Filippone v. City of Providence

• Decision Date: 04 December 2012
• Docket Number: C.A. PC/08-1116
• Parties: ANN FILIPPONE, v. The CITY OF PROVIDENCE; STEPHEN T. NAPOLITANO, in his Capacity as TREASURER for the CITY OF PROVIDENCE; WILLIAM BOMBARD, in his Capacity as CIVIL ENGINEER for the CITY OF PROVIDENCE; PAUL THOMAS, in his Capacity as SUPERINTENDENT of the HIGHWAY DEPARTMENT; SAL SOLOMON, in his Capacity as SUPERINTENDENT of the HIGHWAY DIVISION; and JOHN DOE, ALIAS
• Court: Rhode Island Superior Court

ANN FILIPPONE, v. The CITY OF PROVIDENCE; STEPHEN T. NAPOLITANO, in his Capacity as TREASURER for the CITY OF PROVIDENCE; WILLIAM BOMBARD, in his Capacity as CIVIL ENGINEER for the CITY OF PROVIDENCE; PAUL THOMAS, in his Capacity as SUPERINTENDENT of the HIGHWAY DEPARTMENT; SAL SOLOMON, in his Capacity as SUPERINTENDENT of the HIGHWAY DIVISION; and JOHN DOE, ALIAS

C.A. No. PC/08-1116

Superior Court of Rhode Island

December 4, 2012

DECISION

MCGUIRL, J.

Before the Court in this non-jury negligence action is a Motion for Judgment as a Matter of Law filed by Defendants City of Providence; Stephen T. Napolitano, in his Capacity as Treasurer for the City of Providence; William Bombard, in his capacity as Civil Engineer for the City of Providence; Paul Thomas, in his Capacity as Superintendent of the Highyway Department; and Sal Solomon, in his Capacity as Superintendent of the Highway Division (collectively "the City" or "Defendants"). Plaintiff Anne Filippone ("Plaintiff) objects to the motion. She also has filed a Motion to Re-Open her case-in-chief in order to present additional evidence. Jurisdiction is pursuant to G.L. 1956 § 8-2-14.

I Facts and Travel

On March 22, 2007, Plaintiff slipped and fell in a pedestrian crosswalk on Sabin Street, Providence, as she was crossing the road to attend an Elton John concert at the Dunkin' Donuts Center. The crosswalk had been constructed with brick pavers. The Plaintiff asserts that some of the brick pavers had become dislodged and that the resulting defect caused her to fall.

At the conclusion of Plaintiff's case, the City moved for judgment as a matter of law. It asserts that Plaintiff did not sustain her burden of proving that the City was negligent in failing to properly maintain and inspect the walkway in question. It further contends that Plaintiff failed to demonstrate that the area in question was defective, or that even if it were defective, she failed to prove that the City had actual or constructive notice of the alleged defect.

The Plaintiff objects, maintaining that she established through exhibits that that the City knew, or should have known, that the crosswalk was defective in nature. She further asserts that although the City acknowledged that it had an obligation to keep crosswalks in a safe condition—either through repairing or warning of problems—it admitted that it did not have either maintenance or repair policies in place. The Plaintiff also moved to re-open the presentation of her case in order to introduce photographic evidence to establish that the crosswalk upon which she fell has not been re-located or repaired.

II Standard of Review

The Defendants have moved for judgment as a matter of law pursuant to Super. R. Civ. P. Rule 52. It provides in pertinent part:

"If during a trial without a jury a party has been fully heard on an issue and the court finds against the party on that issue, the court may enter judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue, or the court may decline to render any judgment until the close of all the evidence. Such a judgment shall be supported by findings of fact and conclusions of law as required by subdivision (a) of this rule." Super. R. Civ. P. Rule 52(c).^[1]

It is axiomatic that pursuant to Rule 52(c), "a party may . move for judgment as a matter of law after the presentation of an opponent's case . . . ." Broadley v State, 939 A.2d 1016, 1020 (R.I. 2008); see also Cathay Cathay, Inc. v. Vindalu, LLC, 962 A.2d 740, 745 (R.I. 2009) ("Rule 52(c) permits a trial justice to enter judgment against a party who has been fully heard on an issue in a nonjury trial, and the court finds against the party on that issue.") (Internal citations omitted).

In ruling on a Rule 52(c) motion, and "to satisfy the demands of Rule 52(a), a trial court must do more than announce statements of ultimate fact. The court must support its rulings by spelling out the subordinate facts on which it relies." Cathay, Inc., 962 A.2d at 747 (quoting Damon v. Sun Co., 87 F.3d 1467, 1481 (1st Cir.1996)). Thus, any judgment must "be supported by facts found specially and conclusions of law stated separately." Id. Furthermore, in considering the motion, "a trial justice must assess the credibility of witnesses and weigh the evidence presented by the nonmoving party." Cathay, Inc., 962 A.2d at 745 (citing Broadley, 939 A.2d at 1020).

However, the aforementioned requirements do not mean that the trial justice is required to "engage in extensive analysis and discussion of all the evidence when rendering a decision in a non-jury trial; . . . [because], [e]ven brief findings and conclusions are sufficient if they address and resolve the controlling and essential factual issues in the case." Cathay, Inc., 962 A.2d at 745 (quoting Donnelly v. Cowsill, 716 A.2d 742, 747 (R.I. 1998)) (internal quotations omitted). Finally, unlike in jury trials, "when deciding a motion for judgment as a matter of law in a nonjury trial . . . [, ] the trial justice need not view the evidence in the light most favorable to the nonmoving party." Broadley, 939 A.2d at 1020.

III Analysis

The Defendants assert that Plaintiff failed to present any evidence either that the area upon which she fell was defective, or that Defendants had actual or constructive knowledge of the alleged defect, or both; consequently, they request the Court to grant their Motion for Judgment as a Matter of Law. The Plaintiff objects and has filed a Motion to Re-Open her case. In doing so, she seeks to introduce photographic evidence allegedly substantiating the location where she sustained her fall, as well as showing the continued defective condition of the area.

In the event that the Court were to grant Plaintiff's Motion to Re-Open her case, then Defendants' Motion for Judgment as a Matter of Law would be rendered premature.^[2]Consequently, the Court first will address Plaintiff's Motion to Re-Open.

A Motion to Re-Open

The Plaintiff asserts that during the course of the trial, an issue arose as to whether the offending crosswalk had been relocated. On June 16, 2011, counsel for Plaintiff visited the area and took eleven photographs of the area in question. The Plaintiff seeks to re-open her case so that she may introduce this photographic evidence. Specifically Plaintiff's counsel alleged:

"The attached photographs substantiates [sic] the fact that it is in the exact area for crossing as introduced at trial. Furthermore, the photographs number 1 2, 3, reflect the size of the brick, the hole it creates when removed, which I in fact did, (then replaced), as well as the continuing and ongoing defect of the area in question. The remaining photographs further substantiate the lack of attention to maintenance as noted by the white painted defining lines of the brick pavers and crosswalk which shows defects contained within the white lines, as well as the brick pavers, much like the photographs introduced at trial." (Anne Filipone's Motion to Re-Open, at 2.)

The City has objected to the Motion to Re-Open on relevancy grounds, asserting that the photographs are not a fair representation of the area at the time of Plaintiff's fall.

In Rhode Island, it is well settled "that a motion to reopen is within the sound discretion of the trial justice and that his [or her] decision thereon will not be disturbed by this court, unless clearly an abuse of such discretion." Russo v. G. W. Gooden, Inc., 108 R.I. 356, 275 A.2d 266, 270 (1971). Accordingly,

"When sitting without a jury, a trial justice is vested with broad discretion to hear evidence, pass on the merits of a claim, and to reopen the case and take additional evidence when appropriate. A trial court's exercise of discretion is reviewed to determine whether it has been soundly and judicially exercised . . . with just regard to what is right and equitable under the circumstances . . . . When circumstances require the trial justice to exercise discretion, it is the duty of the court to consider and determine that question so that the rights of the parties may be fairly protected in an orderly manner. It is as much an abuse of judicial discretion in refusing to exercise such discretion when warranted by the facts before the court as it is to exercise that discretion improperly by means of a decision that is clearly erroneous on the facts or under the law." Connecticut Valley Homes of East Lyme, Inc. v. Bardsley, 867 A.2d 788, 795 (R.I. 2005) (internal citations and quotations omitted).

Rule 401 of the Rhode Island Rules of Evidence defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." R.I. R. Evid. 401. Except when prohibited by law, "[a]ll relevant evidence is admissible . . . ." R.I. .R. Evid. 402. Conversely, "[e]vidence which is not relevant is not admissible." Id Furthermore,

"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, . . . or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." R.I. R. Evid. 403.

The Plaintiff seeks to re-open her case in order to introduce photographs that were taken more than four years after the incident. She asserts that the purpose of introducing these photographs is (a) to confirm the location where the alleged injury occurred; (b) to demonstrate the size an individual brick paver, as well as the depth of the hole that would be produced by its removal from...