Carmen Rohena as Parent and Natural Guardian of Josue Espinal v. City of Providence , 154 A.3d 935 ( 2017 )

Supreme Court
No. 2016-128-Appeal.
(PC 06-5374)
Carmen Rohena as Parent and Natural :
Guardian of Josue Espinal
v. :
City of Providence 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
222-3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2016-128-Appeal.
(PC 06-5374)
Carmen Rohena as Parent and Natural :
Guardian of Josue Espinal
v. :
City of Providence et al. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Goldberg, for the Court. Because the state and its cities and towns are immune
from liability for injuries suffered by members of the public who use public recreational
facilities, the claim brought by this mother on behalf of her seriously injured child must fail.
This case came before the Supreme Court on January 26, 2017, pursuant to an order directing the
parties to appear and show cause why the issues raised in this appeal should not be summarily
decided. The plaintiff, Carmen Rohena (plaintiff), as parent and natural guardian of Josue
Espinal (Josue), brought suit to recover damages for injuries that Josue suffered while sliding
into home plate at Corliss Park in Providence. The plaintiff appeals from a grant of summary
judgment in favor of the defendant, the City of Providence (the city or defendant). This case was
a home run for the city because the General Assembly has provided the state and its cities and
towns with immunity from liability under Rhode Island’s Recreational Use Statute, G.L. 1956
chapter 6 of title 32. After hearing the arguments of counsel and examining the memoranda
submitted by the parties, we are of the opinion that cause has not been shown and that this case
-1-
should be decided without further briefing or argument. For the reasons set forth herein, we
affirm the judgment of the Superior Court.
Facts and Travel
On June 17, 2006, Josue, a member of the North End Wanskuck Little League, was
participating in a baseball game at Corliss Park1 in Providence. While sliding into home plate,
his right foot and lower shin allegedly slid under a corner of the plate that was lifted. When he
attempted to stand up, his leg broke in two places.
On October 13, 2006, plaintiff filed suit against the city, alleging that defendant failed to
properly maintain the field. On August 7, 2014,2 defendant filed a motion for summary
judgment, arguing that it was not liable pursuant to the Recreational Use Statute. The plaintiff
filed an objection, contending that discovery was incomplete and that she had been unable to
determine if a genuine issue of material fact existed. However, on November 18, 2014, at the
hearing on the motion, both parties conceded that discovery was complete. The plaintiff did not
press an objection, but asked that the Superior Court justice “note the objection * * * based upon
the recreational use statute.” The Superior Court justice held that “there is no allegation here
that the city charges[] to have a baseball game played on the park” and “[t]he owner of the land
is not liable unless there is an allegation of some kind of willful misconduct and there is none
here[.]” The defendant’s motion for summary judgment subsequently was granted, and final
judgment entered on December 16, 2015. The plaintiff appealed.
1
The defendant posits that the incident may have occurred in Prete-Metcalf Park, another park
owned by defendant. However, defendant concedes that the exact location is irrelevant because
both parks are located in Providence and owned by defendant.
2
We have not been presented with any explanation for the delay between the filing of this suit
and the motion for summary judgment.
-2-
Standard of Review
“This Court reviews de novo a trial justice’s decision granting summary judgment.” Sola
v. Leighton, 45 A.3d 502, 506 (R.I. 2012) (quoting Lynch v. Spirit Rent-A-Car, Inc., 965 A.2d
417, 424 (R.I. 2009)). “[S]ummary judgment is a drastic remedy, and a motion for summary
judgment should be dealt with cautiously.” Cruz v. DaimlerChrysler Motors Corp., 66 A.3d 446,
451 (R.I. 2013) (quoting DeMaio v. Ciccone, 59 A.3d 125, 129 (R.I. 2013)). “Summary
judgment is appropriate only when the ‘pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as [a] matter of law.’” Sola,
45 A.3d at 506 (quoting Plunkett v. State, 869 A.2d 1185, 1187 (R.I. 2005)). “Only when a
review of the admissible evidence viewed in the light most favorable to the nonmoving party
reveals no genuine issues of material fact, and the moving party is entitled to judgment as a
matter of law, will this Court uphold the trial justice’s grant of summary judgment.” Id. (quoting
National Refrigeration, Inc. v. Standen Contracting Co., 942 A.2d 968, 971 (R.I. 2008)).
Analysis
It is undisputed that defendant owns Corliss Park, which is public and open without
charge, and that Josue was participating in a recreational activity when he was injured. Before
this Court, plaintiff contends that defendant’s conduct falls outside the scope of the Recreational
Use Statute because the city willfully or maliciously failed to guard or warn against a known
dangerous condition. As support, plaintiff avers that, on June 21, 2006, an individual identified
as Zenaida Martinez (Ms. Martinez) provided a hand-written statement to plaintiff’s attorney.
Ms. Martinez wrote that, approximately one week before the child’s injury, she informed
Nicholas J. Narducci Jr. (Mr. Narducci), the President of the North End Wanskuck Little League
-3-
and a member of the Providence City Council, about the poor condition of Corliss Park,
including the bases. Mr. Narducci allegedly responded that it would be too expensive to repair
the park. Our careful review of the record indicates that this argument was not raised in the
Superior Court.
This Court has staunchly adhered to the “raise-or-waive” rule. “It is well settled that a
litigant cannot raise an objection or advance a new theory on appeal if it was not raised before
the trial court.” State v. Bido, 941 A.2d 822, 828-29 (R.I. 2008); see also Hydro-Manufacturing,
Inc. v. Kayser-Roth Corp., 640 A.2d 950, 959 (R.I. 1994) (“[A] party may not ‘advance new
theories or raise new issues in order to secure a reversal of the lower court’s determination.’”
(quoting Nedder v. Rhode Island Hospital Trust National Bank, 459 A.2d 960, 963 (R.I. 1983))).
Moreover, “[t]his directive will not be disturbed unless ‘basic constitutional rights are
concerned.’” Bido, 941 A.2d at 829 (quoting State v. Gomez, 848 A.2d 221, 237 (R.I. 2004)).
The plaintiff’s objection to defendant’s motion for summary judgment, filed on
August 27, 2014, centered on plaintiff’s contention that discovery was incomplete. Although the
objection referenced the scope of the Recreational Use Statute, the argument focused on the fact
that discovery was outstanding. This objection was subsequently withdrawn as moot.
Notably absent from plaintiff’s argument in the Superior Court is any suggestion that
defendant willfully or maliciously failed to guard or warn against the known dangerous condition
of home plate. Not only did plaintiff fail to submit a supporting affidavit, as required by Rule 56
of the Superior Court Rules of Civil Procedure, plaintiff failed to submit the letter from Ms.
Martinez, which was in plaintiff’s possession. Because plaintiff failed to raise the argument, our
raise-or-waive rule precludes us from addressing that contention. See Bido, 941 A.2d at 828
(“[T]his Court’s ‘raise-or-waive’ rule precludes our consideration of an issue that has not been
-4-
raised and articulated at trial.”). Accordingly, we are of the opinion that plaintiff’s argument has
not properly been preserved for appeal.
Moreover, even if the plaintiff had presented an affidavit attesting to the facts stated in
Ms. Martinez’s letter, whether verbal notice about the condition of Corliss Park to a member of
the city council qualifies as notice to the city under § 32-6-5(a)(1) is questionable. Compare
Berman v. Sitrin, 991 A.2d 1038, 1052 (R.I. 2010) (determining that “a fact-finder reasonably
could find that after learning about the Cliff Walk’s instability, * * * [Newport] voluntarily and
intentionally failed to guard against the dangerous condition, knowing that there existed a strong
likelihood that a visitor to the Cliff Walk would suffer serious injury or death”), with Carlson v.
Town of South Kingstown, 111 A.3d 819, 824 (R.I. 2015) (declaring the evidence in the case—
awareness that holes in an athletic field can occur, and a witness’s description of the holes as a
“repetitive problem”—“f[ell] woefully short of establishing the existence of sufficient facts to
show that the town knew of the particular hole that injured [the] plaintiff or of similar persons
injured by similar defects in the park”). In the case at bar, Ms. Martinez may have made a
general complaint about the field’s poor condition one week before Josue was injured. The
record is devoid of any evidence that anyone else was injured on the baseball field at Corliss
Park or that the city was on notice of an alleged defect. Because the plaintiff failed to produce
evidence showing that the city possessed the requisite knowledge to have “willfully or
maliciously” failed to guard or warn of a known danger, this argument does not carry the day.
Conclusion
For the reasons set forth herein, we affirm the judgment of the Superior Court. The
record in this case may be remanded to the Superior Court.
-5-
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
Carmen Rohena as Parent and Natural Guardian of
Title of Case
Josue Espinal v. City of Providence et al.
Case Number SU-16-0128-Appeal.
(PC 06-5374)
Date Opinion Filed March 2, 2017
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Written By Maureen McKenna Goldberg
Source of Appeal Providence County Superior Court
Judicial Officer From Lower Court Associate Justice Richard A. Licht
For Plaintiff:
Daniel J. Neal, Esq.
Attorney(s) on Appeal
For Defendants:
Megan K. DiSanto, Esq.
SU-CMS-02A (revised June 2016)