                                                            Supreme Court

                                                            No. 2016-128-Appeal.
                                                            (PC 06-5374)


Carmen Rohena as Parent and Natural      :
    Guardian of Josue Espinal

                 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. 2016-128-Appeal.
                                                                 (PC 06-5374)


  Carmen Rohena as Parent and Natural        :
      Guardian of Josue Espinal

                    v.                       :

         City of Providence et al.           :


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

                                         OPINION

       Justice Goldberg, for the Court. Because the state and its cities and towns are immune

from liability for injuries suffered by members of the public who use public recreational

facilities, the claim brought by this mother on behalf of her seriously injured child must fail.

This case came before the Supreme Court on January 26, 2017, pursuant to an order directing the

parties to appear and show cause why the issues raised in this appeal should not be summarily

decided. The plaintiff, Carmen Rohena (plaintiff), as parent and natural guardian of Josue

Espinal (Josue), brought suit to recover damages for injuries that Josue suffered while sliding

into home plate at Corliss Park in Providence. The plaintiff appeals from a grant of summary

judgment in favor of the defendant, the City of Providence (the city or defendant). This case was

a home run for the city because the General Assembly has provided the state and its cities and

towns with immunity from liability under Rhode Island’s Recreational Use Statute, G.L. 1956

chapter 6 of title 32. After hearing the arguments of counsel and examining the memoranda

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




                                              -1-
should be decided without further briefing or argument. For the reasons set forth herein, we

affirm the judgment of the Superior Court.

                                         Facts and Travel

       On June 17, 2006, Josue, a member of the North End Wanskuck Little League, was

participating in a baseball game at Corliss Park1 in Providence. While sliding into home plate,

his right foot and lower shin allegedly slid under a corner of the plate that was lifted. When he

attempted to stand up, his leg broke in two places.

       On October 13, 2006, plaintiff filed suit against the city, alleging that defendant failed to

properly maintain the field.     On August 7, 2014,2 defendant filed a motion for summary

judgment, arguing that it was not liable pursuant to the Recreational Use Statute. The plaintiff

filed an objection, contending that discovery was incomplete and that she had been unable to

determine if a genuine issue of material fact existed. However, on November 18, 2014, at the

hearing on the motion, both parties conceded that discovery was complete. The plaintiff did not

press an objection, but asked that the Superior Court justice “note the objection * * * based upon

the recreational use statute.”   The Superior Court justice held that “there is no allegation here

that the city charges[] to have a baseball game played on the park” and “[t]he owner of the land

is not liable unless there is an allegation of some kind of willful misconduct and there is none

here[.]” The defendant’s motion for summary judgment subsequently was granted, and final

judgment entered on December 16, 2015. The plaintiff appealed.



1
 The defendant posits that the incident may have occurred in Prete-Metcalf Park, another park
owned by defendant. However, defendant concedes that the exact location is irrelevant because
both parks are located in Providence and owned by defendant.
2
 We have not been presented with any explanation for the delay between the filing of this suit
and the motion for summary judgment.

                                               -2-
                                      Standard of Review

       “This Court reviews de novo a trial justice’s decision granting summary judgment.” Sola

v. Leighton, 45 A.3d 502, 506 (R.I. 2012) (quoting Lynch v. Spirit Rent-A-Car, Inc., 965 A.2d

417, 424 (R.I. 2009)). “[S]ummary judgment is a drastic remedy, and a motion for summary

judgment should be dealt with cautiously.” Cruz v. DaimlerChrysler Motors Corp., 66 A.3d 446,

451 (R.I. 2013) (quoting DeMaio v. Ciccone, 59 A.3d 125, 129 (R.I. 2013)).              “Summary

judgment is appropriate 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.’” Sola,

45 A.3d at 506 (quoting Plunkett v. State, 869 A.2d 1185, 1187 (R.I. 2005)). “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.” Id. (quoting

National Refrigeration, Inc. v. Standen Contracting Co., 942 A.2d 968, 971 (R.I. 2008)).

                                            Analysis

       It is undisputed that defendant owns Corliss Park, which is public and open without

charge, and that Josue was participating in a recreational activity when he was injured. Before

this Court, plaintiff contends that defendant’s conduct falls outside the scope of the Recreational

Use Statute because the city willfully or maliciously failed to guard or warn against a known

dangerous condition. As support, plaintiff avers that, on June 21, 2006, an individual identified

as Zenaida Martinez (Ms. Martinez) provided a hand-written statement to plaintiff’s attorney.

Ms. Martinez wrote that, approximately one week before the child’s injury, she informed

Nicholas J. Narducci Jr. (Mr. Narducci), the President of the North End Wanskuck Little League



                                               -3-
and a member of the Providence City Council, about the poor condition of Corliss Park,

including the bases. Mr. Narducci allegedly responded that it would be too expensive to repair

the park. Our careful review of the record indicates that this argument was not raised in the

Superior Court.

       This Court has staunchly adhered to the “raise-or-waive” rule. “It is well settled that a

litigant cannot raise an objection or advance a new theory on appeal if it was not raised before

the trial court.” State v. Bido, 941 A.2d 822, 828-29 (R.I. 2008); see also Hydro-Manufacturing,

Inc. v. Kayser-Roth Corp., 640 A.2d 950, 959 (R.I. 1994) (“[A] party may not ‘advance new

theories or raise new issues in order to secure a reversal of the lower court’s determination.’”

(quoting Nedder v. Rhode Island Hospital Trust National Bank, 459 A.2d 960, 963 (R.I. 1983))).

Moreover, “[t]his directive will not be disturbed unless ‘basic constitutional rights are

concerned.’” Bido, 941 A.2d at 829 (quoting State v. Gomez, 848 A.2d 221, 237 (R.I. 2004)).

       The plaintiff’s objection to defendant’s motion for summary judgment, filed on

August 27, 2014, centered on plaintiff’s contention that discovery was incomplete. Although the

objection referenced the scope of the Recreational Use Statute, the argument focused on the fact

that discovery was outstanding. This objection was subsequently withdrawn as moot.

       Notably absent from plaintiff’s argument in the Superior Court is any suggestion that

defendant willfully or maliciously failed to guard or warn against the known dangerous condition

of home plate. Not only did plaintiff fail to submit a supporting affidavit, as required by Rule 56

of the Superior Court Rules of Civil Procedure, plaintiff failed to submit the letter from Ms.

Martinez, which was in plaintiff’s possession. Because plaintiff failed to raise the argument, our

raise-or-waive rule precludes us from addressing that contention. See Bido, 941 A.2d at 828

(“[T]his Court’s ‘raise-or-waive’ rule precludes our consideration of an issue that has not been



                                               -4-
raised and articulated at trial.”). Accordingly, we are of the opinion that plaintiff’s argument has

not properly been preserved for appeal.

       Moreover, even if the plaintiff had presented an affidavit attesting to the facts stated in

Ms. Martinez’s letter, whether verbal notice about the condition of Corliss Park to a member of

the city council qualifies as notice to the city under § 32-6-5(a)(1) is questionable. Compare

Berman v. Sitrin, 991 A.2d 1038, 1052 (R.I. 2010) (determining that “a fact-finder reasonably

could find that after learning about the Cliff Walk’s instability, * * * [Newport] voluntarily and

intentionally failed to guard against the dangerous condition, knowing that there existed a strong

likelihood that a visitor to the Cliff Walk would suffer serious injury or death”), with Carlson v.

Town of South Kingstown, 111 A.3d 819, 824 (R.I. 2015) (declaring the evidence in the case—

awareness that holes in an athletic field can occur, and a witness’s description of the holes as a

“repetitive problem”—“f[ell] woefully short of establishing the existence of sufficient facts to

show that the town knew of the particular hole that injured [the] plaintiff or of similar persons

injured by similar defects in the park”). In the case at bar, Ms. Martinez may have made a

general complaint about the field’s poor condition one week before Josue was injured. The

record is devoid of any evidence that anyone else was injured on the baseball field at Corliss

Park or that the city was on notice of an alleged defect. Because the plaintiff failed to produce

evidence showing that the city possessed the requisite knowledge to have “willfully or

maliciously” failed to guard or warn of a known danger, this argument does not carry the day.

                                           Conclusion

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

record in this case may be remanded to the Superior Court.




                                               -5-
STATE OF RHODE ISLAND AND                                   PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

                                     Carmen Rohena as Parent and Natural Guardian of
Title of Case
                                     Josue Espinal v. City of Providence et al.

Case Number                          SU-16-0128-Appeal.
                                     (PC 06-5374)
Date Opinion Filed                   March 2, 2017
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Maureen McKenna Goldberg

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Richard A. Licht
                                     For Plaintiff:

                                     Daniel J. Neal, Esq.
Attorney(s) on Appeal
                                     For Defendants:

                                     Megan K. DiSanto, Esq.




SU-CMS-02A (revised June 2016)
