May 8, 2018




                                                                             Supreme Court

                                                                             No. 2017-91-Appeal.
                                                                             (PC 14-611)


                           Ian DeLong                    :

                                 v.                      :

              Rhode Island Sports Center, Inc., 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. 2017-91-Appeal.
                                                               (PC 14-611)


               Ian DeLong                      :

                     v.                        :

  Rhode Island Sports Center, Inc., et al.     :


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

                                             OPINION

       Justice Flaherty, for the Court. The plaintiff, Ian DeLong, a former college hockey

player, alleged that he inhaled noxious fumes while playing in a game at an arena owned by the

defendant DRF Arena, LLC, and operated by the defendant Rhode Island Sports Center, Inc. He

claimed that he, along with several other teammates, became ill upon returning to school after a

hockey game against Johnson & Wales University at the defendants’ arena. The plaintiff alleged

that he began coughing up blood the next morning and sought medical treatment. He ultimately

brought a negligence suit against the defendants, who filed and prevailed on a motion for

summary judgment. The plaintiff timely appealed to this Court.

       This case came before the Supreme Court, sitting at Lincoln High School, pursuant to an

order directing the parties to appear and show cause why the issues raised in this appeal should

not summarily be decided. After considering the parties’ written and oral submissions, and after

reviewing the record, we conclude that cause has not been shown and that this case may be




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

the judgment of the Superior Court and return the case thereto for trial.

                                                 I

                                         Facts and Travel

        In the complaint that he filed in the Superior Court, plaintiff alleged that on February 17,

2011, defendants negligently maintained their ice rink facility in North Smithfield by allowing

noxious fumes to permeate the air. This, according to plaintiff, created a dangerous condition on

the premises, and defendants failed to exercise reasonable care or provide adequate warnings.

As a result, plaintiff claimed, he became ill with acute respiratory problems, including carbon

monoxide and nitrogen dioxide poisoning. The defendants answered, denying that plaintiff was

entitled to relief.

        Discovery ensued, and on May 13, 2015, defendants filed a motion for summary

judgment. They argued that there were no genuine issues of material fact regarding (1) the

existence of a dangerous or defective condition; (2) the notice to defendants of any such

condition; and (3) the causal connection between that condition and any injury that may have

been sustained by plaintiff. Indeed, defendants maintained that plaintiff had failed to put forth

evidence of any of those elements, all of which are necessary to establish a premises liability

claim. Therefore, defendants asserted, they were entitled to judgment as a matter of law.

        To support their motion, defendants pointed to plaintiff’s deposition statement that he

neither saw nor smelled any unusual fumes while playing hockey at defendants’ ice rink. They

further highlighted the dearth of scientific evidence as to the air quality in the arena on the night

of the game. In fact, defendants proffered evidence that the carbon monoxide levels in the

facility that night were zero, as demonstrated by the ice rink attendant’s twice-daily notation of



                                                -2-
the air quality reading and the Rhode Island Department of Health’s confirmation the following

day. Therefore, defendants argued, plaintiff had no proof that there was a dangerous or defective

condition present in the arena, thus failing to prove even the first element of his claim.

       Continuing to the remaining elements, defendants maintained that they had no notice,

actual or constructive, of any potential defect, even assuming one were to have existed. In

making that assertion, they relied on the deposition testimony of two employees: Rick

Beauregard, the facilities manager, and David L’Etoile, who was responsible for operating a

Zamboni to resurface the ice before, during, and after games. 1 Each stated that he was not aware

of any complaints ever having been made regarding noxious fumes, and L’Etoile attested that he

never observed or smelled any fumes while resurfacing the ice rink. Finally, as to causation,

defendants underscored plaintiff’s own deposition statements.          The plaintiff admitted that,

despite his assumption and belief that it was noxious fumes within the arena that caused his

injury, he could not say with complete certainty what it was that made him fall ill. And,

according to defendants, even if plaintiff were to prove that he was exposed to airborne toxins,

he had no evidence that that exposure occurred on defendants’ premises.

       The plaintiff opposed defendants’ motion for summary judgment.                   By way of

background, he explained that, after a game between his team, Curry College, and Johnson &

Wales University at defendants’ ice rink, “[p]laintiff and a large number of his teammates

suffered respiratory illnesses” from nitrogen dioxide, a toxin that can be emitted by Zambonis.

On the night in question, the Curry College hockey team traveled to the game by bus, and

plaintiff said he detected no fumes during the ride. Once at the rink, the team went into the



1
  A “Zamboni,” which derives its name from its inventor, is a machine used to resurface an ice
rink. The resurfacer shaves the ice, washes the ice, and leaves behind a layer of fresh ice-making
water, which freezes to create a smooth sheet of ice.
                                                -3-
visitors’ dressing room, outside of which were situated two propane-fueled Zambonis; one was

stored out in the open next to the locker room, the other in a garage near the locker room. One of

those Zambonis was used to resurface the ice between the first and second periods, between the

second and third periods, and at the end of the game. After the game, the team remained in the

rink for a little over half an hour before returning to Curry College on the same bus that had

transported them to the rink. Later that evening, one of plaintiff’s teammates asked plaintiff—

who himself was already coughing—to bring him to the hospital because he was coughing up

blood. By the next morning, plaintiff, too, was coughing up blood and he went to the emergency

room. A number of plaintiff’s teammates reportedly also experienced the same symptoms. At

the hospital, the plaintiff was diagnosed with an acute lung injury resulting from carbon

monoxide and nitrogen dioxide poisoning.

       The plaintiff responded to defendants’ summary-judgment arguments with evidence of

his own. In terms of proof of a defect, and to rebut defendants’ contention that the Department

of Health air quality report was dispositive of the issue, plaintiff offered a regulation showing

that the Department of Health does not require testing for nitrogen dioxide and that it does not do

so itself. Furthermore, the arena was not tested for carbon monoxide by the Department of

Health until the next day, and simply opening doors or windows can properly ventilate a facility

and improve air quality, as James Bruckshaw, an official from the department, acknowledged in

his deposition. The plaintiff also provided an affidavit from the head coach of his hockey team,

Robert Davies. Coach Davies submitted that, based on a lifetime spent in ice rinks, he can

immediately discern air quality when entering a rink.         He said that, upon walking into

defendants’ facility on February 17, 2011, he could smell some kind of gas. In addition, Coach

Davies noted that the Zamboni broke down while it was resurfacing the ice during an



                                               -4-
intermission, causing a delay in the action. He further swore that this Zamboni produced a

gaseous odor that progressively worsened over time and that it “released a thick blue film that

permeated the air.” Coach Davies thereafter heard several of his players begin to cough. In that

regard, plaintiff produced affidavits from two of his teammates who recounted smelling gas in

the air inside the arena and experiencing symptoms similar to plaintiff’s upon returning to Curry

College. And lastly, as further evidence of the presence of a dangerous or defective condition,

plaintiff pointed to defendants’ purchase of a new electric Zamboni just months later. As

Bruckshaw explained at his deposition, electric Zambonis do not produce combustion emissions,

as do those that are propane-fueled.       Accordingly, plaintiff argued that he had produced

competent evidence that successfully rebutted defendants’ contention that there was no genuine

issue of fact as to the air quality in the arena on the night in question, and thus the issue should

be left to a factfinder.

        With respect to the issue of prior notice of the defect, plaintiff pointed to Coach Davies’

affidavit, in which he swore that he had asked a rink attendant if it would be possible to open the

doors to the facility because of the smell of gas. Coach Davies also stated that he had become

aware of prior similar incidents involving three other college hockey teams. In that regard,

plaintiff submitted a newspaper article detailing how players from the Salve Regina University

hockey team fell ill following a game against Johnson & Wales at defendants’ facility on

February 5, 2011. 2




2
  The plaintiff later supplemented his objection to defendants’ motion for summary judgment
with an affidavit from the head coach of the Salve Regina hockey team. The coach attested that
at least three of his players became ill following the above-referenced game, and he thereafter
informed the head coach at Johnson & Wales that he thought there was a problem with the air
quality in defendants’ ice rink that warranted investigating. When the Salve Regina coach
learned of the even “more extensive” bouts of sickness befalling the Curry College hockey team,
                                               -5-
       Finally, in terms of establishing a causal link between the defect and plaintiff’s injury,

plaintiff highlighted the impressions contained in his medical records: “[a]cute hypoxic

respiratory failure caused by inhalation of toxic fumes * * * at the hockey rink” and “[a]cute

onset of cough * * * caused by early chemical pneumonitis as a result of exposure to toxic

irritating fumes.” 3 The records listed plaintiff’s discharge diagnosis as “Acute Lung Injury” and

“Carbon Monoxide and Nitrous Oxide exposure[,]” and described the course of his hospital

treatment as “22 [year] old male with nitrogen dioxide and carbon monoxide exposure from

Zamboni machine at a hockey rink, came with cough hemoptysis.” 4 Those records, according to

plaintiff, were enough for his case to survive summary judgment.

       A hearing on the motion was held before a justice of the Superior Court on January 19,

2016, and the motion justice rendered a bench decision the same day. He began by stating: “It

appears from this record that there is a lack of evidence that a defective condition existed at the

Sports Center on the date of the injury and it further appears that no one from the Sports Center

had notice of any such defect, if there was one.” As for the defect itself, the motion justice found

that plaintiff’s own testimony—that he did not see or smell any fumes in the rink, and that

something else theoretically could have caused his sickness—negated his claim. The motion

justice also put stock in the fact that the Department of Health’s air quality test, conducted the

day after the alleged exposure, came back negative for toxins, and the “more objective”

evidence, as the motion justice coined it, was that the only people who fell ill were from the



he contacted Coach Davies and told him what had happened to players on his team just a couple
of weeks earlier.
3
  The impressions also went on to state, however, that the “possibility of infectious process such
as atypical pneumonia cannot be totally excluded * * *.”
4
  The papers before this Court are replete with inconsistencies as to nitrous versus nitrogen and
oxide versus dioxide. Because it appears to be the most common in the medical records, we
have chosen to refer to the toxin as “nitrogen dioxide” throughout this opinion.
                                               -6-
Curry College hockey team, seeming to indicate that their sickness was from another source,

independent of defendants’ facility.

       As to the notice element, the motion justice cited the deposition testimony of both

Beauregard and L’Etoile that they did not see or smell any fumes in the arena on the night in

question, and that neither of them recalled receiving any complaints about air quality that night

or at any other time. The motion justice expressed his view that plaintiff was relying on nothing

more than “testimony that somebody saw blue smoke coming from the Zamboni, that the

plaintiff obviously told the people at the emergency room that the smoke came or the fumes

came from the locker room, but yet that in and of itself is not sufficient evidence * * *.” As the

motion justice saw it, the evidence offered by plaintiff essentially amounted to “supposition[.]”

The motion justice declined to consider the newspaper article as evidence of notice because

“[n]ewspaper articles are not admissible,” and, he said, the affidavit from the Salve Regina coach

to that effect did not necessarily result in knowledge of the problem being imparted to

defendants. And finally, according to the motion justice, Coach Davies’ affidavit claiming that

he had asked someone at the rink to open the doors for ventilation purposes was not enough to

create an issue of fact regarding whether defendants had sufficient notice. Consequently, the

motion justice granted defendants’ motion for summary judgment.

                                                II

                                       Standard of Review

       When we review the granting of a party’s motion for summary judgment, we do so de

novo. Van Hoesen v. Lloyd’s of London, 134 A.3d 178, 181 (R.I. 2016). “In doing so, we

‘examin[e] the case from the vantage point of the trial justice who passed on the motion for

summary judgment, * * * view[ing] the evidence in the light most favorable to the nonmoving



                                              -7-
party * * *.’” Id. (quoting Sullo v. Greenberg, 68 A.3d 404, 406 (R.I. 2013)). We will affirm

the judgment only “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 * * *.” Id. (quoting Sullo, 68 A.3d at

406-07). And, of course, we are ever mindful that “[s]ummary judgment is a drastic remedy, and

a motion for summary judgment should be dealt with cautiously.” Faber v. McVay, 155 A.3d

153, 156 (R.I. 2017) (quoting Cruz v. DaimlerChrysler Motors Corp., 66 A.3d 446, 451 (R.I.

2013)).

                                                III

                                            Discussion

          The single question with which we are faced in this appeal is whether summary judgment

was improperly granted. The summary-judgment procedure begins when the movant files papers

seeking to establish the absence of a genuine dispute with respect to the material facts of the

case. Estate of Giuliano v. Giuliano, 949 A.2d 386, 391 (R.I. 2008). It then becomes necessary

for the nonmoving party to demonstrate by competent evidence that a disputed issue of material

fact does indeed exist. Id. It is the court’s function to look for such factual issues, but not to

determine them one way or the other. Id.

          In that light, we are tasked with examining whether there is a genuine issue of material

fact that should have precluded summary judgment in this case. “In cases involving a latent

defect, the plaintiff must prove that sufficient evidence existed to show that the defendants knew

or should have known of an unsafe condition on their premises.” Cooley v. Kelly, 160 A.3d 300,

304-05 (R.I. 2017) (quoting Bromaghim v. Furney, 808 A.2d 615, 617 (R.I. 2002)). Of course,

“[t]he mere existence of [a dangerous or defective] condition * * * is not sufficient to charge

[the] defendant with negligence.” Id. at 305 (quoting Antonakos v. Providence Institution for



                                                -8-
Savings, 94 R.I. 382, 385, 181 A.2d 101, 103 (1962)); see also Hernandez v. Fernandez, 697

A.2d 1101, 1103 (R.I. 1997) (“As we have long held, the mere occurrence of an accident,

without more, does not warrant an inference that a defendant has been negligent.”). Rather, to

make out a prima facie premises liability case, the “plaintiff ‘must present evidence of an unsafe

condition on the premises of which the defendant was aware or should have been aware, and that

the condition existed for a long enough time so the owner of the premises should have taken

steps to correct the condition.” Cooley, 160 A.3d at 305 (quoting Bromaghim, 808 A.2d at 617);

see also Hernandez, 697 A.2d at 1103 (“Unless there is evidence, direct or inferential, that [the

defendant] knew, or by the exercise of reasonable care in inspecting and maintaining its premises

should have known, of such condition for a long enough period of time prior to the accident, it

cannot be charged with notice thereof as a matter of law. Such notice is necessary to impose

upon it the duty of alleviating the danger or of warning plaintiff of its existence.” (quoting

Antonakos, 94 R.I. at 385, 181 A.2d at 103)). And certainly a “causal connection between

negligence and a plaintiff’s injury must be established by competent evidence and may not be

based on conjecture or speculation.” Cooley, 160 A.3d at 305 (quoting McLaughlin v. Moura,

754 A.2d 95, 98 (R.I. 2000)). “It is also clear, however, that a plaintiff is not required to

demonstrate with absolute certainty each precise step in the causal chain between the tortfeasor’s

breach of duty and the injury. Rather, ‘[c]ausation is proved by inference.’” Skaling v. Aetna

Insurance Co., 742 A.2d 282, 288 (R.I. 1999) (quoting Cartier v. State, 420 A.2d 843, 848 (R.I.

1980)).

          Here, then, it was incumbent upon plaintiff to show: (1) the existence of a dangerous or

defective condition on defendants’ premises; (2) defendants’ notice of that condition for a

sufficient period of time; and (3) a causal link between that condition and plaintiff’s injury. We



                                                -9-
will examine these elements one by one to determine whether there was a factual dispute; only if

there was not such a dispute would our function then turn to analyzing whether defendants were

entitled, based on the undisputed facts, to judgment as a matter of law.

       First, arguing that there was no issue of fact in terms of the defect, defendants pointed to:

plaintiff’s statement that he did not see or smell any fumes inside defendants’ facility; plaintiff’s

paucity of scientific evidence that there were any airborne toxins lingering on the night in

question; the notation in the ice rink log of the air quality reading that night; and the results of

testing conducted by the Department of Health showing no carbon monoxide in the rink the

following day. The plaintiff responded in kind. He highlighted the following evidence: the

Department of Health did not conduct a test to determine the levels of nitrogen dioxide and did

not perform its carbon monoxide test until a day later; affidavits from his coach and teammates

swearing that they smelled gas in the air the night plaintiff was injured, that his coach witnessed

the Zamboni malfunction and produce visible emissions, and that his teammates also ended up

suffering very similar symptoms as he did; and that defendants purchased an electric, non-

propane-fueled Zamboni just months later. 5 In our judgment, based on the competing evidence,

the dangerous-or-defective-condition element is factually disputed, and the issue remains to be

resolved by a finder of fact.

       Second, asserting the absence of a factual dispute about whether defendants had notice of

any alleged defect, defendants offered deposition statements made by two of their employees that

they were unaware of any previous complaints about noxious fumes in the rink, and that they had



5
  Under Rhode Island law, evidence that defendants bought a new, electric Zamboni shortly after
the incident involving plaintiff could have been considered by the motion justice in passing on
the motion for summary judgment. See R.I. R. Evid. 407 (“When, after an event, measures are
taken which, if taken previously, would have made the event less likely to occur, evidence of the
subsequent measures is admissible.”).
                                               - 10 -
never observed any themselves. The plaintiff then submitted evidence in rebuttal: Coach Davies’

affidavit attesting that he had asked someone working at the rink the night of the game to open

the doors due to the gaseous smell, and that he was aware of similar incidents involving other

teams at defendants’ facility; an affidavit from the coach of the Salve Regina hockey team

describing his team’s experience; and a newspaper article describing that occurrence. 6 As was

the case with respect to the first element, it is our view that whether defendants had notice of the

dangerous condition at all and whether that notice was of a sufficient duration to impose on

defendants a duty to fix the danger or warn of its existence are factual issues properly left to the

determination of a jury.

       Third and finally, claiming there were no disputed facts as to causation, defendants relied

on plaintiff’s acknowledgement that, despite his belief that it was noxious fumes in the arena that

caused his sickness, he could not say so with 100 percent conviction. The defendants also

argued that plaintiff had no evidence that any such exposure occurred on their premises, breaking

the causal chain plaintiff needed to build. In rebuttal, plaintiff came forward with his medical

records, which contained his diagnosis and which indicated that he had presented with an injury

after inhaling toxic fumes at the ice rink. It appears from the transcript of the hearing that the




6
  Although the motion justice ruled that newspaper articles in general are not admissible, and he
therefore did not take into account the article that plaintiff submitted, we note that he could have
done so. The article was competent evidence for the purpose for which plaintiff offered it—
namely, as proof of defendants’ prior notice of the defective condition. Hearsay is an out-of-
court statement offered to prove the truth of the matter asserted. R.I. R. Evid. 801(c). The
plaintiff did not introduce the article to prove that members of the Salve Regina hockey team
became ill following a game at defendants’ facility; rather, he offered it to establish that
defendants were or should have been aware of the problem before plaintiff was injured.
                                               - 11 -
motion justice considered the medical records, but simply found them to be insufficient evidence

of causation. 7

        As we have explained, “proximate cause can be established by circumstantial evidence,

and specific direct evidence of * * * proximate cause is not always necessary.” Rose v. Brusini,

149 A.3d 135, 140 (R.I. 2016) (quoting Seide v. State, 875 A.2d 1259, 1268 (R.I. 2005)). Thus,

even putting the medical records aside, the affidavits of plaintiff’s teammates and coach were

proper circumstantial evidence of causation as well. In our opinion, it bears emphasizing that

“[o]rdinarily the determination of proximate cause * * * is a question of fact that should not be

decided by summary judgment.” Id. (quoting Munroe v. Cheaters Holding Corp., 808 A.2d 645,

646 (R.I. 2002)).

        The genuine issues of material fact in this case are clear and manifest. It appears to us

that the motion justice impermissibly weighed the evidence in resolving those factual disputes—

a function unquestionably reserved to the province of the jury. See Limoges v. Nalco Company,

157 A.3d 567, 571 (R.I. 2017); Williams v. Alston, 154 A.3d 456, 460 (R.I. 2017). As this Court

previously has observed, “[t]he purpose of the summary-judgment procedure is to identify

disputed issues of fact necessitating trial, not to resolve such issues.” Plainfield Pike Gas &

Convenience, LLC v. 1889 Plainfield Pike Realty Corp., 994 A.2d 54, 58 (R.I. 2010) (quoting

Rotelli v. Catanzaro, 686 A.2d 91, 93 (R.I. 1996)). We have also cautioned that “issues of

negligence are ordinarily not susceptible of summary adjudication, but should be resolved by



7
  We agree that this evidence could have been considered, including those parts of the medical
records that made reference to the ice rink. See R.I. R. Evid. 803(4) (“Statements made for
purposes of medical diagnosis or treatment and describing medical history, or past or present
symptoms, pain, or sensations, or the inception or general character of the cause or external
source thereof insofar as reasonably pertinent to diagnosis or treatment, but not including
statements made to a physician consulted solely for the purposes of preparing for litigation or
obtaining testimony for trial.”).
                                              - 12 -
trial in the ordinary manner.” DeMaio v. Ciccone, 59 A.3d 125, 130 (R.I. 2013) (quoting

Gliottone v. Ethier, 870 A.2d 1022, 1028 (R.I. 2005)); see also DeNardo v. Fairmount Foundries

Cranston, Inc., 121 R.I. 440, 448, 399 A.2d 1229, 1234 (1979) (“In Rhode Island the general

rule is that negligence is a question for the jury unless the facts warrant only one conclusion.”).

In our considered opinion, the issues of fact inherent in this case necessitated a trial; there was

not only one possible conclusion.      Accordingly, the defendants’ alleged negligence was a

question that should have been left for the jury, and it was error to dispose of the case by

summary judgment.

                                                IV

                                           Conclusion

       For the reasons stated above, we vacate the judgment of the Superior Court. The record

shall be remanded to the Superior Court.




                                              - 13 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        Ian Delong v. Rhode Island Sports Center, Inc., et al.
                                     No. 2017-91-Appeal.
Case Number
                                     (PC 14-611)
Date Opinion Filed                   May 8, 2018
                                     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 Richard A. Licht
                                     For Plaintiff:

                                     Mark B. Morse, Esq.

Attorney(s) on Appeal                For Defendants:

                                     Charles F. Gfeller, Pro Hac Vice
                                     Stephen Adams, Esq.
                                     Jenna Rae Pingitore, Esq.




SU-CMS-02A (revised June 2016)
