                                                      Supreme Court

                                                      No. 2012-315-Appeal.
                                                      (KC 09-416)


Kimberly S. Phelps et al.          :

           v.                      :

 Gregory Hebert 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. 2012-315-Appeal.
                                                                  (KC 09-416)


         Kimberly S. Phelps et al.            :

                      v.                      :

           Gregory Hebert et al.              :


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


                                          OPINION

       Justice Goldberg, for the Court. This case arises out of claims of negligence and

wrongful death brought by the plaintiffs, Kimberly S. Phelps and Thomas Phelps (collectively,

plaintiffs), individually and as co-administrators of the Estate of Ashley R. Phelps, alleging that

two named defendants, Leo R. Pelletier and Susan Pelletier (collectively, defendants or

Pelletiers), negligently allowed a guest at their son’s graduation party to operate an all-terrain

vehicle (ATV) in a reckless manner, resulting in the death of the plaintiffs’ daughter, Ashley.

On appeal, the plaintiffs argue that a Superior Court justice erred in granting summary judgment

in favor of the defendants. This case came before the Supreme Court on April 2, 2014, pursuant

to an order directing the parties to appear and show cause why the issues presented in this appeal

should not be summarily decided. After a thorough review of the arguments and the memoranda

submitted by the parties, we are of the opinion that cause has not been shown and thus the appeal

may be decided at this time. For the reasons set forth in this opinion, we affirm the judgment of

the Superior Court.




                                               -1-
                                          Facts and Travel

          The tragic events giving rise to this case began on June 23, 2007, when the Pelletiers

hosted a party at their home, located at 51 Sharon Drive in Coventry, Rhode Island, to celebrate

the college graduation of their son, Ross. Approximately eighty people were invited to the party,

including Gregory Hebert (Hebert), Ross’s friend from high school. Although the party was an

all-day event, Hebert arrived in the afternoon, with a case of beer as a gift for Ross. According

to Hebert, during his time at the party he consumed “no more than two beers,” and did not drink

any of the alcoholic beverages that were supplied by the Pelletiers.1

          Later that evening, Hebert left the party with Michael S. Vingi (Vingi) in order to retrieve

a recently purchased ATV from his home. Vingi drove Hebert’s pickup truck to the house,

where Hebert retrieved the ATV from a locked shed on the property. Hebert then drove the ATV

“a mile or two” back to the party, with Vingi following in the pickup truck. Once they arrived at

the Pelletiers’ house, Hebert left the ATV in the front yard—near other ATVs in the driveway—

and proceeded to rejoin the party in the backyard. Rosalyn Smith (Smith), a guest at the party,

asked Hebert for a ride on his ATV. Despite the fact that the ATV was designed for only one

person, Hebert agreed. Before embarking, Hebert asked Smith if she wanted to wear a helmet;

Smith declined and Hebert drove the ATV—with Smith on the back—down Sharon Drive,

where they stopped to talk to Smith’s brother, who lived at the end of the street. Hebert and

Smith then returned to the Pelletiers’ house on the ATV.

          At approximately 10:15 p.m., Ashley Phelps (Ashley or decedent) requested a ride on

Hebert’s ATV. Hebert offered Ashley a helmet—which she declined—and asked her to dispose

of her drink and cigarette before climbing on the vehicle. With Ashley on the back of the ATV,



1
    Underage drinking does not play a role in this tragedy.
                                                  -2-
Hebert proceeded down the driveway toward Mrs. Pelletier. According to Hebert, Mrs. Pelletier

moved a party cooler in order for Hebert to maneuver the ATV and gain access to the street.

Although Hebert stated that he could not recall if Mrs. Pelletier said anything to him at that

point, Mrs. Pelletier stated in her deposition testimony that she did not move the cooler to allow

the ATV to pass; however, she testified that she told Hebert that the party was neither the “time

[n]or place” for ATV rides, to which Ashley replied that Hebert was “a good driver.” It is

undisputed that Hebert then left the Pelletiers’ property and traveled down the street, where he

crashed the ATV, causing it to roll over and eject Ashley onto the driveway at 39 Sharon Drive.

After the accident, Hebert fled on the ATV, abandoning a grievously injured Ashley, who

suffered traumatic brain injuries.2 Ashley died nine days later.

       On October 29, 2007, plaintiffs filed a wrongful death action against Hebert, and in an

amended complaint on June 18, 2010, plaintiffs added the Pelletiers as defendants, including

counts of negligence and wrongful death against them.3 The plaintiffs alleged that defendants

owed a duty of care to provide for a safe environment for the guests on their property, including

the decedent, who attended the graduation party at their home. The plaintiffs further argued that

the Pelletiers breached this duty of care by allowing a dangerous condition—namely, Hebert’s

ATV—to be on their property and to be operated in a reckless manner.

       The Pelletiers filed a motion for summary judgment that was heard by a justice of the



2
   Hebert was later charged with leaving the scene of an accident, death resulting. He
subsequently pled nolo contendere to driving to endanger, death resulting, and was sentenced to
a two-year prison term at the Adult Correctional Institutions.
3
   Michael Vingi, Gregory’s father Bruce Hebert, and GE Money Bank—which financed the
ATV—were also named as defendants in the amended complaint. Final judgments were
subsequently entered in favor of Bruce Hebert and Michael Vingi after their separate motions for
summary judgment were granted. The plaintiffs’ claims against Gregory Hebert and GE Money
Bank remain pending at the time of this appeal.
                                               -3-
Superior Court on March 12, 2012. At this hearing, defense counsel argued that the Pelletiers

had no duty to the decedent as social hosts, nor did any special relationship exist between the

Pelletiers and Ashley that would impose upon them a duty to protect her from harm caused by a

third party. In response, plaintiffs’ counsel argued that the claims against the Pelletiers were not

based upon social host liability, but rather upon principles of premises liability. Specifically,

plaintiffs argued that the Pelletiers allowed a dangerous instrumentality to be used on the

premises, which resulted in injury to the decedent.        Concluding that no duty arose under

principles of premises liability, the Superior Court justice stated, “I cannot see extending the duty

of a property owner to the situation where a person is injured off the property as a result of

something other than a defect in the property. * * * [A]s a matter of law, I can’t find the

[decedent] getting on the vehicle as a defect in the property that gives rise to the duty.” The trial

justice granted summary judgment in favor of the Pelletiers. Final judgment entered in favor of

the Pelletiers, and plaintiffs timely appealed.

                                        Standard of Review

       This Court reviews a trial justice’s grant of a motion for summary judgment by

undertaking a de novo review. Willis v. Omar, 954 A.2d 126, 129 (R.I. 2008) (citing United

Lending Corp. v. City of Providence, 827 A.2d 626, 631 (R.I. 2003)). In so doing, this Court

reviews the evidence in the light most favorable to, and drawing all reasonable inferences in

favor of, the nonmoving party. Martin v. Marciano, 871 A.2d 911, 914-15 (R.I. 2005) (citing

Santiago v. First Student, Inc., 839 A.2d 550, 552 (R.I. 2004)). We will affirm a grant of

summary judgment 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.” Id. at



                                                  -4-
915 (quoting Wright v. Zielinski, 824 A.2d 494, 497 (R.I. 2003)).

                                            Analysis

       On appeal, plaintiffs argue that the Superior Court justice erred in his conclusion that the

Pelletiers did not owe a duty of care to the decedent, and cite Banks v. Bowen’s Landing Corp.,

522 A.2d 1222, 1225 (R.I. 1987), for the proposition that a duty of care should have been

recognized based on the facts of this case. Although plaintiffs contend that principles of social

host liability do not apply in this case, they argue that the Pelletiers owed a duty of reasonable

care for the safety of their guests—including the decedent—who were on the premises as guests

at the graduation party. The plaintiffs contend that this duty is evidenced by the fact that the

Pelletiers witnessed Hebert providing ATV rides on their property, yet failed to take any

measures to prevent what they knew was an unsafe practice.

       It is well settled that “[t]o properly set forth ‘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.’” Brown v. Stanley, 84 A.3d 1157, 1161-62 (R.I. 2014) (quoting Willis, 954 A.2d at

129). However, a defendant cannot be held liable under any theory of negligence “unless the

defendant owes a duty to the plaintiff.” Id. at 1162 (quoting Ferreira v. Strack, 636 A.2d 682,

685 (R.I. 1994)). Whether a legal duty exists in any given case is a question of law for the court.

Willis, 954 A.2d at 129 (citing Martin, 871 A.2d at 915). “If the court finds that no duty exists,

‘the trier of fact has nothing to consider and a motion for summary judgment must be granted.’”

Gushlaw v. Milner, 42 A.3d 1245, 1252 (R.I. 2012) (quoting Berardis v. Louangxay, 969 A.2d

1288, 1291 (R.I. 2009)). We note, however, that “[b]ecause there is no set formula for finding a

legal duty, such a determination must be made on a case-by-case basis.” Brown, 84 A.3d at



                                               -5-
1162 (quoting Willis, 954 A.2d at 130). We therefore proceed to examine “all relevant factors,

including the relationship of the parties, the scope and burden of the obligation to be imposed

upon the defendant, public policy considerations, and notions of fairness.” Gushlaw, 42 A.3d at

1252 (quoting Volpe v. Gallagher, 821 A.2d 699, 705 (R.I. 2003)).

       In Rhode Island, the common law distinctions between invitees and licensees have long

been abolished. Bucki v. Hawkins, 914 A.2d 491, 495 (R.I. 2007) (citing Mariorenzi v. Joseph

DiPonte, Inc., 114 R.I. 294, 307, 333 A.2d 127, 133 (1975)). Instead, our courts apply a

reasonableness test to premises liability actions, requiring the determination of whether a

landowner has satisfied his or her “affirmative duty to exercise reasonable care for the safety of

all people reasonably expected to be upon the premises.” Id. (citing Mariorenzi, 114 R.I. at 307,

333 A.2d at 133). This 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.” Id. (quoting Mead v. Papa

Razzi Restaurant, 840 A.2d 1103, 1107 (R.I. 2004)). We have stated that our “rationale for the

imposition of this duty rests firmly on the landowner’s possession of the premises and his or her

attendant right and obligation to control the premises.” Wyso v. Full Moon Tide, LLC, 78 A.3d

747, 751 (R.I. 2013) (citing Ferreira, 636 A.2d at 685).

       This Court has, however, recognized that a landowner may also be liable for injuries

occurring outside the premises when he or she allows a dangerous condition or activity to exist

on their land:




                                               -6-
                 “[I]f a possessor of land knows or should know that a condition or
                 activity upon her property is unreasonably dangerous, but [he or]
                 she nonetheless fails to take action to rectify that condition or
                 activity within a reasonable time after discovering its existence, [he
                 or] she is liable to innocent individuals outside of the land who are
                 harmed as a result of that condition or activity.” Volpe, 821 A.2d
                 at 712 (citing Restatement (Second) Torts § 364 at 259-60 and
                 § 371 at 275 (1965)).

In Volpe, the plaintiff’s decedent was killed—while on his own property—by the defendant’s

mentally ill adult son, who shot the decedent as he was trimming a hedge that ran between the

defendant’s and the decedent’s property. Id. at 702-03. At the time, the defendant’s son was

living in the defendant’s home and kept an assortment of guns and ammunition on the premises.

Id.   The decedent’s next of kin subsequently brought a wrongful death action against the

defendant, claiming that the defendant was negligent in allowing her mentally ill son—who had

been institutionalized and who was prone to hallucinations and paranoia—to keep guns and

ammunition on her property because the defendant knew or should have known that this activity

created an unreasonable risk of bodily harm to others. Id. at 703, 707. After the jury found the

defendant negligent, the trial justice granted the defendant’s motion for a new trial, claiming that

no legal duty arose in the case and that she had incorrectly allowed the case to go to the jury. Id.

at 704.

          On appeal, we reversed the trial justice’s ruling and held that although “each possessor of

land owes to those outside the premises a duty to use reasonable care to prevent them from being

injured as a result of activities on their property * * * [t]his duty extends to activities conducted

by third parties on the possessor’s property if the possessor has the power to control such

activities.” Volpe, 821 A.2d at 705 (citing W. Page Keeton et al., Prosser and Keeton on the

Law of Torts § 57 at 387, 392 (5th ed. 1984)) (emphasis added). We specified that, in order for

this duty to arise, however, the landowner must “(1) know or have reason to know that they have


                                                 -7-
the ability to control the person(s) using their land, and (2) know or should know of the necessity

and opportunity for exercising such control.”          Id. at 706 (citing Restatement (Second)

Torts § 318 at 127). We also clarified that this legal principle “does not create strict liability for

those possessors of property who permit third parties to conduct an activity on their property that

creates an unreasonable risk of bodily harm to others, even in situations when, as [in Volpe], the

possessor and the third-party user are related to one another.” Id. After this Court determined

that sufficient evidence had been presented for a jury to conclude that both of the conditions to

the rule were met based on the facts of Volpe, we “caution[ed] against any hasty extrapolation of

the legal principles discussed in this opinion to different factual scenarios.” Id. at 718.

       Two years after Volpe, this Court decided Martin, 871 A.2d at 914, a social host and

premises liability action in which an underage guest was attacked during a party at the

defendant’s home where alcohol was being served to minors. In Martin, we reiterated the

general rule that “a landowner has no duty to protect another from harm caused by the dangerous

or illegal acts of a third party.” Id. at 915 (citing Luoni v. Berube, 729 N.E.2d 1108, 1111

(Mass. 2000)). We noted that “[a]n exception to this rule exists, however, when a plaintiff and a

defendant bear a special relationship to each other.” Id. Accordingly, this Court determined that

a special relationship existed where an adult provided intoxicating beverages to underage

partygoers so as to impose a duty upon the landowner to take reasonable steps to protect their

guests from injury. Id. at 916.

       After scrutinizing the facts of the case at bar against our existing case law, we decline to

create the duty requested by plaintiffs. The facts of this case are readily distinguishable from

those which led to our holding in Volpe.         Here, we are not faced with a scenario where

something emanating from the property—like the shotgun blasts in Volpe—caused harm to an



                                                 -8-
innocent and unknowing third party who was in close proximity to, yet still outside, the property.

In fact, we specified that our analysis in Volpe would likely have been different if the mentally

ill son had traveled from the defendant’s property to commit his heinous act. Volpe, 821 A.2d at

713 (“Unfortunately, [the] defendant’s house functioned as this mentally disturbed murderer’s

convenient armory and sanctuary from which he readily could emerge and to which he readily

could retreat after acting on whatever compulsion, delusion, or hallucination propelled him into

causing this victim’s death.”). Moreover, although plaintiffs do not allege strict liability, we note

that the mere presence of Hebert’s ATV does not create an inherently dangerous condition upon

the Pelletiers’ property under principles of premises liability.

       We are also satisfied that, based on the facts of this case, there is no indication that the

Pelletiers had the ability to control Hebert’s actions so as to prevent injury to Ashley. Although

we in no way mean to diminish the tragic outcome of these facts, it is nonetheless undisputed

that the adult Ashley requested a ride from Hebert—who was also an adult—then voluntarily

mounted the ATV, and, after declining the offer of a helmet, drove off the Pelletiers’ property

with Hebert. No special relationship existed between the Pelletiers and Ashley that would

require them to protect her, nor did the Pelletiers have the legal ability to control either Ashley’s

or Hebert’s actions either on or off the premises.

       Additionally, we note that the scope and burden of the obligation that the plaintiffs ask to

be imposed upon the defendants is practically insurmountable and contrary to public policy.

Imposing such a duty would cause landowners to face liability in seemingly innocuous, yet—in

retrospect—“dangerous” situations. Accordingly, despite the tragic facts present in this case,

“[i]t is not the function of this Court to declare a duty when none exists.” Berman v. Sitrin, 991

A.2d 1038, 1048 (R.I. 2010).



                                                 -9-
                                          Conclusion

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

The papers in this case may be returned to the Superior Court.




                                             - 10 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Kimberly S. Phelps et al. v. Gregory Hebert et al.

CASE NO:              No. 2012-315-Appeal.
                      (KC 09-416)

COURT:                Supreme Court

DATE OPINION FILED: June 27, 2014

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

WRITTEN BY:           Associate Justice Maureen McKenna Goldberg

SOURCE OF APPEAL:     Kent County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Allen P. Rubine

ATTORNEYS ON APPEAL:

                      For Plaintiffs: Christopher E. Hultquist, Esq.

                      For Defendants: Joseph A. DiMaio, Esq.
