Cofone v. Narragansett Racing Ass'n

• Decision Date: 31 January 1968
• Docket Number: No. 53-A,53-A
• Citation: 103 R.I. 345,237 A.2d 717
• Parties: Angelo A. COFONE v. NARRAGANSETT RACING ASSOCIATION, Inc. ppeal.
• Court: Rhode Island Supreme Court

Page 717

237 A.2d 717

103 R.I. 345

Angelo A. COFONE v. NARRAGANSETT RACING ASSOCIATION, Inc.

No. 53-Appeal.

Supreme Court of Rhode Island.

Jan. 31, 1968.

Cappuccio & Cappuccio, Louis B. Cappuccio, Frank S. Cappuccio, Westerly, for plaintiff.

Keenan, Rice & Dolan, John T. Keenan, Providence, for defendant.

OPINION

JOSLIN, Justice.

This action of trespass on the case for negligence, although commenced prior to the effective date of the superior court's new rules of civil procedure, was tried thereafter to a justice of that court sitting with a jury. At the close of all the evidence, the trial justice granted the defendant's motion for a directed verdict on five counts of the eight-count declaration under authority of rule 50(b), and reserved decision on the remaining three counts. The case was then submitted to the jury which, after returning a $12,000 verdict, plus interest, for the plaintiff, was discharged. Thereupon the court entered a decision against the defendant on the motion reserved as well as a judgment on the verdict. The defendant appealed.

The posture in which the case comes to us is unusual. Not only was it commenced under one set of rules and tried under another, but, in addition, defendant failed to move for a new trial and bases his appeal solely on the ground that the trial justice should have directed a verdict in its favor on all counts. Neither of these unusual aspects, however, poses any difficulty. Procedurally, we apply the new rules because to do so is feasible and will work no injustice to defendant, Bragg v. Warwick Shoppers World, Inc., R.I., 227 A.2d 582; substantively, instead of being concerned with the credibility of the witnesses or the weight of the evidence as we would were we reviewing a ruling on a motion for a new trial, we apply the directed verdict standard and consider all of the evidence and the reasonable inferences deducible therefrom most favorably to the plaintiff. Waltz v. Aycrigg, R.I., 235 A.2d 338. Within the frame of these principles we now outline the material evidence.

The defendant owned and operated a horse racetrack in Pawtucket. The plaintiff was a patron and, on the July day in 1956 when he was injured, had gone to the track with a friend. As they approached the admission gate and joined a line of patrons waiting to pay their admission fees, it suddenly became dark and very windy. Heavy rain began to fall. Notwithstanding, plaintiff continued to stand in line, and when his turn came, paid the admission fee, proceeded through the admission turnstile, and then ran for an entranceway to the grandstand, about 150 feet away, in order to take shelter from the storm. As he reached his destination, an overhead door, about 400 pounds in weight and 7 feet by 9 feet in size, descended and struck him on the head causing serious injuries.

The door which struck plaintiff is one of four which hang from an overhead track above the entranceway. Generally open when the horses are running, the doors are lowered and the entranceway closed in off-seasons. They are operated on a spring by rollers, and each can be lowered by pulling a rope which hangs just inside the entranceway and within easy reach of a man of average size. Customarily during the racing season, two track employees are stationed by the entranceway. Their principal duty is to tend the doors, and to insure that no unauthorized person pulls the lowering ropes or in any other way tampers with the doors.

On the day of the accident when it started to rain, these two employees left their stations at the entranceway and went to the grandstand roof to lower some flags. Both employees were absent from their posts for about 25 minutes and it was during that interval that plaintiff was struck by the descending door. Three witnesses testified that some third person pulled the rope and lowered the door. Although they differed substantially as to the identity of that person, the parties have argued the case as if he were an independent newspaper vendor who was not in defendant's employ.

Premised on the foregoing facts, plaintiff claims in essence that defendant was negligent (1) in failing either to warn him of the danger of the overhead door's coming down while he was beneath it or to provide protection against that danger; (2) in leaving the doors and the controls for lowering them unattended and in failing to take reasonable precautions to prevent them from being improperly closed; and (3) in failing properly to operate, maintain, supervise and attend them.

The defendant, assuming that the declaration thus framed narrowly limits the scope of plaintiff's claim-an assumption which is susceptible to considerable doubt under the fair notice concept of the new rules, see Bragg v. Warwick Shoppers World, supra-first calls our attention to the difference between what plaintiff pleaded and what he proved. It points out that the negligence primarily declared on by plaintiff was its alleged failure properly to operate, maintain, supervise and attend the overhead doors, whereas what he proved at the trial was that the immediate and direct cause of the accident was the lowering of the doors by a responsible third person for whose action it was not responsible. This material difference between the breach of the duty alleged and the proof adduced was sufficient, defendant argues, to entitle it to a directed verdict on the three counts on which decision was reserved. This is particularly so, its argument continues, because of plaintiff's neglect at trial either to move to amend his declaration or to request permission to make his pleadings conform to the evidence. The legal principle defendant urges probably would have been of assistance had this case been tried prior to the adoption of the new rules. Collins v. Palmer, 70 R.I. 143, 37 A.2d 658; Shea v. First National Stores, Inc., 63 R.I. 85, 7 A.2d 196; Sarcione v. Outlet Co., 53 R.I. 76, 163 A. 741; St. John v. Rhode Island Co., 32 R.I. 447, 79 A. 1101. That pleadings be technically correct and conform to the proof was 'pre-new rules' of significantly more importance than it is now. Under what was then settled procedural law, any material variance between the essential allegations of a declaration and the proof adduced at trial could be fatal, even though evidence clearly irrelevant to the case as pleaded had been admitted without objection. Ferla v. Rotella, 92 R.I. 460, 169 A.2d 906, 170 A.2d 622. That principle, however, no longer controls. It has been negated by rule 15(b) of the new rules which, in pertinent part, provides that issues tried by express or implied consent, even though not raised by the pleadings, should be treated in all respects as if they had been pleaded even in the absence of amendment.

The pivotal issue, however, is not whether there was a variance between the allegations and the proof, but whether the injury sustained was proximately caused by defendant's negligence. That question has two facets. While separate, they are nonetheless so closely related as to be inseparable. Each involves proximate cause. The first is whether the harm to plaintiff was the reasonably foreseeable result of defendant's allegedly negligent conduct; and, the second is whether the intervening act of a responsible third person in lowering the door broke the chain of causation and thereby absolved defendant.

A resolution of these two issues requires a definition of the scope of defendant's obligation to plaintiff and of the degree of care it was called upon to exercise for his protection. Of course, it did not insure his safety, even though it had invited him as a member of the general public to its place of public amusement. As an admission-paying patron, he was, however, entitled to have reasonable care exercised for his protection against dangers about which defendant knew or reasonably should have foreseen in the exercise of such care. This does not mean that defendant was required to anticipate and protect him against the unlikely or the improbable, or even that ordinarily it would be required to safeguard him against the obvious danger or one that was a matter of common knowledge, as to both of which he would ordinarily have assumed the risk. It does mean that it should at least have used such measures and means in the placement, maintenance, and use of the equipment on its premises and under its management and control as the ordinary prudent person would have reasonably employed in protecting his patrons against known dangers or those reasonably to be apprehended in the exercise of due care. James v. R.I. Auditorium, Inc., 60 R.I. 405, 199 A. 293; Kane v. Burrillville Racing Ass'n, 73 R.I. 264, 54 A.2d 401; Phelps v. Burrillville Racing Ass'n, 73 R.I. 84, 53 A.2d 753; Ephremian v. Sholes, 72 R.I. 395, 52 A.2d 425; Mercurio v. Burrillville Racing Ass'n, 95 R.I. 417, 187 A.2d 665. See also Desforge v. American-British Home Building Ass'n, 69 R.I. 366, 372, 33 A.2d 203, 206.

Whether this is the extent of the duty of the operator of a place of public amusement, or whether it is greater, our decisions strongly hint at, but do not positively and unmistakably state. For example, in James v. R.I. Auditorium, supra, a case where a paying spectator, seated in an unscreened section of an ice hockey rink, was struck by a flying puck, we referred at 409, 199 A. at 295, to the defendant's duty as being that which '* * * the ordinary prudent person, in its position and with its knowledge of hockey games, would have reasonably employed in protecting an invitee from dangers reasonably to be apprehended,' and in Ephremian v. Sholes, supra, the suit was against the operator of a roller skating rink for injuries sustained by a skater who was standing at a refreshment counter in an aisle. She had been run into and thrown to the floor by a woman, skating fast and recklessly. We held the operator to the duty of exercising such care for the injured patron's safety '* * * as...