Brady v. State, C.A. 99-0009

• Decision Date: 10 May 2002
• Docket Number: C.A. 99-0009
• Parties: MICHAEL BRADY v. STATE OF RHODE ISLAND, ET AL.
• Court: Rhode Island Superior Court

MICHAEL BRADY
v.
STATE OF RHODE ISLAND, ET AL.

No. C.A. 99-0009

Superior Court of Rhode Island

May 10, 2002

DECISION

DARIGAN, J.

This case was tried by the Court without intervention of a jury on October 1 and October 2, 2001.

FACTS

This cause of action arose when the plaintiff, Michael Brady, then Chief of Police of the Town of Charlestown, Rhode Island, slipped and fell outside the State House on Smith Street in Providence on March 11, 1997.

The plaintiff testified that on the day of the incident he was attending a 10:00 A.M. press conference at the State House at the invitation of the State Attorney General. He attended the conference in his capacity as Chief of Police of the Town of Charlestown, Rhode Island.

The plaintiff testified that it had snowed the night before the meeting to a depth of 2-4 inches. He testified that he arrived at the State House between 9:40 and 9:45 A.M., that the weather was cold and clear, that snow was visible and remained so on the streets and State House environs. The plaintiff noted the temperature was 26-27°F when he got up earlier that morning, but did not know the temperature at the time of the incident.

The plaintiff testified that he parked his car on Smith Street and walked into the State House via the left side of the cobblestone roadway to the front door of the State House. As he made his way to the front door, he observed snow pushed off to the side of the plaza, so-called, in front of the State House, stretching west to Smith Street.

The plaintiff testified he was at the press conference for approximately one hour and left the building at 10:45 a.m.-10:50 a.m.

Coming out of the Smith Street side door (the same door he went in), he observed the Governor's vehicle parked right at the door on the cobblestone roadway to the plaintiffs right as he exited the door.

The plaintiff stated he could see the red brick and the white marble from which the plaza was constructed as he approached the steps to the plaza. He observed that the area was clear of snow. He testified that the marble and brick surface appeared clear of ice and snow.

The plaintiff descended the marble steps on the State House to the plaza without incident. The plaintiff testified that he was wearing his black dress shoes with leather soles, that he was not in a hurry to make his next appointment, and that at no time did he observe any cones, signs or other warnings of slippery or hazardous conditions. He took two steps onto the brick and marble plaza area. On the second step, the plaintiff testified he slipped and fell on the ice on his second step. He testified that he landed on his left knee and then his right shoulder and right elbow.

As he lay on the ground, the plaintiff noticed ice and water adhering to his clothes. He testified he noticed no other substance. As he struggled to his feet, the plaintiff observed a sheen of ice on the marble and brick surface which he hadn't seen prior to the fall because it had frozen clear and was not visible to the plaintiff

The plaintiff testified he was in great pain immediately, he made his way to his car, turned the car on and started driving to South County Hospital. The plaintiff testified that he called his secretary at the police station to tell her of his predicament. Within five (5) minutes of that call, the plaintiffs wife, a physician herself, was on the phone to the plaintiff. She urged the plaintiff to consider going to RI. Hospital which was closer. However, the plaintiff was determined to press on to South County Hospital.

At South County Hospital, he was seen by an ER physician, x-rays were taken of plaintiff and a sling provided, because of a fracture sustained by the plaintiff, surgery was scheduled for the plaintiff with Dr. Marchand on March 13, 1997. The plaintiff was prescribed percocet and vicodan, and released to his home. At home, the plaintiff testified that he spoke to Sean P. Feeney, Esquire, and told Mr. Feeney what had happened.

The plaintiff testified that he sat on his couch all day and took pain pills as prescribed on March 11 and March 12, 1997. The surgery was performed on plaintiffs right arm on March 13, 1997 by Dr. Marchand and resulted in the repair of a fracture of plaintiffs right radial head itself and the installation of six (6) screws and a piece of metal to hold the radial head in place. The plaintiff was released to home on the same day. On the day following the surgery, the plaintiff went on errands and dinner in the evening, with his arm in a cast with a sling. The plaintiff testified that he went back to work for the Charlestown Police Department on the Monday following his surgery and underwent physical therapy two or three weeks after that.

The plaintiff testified as to his course of treatment with the physical therapist and explained the various exercises that were prescribed to the plaintiff in his rehabilitation. The physical therapy continued into June of 1997.

During this period the plaintiff testified he was restricted to administrative duties as Chief of Police and could not engage in his usual patrol duties as was his custom as chief of a small department.

On cross examination, the plaintiff testified that he walked into the State House to attend the press conference and no one in his observation fell on the plaza as he made his way into the State House. The plaintiff also testified that upon leaving the State House he had to attend a meeting at the Warwick Police Department scheduled for 11:00 A.M. He testified that he was not rushing to make that meeting as he exited the State House.

He testified that instead of going around the Governor's vehicle, he went to go straight out across the plaza noting the presence of snow pushed off to the left and right of the plaza. The plaintiff testified that he traversed the stairs from the State House leading to the plaza without incident and recalled seeing no other pedestrians falling or experiencing any difficulty in that general area. In fact, the plaintiff testified he could recall no other pedestrians in the general area of the incident at the time preceding his fall.

The plaintiff testified that he at no time notified any personnel at the State House that he had fallen and been injured either while at that location or at any other time until formal notice was sent to the State by his attorney. He testified that after he called his secretary, his wife called on his cell phone to advise him to go to Rhode Island Hospital because she, being a physician herself, thought the plaintiff to be in shock.

The plaintiff declined Rhode Island Hospital and joked with his wife in telling her that if anything happened to him before he reached the South County Hospital that he fell at the State House.

The plaintiff testified as to his course of treatment and surgery. He testified that he did not lose wages as Charlestown Police Chief and that after undergoing physical therapy, he was discharged from that activity with the admonition to "do what you can do" in regard to his physical activity.

He testified he still has the screws in his elbow, having elected not to have them removed. He testified that he had to relinquish his position as Chief because he could not resume full time patrol activities required of a chief of police in a small rural department. He acknowledged receiving a $36,000.00 annual tax-free disability benefit, with no medical coverage.

He testified that the disability received was two-thirds (2/3) of his regular salary as Chief of Police. He also testified that a state physician advised him he could no longer use his weapon as a police officer because of his disability. In 1998, he did qualify on a combat firing course and has been issued a private permit to carry a weapon.

The plaintiff testified that he attended and graduated law school and took the bar exam in February of 1997 and February of 1998.

The plaintiff retired from the police department on July 14, 1998. He was admitted to the Rhode Island and Connecticut Bars in 1999.

The plaintiff also testified regarding his part-time activities as a teacher at Johnson and Wales University, his coaching of track for Toll Gate High School, and his part-time association with the law firm of Hamel, Waxier, Allen & Collins.

He testified that the accident did not interfere with his ability to pursue those part time jobs and that as of the time of trial, he was full time at the law firm and teaching at Salve Regina. The Court heard testimony from Sam DeVincenzo who has been the building superintendent for the State House for the last 15 years. He believes he was present on the day of the incident in 1997. He testified that he had four janitors under his direction at that time. He testified that snow is removed when it becomes necessary reaching a depth of 2 or 4 inches. The snow is removed by snow blower or shovel. The witness testified that his men are very experienced in snow removal, that the same procedure is followed routinely and that the entire plaza, so called, is cleared of snow with snow piled upon either side of the cleared walkway.

Mr. DeVincenzo testified that he checked the plaza area on the day of the incident. He can't specifically recall that day, but he testified that his routine is always the same. He testified that he arrives at the State House at 7:00 A.M. each morning and makes his "rounds". He testified that he follows this routine every day regardless of whether or not there is snow or inclement weather. He testified he walks the entire perimeter of the State House, walks throughout the corridors of the entire building and goes out on the balconies.

When shown plaintiffs Exhibit 1, a picture of the plaza, the witness acknowledged he was familiar with the area and that the snow removal depicted in the exhibit was satisfactory to him. He testified that he has "slippery when wet" signs for indoor display...