Tancrelle v. Friendly Ice Cream Corp.

• Decision Date: 21 July 2000
• Docket Number: No. 99-380-Appeal.,99-380-Appeal.
• Citation: 756 A.2d 744
• Parties: Marc N. TANCRELLE v. FRIENDLY ICE CREAM CORPORATION.
• Court: Rhode Island Supreme Court

756 A.2d 744

Marc N. TANCRELLE v. FRIENDLY ICE CREAM CORPORATION.

No. 99-380-Appeal.

Supreme Court of Rhode Island.

July 21, 2000.

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

George Lieberman, Anthony J. Bucci, Jr., Glenn R. Friedemann, Providence, for Plaintiff.

Peter A. Carkin, for Defendant.

OPINION

GOLDBERG, Justice.

This case came before the Court on May 8, 2000, on the appeal of the defendant, Friendly Ice Cream Corporation (defendant or Friendly), from a judgment for the plaintiff, Marc N. Tancrelle (plaintiff or Tancrelle), in Providence County Superior Court following a jury award in the amount of $1,682,279. For the reasons stated below, we deny the appeal and affirm the judgment.

FACTS AND TRAVEL

On May 27, 1993, Tancrelle, a plumber, arrived at defendant's restaurant in East Providence, Rhode Island, to install a hot water heater in the basement. At the time, Tancrelle worked as a master plumber for Greenwood Heating, Plumbing & Solar, Inc. (Greenwood), in Warwick, Rhode Island. Tancrelle testified at trial that upon arriving at Friendly's, he introduced himself to Delores O'Brien (O'Brien), the store manager, who directed him to a water heater in the rear of the kitchen. Although Greenwood supplied hot water heaters, Tancrelle testified that this particular hot water heater was not supplied by Greenwood; rather it had been supplied by Friendly. Tancrelle testified that he wassomewhat dismayed by the fact that the unit had been delivered to the kitchen, because the installation was intended for the basement. According to Tancrelle, a winding staircase descended from the kitchen to the basement, but the water heater was too big to fit through the doorjamb to the kitchen staircase. Tancrelle testified that to fit it through the door, he would have to uncrate the water heater, and it would take two men to maneuver the unit down the kitchen stairs. According to Tancrelle, he asked O'Brien whether there was a bulkhead he could use to take the water heater to the basement. He said O'Brien assured him that there was and directed him to it. Tancrelle reasoned that a bulkhead¹ staircase would afford easier access to the basement because he could tie a rope around the heater to slowly lower it down the bulkhead stairs. At that point, Tancrelle went to the basement through the kitchen and, using his flashlight, located the bulkhead. Tancrelle testified that he noticed the bulkhead was bolted, and he proceeded up the stairs to release the bolt.

As he turned to walk down the bulkhead stairs, the top stair gave way and Tancrelle fell, hitting his back at least twice before landing on the bottom step, which also gave way. Tancrelle testified that when he looked up to determine what had happened, he noticed that the supporting stringers² were damaged and appeared rotted. The damaged stringers, he said, caused him to fall. He said they had been damaged by water leaking into the bulkhead from the outside. Tancrelle testified there were two stringers that ran along the foundation wall and supported the staircase. He said that although the top portions of both stringers were rotted, he noticed as he ran his flashlight down one stringer, that the deterioration seemed more pronounced. Tancrelle said that he returned to the kitchen and notified O'Brien of the incident and showed her the damaged staircase. According to Tancrelle, O'Brien toldhim that the stairs were rotted as a result of water leaking into the basement for at least three years. O'Brien subsequently disputed Tancrelle's account of this conversation; she denied that he notified her of the fall, but admitted that he told her that the bulkhead stairs were unsafe. She testified that she was uncertain whether Tancrelle actually had fallen. Tancrelle also testified that he notified his supervisor at Greenwood of the incident and requested assistance to bring the water heater to the basement via the interior staircase.

Thereafter, Dennis Reddy (Reddy), a co-worker of Tancrelle's at Greenwood, arrived at the scene. He helped Tancrelle with the new water heater and helped him remove the old unit from the premises. Reddy testified that, in an effort to determine the more suitable access to the basement, he also inspected the bulkhead stairs, concluded that they were rotted and unsafe, and decided to use the interior staircase. Referring to the installation of the new water heater and the removal of the old unit, both Tancrelle and Reddy testified that because Tancrelle was in pain, Reddy did most of the work that day. Tancrelle acknowledged that he finished the job at Friendly's that day, although he was in pain, and that although he had lingering pain the following morning, he went to work as usual. However, the pain was so intense that Tancrelle left work that morning. He initially rested for two to three days, after which, according to Tancrelle, the pain increasingly worsened to the point where he began treatment with several orthopedists, neurologists and neurosurgeons. Ultimately, in May 1994, Tancrelle underwent unsuccessful surgery for a herniated disk. Approximately one month after the incident, Tancrelle's attorney notified the restaurant of Tancrelle's intention to file a claim against Friendly's insurance carrier.

James Beland (Beland), then the general manager of the East Providence restaurant, testified that during his three-year tenure, from 1991 to 1993, the bulkhead stairs never had been used. At trial,Beland testified that, save for the installation and removal of the water heaters, he was unaware of the events that transpired on May 26, 1993, and that he learned of the incident only when he received a letter from Tancrelle's attorney. Beland notified his superiors of the possible claim, and was instructed to take statements from all personnel on duty that day and to photograph the bulkhead stairs. Beland testified that with the exception of the last step, which appeared to be off the support on one side, he found no damage to the stairs. Beland stated that he secured the bottom step with a piece of wood.

The evidence disclosed that in November 1993 the bulkhead stairs were used for a second time during Beland's tenure. Beland testified that a large shipment of gift boxes was delivered to the basement in preparation for the holidays, a delivery in which ten people went up and down the staircase for more than two hours. According to Beland, at one point during the delivery, the stairs tipped to one side. Specifically, Beland admitted that "the entire set of stairs shifted probably about two to three inches upon the vertical support in the back [and as a result it] gave way." Beland testified that, although he was able to complete the delivery, he remained concerned about the safety of the stairs. Accordingly, the next day he relayed those concerns to defendant, and soon thereafter the stairs were dismantled and replaced.

In what can be described only as a fortuitous coincidence, Greenwood received another call from the restaurant about a leak in the basement. Michael Zolkos (Zolkos), a Greenwood employee, testified that on November 18, 1993, he arrived at Friendly's intending to repair the leak. Zolkos was given a camera by his supervisor with instructions to photograph the bulkhead stairs. Zolkos testified that upon examining the stairs, he noted that the bottom three stairs appeared to be off the stringer and were in "pretty bad shape." Also, he said that although the bulkhead was closed, the other stairs appeared to be rotted. In addition, Zolkos testified that after taking the photographs, he placed thecamera containing the film in his truck and proceeded to fix the leak. However, Zolkos's stint as a freelance photographer was short-lived. Soon thereafter, an individual from Friendly demanded that Zolkos turn over the fruits of his labor, informing him that the photographs were the property of defendant. After conferring with his supervisor, Zolkos surrendered the camera, and those not-so-friendly photographs never resurfaced. Zolkos testified that after he relinquished the camera, a crew arrived and the bulkhead stairs were removed and replaced with a new set of stairs.

On October 17, 1994, Tancrelle filed this negligence action in Providence County Superior Court. A jury trial was held on May 18, 1999, to June 4, 1999, culminating in a jury verdict for plaintiff in the amount of $1,682,279. The defendant motioned for a new trial, which was subsequently denied. Thereafter, defendant filed this timely appeal. Additional facts will be supplied as they are necessary to address the issues raised in this appeal.

DISCUSSION

The defendant raised numerous issues on appeal, some of which were not appropriately preserved for appellate review, and others which are devoid of merit. Therefore, we shall address only those issues we deem relevant and properly before us.

I Spoliation

The defendant argued that the trial justice erred in admitting evidence under the guise of spoliation. Under the doctrine omnia praesumuntur contra spoliatorem, "[a]ll things are presumed against a despoiler or wrongdoer," Black's Law Dictionary 1086 (6th ed.1990), the deliberate or negligent destruction of relevant evidence by a party to litigation may give rise to an inference that the destroyed evidence was unfavorable to that party. Rhode Island Hospital Trust National Bank v. Eastern General Contractors, Inc., 674 A.2d 1227, 1234 (R.I.1996). This Court has held that although a showing of bad faith may strengthen the inference of spoliation, such a showing is not essential. Farrell v. Connetti Trailer Sales, Inc., 727 A.2d 183, 186 (R.I.1999) (citing Rhode Island Hospital Trust National Bank at 1234).

Specifically, defendant contended that the trial justice erred by allowing Tancrelle to offer as evidence of spoliation the fact that defendant replaced the stairs and failed to preserve the original stairs for...