Gnys, Jr., Bruce M. Selya, Providence, for plaintiff.

Boss, Conlan, Keenan, Bulman & Rice, James C. Bulman, Providence, for defendant.

PAOLINO, Justice.

This is an action of trespass on the case for negligence to recover damages for personal injuries sustained by the plaintiff while a business invitee on premises owned by the defendant.

The case was tried before a justice of the superior court sitting with a jury. At the conclusion of all the evidence defendant moved for a directed verdict. The trial justice reserved decision thereon and sent the case to the jury. They returned a verdict for plaintiff in the amount of $15,000. The trial justice thereupon granted defendant's motion. The case is before us on plaintiff's exception to such decision.

The question presented on this appeal is whether he erred in granting the motion. He based his decision on the ground that there was no evidence of negligence on the part of defendant and also on the ground that plaintiff assumed the risks involved in his employment. In passing on such motion it was his duty to construe all the evidence and all reasonable inferences therefrom most favorably to plaintiff. Corcione v. Ruggieri, 87 R.I. 182, 188, 139 A.2d 388. In reviewing his decision we must do likewise.

The plaintiff's declaration is in three counts. It alleges in substance the existence of a dangerous or defective condition on defendant's premises of which defendant knew or should have known. The breaches alleged are a failure to warn plaintiff of such condition, a failure to keep its premises in a reasonably safe condition, and a failure to repair. The plaintiff concedes that the only duty owed him by defendant was to use reasonable care in maintaining its building, including the chimney, in a reasonably safe condition for the purposes for which he was on its premises. See Nottie v. Picchione, 74 R.I. 93, 96, 59 A.2d 177.

The following facts are not in dispute. The defendant is the owner of a building in Providence known as 'The Old Stone Bank.' In May 1955 it engaged plaintiff's employer, an independent contractor, to clean the exterior walls including a large chimney which measured 11 feet in width 40 feet in height on one side and 28 feet in height on the opposite side. The contractor commenced its work, which involved a steam-cleaning process, on August 3, 1955. The work crew on the job consisted of a foreman and three helpers. The plaintiff was one of the helpers.

The accident involved in this case occurred on August 9, 1955 while plaintiff was on the roof of defendant's building. He was preparing to move a scaffolding on which he had been standing while cleaning the chimney when he was suddenly struck on the head by a brick. The brick had fallen from the chimney from a point about two feet below the cap of the chimney. It appears from the evidence that the accident occurred just about the time a fellow employee was on the top of the chimney moving a hook which held up the scaffolding.

The plaintiff testified that he had been working on this job for about two weeks prior to the accident; that during such time he did not see any defects in the chimney although he did state that there were a few 'cracks' which did not amount to much; and that as far as he could see it was in good condition. He testified that he did not know how the accident happened.

It is clear from the testimony of other witnesses that the cause of the fall of the brick was a lack of sufficient mortar to bind it to the remaining bricks and that this condition had existed for some period of time. We shall therefore assume for the purposes of this case that at the time of the accident, and for an undetermined period of time prior thereto, a dangerous or defective condition with respect to the brick in question actually existed on defendant's premises.

The mere existence of such condition, however, is not sufficient to charge defendant with negligence. Unless there is evidence, direct or inferential, that it knew, or by the exercise of reasonable care in inspecting and maintaining its premises should have known, of such condition for a long enough period of time prior to the accident, it cannot be charged with notice thereof as a matter of law. Such notice is necessary to impose upon it the duty of alleviating the danger or of warning plaintiff of its existence.

Clearly, there is no evidence in this record that defendant had actual knowledge of the dangerous condition in question. However, plaintiff contends that there is evidence from which the jury could reasonably have found that defendant should have known, by proper and sufficient inspections of its premises, of the defective condition of the chimney in ample time to have repaired it or to have warned plaintiff thereof. The basic issue, therefore, is whether the evidence construed most favorably to plaintiff would support a finding of constructive...