 June 15, 2017



                                                          Supreme Court

                                                          No. 2016-42-Appeal.
                                                          (PC 12-495)


       Joseph Aubin                  :

             v.                      :

    MAG Realty, LLC.                 :




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
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                                                                  Supreme Court

                                                                  No. 2016-42-Appeal.
                                                                  (PC 12-495)
                                                                  (Dissent begins on page 6)

                Joseph Aubin                     :

                      v.                         :

            MAG Realty, LLC.                     :


              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                            OPINION

       Justice Flaherty, for the Court.         In this slip-and-fall case, we are called upon to

determine whether the trial justice misstepped when she granted the defendant’s motion for

judgment as a matter of law. The plaintiff, Joseph Aubin, alleged that he slipped on a patch of

“black ice” in the paved parking area adjacent to his apartment building, which was owned by

the defendant, MAG Realty, LLC. The plaintiff claimed that his fall resulted in a torn rotator

cuff that required surgery and caused the plaintiff to be unable to work for a period of several

months. The plaintiff argues on appeal that the trial justice erred because issues of fact remained

in dispute; and, when reviewing the facts in the light most favorable to the plaintiff, it was

possible for the plaintiff to prevail in his negligence action.

       This matter came before us for oral argument on April 27, 2017, pursuant to an order

directing the parties to appear and show cause why this appeal should not summarily be decided.

After considering the parties’ oral and written arguments and, after thoroughly reviewing the

record, it is our opinion that cause has not been shown and that this case should be decided at this



                                                 -1-
time without further briefing or argument. For the reasons set forth in this opinion, we vacate the

judgment of the Superior Court.

                                         Facts and Travel

       During December 2010, plaintiff, Joseph Aubin, and his wife, Jennifer Aubin, were

living at 208 Wood Avenue in Woonsocket. The apartment building was a “triple-decker” that

was owned by defendant, MAG Realty, LLC, during the time relevant to this case. The Aubins

had lived there for eight or nine years, and they occupied the second floor apartment.

       On December 25, 2010, the Aubins went to a family get-together to celebrate Christmas

at William Gilman’s home. Mr. Gilman is plaintiff’s brother-in-law and also a member of MAG

Realty, LLC. At that family gathering, plaintiff and Mr. Gilman made plans to go together to

Lowe’s the following morning to purchase plywood so that plaintiff could replace the flooring in

his apartment.

       On the morning of the 26th, plaintiff went out to the parking lot adjacent to his apartment

building to meet Mr. Gilman, as the two had planned. The plaintiff walked towards his truck to

retrieve his wallet and keys, and, as he was doing so, he slipped and fell on a patch of black ice.

The plaintiff landed with a thud on his left shoulder. The fall, according to plaintiff, resulted in a

torn rotator cuff, which required surgery to repair. Also, while recovering from his injury,

plaintiff contended that he required assistance with daily living activities and that he was unable

to work for a period of five or six months.

       In February 2012, plaintiff brought a single-count suit against defendant, alleging that

defendant negligently maintained the premises and that defendant’s negligence was the direct

and proximate cause of plaintiff’s shoulder injury. In an amended complaint filed in January

2015, plaintiff added several counts, including allegations that defendant violated the Residential




                                                -2-
Landlord Tenant Act, G.L. 1956 chapter 18 of title 34, and specifically, § 34-18-22, by failing to

keep the common areas of the premises in a clean and safe condition (counts 3 and 4).

        Eventually, the matter came to trial; a jury trial spanning three days took place in

December 2015. At the close of plaintiff’s case, defendant moved for judgment as a matter of

law, pursuant to Rule 50 of the Superior Court Rules of Civil Procedure. The defendant argued

that plaintiff had presented no evidence that defendant was on notice of the black ice and,

therefore, as a matter of law, plaintiff’s claim must fail. The trial justice initially reserved on that

motion. At the conclusion of defendant’s case, defendant renewed its motion for judgment as a

matter of law. Before sending the case to the jury, the trial justice granted defendant’s motion

from the bench. Judgment entered the same day, and plaintiff timely appealed to this Court.

                                        Standard of Review

        “Our review of a trial justice’s decision on a motion for judgment as a matter of law is de

novo.” Giron v. Bailey, 985 A.2d 1003, 1007 (R.I. 2009) (quoting Gianquitti v. Atwood Medical

Associates, Ltd., 973 A.2d 580, 589 (R.I. 2009)). “In reviewing a trial justice’s decision on a

motion for judgment as a matter of law, this Court is bound to follow the same rules and legal

standards as govern the trial justice.” Lemont v. Estate of Ventura, 157 A.3d 31, 36 (R.I. 2017)

(quoting Roy v. State, 139 A.3d 480, 488 (R.I. 2016)). “The trial justice, and consequently this

Court, must examine ‘the evidence in the light most favorable to the nonmoving party, without

weighing the evidence or evaluating the credibility of witnesses, and draw[ ] from the record all

reasonable inferences that support the position of the nonmoving party.’” Id. (quoting Roy, 139

A.3d at 488). “Thus, a trial justice should enter judgment as a matter of law ‘when the evidence

permits only one legitimate conclusion in regard to the outcome.’” Roy, 139 A.3d at 488

(quoting Hough v. McKiernan, 108 A.3d 1030, 1035 (R.I. 2015)).




                                                 -3-
                                               Analysis

         “It is well settled that to prevail on a claim of 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.” Lemont,

157 A.3d at 37 (quoting Wray v. Green, 126 A.3d 476, 479 (R.I. 2015)). “Of the four well-worn

elements of negligence, only duty is a question of law.” Williams v. Alston, 154 A.3d 456, 459

(R.I. 2017). “[T]he remaining three elements of a negligence claim * * * are fact-based and * *

* the ‘[trial] justice may treat the issue of negligence as a matter of law only if the facts suggest

only one reasonable inference.’” Hall v. City of Newport, 138 A.3d 814, 820 (R.I. 2016)

(quoting Berard v. HCP, Inc., 64 A.3d 1215, 1218 (R.I. 2013)).

         Under the common law of Rhode Island, a landowner has a duty to exercise reasonable

care for the safety of persons reasonably expected to be on the premises, and that duty includes

an obligation to protect against the risks of a dangerous condition existing on the premises,

provided the landowner knows of, or by the exercise of reasonable care would have discovered,

the dangerous condition. See Tancrelle v. Friendly Ice Cream Corp., 756 A.2d 744, 752 (R.I.

2000).    Beyond the common law duty, the Legislature has imposed a higher standard for

landlords by enacting the Residential Landlord Tenant Act. See Giron, 985 A.2d at 1008.

Section 34-18-22(a)(3) mandates, among other things, that “[a] landlord shall * * * [k]eep all

common areas of the premises in a clean and safe condition[.]” The act “supersede[s] any

common-law rules relating to residential tenants and landlords in conflict with its provisions.”

Errico v. LaMountain, 713 A.2d 791, 794 (R.I. 1998).

         Here, it is clear to us that defendant, in its capacity as a landlord, owed plaintiff a duty to

keep the common areas, including the parking area, “in a clean and safe condition[.]” Section




                                                  -4-
34-18-22(a)(3). 1 Accordingly, unless “the facts suggest only one reasonable inference[,]” this

case must be presented to the factfinder, which, in this case, was a jury. Hall, 138 A.3d at 820

(quoting Berard, 64 A.3d at 1218).

       At trial, plaintiff offered testimony that defendant would plow snow onto a grassy area

that was above the blacktopped parking lot. Consequently, when temperatures climbed above

freezing during the day, snow and ice would melt and water would run across the parking area.

Then, when the temperature dropped overnight, the water would refreeze on the paved parking

area, resulting in patches of black ice, creating a dangerous condition.

       The defendant contends that it should prevail as a matter of law because there was no

evidence presented that there were snowbanks at the time plaintiff slipped 2 and, furthermore,

there was no evidence that defendant had notice of a dangerous condition. In making this

argument, however, defendant overlooks Ms. Aubin’s testimony. At trial, Ms. Aubin testified

that there were snowdrifts on the grassy area above the parking lot on the day that plaintiff

injured himself. Furthermore, Ms. Aubin testified that plaintiff had complained to defendant on

at least two occasions about ice forming in the parking lot.

       The defendant further argues that, because plaintiff complained only generally about icy

conditions occurring in the parking area, but never about the specific patch of ice that he fell on,

1
  In its briefs, defendant devoted space to discussing the “Connecticut Rule,” which abrogates a
landlord’s duty to keep surfaces clear of natural accumulations of ice and snow during a storm.
See Benaski v. Weinberg, 899 A.2d 499, 502–03 (R.I. 2006). In this case, weather data that was
admitted into evidence indicated that there was a substantial snowstorm that began late on the
day of December 26, 2010, the day that plaintiff fell. However, at the time of plaintiff’s fall,
only trace amounts of snow were recorded. Nevertheless, plaintiff alleges that he slipped on
black ice that had formed the previous night, and not on freshly fallen snow. Given the posture
of the case before us, we must assume that plaintiff’s allegation is true. Accordingly, for the
purpose of our review, the Connecticut Rule is inapplicable.
2
  The defendant concedes that “when snow was removed from the parking area, it was deposited
onto the grassy area.” However, defendant’s argument is that no snowbanks existed at the time
that plaintiff fell.


                                                -5-
defendant did not have sufficient notice of the dangerous condition. Therefore, defendant asserts

that, as a matter of law, it should prevail. We are not persuaded by this argument.

       This Court, in Dawson v. Rhode Island Auditorium, Inc., 104 R.I. 116, 128, 242 A.2d

407, 414-15 (1968), held that the defendant building owner, even though it had never been given

notice of the specific leak that caused the plaintiff’s injuries, had notice of the leak in its roof

because the defendant previously had notice that its roof was generally leaky during heavy rains.

Here, the situation is analogous. The defendant had notice that icy conditions were present on its

property during certain types of weather, and that icy conditions would come and go as the

weather changed.      In our opinion, it would be impractical to burden a tenant with the

responsibility to call his landlord every day to give notice of new patches of ice in order to

satisfy the notice requirement of a premises liability claim. Rather, this burden is sustained by

providing notice of the recurring condition. And, if we credit Ms. Aubin’s testimony, as we must

for the purpose of this Rule 50 motion, then the inescapable conclusion is that defendant had

notice of the dangerous, icy condition that existed in the parking area.

       Because we do not weigh the evidence when analyzing a Rule 50 motion, it is our

opinion that there was enough evidence to send the case to the jury.

                                             Conclusion

       For the reasons set forth herein, we vacate the judgment of the Superior Court. The

record shall be remanded to that tribunal.



       Justice Robinson, dissenting. I respectfully dissent, but I do so rather vigorously. I

readily concede that this is a close case. That being said, after long and intense reflection, I have

concluded that the trial justice who presided over the jury trial in this case “got it right” when, at




                                                -6-
the close of the evidence, she granted the defendant’s motion for judgment as a matter of law

pursuant to Rule 50 of the Superior Court Rules of Civil Procedure. I simply fail to perceive any

basis in the record for concluding that a reasonable jury could legitimately have found the

defendant liable under the facts as presented at trial.

       I am well aware of our jurisprudence under Rule 50, whereby the trial justice, and indeed

this Court, must “examine the evidence in the light most favorable to the nonmoving party” and

“draw[] from the record all reasonable inferences that support the position of the nonmoving

party.” Lemont v. Estate of Ventura, 157 A.3d 31, 36 (R.I. 2017) (internal quotation marks

omitted). I am likewise aware that the trial justice should enter judgment as a matter of law only

when “there is no legally sufficient evidentiary basis for a reasonable jury to find for that party

on that issue.” Rule 50(a)(1). However, I do not believe that this case surmounts even that

rather low bar.

       The courts of this jurisdiction have for many years adhered to “the Connecticut Rule”

when dealing with a landlord’s duties in the context of the ongoing falling of precipitation. See

Benaski v. Weinberg, 899 A.2d 499, 502-03 (R.I. 2006). The relevant aspect of that Rule has

been well summarized as follows: “[A]s a general rule, any duty to clear a natural accumulation

of ice and snow is not triggered before a reasonable time after the storm ends.” Berardis v.

Louangxay, 969 A.2d 1288, 1292 (R.I. 2009) (citing Benaski, 899 A.2d at 503). The “Local

Climatological Data” recorded by the National Oceanic and Atmospheric Association at

Theodore F. Green Airport, which was admitted as an exhibit at trial, reflected the fact that it

began snowing around 5:00 a.m. on December 26, 2010 and continued into December 27,




                                                 -7-
resulting in a substantial snowfall. 1 Thus, as the trial justice recognized, under the “Connecticut

Rule,” MAG Realty would have had an arguable duty with respect to the black ice at issue only

if said ice was formed prior to the start of the snowfall at 5:00 a.m. on December 26. However,

in my judgment, a thorough review of the record fails to reveal any meaningful evidence on

which a reasonable juror could have reached such a conclusion.

       The “Local Climatological Data” admitted at trial established the fact that there was no

snowfall in the two days preceding December 26. Additionally, plaintiff himself testified that he

did not “notice anything” on the parking lot when he returned home on December 25. The

plaintiff’s wife, Jennifer Aubin, also testified that she did not observe any ice on the parking lot

when she and defendant returned home on December 25, at approximately midnight the day

before her husband’s fall. Moreover, plaintiff’s testimony with respect to the existence of snow

piles, the melting of which, according to plaintiff, resulted in puddles in the parking lot, does not

aid plaintiff’s case due to the fact that he also testified that the area where he slipped was “a

completely different area than [the area] where the puddling would occur.”

       I note as well that Ms. Aubin’s testimony on cross-examination with respect to the snow

she observed on the grassy area on December 26 was, in my judgment, insufficient to surmount

even the rather forgiving criterion established by Rule 50. She testified that, when she left the

Aubins’ apartment and went outside, she “d[id]n’t remember seeing grass when [she] walked

into the yard.” When she was asked if she “saw snow,” she replied as follows: “Or something,

because there would have been grass.” In addition, the following was her testimony:

               “[DEFENSE COUNSEL]: * * * Do you remember there being any
               piles of snow along * * * the area you can see the grass abuts the
               pavement?

1
  We note that plaintiff’s testimony reflects the fact that his fall occurred at approximately 10:00
a.m. on December 26, 2010.
                                                -8-
               “[MS. AUBIN]: There were probably snow drifts there.
               “[DEFENSE COUNSEL]: Okay. There were snow drifts there to
               your recollection?
               “[MS. AUBIN]: Yes.
               “[DEFENSE COUNSEL]: Okay. Do you remember how high they
               were?
               “[MS. AUBIN]: At that time, no.
               “***
               “[DEFENSE COUNSEL]: * * * Do you remember how long those
               snow drifts had been there?
               “[MS. AUBIN]: No, I do not.
               “[DEFENSE COUNSEL]: Do you remember when the last storm
               would have been so that there would have been the snow drifts
               there?
               “[MS. AUBIN]: No.”

Significantly, Ms. Aubin also testified on cross-examination that she did not go outside and

observe the parking area immediately after her husband “indicated” to her that he had fallen.

However, she stated that she did go outside and observe the parking lot at some later point on

December 26, although she was unable at trial to recall just when that was. When she was later

asked during cross-examination if she observed the parking lot on “the afternoon of the 26th,”

she replied: “Possibly.” It is far from clear from Ms. Aubin’s testimony at what time of day she

observed snowdrifts; and she similarly could not remember the size of the snowdrifts or how

long they had been there. Accordingly, it is entirely conceivable that Ms. Aubin could have

observed very small snowdrifts late in the morning, in the afternoon, or in the evening of

December 26, which could have been the result of the snowfall on December 26. Additionally, it

is my opinion that the utterly vague statement about the existence of ice in the parking lot, which

Ms. Aubin testified was relayed to the landlord on at least two previous occasions, is simply

inadequate to have met plaintiff’s burden. Ms. Aubin’s testimony does not even state when such




                                               -9-
a communication was made to the landlord—whether it was a few days earlier, earlier in the

month, earlier in the year, or even in some previous year. 2

       The evidence in this case would require a jury to speculate about exactly how the weather

conditions in the days preceding December 26 could have resulted in the melting and refreezing

necessary to have created the black ice at issue before the morning of December 26, on which

plaintiff would later slip. See Scittarelli v. Providence Gas Co., 415 A.2d 1040, 1044 (R.I. 1980)

(holding that “[t]he defendant’s negligence remain[ed] a matter of speculation and conjecture”

because the plaintiff failed to meet her burden of introducing evidence of negligence and,

consequently, that the trial justice should have entered a directed verdict in the defendant’s

favor); see also Montuori v. Narrangansett Electric Co., 418 A.2d 5, 10-11 (R.I. 1980) (holding

that the “plaintiff was unable to produce more than minimal direct evidence to establish the

element of causation” and that, therefore, the trial justice should have granted the defendant’s

motion for a directed verdict). As the trial justice in this case perceptively stated: “[T]he jury

would have to make assumptions concerning the rate at which snow, ice, and water might melt,

freeze, or evaporate during the various weather conditions shown in the meteorological data

charts.” For that reason, the lack of expert testimony in support of the plaintiff’s case is striking.

2
   The majority cites Dawson v. Rhode Island Auditorium, Inc., 104 R.I. 116, 242 A.2d 407
(1968), stating that that case held that a “defendant building owner, even though it had never
been given notice of the specific leak that caused the plaintiff’s injuries, had notice of the leak in
its roof because the defendant previously had notice that its roof was generally leaky during
heavy rains.” While I do not quibble with the majority’s statement, a reading of Dawson leads to
the ineluctable conclusion that the facts which established that the defendant building owner in
Dawson was on notice of the leaky roof are distinguishable from the vague comments on which
the majority relies in the case before us. In Dawson, the defendant building owner had been
aware of the leaks in the building’s roof for years prior to the incident at issue in the case. Id. at
126-27, 242 A.2d at 413-14. Indeed, at one point the roof had “approximately 387 leaks.” Id. at
126, 242 A.2d at 414. Moreover, the defendant building owner had taken measures over the
preceding years to attempt to “resurfac[e]” the “chronic leaking condition of [the] roof.” Id. at
127, 242 A.2d at 414. Accordingly, the factual situation in Dawson is, in my judgment, easily
distinguishable from the instant case.
                                                - 10 -
The trial justice was correct in stating that the jury would be asked to “make findings that are

beyond their expertise as lay persons.” I fail to see how any reasonable juror could find in the

plaintiff’s favor based on the evidence presented at trial without engaging in impermissible

conjecture and speculation.

       Accordingly, I record my respectful but vigorous dissent.




                                             - 11 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        Joseph Aubin v. MAG Realty, LLC.
                                     No. 2016-42-Appeal.
Case Number
                                     (PC 12-495)
Date Opinion Filed                   June 15, 2017
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Francis X. Flaherty

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Patricia A. Hurst
                                     For Plaintiff:

                                     Richard C. Tallo, Esq.
                                     Kelly M. Fracassa, Esq.
Attorney(s) on Appeal
                                     For Defendant:

                                     Richard A. van Tienhoven, Esq.




SU-CMS-02A (revised June 2016)
