Pullen v. State

• Decision Date: 05 February 1998
• Docket Number: No. 96-333-A,96-333-A
• Citation: 707 A.2d 686
• Parties: Cynthia PULLEN v. STATE of Rhode Island and City of Newport et al. ppeal.
• Court: Rhode Island Supreme Court

Page 686

707 A.2d 686

Cynthia PULLEN v. STATE of Rhode Island and City of Newport et al.

No. 96-333-Appeal.

Supreme Court of Rhode Island.

Feb. 5, 1998.

Stephen G. Linder, Providence, for Plaintiff.

Melody A. Alger, Elizabeth A. Wallace, Providence, for Defendant.

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

OPINION

WEISBERGER, Chief Justice.

This case comes before us on appeal by Cynthia Pullen (plaintiff or Pullen) from a grant of summary judgment entered in Superior Court in favor of the city of Newport (defendant or city). The plaintiff sued the city of Newport for the negligent failure to repair a defect in the sidewalk located adjacent to America's Cup Avenue, which defect she claimed caused her to fall and sustain serious personal injury. The sole issue before us is whether the city has a duty to maintain a sidewalk that is located within its borders but which the state owns, constructed, and agreed to maintain. We conclude that it does not, and for the reasons set forth below, we affirm the summary judgment entered in the Superior Court. The undisputed facts underlying this appeal are as follows.

On or about May 3, 1992, Pullen tripped on a raised portion of the sidewalk located along America's Cup Avenue in Newport, Rhode Island. As a result she fell against a cement planter and sustained injuries to her face and arm. The sidewalk upon which Pullen tripped is owned by the State of Rhode Island and is within the state highway line. The state constructed America's Cup Avenue and the subject sidewalk after executing a 1968 construction and maintenance agreement with the city of Newport whereby the state assumed full responsibility for maintaining the roadway and its appurtenances. The maintenance agreement contained no expiration date and was signed by the state purchasing agent, the chief engineer for the department of transportation, and a then-assistant attorney general on behalf of the state.

On March 22, 1995, Pullen filed a complaint in Superior Court, alleging that Newport, the State of Rhode Island, Long Wharf Mall Associates, Ltd. (Long Wharf), and CIC-Newport Associates, Ltd. (CIC), were negligent in failing to maintain the sidewalk in a reasonably safe condition for pedestrian travel. The plaintiff subsequently dismissed her complaints against Long Wharf, and CIC, because neither entity had an ownership interest in or control over the sidewalk at issue.

On July 7, 1995, the city filed a motion for summary judgment, arguing that it owes plaintiff no duty to maintain a sidewalk that the state owns, built, and agreed to maintain. The state also filed a motion for summary judgment, alleging that pursuant to G.L.1956 § 24-5-1 the city, not the state, has a statutory obligation to maintain all sidewalks found within its borders. On May 20, 1996, the trial justice entered summary judgment in favor of the city and denied the state's motion for summary judgment. The plaintiff and the state then filed separate appeals to this court. The state later withdrew its appeal, limiting our review in the present case to the issues raised by plaintiff.

The plaintiff contends on appeal that regardless of whether the state owns and controls a particular sidewalk as part of the state highway system, the city has a mandatory obligation pursuant to § 24-5-1 to keep all sidewalks within its borders in good repair. She asserts that § 24-5-13 imposes liability upon a municipality for personal injuries caused by the city's failure to keep such sidewalks in reasonably safe condition. According to plaintiff, the duty imposed by § 24-5-1 is nondelegable, rendering any attempt by the city to assign to the state the duty of roadway maintenance void, even if such maintenance concerns state-owned and controlled sidewalks. In support of her position plaintiff relies upon the case of Child v. Greene, 51 R.I. 477, 155 A. 664 (1931), wherein this court held that, absent legislation showing a contrary intention, a town was not relieved of its statutory obligation of maintaining a city sidewalk located adjacent to a state highway simply because that sidewalk is later adopted as a part of the state highway system. Id. at 479, 155 A. at 665.

The city, on the other hand, contends that G.L.1956 §§ 24-8-6 and 24-8-9 place upon the state the duty of constructing and maintaining state sidewalks located along state highways. Specifically it argues that § 24-8-6 authorizes the director of transportation to construct sidewalks adjacent to state roads when he or she believes such sidewalks are required and that § 24-8-9 authorizes the director "to alter, [and] * * * to keep in good condition * * * all sidewalks * * * on state roads; except, on * * * portions of state roads in cities * * * where the territory contiguous thereto is closely built up." ¹ The city asserts that pursuant to this authority the state constructed the subject sidewalk as part of the Memorial Boulevard Extension and contracted to be responsible for its general maintenance. The city also argues that the statutory analysis adopted by this court in Child, 51 R.I. at 479, 155 A. at 665, is not controlling because in that instance the court resolved the issue of municipal liability pursuant to a statutory scheme that predated the enactment of §§ 24-8-6 and 24-8-9 by four years.

Summary judgment, we have stated, is a drastic remedy that should be cautiously applied. Russian v. Life-Cap Tire Services, Inc., 608 A.2d 1145, 1147 (R.I.1992). In passing upon a motion for summary judgment, this court applies the same standard as the trial justice and reviews the pleadings and affidavits in a light most favorable to the party opposing the motion. Id. We shall affirm a trial justice's order granting summary judgment when our review reveals no issues of material fact and the moving party is entitled to judgment as a matter of law. Id.; Alfano v. Landers, 585 A.2d 651, 652 (R.I.1991). The only question remaining in the present case is whether the city owed plaintiff a statutory duty to maintain the subject sidewalk in a reasonably safe condition. This question is one of law, not one of fact. See Hydro-Manufacturing, Inc. v. Kayser-Roth Corp., 640 A.2d 950, 955 (R.I.1994) (explaining that whether a duty runs from a defendant to a plaintiff is a question of law); accord Banks v. Bowen's Landing Corp., 522 A.2d 1222, 1224 (R.I.1987). In resolving this issue, the court must seek to ascertain the intent of the Legislature in enacting chapter 5 of title 24, entitled "Maintenance of Town Highways," and chapter 8 of title 24, entitled "Construction and Maintenance of State Roads," and how specific provisions of these chapters interact under the facts of this case. In so doing, we examine " 'the language, nature and object of the statute' * * * 'in light of circumstances motivating its passage.' " In re Kyle S., 692 A.2d 329, 331 (R.I.1997). The statute is considered in the context of the entire statutory scheme, and we shall attribute to it the meaning most consistent with the statute's underlying policies and purposes. Id. at 331. With these principles in mind, we begin our analysis with a discussion of the specific statutory provisions themselves.

The liability of a city or a town to compensate a person injured by reason of a defect in a highway is wholly statutory. O'Reilly v. Town of Glocester, 621 A.2d 697, 701 (R.I.1993); Barroso v. Pepin, 106 R.I. 502, 504-05, 261 A.2d 277, 278-79 (1970). In Rhode Island the duty of a municipality to repair and amend its roadways is set forth in § 24-5-1, which provides in pertinent part:

"(a) All highways * * * lying and being within the bounds of any town, shall be kept in repair * * * so that the highways * * * may be safe and convenient for travelers * * * at the proper charge and expense of the town, under the care and direction of the town council of the town, provided that the state shall be responsible for the annual cleaning of all sidewalks on all state highways, causeways, and bridges."

The town's duty to keep its roads in good repair has been interpreted by this court to include maintaining sidewalks located adjacent to the roadway. Barroso, 106 R.I. at 508, 261 A.2d at 280; Hoyt v. Allen, 55 R.I. 360, 362, 181 A. 411, 412 (1935); Child, 51 R.I. at 479, 155 A. at 665; see also Alfano, 585 A.2d at 652 ("[t]ogether, a sidewalk and a roadway make up a highway or a street"). Section 24-5-13 renders cities and towns liable to those who suffer injury to their person or property because of the town's failure to comply with the obligations set forth § 24-5-1. ² Barroso, 106 R.I. at 504-05, 261 A.2d at 278-79 (explaining that § 24-5-13 abrogates municipal immunity as it relates to defects in the roadway). The remedy provided by the Legislature to those injured by a defect in the roadway consists of the right to bring suit against the negligent municipality. General Laws 1956 § 45-15-8; see also Bierman v. Shookster, 590 A.2d 402, 404 (R.I.1991); Barroso, 106 R.I. at 504-05, 261 A.2d at 279. Specifically any person who has sustained injuries

"by reason of a defect, want of repair * * * in or upon a public highway * * * in any town which is by law obliged to repair and keep the same in a condition safe and convenient for travelers * * * which injury or damage might have been prevented by reasonable care and diligence on the part of the town * * * may recover * * * the amount of damages, sustained thereby, if the town had reasonable notice of the defect, or might have had notice thereof by the exercise of proper care and diligence on its part." Section 45-15-8. (Emphasis added.)

The establishment and maintenance of public highways are functions of the state. Di Palma v. Zoning Board of Review of Bristol, 72 R.I. 286, 288, 50 A.2d 779, 780 (1947). Supervision and control over public highways, we have observed, may be exercised directly by the state or delegated to subordinate governmental agencies, such...