Lieberman v. BLISS-DORIS REALTY ASSOCIATES

• Decision Date: 14 April 2003
• Docket Number: No. 2002-191-Appeal.,2002-191-Appeal.
• Citation: 819 A.2d 666
• Parties: Terry S. LIEBERMAN v. BLISS-DORIS REALTY ASSOCIATES, L.P., et al.
• Court: Rhode Island Supreme Court

819 A.2d 666

Terry S. LIEBERMAN v. BLISS-DORIS REALTY ASSOCIATES, L.P., et al.

No. 2002-191-Appeal.

Supreme Court of Rhode Island.

April 14, 2003.

Present: WILLIAMS, C.J., FLANDERS, GOLDBERG, JJ., and SHEA, J. (Ret.).

Glenn R. Friedemann, Providence, for plaintiff.

David H. Stillman, Braintree, MA, and Elizabeth Page Fecteau, East Providence, for defendant.

OPINION

PER CURIAM.

This case came before the Court for oral argument on February 3, 2003, pursuant to an order that had directed all parties to appear and to show cause why the issues raised in this appeal should not summarily be decided. After considering the arguments of counsel and the memoranda filed by the parties, we are of the opinion that cause has not been shown and shall proceed to decide the appeal at this time.

The defendants, Bliss-Doris Realty Associates, L.P., et al. (defendants) appeal the trial justice's order granting plaintiff's motion for a new trial following entry of judgment in favor of defendants after a jury trial. For the reasons set forth below, we sustain defendants' appeal.

This premises liability matter arose from an injury that plaintiff, Terry S. Lieberman (plaintiff), suffered on February 11, 1997, while descending a common stairwell on defendants' property at 245 Waterman Street, Providence (hereinafter Doris Building). The plaintiff was an independent contractor employed as a part-time copywriter at Roberta Segal and Associates, situated on the fourth floor of the Doris Building.¹ The plaintiff testified that she routinely used the stairs to get to and come from the parking lot. On the night of the incident, plaintiff workedlate, until 6:45 p.m. After leaving her office on the fourth floor, she realized that the hall lights were off. She turned on the lights in the hall and went through the fire door, which opened into the stairwell. The plaintiff testified that the lights on the fourth-floor landing were off, but, the stairway was lit by lights at a lower-floor landing. Rather than turn on the lights on the fourth-floor landing, she chose to walk down the stairs guided only by the lighting below. Without warning, the lights went out while plaintiff was midway between floors. She did not call out for someone to turn the lights on because she thought that she was alone and that the lights went out mechanically. She paused, hoping that her eyes would adjust to the darkness. However, plaintiff testified, the stairwell remained pitch black and she continued down the remaining stairs while holding the banister for support. She lost her footing and fell down the stairs, landing on the third-floor platform. She experienced tremendous pain in her left knee, her left hip, and both feet. After she cried out, a man turned the lights on and appeared in the stairwell to help plaintiff negotiate the remaining stairs. The plaintiff was unable to identify the man.² She drove herself home that night, and returned to work the next day.

The next day she complained to her boss and to defendant, Bliss-Doris Realty Associates, of having fallen down the stairs. She reported that someone had turned the lights out on her, and suggested that the building management install motion sensor lighting to remedy the problem. Approximately one month after the accident, motion sensors were installed, including in the stairwell where plaintiff had fallen. The defendants' manager, Irving Schwartz (Schwartz),testified that they were installed to conserve electricity and to prevent a future accident such as the one involving plaintiff.

Schwartz testified about the policies and practices in place at the time of the accident as they pertained to maintenance of the building's common areas. The tenants in the building, including Roberta Segal and Associates, paid a portion of their rent to maintain the common areas. Under the building lease agreement, if the operating costs for the common areas increased, the tenants paid a percentage of that increase. The lease agreement with Roberta Segal and Associates also indicated that the landlord would supply electrical lighting for the halls, stairways, and passageways during reasonable business hours, defined as weekdays 8 a.m. to 10 p.m. and Saturdays 9 a.m. to noon. However, Schwartz testified that the cleaning crew, who worked from 5 p.m. to 10 p.m., typically turned off the lights at approximately 7 p.m. The parking lot lights remained lit until 10 p.m., and, according to Schwartz, were visible through the windows inside the stairwell that plaintiff had used.

The defendants moved for judgment as a matter of law at the close of evidence. The motion was denied, and on October 25, 2001 the jury returned a verdict for defendants. On November 5, 2001, plaintiff filed a motion for a new trial pursuant to Rule 59(a) of the Superior Court Rules of Civil Procedure. She alleged that the verdict was against the weight of evidence, and challenged the instruction given to the jury about Rhode Island's notice requirement in negligence cases.

After a hearing held on January 4, 2002, plaintiff's motion for a new trial was granted. Based on his own independent evaluation of the evidence and testimony, the trial justice held that the court could not sustain the jury's verdict that defendants were not negligent, and thatreasonable minds could not differ in the ruling. He also said that the court committed an error of law in charging the jury on notice separately from its other negligence instructions.³

The defendants filed a timely notice of appeal. They argue that plaintiff failed to meet her burden in a premises liability case, which required proof that a defective condition existed; that defendants had notice of the dangerous condition; and that their failure to warn or make the premises safe had proximately caused plaintiff's injury. The defendants argue that the sudden switch of lights by an unknown individual does not amount to a defective condition. The defendants also argue that they could not be charged with notice when plaintiff presented no evidence suggesting that there were previous similar incidents in the stairway; that although they were bound to provide lighting until 10 p.m., pursuant to the lease with Roberta Segal and Associates, plaintiff was not a party to the contract and had no rights under the lease; and that the fair preponderance of the evidence supported the jury's verdict.

The plaintiff argues that the trial justice properly granted the motion for a new trial. She submits that the verdict was against the weight of the fair preponderance of the evidence because defendants created an unreasonable risk in their practice of shutting off the lights at 7 p.m. without warning foreseeable plaintiffs such as Mrs. Lieberman. The plaintiff also argues that the subsequent installation of motion sensor lights was conclusive proof of defendants' negligence. Moreover, plaintiff submits that the trial justice committed an error of law in his misleading instruction to the jury on notice, given only after completing his instructions and conferring with counsel.⁴

It is well settled that in considering a motion for a new trial, "the trial justice acts as a `superjuror.'" Saber v. Dan Angelone Chevrolet, Inc., 811 A.2d 644, 652 (R.I.2002) (quoting English v. Green, 787 A.2d 1146, 1149 (R.I.2001)). The trial justice's decision to grant or deny a motion for new trial after reviewing the evidence and commenting on the credibility of the witnesses "will not be disturbed unless he [or she] has overlooked or misconceived material and relevant evidence or was otherwise clearly wrong." English, 787 A.2d at 1149 (quoting Kurczy v. St. Joseph Veterans Association, Inc., 713 A.2d 766, 770 (R.I.1998)). Thus, "[i]f the trial justice determines that the verdict is against the fair preponderance of the evidence, a new trial should be ordered." Montecalvo v. Mandarelli, 682 A.2d 918, 923 (R.I.1996) (citing Barbato v. Epstein, 97 R.I. 191, 194, 196 A.2d 836, 837 (1964)). However, if the trial justice determines that reasonable minds could differ on the verdict, the jury's verdict should not be disturbed. Saber, 811 A.2d at 652 (citing Rezendes v. Beaudette, 797 A.2d 474, 477-78 (R.I.2002)).

The law on general premises liability in Rhode Island is well settled. This Court has stated:

"[A] landowner has a duty to exercise reasonable care for the safety of persons reasonably expected to be on the premises, and that duty includes an obligation to protect against the risks of a dangerous condition existing on the premises, provided the landowner knows of, or by the exercise of reasonable care would have discovered, the dangerous condition." Tancrelle v. Friendly Ice Cream Corp., 756 A.2d 744, 752 (R.I.2000) (citing Cutroneo v. F.W. Woolworth Co., 112 R.I. 696, 698, 315 A.2d 56, 58 (1974)).

The burden of proving that "sufficient evidence existed to show that the defendants knew or should have known of an unsafe condition on their premises" is on the plaintiff. Bromaghim v. Furney, 808 A.2d 615, 617 (R.I.2002) (quoting Massart v. Toys R Us, Inc., 708 A.2d 187, 189 (R.I.1998)). Moreover, plaintiff also must prove that "the condition existed for a long enough time so the owner of the premises should have taken steps to correct the condition." Id. (citing Barone v. Christmas Tree Shop, 767 A.2d 66, 68 (R.I.2001)).

This Court has held that a landowner's duty of care includes an obligation to provide adequate illumination in common areas. In Lamont v. Central Real Estate Co., 110 R.I. 438, 294 A.2d 195 (1972), a landowner was held liable for injuries suffered by a business invitee because the lighting in a stairwell landing was insufficient to reveal the puffy floor tile that had caused the plaintiff to fall. However, in Lamont this Court did not state whether inadequate lighting would alone be sufficient to find liability in the absence of the defective tile.

This Court recently considered this issue in Kurczy v. St. Joseph...