Mary Lowney v. Canteen Realty, LLC ( 2021 )

June 3, 2021
Supreme Court
No. 2019-403-Appeal.
(PC 17-6204)
Mary Lowney :
v. :
Canteen Realty, LLC, et al. :
NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email: opinionanalyst@courts.ri.gov, of any
typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2019-403-Appeal.
(PC 17-6204)
Mary Lowney :
v. :
Canteen Realty, LLC, et al. :
Present: Suttell, C.J., Goldberg, Robinson, and Lynch Prata, JJ.
OPINION
Justice Goldberg, for the Court. This appeal came before the Supreme
Court on May 5, 2021, pursuant to an order directing the parties to appear and
show cause why the issues raised in this appeal should not be summarily decided.
In this negligence action arising from a slip and fall on an icy sidewalk, the
plaintiff, Mary Lowney, appeals from a Superior Court final judgment and order
granting summary judgment in favor of the defendants, The Old Canteen, Inc. and
Canteen Realty, LLC (defendants), finding that the defendants owed no duty to the
plaintiff to maintain the sidewalk. After hearing the arguments of counsel and
having reviewed the memoranda filed by the parties, we are satisfied that cause has
not been shown, and we proceed to decide this appeal at this time. For the reasons
set forth below, we affirm the judgment of the Superior Court.
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Facts and Travel
On March 2, 2015, plaintiff had a reservation at The Old Canteen restaurant
located at 120 Atwells Avenue in Providence, Rhode Island. She approached the
restaurant, walking on the public sidewalk immediately adjacent to the Old
Canteen.1 Due to the icy condition of the sidewalk in that area, plaintiff fell and
sustained injuries.
On December 21, 2017, plaintiff filed a complaint in the Superior Court
alleging that defendants—The Old Canteen, Inc., as the occupant and proprietor of
the restaurant, and Canteen Realty, LLC, as the property owner—had a duty and
obligation to maintain the sidewalk area and its adjacent curbing in a safe and
proper condition, free of any accumulated snow and ice, and that defendants failed
to do so. The complaint further alleged that, pursuant to a municipal ordinance,
defendants were required to remove the ice from the sidewalk or cover the icy area
with sand or some other suitable substance, and that they failed to do so.
The record reveals that defendants were aware of the hazard posed by that
area of the sidewalk in wintery conditions. In 2006, defendants, through counsel,
1
There is no dispute that the area upon which plaintiff fell was a public sidewalk.
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had notified the City of Providence (the city) that “a dangerous and slippery
condition” existed at the location where plaintiff fell, some nine years later.2
On November 21, 2018, defendants moved for summary judgment, arguing
that, as a matter of law, they did not owe a duty to plaintiff with respect to the city
sidewalk upon which she fell. Although defendants conceded that they had
attempted to clear the sidewalks, in reliance on Gillikin v. Metro Properties, Inc.,
657 A.2d 1060 (R.I. 1995), they argued that this voluntary effort did not give rise
to a duty owed to plaintiff. The plaintiff objected to the motion for summary
judgment, arguing that the location of snow and ice on the sidewalk was created by
defendants’ actions—specifically, that defendants undertook some clearing of the
sidewalk, which caused an “unnatural accumulation” of ice. The plaintiff further
contended that “the twist” in this case was that defendants were aware of the
dangerous condition of this particular sidewalk area, had brought it to the attention
2
The January 20, 2006 letter to the city public works director stated, in part:
“Between where the concrete sidewalk along Bradford
Street meets the brick façade sidewalk on Atwells, there
exists a sloped piece of granite which was installed by
the City of Providence. The piece of granite sits at an
approximate 40 degree angle. The granite is smooth to
the touch and solid. It is not porous and absorbent as the
surrounding materials of concrete and brick are. Under
wintery conditions, the sloped granite creates a
dangerous and slippery condition despite my client’s best
efforts to keep the area free of snow and ice.”
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of the city, and for nine years did nothing further to remedy what they knew to be a
dangerous condition in front of their establishment.
The trial justice issued a bench decision and declared that plaintiff’s
argument that defendants owed her a duty because they allegedly negligently
removed snow from a dangerous area, which resulted in the existence of an
unnatural accumulation of ice, was the same argument rejected by this Court in
Therrien v. First National Stores, Inc., 63 R.I. 44, 6 A.2d 731 (1939). The trial
justice declared that defendants owed no duty to plaintiff and granted defendants’
motion for summary judgment.
An order entered granting defendants’ motion on March 25, 2019, and final
judgment in favor of defendants entered on the same day. The plaintiff filed a
timely notice of appeal.
Standard of Review
This Court reviews a trial justice’s decision granting summary judgment de
novo. Ballard v. SVF Foundation, 181 A.3d 27, 34 (R.I. 2018). “Although
summary judgment is recognized as an extreme remedy, to avoid summary
judgment the burden is on the nonmoving party to produce competent evidence
that proves the existence of a disputed issue of material fact.” Id. (brackets and
deletion omitted) (quoting Sullo v. Greenberg, 68 A.3d 404, 407 (R.I. 2013)). We,
like the trial justice, “view the evidence in the light most favorable to the
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nonmoving party, and if we conclude that there are no genuine issues of material
fact and that the moving party is entitled to judgment as a matter of law, we will
affirm the judgment.” Id. (brackets omitted) (quoting Sullo, 68 A.3d at 406-07).
Analysis
On appeal, plaintiff acknowledges this Court’s prior holdings that an
abutting landowner cannot be held liable to pedestrians for negligent snow removal
on a public sidewalk, but she argues that the trial justice erred in granting summary
judgment because, plaintiff submits, liability can be deemed to exist when the
landowner creates the hazardous condition. According to plaintiff, defendants’
efforts to clear the sidewalk led to an unnatural accumulation of ice in the area
where plaintiff fell and, therefore, made the condition of the sidewalk more
dangerous than it was before defendants undertook such efforts.
In order to properly assert a claim for negligence, “a plaintiff must establish
a legally cognizable duty owed by a defendant to a plaintiff, a breach of that duty,
proximate causation between the conduct and the resulting injury, and the actual
loss or damage.” Ouch v. Khea, 963 A.2d 630, 633 (R.I. 2009) (quoting Selwyn v.
Ward, 879 A.2d 882, 886 (R.I. 2005)). “Although complaints sounding in
negligence generally are not amenable to summary judgment and should be
resolved by fact finding at the trial court, the existence of a duty is a question of
law.” Berard v. HCP, Inc., 64 A.3d 1215, 1218 (R.I. 2013). “Only when a party
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properly overcomes the duty hurdle in a negligence action is [the party] entitled to
a factual determination on each of the remaining elements: breach, causation, and
damages.” Id. at 1219 (quoting Holley v. Argonaut Holdings, Inc., 968 A.2d 271,
274 (R.I. 2009)). In the absence of a legal duty, “the trier of fact has nothing to
consider” and the grant of summary judgment is proper. Id. at 1218 (quoting
Holley, 968 A.2d at 274).
The plaintiff’s complaint alleged that defendants had a duty to maintain the
sidewalk and the restaurant’s arrival area in a safe and proper condition. In Martin
v. Altman, 568 A.2d 1031 (R.I. 1990), this Court held that “an abutting owner of
real estate has no duty to pedestrians to remove ice and snow or otherwise to keep
the abutting sidewalk in good condition” and that the city ordinance requiring “an
abutting owner to clear the adjacent sidewalk of snow and ice creates only a duty
to the municipality at large and not to individual passers-by.” Martin, 568 A.2d at
1031. Thus, in the present case, the city ordinance imposed upon defendant a duty
to clear the sidewalk but did not create a duty to plaintiff individually.3
As for plaintiff’s assertion that defendants owed her a duty because their
efforts to clear the sidewalk created the unnatural accumulation of ice, this Court’s
jurisprudence is well-settled. In Therrien, cited supra, the Court held that
3
See Providence Code of Ordinances, Supp. No. 4, § 23-16 (July 15, 2019)
(Removal of ice from sidewalks, required.”); see also G.L. 1956 § 24-7-1
(empowering municipalities to make ordinances relative to, inter alia, the removal
of snow and ice from sidewalks).
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performing the service of cleaning the sidewalk and leaving some spots or patches
of snow thereon did not create a duty of care to the plaintiff. Therrien, 63 R.I. at
49, 50-51, 6 A.2d at 733, 734. In Gillikin, cited supra, the Court reaffirmed its
holdings in Martin and Therrien that voluntary but insufficient attempts by a
landowner to clear ice and snow from the public sidewalk abutting the owner’s
property do not give rise to a duty of care to a passerby. Gillikin, 657 A.2d at 1061
(citing Martin, 568 A.2d at 1031; Therrien, 63 R.I. at 51, 6 A.2d at 734); see
Berman v. Sitrin, 991 A.2d 1038, 1047 (R.I. 2010) (“It is a well established legal
principle in this jurisdiction * * * that a landowner whose property abuts a public
way has no duty to repair or maintain it.”).
Finally, we are unpersuaded by plaintiff’s contention that summary
judgment was premature in this case. The record is devoid of evidence to suggest
that defendants’ efforts to clear the sidewalk on that day made the sidewalk more
dangerous than it would have been had they done nothing at all. The plaintiff
could have requested a continuance pursuant to Rule 56(f) of the Superior Court
Rules of Civil Procedure to obtain additional discovery relative to this argument—
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by affidavit, deposition testimony, or otherwise; plaintiff made no such effort.4 At
the summary-judgment stage, the burden was on plaintiff—as the nonmoving
party—to produce competent evidence of a disputed issue of material fact, and
plaintiff failed to meet that burden. See Ballard, 181 A.3d at 34.
Therefore, while the defendants may have had a duty to the city to clear the
sidewalks of snow and ice, the defendants’ undertaking of some snow removal in
that area did not create a duty of care to the plaintiff individually. The trial
justice’s grant of summary judgment was proper, and we therefore affirm the
Superior Court’s grant of summary judgment in the defendants’ favor.
Conclusion
For the foregoing reasons, we affirm the judgment of the Superior Court.
The papers in this case may be returned to the Superior Court.
Justice Long did not participate.
4
Rule 56(f) of the Superior Court Rules of Civil Procedure provides:
“Should it appear from the affidavits of a party opposing
the motion that the party cannot for reasons stated present
by affidavit facts essential to justify the party’s
opposition, the court may refuse the application for
judgment or may order a continuance to permit affidavits
to be obtained or depositions to be taken or discovery to
be had or may make such other order as is just.”
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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
Title of Case Mary Lowney v. Canteen Realty, LLC, et al.
No. 2019-403-Appeal.
Case Number
(PC 17-6204)
Date Opinion Filed June 3, 2021
Justices Suttell, C.J., Goldberg, Robinson, and Lynch Prata, JJ.
Written By Associate Justice Maureen McKenna Goldberg
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Melissa A. Long
For Plaintiff:
Mark P. Welch, Esq.
Attorney(s) on Appeal William J. Burke, Esq.
For Defendants:
Lisa Marie DeMari, Esq.
SU-CMS-02A (revised June 2020)