                                                          Supreme Court

                                                          No. 2016-36-Appeal.
                                                          (KC 10-827)


 Stephen F. Limoges et al.           :

             v.                      :

   Nalco Company 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 Tel. 222-3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
                                                                 Supreme Court

                                                                 No. 2016-36-Appeal.
                                                                 (KC 10-827)


         Stephen F. Limoges et al.            :

                     v.                       :

           Nalco Company et al.               :


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

                                          OPINION

       Justice Flaherty, for the Court. This case arose out of a chemical leak that, according

to Stephen F. Limoges, one of the plaintiffs, caused him to suffer respiratory injuries. The

plaintiffs brought suit against three defendants and now appeal the Superior Court’s grant of

summary judgment in favor of one of the defendants, Arden Engineering Constructors, LLC.

Before this Court, the plaintiffs argue that the hearing justice erred because he made an improper

credibility assessment about the affidavit of their expert and because he overlooked material

issues of fact that were in dispute. The matter came before this Court for oral argument on

February 23, 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 time without further briefing or argument. For

the reasons set forth in this opinion, we vacate the judgment of the Superior Court.




                                               -1-
                                        Facts and Travel

       The plaintiff 1 was employed by the State of Rhode Island as an Assistant Administrator

to Facilities and Operations. His duties included overseeing the heating, ventilation, and air

conditioning (HVAC) systems in the state’s courthouses. According to plaintiffs’ complaint, 2 on

August 8, 2008, a pipe that carried bromine into the HVAC system at the Garrahy Judicial

Complex in Providence ruptured, causing a chemical spill. When the pipe burst, plaintiff rushed

to the scene to stop the leak. The plaintiff asserts that, while he was engaged in that effort, he

inhaled bromine, which, in turn, caused him to suffer significant pulmonary injuries.

       The plaintiffs brought suit against three different entities, Nalco Company, Arden

Engineering Constructors, LLC, and JMB Mechanical, Inc., alleging that they were individually

and collectively responsible for plaintiff’s injuries because each defendant was negligent, each

was strictly liable, and each had committed a breach of warranty. After discovery had been

initiated, JMB moved for, and was granted, summary judgment on all three counts against it. 3

Subsequently, Arden also moved for summary judgment on all the counts that had been lodged

against it. After an initial hearing in January 2015, an order entered granting Arden’s motion for

summary judgment as to the strict liability and breach-of-warranty counts. 4        At that time,

plaintiffs were not prepared to argue against the summary-judgment motion on the negligence

count because they had not, as of that time, secured an expert to provide testimony or an affidavit

that would assist in establishing a prima facie negligence case. The hearing justice graciously

1
  When we refer to plaintiff in the singular, we are referring to Mr. Limoges, whose injury is at
the center of this case. Ms. Limoges’ sole claim is for loss of consortium.
2
  The materials submitted by the parties on appeal and at summary judgment include only
excerpts from depositions, interrogatories, and other materials. The record does not contain
complete copies of relevant discovery documents.
3
  No appeal was taken from this grant of summary judgment.
4
  The plaintiffs did not oppose Arden’s motions for summary judgment as to the strict liability
and breach of warranty, nor did they appeal the grant of summary judgment on those two counts.


                                               -2-
decided “to treat [plaintiffs’] argument as a request under [Rule] 56(f) [of the Superior Court

Rules of Civil Procedure] for some [more] time,” and he allowed plaintiffs an additional two

weeks to prepare their opposition to summary judgment.

       In the early afternoon of the day that the second hearing was scheduled to be held,

plaintiffs filed a supplemental memorandum and an expert’s affidavit that set forth the standard

of care required of Arden and its breach thereof. The hearing, which had been scheduled for that

morning, was delayed a day by the court, apparently because of weather. The affidavit said, in

relevant part:

                         “3.     It is more likely than not that Arden Engineering
                 Constructors, LLC (‘Arden’) is responsible for causing the
                 bromine chemical solution leak in the mechanical room located on
                 the 6th floor of the Garrahy Judicial Complex on or about August
                 8, 2008, as follows:

                         “(a) Arden, by and through its agents, employees, and
                 assigns, had a duty to carefully and professionally remove, replace,
                 and/or re-align the piping connecting the chemical feed system to
                 the chillers when it replaced the chillers in 2006; and

                        “(b) Arden, by and through its agents, employees, and
                 assigns, had a duty to carefully and professionally inspect the
                 piping connecting the chemical feed system to the chillers when it
                 replaced the chillers in 2006; and

                         “(c) Arden either caused the crack in the piping when it
                 replaced the chillers in 2006, at which time it removed, replaced,
                 and/or re-aligned the piping connecting the chemical feed system
                 to the chillers; or

                        “(d) Arden failed to inspect and discover a crack in the
                 piping connecting the chemical feed system to the chillers when
                 removed, replaced, and/or re-aligned the piping connecting the
                 chemical feed system to the chillers in 2006.

                         “4.    But for Arden’s negligence as aforesaid, it is more
                 likely than not that [plaintiff] would not have been injured by the
                 bromine chemical solution leak when he went into the mechanical




                                                -3-
               room located on the 6th floor of the Garrahy Judicial Complex on
               or about August 8, 2008.”

The next day, the hearing justice continued the matter for an additional two weeks to allow

Arden the time that it needed to respond to plaintiffs’ expert’s affidavit.

       Finally, after each party had submitted its memoranda and supporting documentation

regarding Arden’s motion, the hearing justice considered Arden’s motion for summary

judgment. At that hearing, Arden argued that plaintiffs’ expert’s “affidavit is false. It’s not

supported by any facts. The expert himself doesn’t even state what he’s basing his opinions on.

[The expert] comes to just conclusions.” Arden asserted that it should be granted summary

judgment because, in its view, plaintiffs had “completely failed to identify one fact which would

make Arden responsible, let alone owe a duty to [plaintiff].”

       The plaintiffs, on the other hand, contended that their expert’s affidavit was sufficient to

establish duty and breach, particularly at the summary-judgment phase of the proceedings.

When the hearing justice asked plaintiffs, “who says that the pipe was cracked when the work

was done in 2006[,]” plaintiffs’ counsel responded, “Plaintiff[s]’s expert, a professional

engineer.” However, when pressed by the hearing justice, plaintiffs’ counsel conceded that

“there’s no paper record here that [shows that the pipe] was cracked in 2006.” With the hearing

justice seemingly not satisfied by the expert’s affidavit, the following colloquy occurred:

                       “THE COURT: So the fact that it was cracked two years
               later when your person, your Plaintiff, had this unfortunate
               experience, you’re saying that that means it must have been
               cracked when the chiller was replaced in November of 2006?
                       “[PLAINTIFFS’ COUNSEL]: That it was either cracked at
               that time or that it should have been inspected and discovered at
               that time, and that’s not me. That’s an engineer saying that.
                       “THE COURT: Oh. So if the engineer says the moon is
               made out of cheese, I should believe it?”




                                                -4-
       Apparently not believing the expert’s affidavit, the hearing justice granted Arden’s

motion from the bench. Four days later, orders entered granting Arden’s motions for summary

judgment and final judgment pursuant to Rule 54(b) of the Superior Court Rules of Civil

Procedure. The plaintiffs timely appealed to this Court.

                                       Standard of Review

       “We review a hearing justice’s grant of summary judgment de novo.” Tri-Town

Construction Co. v. Commerce Park Associates 12, LLC, 139 A.3d 467, 474 (R.I. 2016) (citing

Sullo v. Greenberg, 68 A.3d 404, 406 (R.I. 2013)). “Summary judgment is an extreme remedy

and should be granted 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.’”

Plunkett v. State, 869 A.2d 1185, 1187 (R.I. 2005) (quoting Wright v. Zielinski, 824 A.2d 494,

497 (R.I. 2003)). “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.” National Refrigeration, Inc. v. Standen Contracting Co., 942 A.2d 968,

971 (R.I. 2008) (quoting Carlson v. Town of Smithfield, 723 A.2d 1129, 1131 (R.I. 1999)). The

party opposing “a motion for summary judgment carries the burden of proving by competent

evidence the existence of a disputed material issue of fact and cannot rest on allegations or

denials in the pleadings or on conclusions or legal opinions.” Id. (quoting Accent Store Design,

Inc. v. Marathon House, Inc., 674 A.2d 1223, 1225 (R.I. 1996)).




                                                -5-
                                             Analysis

       “In order to ‘maintain 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.’” Hall v. City of

Newport, 138 A.3d 814, 819 (R.I. 2016) (quoting Wyso v. Full Moon Tide, LLC, 78 A.3d 747,

750 (R.I. 2013)). “Of the four well-worn elements of negligence, only duty is a question of law.”

Williams v. Alston, No. 2016-155-APPEAL, 2017 WL 716431, at *2 (R.I. Feb. 22, 2017).

Meanwhile, “the remaining three elements of a negligence claim * * * are fact-based and * * *

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

only one reasonable inference.’” Hall, 138 A.3d at 820 (quoting Berard v. HCP, Inc., 64 A.3d

1215, 1218 (R.I. 2013)). “Nonetheless, we have repeatedly cautioned that ‘complaints sounding

in negligence generally are not amenable to summary judgment and should be resolved by a fact

finding at the trial court * * *.’” Rose v. Brusini, 149 A.3d 135, 141 (R.I. 2016) (quoting Hall,

138 A.3d at 820).

       It is uncontested that Arden replaced chiller units that were part of the HVAC system at

Garrahy in 2006. According to plaintiffs, genuine issues of material fact remain in dispute as to

what standard of care was required of Arden when it replaced those chillers and whether it did so

carefully and within that standard of care. On appeal, the thrust of plaintiffs’ argument is that the

hearing justice “made an improper credibility assessment” of their expert when he discredited the

expert’s affidavit as far-fetched. The plaintiffs contend that, if the hearing justice had drawn all

reasonable inferences in favor of the nonmoving party and had refrained from making credibility

findings—as a hearing justice is precluded from doing at summary judgment—he would have

denied Arden’s motion for summary judgment because plaintiffs’ expert’s affidavit was




                                                -6-
sufficient, at summary judgment, to establish the standard of care required of Arden and its

breach thereof.

       Arden argues that plaintiffs’ expert’s affidavit was “insufficient because it is unsupported

by the record, wholly conclusory, and does not set forth any specific facts as the basis for [its]

opinion that Arden was somehow negligent.” Arden dismisses the adequacy of the expert’s

affidavit; thus, it argues that there is no evidence in the record “that shows Arden was

responsible for or performed any work on the chemical feed system where the leak occurred, let

alone cracked the associated PVC pipe in question.”

       It is our opinion that plaintiffs’ expert’s affidavit, combined with the other documents

that were available to the hearing justice at the time he granted Arden’s motion, raises a material

question of fact as to whether Arden is responsible for plaintiff’s injury. Although it is true that

Arden denies that it installed the faulty pipe, plaintiff swore in an interrogatory answer that

Arden did, in fact, install the pipe in question. Moreover, even if Arden did not install the pipe

that ruptured, plaintiff testified during a deposition that, after the leak had occurred, one of

Arden’s employees told him that the pipe that burst was the wrong kind of pipe. 5

       Very recently, we addressed a similar issue in which we also vacated the Superior

Court’s grant of summary judgment in a negligence action. See Williams v. Alston, 2017 WL

716431 (R.I. Feb. 22, 2017). We reiterate here that “summary judgment is not the moment for

the court to make credibility assessments—a function that should be reserved for the fact-finder

at trial.” DeMaio v. Ciccone, 59 A.3d 125, 131 (R.I. 2013) (citing Doe v. Gelineau, 732 A.2d

43, 48 (R.I. 1999)). Moreover, “the function of the trial justice in ruling on a motion for



5
  The sworn interrogatory answers were attached as “Exhibit C” to Arden’s memorandum in
support of its motion for summary judgment, and the deposition testimony was attached as
“Exhibit D” to plaintiffs’ memorandum objecting to summary judgment.


                                               -7-
summary judgment is issue finding, not issue determination.” Goodkin v. DeMaio, 664 A.2d

1119, 1120 (R.I. 1995) (mem.) (citing Hodge v. Osteopathic General Hospital of Rhode Island,

107 R.I. 135, 265 A.2d 733 (1970)).

        Because we draw all inferences in favor of the plaintiffs at this stage, we must assume,

for the purpose of summary judgment only, that even if Arden never touched the pipe that burst

when it replaced the chillers, Arden should have noticed that the chemical feed pipe was the

wrong type of pipe and should have, at the very least, warned the plaintiff or whoever was in

charge of overseeing the HVAC system at the courthouse in 2006. Of course, the plaintiffs will

be left to their proof at trial. At that time, the plaintiffs’ expert will be subject to cross-

examination, which is the appropriate time and place for Arden to point out whatever

deficiencies it perceives there to be in the expert’s opinions. At trial, it will be up to a factfinder

to determine the credibility of the plaintiffs’ expert.

                                             Conclusion

        For the reasons set forth in this opinion, we vacate the Superior Court’s judgment. We

remand the record to that tribunal.




                                                 -8-
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        Stephen F. Limoges et al. v. Nalco Company et al.
                                     No. 2016-36-Appeal.
Case Number
                                     (KC 10-827)
Date Opinion Filed                   April 4, 2017
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Francis X. Flaherty

Source of Appeal                     Kent County Superior Court

Judicial Officer From Lower Court    Associate Justice Bennett R. Gallo
                                     For Plaintiffs:

                                     Shad Miller, Esq.
                                     Amato A. DeLuca, Esq.
Attorney(s) on Appeal
                                     For Defendants:

                                     Timothy M. Zabbo, Esq.
                                     Timothy M. Bliss, Esq.




SU-CMS-02A (revised June 2016)
