Cain v. Johnson

• Decision Date: 25 July 2000
• Docket Number: No. 98-30-Appeal.,98-30-Appeal.
• Citation: 755 A.2d 156
• Parties: William G. CAIN et al. v. Joel JOHNSON et al.
• Court: Rhode Island Supreme Court

755 A.2d 156

William G. CAIN et al. v. Joel JOHNSON et al.

No. 98-30-Appeal.

Supreme Court of Rhode Island.

July 25, 2000.

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

Ronald J. Resmini, Barrington, Kevin P. Gavin, Paul S. Cantor, Providence, for Plaintiff.

Kathleen M. Powers, Marc DeSisto, Providence, for defendant, City of Newport,

Brenda D. Baum, for defendant, State of RI.

A. Lauriston Parks, Virginia M. McGinn Providence, for defendant, Joel Johnson.

OPINION

WEISBERGER, Chief Justice.

This case comes before us on the plaintiffs' appeal from a summary judgment entered in the Superior Court in favor of the defendants. For the reasons that follow, we affirm.

The facts of this case are not in dispute. At approximately 2 a.m. on August 6, 1991, Michael T. Cain (the decedent) and two friends went for a walk along a section of Newport's Cliff Walk. While walking along an area of the Cliff Walk that winds through Salve Regina University's (the university) campus, the decedent stepped from the paved walk onto a grassy area on the ocean side of the walk. He fell from the cliff to his death after the ground beneath his feet gave way.

On July 25, 1994, plaintiffs, William G. Cain and Mary H. Cain (plaintiffs or the Cains), filed a wrongful death action individually and on the part of the estate of Michael T. Cain against defendants, the City of Newport (city), the State of Rhode Island (state), and the university. The plaintiffs alleged that defendants' negligence caused the decedent's death because defendants failed to properly inspect,maintain, and repair the Cliff Walk. In September 1997, the city moved for summary judgment, arguing that the decedent was a trespasser because the Cliff Walk had closed at 9 p.m. The state and the university joined in the city's motion. On November 7, 1997, the motion justice granted summary judgment in favor of all defendants, ruling that summary judgment was required based on this Court's decision in Brindamour v. City of Warwick, 697 A.2d 1075 (R.I.1997) (holding that a landowner owes a trespasser only the duty to refrain from willful and wanton conduct). On November 21, 1997, the motion justice reconsidered the matter, and allowed the summary judgment to stand.

The plaintiffs then appealed the grant of summary judgment. The case was heard on the show cause calendar on March 3, 1999. After argument, the case was placed on the regular calendar with directions to the parties to provide the Court with authorities and guidance on the following issues:

"1. Would the conduct of the defendants or any of them amount to willful and wanton conduct under the facts that were presented to the motion justice in this case?

"2. Would willful and wanton conduct include reckless indifference to the safety of the plaintiffs' decedent whether or not the defendants were aware of his presence on the premises?

"3. Would the alleged conduct of the defendants or any of them rise to the level of reckless indifference to the safety of the plaintiffs' decedent in light of the nature of the defective condition which caused him to fall to his death?

"4. In the event that it was determined that the defendants or any of them directly or indirectly invited or permitted the plaintiffs' decedent to use the subject property for recreational purposes, would the duty toward him differ in any respect from that owed to a trespasser? See G.L. § 32-6-1 et seq. and particularly § 32-6-3 and § 32-6-5.

"5. In the circumstances of this case, should the question of whether the defendants' conduct amounted to willful or wanton acts or ordinary negligence be determined by the court on motion for summary judgment or should it be determined by a trier of fact?"

These issues will be discussed as they are presented, beginning with a short discussion of the Brindamour case on which the motion justice's ruling was based. Further facts will be supplied as may be necessary to deal with these issues.

Brindamour v. City of Warwick, 697 A.2d 1075 (R.I.1997)

Colleen Marie Brindamour was killed at approximately midnight on a midsummer evening in 1993 when a car in which she was a passenger skidded off a road located within a city-owned park and slammed into a tree head-on. See Brindamour, 697 A.2d at 1076

. Brindamour's mother, Rose Brindamour, filed suit against the City of Warwick, alleging that the city was negligent in failing to maintain the park and its roadways in a safe manner. The park was closed at the time of the accident. See id. We held that because Brindamour was in the park after hours, she was a trespasser, and that the city owed to trespassers only the duty to refrain from wanton or willful conduct. See id. at 1077.

For purposes of this opinion, we shall assume without deciding that all three defendants had the same relationship to the decedent and that there was no distinction among them with respect to the duty owed him. We make this assumption even though counsel for the university has argued vigorously that its duty concerning the Cliff Walk was superseded by the authority exercised over the pathway by the City of Newport and by the state. We also recognize that the state has argued that its duty varied from that of the city. We do not believe that it is necessary in this context to resolve those contentions.

I

Was the decedent a trespasser?

Initially, plaintiffs argue that Brindamour does not apply, and that there is a genuine issue of material fact about whether the decedent was a trespasser at the time of the accident. Pursuant to Newport City Ordinance § 12.32.010 (C), the Cliff Walk is "closed for public use between nine p.m. and six a.m. of the following day, daily, and no person shall go upon such public areas during the hours of closing * * * except that the Cliff Walk shall remain open for the purpose of access to the water for fishing." The plaintiffs argue that in Brindamour, it was an uncontested fact that the plaintiff was a trespasser. The plaintiffs argue, however, that in the instant case, the decedent had no way of knowing that the walk closed at a particular time every night. The plaintiffs argue that despite the fact that a city ordinance prohibits people from being on the walk after hours, unless for the purpose of fishing, only two signs posted on either end of the walk notify people of the hours that the walk is open to the public. The plaintiffs argue that such notice is insufficient, as there are numerous other unrestricted entrance points along the walk, which stretches approximately 18,000 feet along the Atlantic Ocean.

However, we recently rejected a similar argument in Bennett v. Napolitano, 746 A.2d 138 (R.I. 2000). In Bennett, we held that an individual who, in violation of a city ordinance, entered a park after closing was a trespasser. Id. at 141. There, the plaintiff, Donald Bennett (Bennett), was walking his dogs at about 2 a.m., along a path in Roger Williams Park in Providence that he had used for about ten years, when a tree limb fell on him. Bennett filed suit against the City of Providence, alleging that the city was negligent in maintaining the park. The city filed a motion for summary judgment, arguing that Bennett was a trespasser because he was in the park after it had closed and that therefore the city owed him only the duty to refrain from willful and wanton conduct. The motion justice granted the motion and entered judgment accordingly. See id. at 140.

On appeal, Bennett argued that he had the implied consent of the city to use the park after hours because he had done so for a period of ten years and because he had been observed on numerous occasions by park rangers and Providence police officers, who had never asked him to leave. See id. We rejected plaintiff's argument. We noted that the park was closed from 9 p.m. to 7 a.m. pursuant to city ordinance, and that an "individual who enters a city park after closing is a trespasser." Bennett, 746 A.2d at 141. We held that local police and park rangers did not have the authority to waive the provisions of that ordinance by affirmatively or impliedly inviting people into the park after closing. To conclude otherwise would be equivalent to holding that a "landowner who does not aggressively exclude a trespasser thereby assumes an enhanced duty of care towards the trespasser or that a driver who regularly exceeds the authorized highway speed limit while observed by law enforcement officials can claim an implied permission to speed." Id. at 142.

A strict adherence to this Court's decision in Bennett leads one to conclude that the decedent was a trespasser even though the Cliff Walk was not so intensively posted as to notify all possible visitors of the hours of operation. The holding in Bennett suggests that the existence of a city ordinance closing a park establishes as a fact that any person in the park after hours is a trespasser, even if the person is completely unaware of the ordinance. Brindamour and Bennett both clearly establish that a person in a park after it has closed is a trespasser. Because the decedent was on the Cliff Walk at about 2 a.m., he was a trespasser as a matter of law. We shall now turn to the questions raised by the Court.

II

The willful and wanton standard

The first and the second questions posed by the Court are interrelated, and, therefore, will be discussed together. These questions ask whether defendants' conduct rises to the level of willful and wanton conduct (question 1), and whether the duty to refrain from willful and wanton conduct arises before or after the trespasser is discovered (question 2).

Under Rhode Island law, it is well settled that a landowner owes a trespasser no duty except to refrain from willful or wanton conduct. See Bennett, 746 A.2d at 142

; Brindamour, 697 A.2d at 1077; Tantimonico v. Allendale Mutual Insurance Co., 637 A.2d 1056, 1061 (R.I.1994). It is also well settled that such a duty arises only after a...