Rickey v. Boden

• Decision Date: 16 October 1980
• Docket Number: No. 78-66-A,78-66-A
• Citation: 421 A.2d 539
• Parties: Lillian L. RICKEY et al. v. Herbert BODEN, Jr., et al. ppeal.
• Court: Rhode Island Supreme Court

Page 539

421 A.2d 539

Lillian L. RICKEY et al. v. Herbert BODEN, Jr., et al.

No. 78-66-Appeal.

Supreme Court of Rhode Island.

Oct. 16, 1980.

Gunning, LaFazia & Gnys, Inc., Guy J. Wells, Providence, for plaintiffs.

Hanson, Curran & Parks, A. Lauriston Parks, Dennis J. McCarten, Providence, for defendants.

OPINION

BEVILACQUA, Chief Justice.

This is a civil action in which the plaintiffs, Lillian L. Rickey (Lillian) and Everett A. Rickey (Everett), appeal from the direction of verdicts for two of the defendants, Herbert Boden, Jr. (Boden), and Rhode Island Hospital Trust Company (the trust company) on the plaintiffs' sole allegation that the defendants negligently maintained a stairway.

The record reveals that on January 22, 1971, Lillian was working as an elevator operator in a building at 15 Westminster Street, Providence. During her coffee break that morning, at approximately 9:45 a. m., Lillian slipped and fell while climbing the south-side stairway between the eleventh and twelfth floors of the Westminster Street building on her way to a twelfth-floor room that her employer, Rhode Island Hospital Trust National Bank (the national bank), had designated as an employees' coffee-break area. According to her testimony, Lillian fell at a point at which the stairway begins to curve upward from right to left in a 180-degree turn. She remembered that she had been proceeding upward along the left-hand side of the stairway, grasping a handrail as she went. She recalled that as she was placing her left foot on the first of five wedge-shaped winding treads and was shifting from her right foot to her left foot, her left foot slipped off the tread, and she fell backwards down the stairs. She further testified that at the point at which she fell, the handrail that she had been grasping joined with a supporting post which, she claimed, was too awkward for her to hold onto in her ascent. The width of the winding tread at the point from which Lillian's left foot slipped was approximately three inches. The width of that same tread at its midpoint, approximately twelve inches from the base of the handrail, was about nine and seven-eighths inches. The regularly shaped stairway treads were uniformly about ten inches in width. At the time Lillian fell, there was no handrail on the right-hand side of the stairway proceeding upward. Lillian apparently suffered considerable injuries as a result of her fall, and she did not return to her job until September 22, 1971. ¹

Alleging that the stairway had been negligently maintained, Lillian instituted two civil actions, one against the trust company and Rhode Island Hospital Trust Corporation (the corporation), and one against Boden, the vice president of the national bank in charge of maintaining the Westminster Street building, to recover damages attributable to her fall. ² Lillian's husband, Everett, joined in the suits seeking consequential damages. After service on each of the named defendants, the national bank sought to replace the trust company as a defendant to the first suit, claiming that it, not the trust company, was the real party in interest because the trust company had merged with and into the national bank prior to the date of the accident. The trial justice who heard this motion permitted the national bank to join in the defense of the action but ordered that the trust company be retained as a defendant. The two complaints were consolidated, and the case proceeded to trial before a justice of the Superior Court sitting with a jury. At the apparent close of plaintiffs' evidence on liability, the trial justice, upon motion, directed verdicts for the national bank and the corporation. In directing a verdict for the corporation, the trial justice found that plaintiffs had not presented any evidence to support their allegation that the corporation at the time of the accident had controlled or owned the Westminster Street building. With respect to the direction for the national bank, the trial justice concluded that under G.L.1956 (1968 Reenactment) § 28-29-20, ³ plaintiffs were barred from recovery against the national bank because as an employee of the national bank, Lillian had received workers' compensation for the injuries incurred as a result of her fall. ⁴ In this appeal plaintiffs do not contest the direction of verdicts for the corporation and the national bank.

At the close of all the evidence, the two remaining defendants, the trust company and Boden, moved for directed verdicts. The trial justice granted the trust company's motion but reserved decision on Boden's motion and permitted the case against Boden to go to the jury. The jury returned a verdict for plaintiffs against Boden, awarding damages in the sum of $55,000. Notwithstanding the jury verdict, the trial justice thereafter granted Boden's motion for direction. Additionally, the trial justice granted Boden's subsequent conditional motion for a new trial, explaining that he wished to ensure a new trial for Boden in the event that the direction for Boden was overturned on appeal. The plaintiffs have appealed to this court the directions for Boden and the trust company and the order granting Boden a new trial in the event the direction in his favor is overturned.

I

With respect to the decision to direct a verdict for Boden, the trial justice explained he was basing his decision on several reasons, including his finding that even if Boden had negligently maintained the stairway, Lillian was precluded, as a matter of law, from recovering against Boden because of the doctrine of assumption of the risk. Because we agree with the trial justice that the doctrine of assumption of the risk effectively precludes recovery by plaintiffs against Boden, we need not discuss the merits of the other reasons he offered in support of his decision or the propriety of his conditional order for a new trial for Boden.

It is elementary that in considering a motion for a directed verdict, the trial justice should review all the evidence in the light most favorable to the party against whom the motion is made, without weighing the evidence or considering the credibility of the witnesses, and extract from the record only those reasonable inferences that support the position of the party opposing the motion. If, after taking such a view, the trial justice finds that there exist issues upon which reasonable men might draw conflicting conclusions, the motion should be denied and the issues should be left for the jury to determine. E. g., Scittarelli v. The Providence Gas Company, R.I., 415 A.2d 1040, 1043 (1980). In reviewing the trial justice's decision, this court examines the evidence in the same manner and is bound by the same rules. E. g., Geremia v. Benny's, Inc., R.I., 383 A.2d 1332, 1334 (1978).

The doctrine of assumption of risk is an affirmative defense ⁵ which, when applicable, operates to absolve a defendant of liability for having created an unreasonable risk. Kennedy v. Providence Hockey Club, Inc., R.I., 376 A.2d 329, 333 (1977). In the absence of an express agreement, an individual does not assume the risk of harm arising from another's conduct unless he knows of the existence of the risk and appreciates its unreasonable character. 376 A.2d at 333; D'Andrea v. Sears, Roebuck and Co., 109 R.I. 479, 487, 287 A.2d 629, 633 (1972). To decide whether an individual was aware of the risk and understood its character, we shall look to the record to ascertain what the particular individual in fact saw, knew, understood, and appreciated. Kennedy v. Providence Hockey Club, Inc., R.I., 376 A.2d at 332; D'Andrea v. Sears, Roebuck and Co., 109 R.I. at 487, 287 A.2d at 633. When a person voluntarily proceeds, knowing and appreciating the danger, he will be held to have assumed the risk incident to his conduct. Baumler v. Narragansett Brewing Co., 23 R.I. 430, 434, 50 A. 841, 842 (1901).

Generally, the resolution of the issue whether a plaintiff assumed the risk of injury is for the trier of fact. If the facts suggest only one reasonable inference, however, the issue becomes a question of law for the trial justice and may be the basis of a directed verdict. Iadevaia v. Aetna Bridge Co., R.I., 389 A.2d 1246, 1249 (1978).

Accordingly, in examining the record in the light most favorable to plaintiffs, we find that the evidence supports the trial justice's decision in granting Boden's motion for direction on the basis of the doctrine of assumption of the risk. Lillian herself testified that she had used the stairway on a daily basis for several years prior to the date of her fall. The record indicates that at all pertinent times there were no material changes in the condition of the stairway. Moreover, Lillian does not dispute that she knew of the absence of a handrail along the outside wall of the stairwell or that at a certain point in the stairway the treads became wedge-shaped and thus narrowed at the points closest to the inside handrail. In light of these facts and circumstances, we conclude that Lillian knew of the condition and structure of the stairs and that as a matter of law she knowingly assumed the ordinary risks associated with walking on the narrow portion of the treads, including the chance that she might slip and fall because of inadequate footing on the narrow portion of the treads. Cf. Gatti v. World Wide Health Studios of Lake Charles, Inc., 323 So.2d 819, 822 (La.App.1975) (plaintiff charged as matter of law with assuming ordinary risks attending use of steam room with wet floor, which risks included chance of slip and fall); Birdsall v. Counts, 450 S.W.2d 136, 140-41 (Tex.Civ.App.1970) (plaintiff charged as matter of law with assuming ordinary risks attending use of stairway without handrail and in absence of adequate lighting, which risks included chance of slip and fall).

The plaintiffs argue, however, that Lillian did not voluntarily encounter the aforementioned risks because there were no...