                                                      Supreme Court

                                                      No. 2013-304-Appeal.
                                                      (PC 10-470)


  Ann Marie Maguire                :

           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. 2013-304-Appeal.
                                                                 (PC 10-470)


           Ann Marie Maguire                 :

                    v.                       :

         City of Providence et al.           :


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

                                         OPINION

       Justice Indeglia, for the Court.       The plaintiff, Ann Marie Maguire (Maguire or

plaintiff), appeals from an order of summary judgment entered against her and in favor of Old

Navy, LLC (Old Navy) and BBRG Rhode Island Restaurants, Inc. d/b/a Joe’s American Bar and

Grill (Joe’s) in this personal injury action. Maguire contends that she sustained injuries when

she tripped and fell on a public sidewalk. On October 28, 2014, this case came before the

Supreme Court pursuant to an order directing the plaintiff to appear and show cause why the

issues raised should not be summarily decided. After hearing the arguments of counsel and

reviewing the memoranda submitted on behalf of the parties, we are satisfied that cause has not

been shown. Accordingly, we shall decide the appeal at this time without further briefing or

argument. For the reasons set forth herein, we affirm the judgment of the Superior Court.

                                                 I

                                       Facts and Travel

       On March 19, 2007, plaintiff, who was and is currently disabled, was walking on the

sidewalk outside Providence Place Mall (the mall) at 144 Providence Place in Providence, Rhode

Island, when her “crutch” slipped into a hole in the pavement, causing her to lose her balance



                                              -1-
and fall to the sidewalk. The plaintiff contended that she suffered injuries as a result of her fall.

At that time, the property that abuts the sidewalk at 144 Providence Place was owned by

Providence Place Group, L.P., and individual space on the ground floor in close proximity to the

fall was leased to Old Navy and Joe’s.

       On January 22, 2010, plaintiff filed a complaint sounding in negligence against the City

of Providence (the city), Stephen Napolitano, in his capacity as Treasurer for the City of

Providence and/or his successors, Old Navy, and Joe’s. The complaint also included both state

and federal disability claims 1 against the city, Old Navy, and Joe’s, as well as a claim that the

city violated Section 504 of the Rehabilitation Act (29 U.S.C. § 704). The complaint alleged that

the city was negligent in failing in “its duty to repair, keep, maintain * * * said sidewalk and

sidewalk area in a safe condition and oversee and insist that said sidewalk was not in a dangerous

and/or negligent condition.” The complaint further alleged that Old Navy and Joe’s each “had a

continuing duty to see that the * * * sidewalk was kept in good repair and maintained in good

condition so that it did not become and/or remain in negligent and/or dangerous condition, and a

duty to warn of its dangerous and/or negligent condition.” The complaint added that Joe’s had a

special duty to maintain the sidewalk because it “used said sidewalk to further its business” in

that it placed tables and chairs outside the restaurant. Significantly, plaintiff did not allege that

defendants were responsible for creating or causing the defects in the sidewalk.

       On June 25, 2013, Joe’s filed a motion for summary judgment, arguing that there were no

genuine issues of material fact and that it was entitled to judgment as a matter of law on the

grounds that responsibility for the maintenance of a public sidewalk rested with the city or the



1
 The state disability act is codified by G.L. 1956 § 11-24-2.1 and G.L. 1956 chapter 87 of title
42, and the federal disability act is codified by the Americans with Disabilities Act at 42 U.S.C.
§§ 12101 to 12213.


                                                -2-
State of Rhode Island and that owners or lessees of property abutting public sidewalks do not

owe any duty to pedestrians. By virtue of its lack of responsibility for the sidewalk, Joe’s added

that any alleged violations of state or federal law concerning plaintiff’s disability were irrelevant.

On July 8, 2013, Old Navy filed its own motion for summary judgment, arguing that it owed no

duty to plaintiff because its lease obligated the landlord, not the tenant, to repair and maintain

common areas including sidewalks. Old Navy also adopted the argument raised by Joe’s that the

city was responsible for maintenance of the sidewalk.

       On August 20, 2013, the hearing justice granted Joe’s and Old Navy’s motions for

summary judgment on the ground that the occupant of land may not “be held liable for injuries

suffered by pedestrians walking on the sidewalk located in front of their businesses * * *.” 2 He

reasoned that the designer and constructor of the sidewalk may have been liable to plaintiff, but

that Joe’s and Old Navy did not fit in that category. Rejecting the argument that Joe’s was liable

because it used the sidewalk to further its business, the hearing justice found that Joe’s could not

have contributed to plaintiff’s fall because there was no evidence that its tables and chairs were

on the sidewalk around the time of the accident. He also determined that the leases were clear

that neither Joe’s nor Old Navy had any contractual obligation to maintain or repair the sidewalk.

Finally, the hearing justice concluded that all disability claims had to be dismissed since neither

defendant owed a duty to plaintiff to maintain or repair the sidewalk. The plaintiff filed a timely

appeal to this Court on September 6, 2013.




2
  The matter is still pending with regard to the city, as this case comes before us on partial
summary judgment pursuant to Rule 54(b) of the Superior Court Rules of Civil Procedure. See
Coro, Inc. v. R. N. Koch, Inc., 112 R.I. 371, 376, 310 A.2d 622, 625 (1973) (“Rule 54(b) * * *
authorizes the entry of partial summary judgment in a proper case.”).


                                                -3-
                                                  II

                                        Standard of Review

          “[T]his Court reviews a grant of summary judgment de novo.” Sullo v. Greenberg, 68

A.3d 404, 406 (R.I. 2013) (quoting Sacco v. Cranston School Department, 53 A.3d 147, 149-50

(R.I. 2012)). “Examining the case from the vantage point of the trial justice who passed on the

motion for summary judgment, ‘[w]e view the evidence in the light most favorable to the

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. at

406-07 (quoting Sacco, 53 A.3d at 150). “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 ‘prove[s] the existence of a disputed issue of material fact[.]’”

Id. at 407 (quoting Mutual Development Corp. v. Ward Fisher & Co., 47 A.3d 319, 323 (R.I.

2012)).

                                                 III

                                             Discussion

          In order to prove 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 damages.” Wyso v. Full Moon Tide,

LLC, 78 A.3d 747, 750 (R.I. 2013) (quoting Willis v. Omar, 954 A.2d 126, 129 (R.I. 2008)).

“Although we have frowned upon the disposition of negligence claims by summary judgment,

the existence of a duty is nonetheless a question of law.” Id. (citing Ouch v. Khea, 963 A.2d

630, 633 (R.I. 2009)).




                                                 -4-
       “[I]n the absence of a duty, ‘the trier of fact has nothing to consider and a motion for

summary judgment must be granted.’” Holley v. Argonaut Holdings, Inc., 968 A.2d 271, 274

(R.I. 2009) (quoting Banks v. Bowen’s Landing Corp., 522 A.2d 1222, 1225 (R.I. 1987)). As a

result, “[t]he existence of a duty of care is * * * reserved for the trial justice, not for the jury.”

Wyso, 78 A.3d at 750 (citing Banks, 522 A.2d at 1224). “Only when a party properly overcomes

the duty hurdle in a negligence action is he or she entitled to a factual determination on each of

the remaining elements: breach, causation, and damages.” Id. (quoting Ouch, 963 A.2d at 633).

       On appeal, plaintiff argues that the hearing justice should have recognized on summary

judgment that defendants had both a duty to maintain the abutting sidewalk in a safe condition

and a duty to warn of the sidewalk’s dangerous condition. The plaintiff’s contentions, however,

overlook the extensive line of our own authority standing for the proposition that a property

owner owes no duty to the public for the condition of an abutting sidewalk when he or she has

taken no action to create the dangerous condition. 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.”); see also Saunders v.

Howard Realty Co., 118 R.I. 31, 31-32, 371 A.2d 274, 274 (1977) (holding that a property owner

owes no duty to repair defective sidewalk without evidence he or she caused the defect).

       We recently applied the holdings of Berman and Saunders to a case similar to the present

one in which a claimant brought a negligence action against a lessee of property for a sidewalk

fall. See Wyso, 78 A.3d at 751. In Wyso, we rejected the argument that a duty should be

recognized simply because we have decided duty issues on an ad hoc basis in the past. Id. In

considering the five-factor approach to assess whether a duty exists in negligence claims, we

noted that these factors were meant to be “case specific” instead of binding “in future cases




                                                -5-
involving different factual situations.” Id. (quoting Ferreira v. Strack, 636 A.2d 682, 685 n.2

(R.I. 1994)). As such, we concluded that the defendants owed no duty of care to the plaintiff

because the claimed injuries occurred in an area outside the property owner’s control. Id. (citing

Ferreira, 636 A.2d at 685). Further, we distinguished Banks on the ground that it was a premises

liability case lodged by an invitee on the landowner’s property, as compared to a slip-and-fall on

a public sidewalk outside the defendants’ control or possession. Id.

       Because the facts in this case are nearly identical to those in Wyso, we adopt its

reasoning and conclude that Old Navy and Joe’s did not owe a duty to maintain the public

sidewalk abutting their establishments. The plaintiff’s claims that defendants owed her a duty to

warn are likewise without merit, given that “a property owner who owes no duty of care to an

individual also owes no duty to warn those individuals.” Wyso, 78 A.3d at 752 (citing Berman,

991 A.3d at 1048).

       The plaintiff claims that this case is distinguishable from Wyso because Joe’s “has had

control, use, and possession of the subject sidewalk area.” The plaintiff has failed, however, to

present the Court with the evidence necessary to substantiate that claim. She failed to produce

evidence that Joe’s designed, developed, repaired, or altered the abutting sidewalk, and she

similarly failed to produce evidence that Joe’s periodic use of a small portion of the sidewalk

during the summer months created the defect that caused her fall. Moreover, the plaintiff

admitted at her own deposition that there were no tables or chairs outside Joe’s on that March

day. Without such evidence, there is no basis for this tribunal to conclude that the defendants

could have caused the defect, and the plaintiff’s claim that there remain genuine issues of

material fact as to control, use, and possession must fail. See Saunders, 118 R.I. at 32, 371 A.2d

at 274 (“[I]n this case the fall was on the public sidewalk * * * and nothing in the affidavits on




                                              -6-
file establishes a factual basis for the plaintiff’s assertion that the defect was attributable to the

defendants’ fault.”). Accordingly, we are of the opinion that the hearing justice properly granted

the defendants’ motion for summary judgment on the plaintiff’s negligence claims. 3

                                                   IV

                                            Conclusion

       For the foregoing reasons, we affirm the judgment of the Superior Court, and the record

in this case shall be remanded to that tribunal.




3
  In the absence of a legally recognized duty, plaintiff’s disability claims fare no better, and we
agree with the hearing justice’s decision granting defendants’ motion for summary judgment on
those grounds.


                                                   -7-
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Ann Marie Maguire v. City of Providence et al.

CASE NO:              No. 2013-304-Appeal.
                      (PC 10-470)

COURT:                Supreme Court

DATE OPINION FILED: November 28, 2014

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

WRITTEN BY:           Associate Justice Gilbert V. Indeglia

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Joseph A. Montalbano

ATTORNEYS ON APPEAL:

                      For Plaintiff: Edward John Mulligan, Esq.

                      For Defendants: Kevin S. Cotter, Esq.
                                      James T. McCormick, Esq.
