Salk v. Alpine Ski Shop, Inc., 74-3-A

• Decision Date: 04 August 1975
• Docket Number: No. 74-3-A,74-3-A
• Citation: 342 A.2d 622,115 R.I. 309
• Parties: , 18 UCC Rep.Serv. 335 Burton SALK v. ALPINE SKI SHOP, INC., and Cubco, Inc. ppeal.
• Court: Rhode Island Supreme Court

Page 622

342 A.2d 622

115 R.I. 309, 18 UCC Rep.Serv. 335

Burton SALK v. ALPINE SKI SHOP, INC., and Cubco, Inc.

No. 74-3-Appeal.

Supreme Court of Rhode Island.

Aug. 4, 1975.

[115 R.I. 315] Milton Bernstein, Providence, for plaintiff.

Bruce G. Tucker, Providence, for Alpine Ski Shop.

Paul V. Reynolds, Providence, for Cubco, Inc.

Marvin A. Brill, Francis V. Reynolds, Providence, for defendants.

OPINION

DORIS, Justice.

This is a civil action to recover damages for personal injury brought by the plaintiff, Burton Salk, against the defendants, Alpine Ski Shop, Inc. (hereinafter Alpine), a Rhode Island corporation engaged in the sale of ski and other sports equipment, and Cubco, Inc. (hereinafter Cubco), a New Jersey corporation engaged in the manufacture of ski bindings. The case was tried to a justice of the Superior Court sitting with a jury. At the close of the plaintiff's presentation of evidence, the defendants each moved for a directed verdict on all counts of the plaintiff's complaint. The motions were granted, and the plaintiff now appeals from the judgment entered thereon.

It appears from the record that in January of 1967, plaintiff purchased from defendant Alpine various articles of ski equipment including ski bindings manufactured by defendant Cubco. The defendant Apline installed these ski bindings on plaintiff's skis and allegedly adjusted them according to plaintiff's height, weight, and skiing ability. The plaintiff made use of his new ski equipment on four separate occasions without mishap. On the fifth day, however, plaintiff fell while skiing, his ski bindings did not release, and he broke his leg.

Shortly after this accident, plaintiff filed a complaint against Alpine and Cubco, which, after several amendments, alleged eight counts of liability: two counts in express and implied warranty against the seller Alpine, two counts in express and implied warranty against the manufacturer Cubco, a count in strict liability in tort against each defendant, and a count in negligence against each defendant. Pursuant to motions made under Super.R.Civ.P. 50, the trial justice directed a verdict against plaintiff on all counts of the amended complaint. On appeal plaintiff has limited himself to claiming only three points of error. Those points neither briefed nor argued are deemed to be waived. Sup.Ct.Rule 16(a).

Since the case comes to us solely on the question of whether the trial justice erred in granting defendants' motions for a directed verdict, we consider the evidence in a light most favorable to the appealing party and give him the benefit of all reasonable and legitimate inferences to be drawn therefrom. Gaudette v. Carter, 100 R.I. 259, 214 A.2d 197 (1965). Should the evidence be susceptible of two reasonable inferences, one of which would provide the necessary support for plaintiff's contentions, it would be improper for the trial justice to direct a verdict. , Hamrick v. Yellow Cab Co. of Prov., 111 R.I. 515, 304 A.2d 666 (1973); Molinari v. Sinclair Refining Co., 111 R.I. 490, 304 A.2d 651 (1973). With this general principle in mind, we now proceed to an examination of plaintiff's specific contentions.

In alleging that the trial justice erred in directing a verdict as to the count charging defendant Alpine with negligence, plaintiff suggests that there was evidence to support a finding that Alpine was negligent in not adjusting the bindings according to the manufacturer's specifications and instructions. He argues that the fact that Alpine installed and adjusted the bindings, together with the fact that the bindings did not release when plaintiff fell, sets up a reasonable inference that the bindings were improperly adjusted and that this improper adjustment caused the injury.

The mere happening of an accident does not ordinarily justify the inference that defendant was negligent and that his negligence proximately caused the injury to plaintiff. Pettella v. Union Carbide Corp., 234 F.Supp. 366 (D.R.I.1964); Goyette v. Sousa, 90 R.I. 8, 153 A.2d 509 (1959). In order to avoid a directed verdict, the burden is on plaintiff to produce competent evidence that defendant was negligent and that its negligence was the proximate cause of the injury.

In the instant case the only evidence plaintiff can adduce in support of his contention of negligence is that the bindings failed to release. There is undisputed evidence in the record that unless plaintiff was traveling at a certain minimum velocity his bindings, although properly adjusted to his height, weight, and skiing ability, would not release. The plaintiff presents no evidence that he had reached this threshold speed when the fall occurred.

Furthermore, there is no competent evidence in the record that the result of the alleged negligence, the failure of the bindings to release, actually caused the injury. In Sweet v. Hemingway Transport, Inc., R.I., 333 A.2d 411 (1975), we held that for expert testimony on the issue of causation to have any evidentiary value, the expert must report that the injury 'most probably' resulted from the cause alleged. In the instant case, the doctor who examined plaintiff immediately after the accident was...