Bennett v. Napolitano

• Decision Date: 22 February 2000
• Docket Number: No. 98-481-Appeal.,98-481-Appeal.
• Parties: Donald BENNETT v. Stephen NAPOLITANO, in his capacity as Treasurer of the City of Providence.
• Court: Rhode Island Supreme Court

746 A.2d 138

Donald BENNETT v. Stephen NAPOLITANO, in his capacity as Treasurer of the City of Providence.

No. 98-481-Appeal.

Supreme Court of Rhode Island.

February 22, 2000.

Present WEISBERGER, C.J., LEDERBERG, BOURCIER, FLANDERS, GOLDBERG, JJ.

Michelle L. Felix, Stephen A. Rodio, Providence, for plaintiff.

Richard G. Riendeau, Alan E. Kornstein, Providence, for defendant.

OPINION

LEDERBERG, Justice.

What duty, if any, does a municipality owe to an individual who walks in a city park after it has closed for the night? The plaintiff; Donald Bennett, was injured in the early morning when a tree limb fell on him within Roger Williams Park (park) in Providence, Rhode Island. In response to the plaintiff's complaint against City of Providence (city or Providence), the city filed a motion for summary judgment that was granted, and the plaintiff appealed. For the reasons set forth below, we affirm.

Facts and Procedural History

Upon returning home from work, plaintiff set out to walk his dogs at approximately 2 a.m. on September 1, 1994. On that occasion, he and his dogs trod the same route they had taken for about ten years, walking south on Farrugut Avenue and turning left onto Frederick C. Green Memorial Boulevard (boulevard), the major thoroughfare circling and contained exclusively within the city-owned park. As plaintiff continued on the boulevard, with Edgewood Lake on his right, he was struck by a falling tree limb that he approximated to be forty to sixty feet in length. The blow knocked him unconscious. When plaintiff awoke, he walked home and called emergency personnel. He was treated at Rhode Island Hospital for severe dizziness, ringing in his ear, slurred speech, blurred vision and a headache. Later that morning, plaintiff experienced the first of many seizures that are treated with medication.

On September 20, 1994, plaintiff apparently filed a timely notice¹ of his injury with the city and a claim for compensation for his injuries against the city, pursuant to G.L.1956 § 45-15-5.² When plaintiff's claim was not satisfied within forty days of the presentment of his claim to the Providence City Council, he commenced suit in Superior Court, alleging that the city was negligent in maintaining the park. The city filed a motion for summary judgment, arguing that plaintiff was trespassing on city land after the park had closed, and therefore the city owed plaintiff a duty only to refrain from willfully or wantonly causing injury. The motion justice granted the motion and entered judgment accordingly. The plaintiff appealed.

Standard of Review

This Court reviews the grant of a motion for summary judgment on a de novo basis, applying the same criteria as the trial court. Marr Scaffolding Co. v. Fairground Forms, Inc., 682 A.2d 455, 457 (R.I.1996). Accordingly, "we shall affirm a summary judgment if, after reviewing the evidence in the light most favorable to the nonmoving party, we are of the opinion that no genuine issue of material fact exists and `that the moving party is entitled to judgment as a matter of law.'" Rousseau v. K.N. Construction, Inc., 727 A.2d 190, 192 (R.I.1999). "Moreover, a party who opposes a motion for summary judgment carries the burden of proving by competent evidence the existence of a disputed material issue of fact and cannot rest on allegations or denials in the pleadings or on conclusions or legal opinions." Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1225 (R.I.1996).

Discussion

The plaintiff argued that the motion justice erred in finding that he was a trespasser because he had walked his dogs on the same boulevard for ten years and had been observed by park rangers and Providence police officers during those ten years. Therefore, plaintiff asserted, he had the implied consent of the city to walk his dogs in the park after closing. The plaintiff contended that the city's "implicit invitation" to him to continue his early morning walks in the park transformed him into an "implied licensee or invitee" who was entitled to visit a park that was maintained in a "reasonably safe condition." It is true that in Mariorenzi v. Joseph DiPonte, Inc., 114 R.I. 294, 307, 333 A.2d 127, 133 (1975), we abandoned the common-law categories of invitee, licensee and trespasser, in respect to a landowner's duty of care, and imposed a duty of reasonable care regardless of the entrant's status. But, almost twenty years later, in Tantimonico v. Allendale Mutual Insurance Co., 637 A.2d 1056, 1061-62 (R.I.1994), we overruled Mariorenzi with respect to trespassers and readopted the common-law rule that limited the duty in respect to trespassers to refraining from willfully or wantonly causing injury. Because we hold that he was a trespasser, we reject plaintiff's suggestion of an implied invitation.

In general, "municipalities, like other landowners, owe a duty to `maintain the[ir] property in a reasonably safe condition for the benefit of those persons who might come upon the land.'" Brindamour v. City of Warwick, 697 A.2d 1075, 1077 (R.I.1997) (quoting O'Brien v. State, 555 A.2d 334, 338 (R.I.1989)). This duty does not extend to trespassers, however. Brindamour, 697 A.2d at 1077 (citing Tantimonico, 637 A.2d 1056, 1061 (R.I.1994)). A trespasser is "[o]ne who intentionally and without consent or privilege enters another's property." Ferreira v. Strack, 652 A.2d 965, 969 (R.I.1995) (quoting Black's Law Dictionary 1504 (6th ed.1990)). We have explained that a trespasser "enters upon the property of another without any right, lawful authority, or express or implied invitation, permission, or license, not in performance of any duties to the owner, but merely for his own purpose, pleasure or convenience." Ferreira, 652 A.2d at 969 (quoting Mendoza v. City of Corpus Christi, 700 S.W.2d 652, 654 (Tex.Ct.App.1985)).

We have explicitly held that an individual who enters a city park after closing is a trespasser. Brindamour, 697 A.2d at 1077. The plaintiff in this case, by his own admissions, was in the park after closing.³ Moreover, plaintiff does not dispute the clear language of § 18-2 of the Providence Code of Ordinances, which states that "Roger Williams Park shall be opened to the public from 7:00 a.m. to 9:00 p.m.," and further that "[n]o person shall enter or be within limits of said park except by the regular hours." Consequently, plaintiff was a trespasser when he was injured. We are not persuaded to hold differently, based upon plaintiff's efforts to distinguish his case from the facts in Brindamour.

In Brindamour, 697 A.2d at 1076, a passenger was killed when the car in which she was riding struck a tree in a city park after closing hours. We held that the passenger was a trespasser and that the city owed her a duty only to refrain from willfully and wantonly causing injury. Id. at 1077. We concluded, therefore, that the trial justice properly granted summary judgment in favor of the city on the decedent's estate's claim for damages caused by the city's allegedly negligent maintenance of a city park road. Id.

The plaintiff here attempted to distinguish this case from Brindamour by arguing that he had the "implied invitation" of the city to visit the park after closing...