     Issued June 6, 2018




Issued June 6, 2018
Corrected June 7, 2018

                                                                                            Supreme Court

                                                                                            No. 2017-43-Appeal.
                                                                                            No. 2017-50-Appeal.
                                                                                            (PC 15-2153)

                                         Charles Kemp                     :

                                                v.                        :

                                   PJC of Rhode Island, Inc.,             :
                           d/b/a Rite Aid of Rhode Island, 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 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. 2017-43-Appeal.
                                                                       No. 2017-50-Appeal.
                                                                       (PC 15-2153)

                  Charles Kemp                     :

                         v.                        :

            PJC of Rhode Island, Inc.,             :
    d/b/a Rite Aid of Rhode Island, Inc., et al.

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

                                              OPINION

          Justice Indeglia, for the Court.         The plaintiff, Charles Kemp (plaintiff or Kemp),

appeals from a Providence County Superior Court grant of summary judgment in favor of one of

the defendants, PJC of Rhode Island, Inc., d/b/a Rite Aid of Rhode Island, Inc. (Rite Aid), in a

slip-and-fall action. Additionally, in these consolidated appeals, the plaintiff appeals from a

denial of his motion for a new trial regarding defendants Riverside Plaza Associates, LP

(Riverside), which owned the shopping center where the Rite Aid was located, and Venditelli &

Sons, Inc. (Venditelli).1 This case came before the Supreme Court on May 9, 2018, pursuant to

an order directing the parties to appear and show cause why the issues raised in these appeals

should not be summarily decided. After hearing the parties’ arguments and reviewing their

memoranda, we are satisfied that cause has not been shown. Accordingly, we shall decide these

appeals at this time without further briefing or argument. For the reasons set forth herein, we

affirm the order and judgment of the Superior Court in these appeals.




1
  Two different judges presided over these matters. As such, we refer to the judge that presided
over the summary-judgment hearing as the hearing justice and the judge that presided over the
trial as the trial justice.
                                                       1
                                                 I

                                         Facts and Travel

       On February 5, 2014, the plaintiff drove his truck to a Rite Aid store in East Providence

while it was snowing. After parking his truck in the lot, he walked into the store to buy cigars.

Then, returning to his truck, he located a prescription, and he went back to the store. 2 It was

during this second venture back to the store that he tripped and fell over a cement parking stop

located in front of his truck in the parking lot. As a result, Kemp injured his right knee, requiring

hospitalization, nursing home care, and physical therapy.

       At his deposition, Kemp recalled tripping in the parking lot:

               “I pulled [my truck] in head first * * * and there was a big pile of
               snow on the left so that, you know, there’s kind of a walk space
               between the cars, and because of that big pile of snow, I had to
               move a little more to the right when I parked the car because the
               space was narrowed down. * * * [T]hey have those concrete things
               * * * I had to move over that way, and part of it was sticking out,
               and I was squeezing * * * this little path like that. * * * I went in
               the store and I must have just missed the thing because it was just
               hanging out maybe that much on the side, * * * which if I had been
               able to park the car where I should, it would be more over to the
               left.”

At trial, Kemp testified that the pile of snow was “[p]robably five [feet] high” and about fifteen

feet wide.

       Keith Reed, an employee of Riverside, explained in his deposition that, in 2013 and 2014,

he was responsible for “snowblow[ing] with the snowblower all the sidewalks [at the shopping

center], and then * * * put[ting] salt down and clear[ing] the entrances to all the stores.”

Moreover, Reed stated that he put salt down on sidewalks and any paths that he shoveled,

including the pathways in between the parking stops in front of Rite Aid. Additionally, for the

2
  At his deposition, Kemp explained that he did not know why he had chosen to make two
separate trips: “I don’t know why I did it in a couple stages. * * * I have no idea.”
                                                 2
2013-2014 winter season, Riverside had hired Venditelli to perform snow removal at the

shopping center, which included the Rite Aid store. At trial, the owner of Venditelli, Andrew

Venditelli, testified that the snow pile Kemp had described as about five feet tall was actually

only “[m]aybe two to three feet” high.

       On May 21, 2015, Kemp filed a complaint against defendants Rite Aid, Riverside, and

Venditelli, alleging negligence. On October 2, 2015, Rite Aid moved for summary judgment,

contending that it owed no duty of care to plaintiff.

       As the basis for its argument, Rite Aid pointed to a section in its lease agreement with

Riverside—the owner of the property where the store was located—which provided as follows:

               “Landlord shall, at its sole cost and expense (subject to the
               following paragraph), keep and maintain the Common Areas in
               good condition and repair, including but not limited to, restriping
               (when necessary); repairing and replacing paving and the sub-
               strata thereof (Landlord hereby agreeing that it will repave the
               Common Areas at least once every ten (10) years); keeping the
               Common Areas properly policed, drained, free of snow, ice, water,
               rubbish and obstructions, and in a neat, clean, orderly and
               sanitary condition; * * * and maintaining any plantings and
               landscaped areas. Landlord shall begin to remove accumulated
               snow and ice from the Common Areas and diligently prosecute the
               removal thereof. Landlord may deposit accumulated ice and snow
               on portions of the non-exclusive parking areas and other parts of
               the Common Areas to the extent necessary under the
               circumstances, but in no event shall any such deposit materially
               interfere with or otherwise materially disrupt Tenant’s use of the
               Premises, the visibility of the premises from Willett Avenue,
               and/or the operation of the Tenant’s business.” (Emphasis added.)

       After a hearing on the matter on January 26, 2016, the hearing justice granted Rite Aid’s

summary-judgment motion. However, no final judgment entered pursuant to Rule 54(b) of the

Superior Court Rules of Civil Procedure; and, on September 6, 2016, the eve of trial, Rite Aid

filed a motion for judgment as a matter of law pursuant to Rule 50 of the Superior Court Rules of




                                                 3
Civil Procedure, relying on the same grounds that were presented at the summary-judgment

hearing. At the close of all the trial evidence, the trial justice granted this motion.3

        At the trial, plaintiff pursued his remaining claims against Riverside and Venditelli.

There, plaintiff attempted to introduce three photographs that depicted snow in the parking lot.

One of the pictures was taken four weeks after plaintiff’s fall, and two were taken approximately

a year later. The trial justice granted defendants’ motion in limine to preclude the photographs,

explaining that “one of the photographs was taken after a 24-inch snowstorm, [while] another

photograph shows substantially less snow * * *.” He stated that “for the purpose of the

plaintiff’s burden of proof in this case, [he did not] feel that the probative value of the[] photos,

taken long after the incident in question, outweigh[ed] the prejudicial effect [they] could have on

the jury.”

        At the end of the trial, the jury returned with a verdict in favor of defendants. The

plaintiff then moved for a new trial, which was denied. The plaintiff appealed the grant of the

motion for summary judgment in favor of Rite Aid, as well as evidentiary rulings made by the

trial justice, and the trial justice’s denial of his motion for a new trial.4




3
  We note that counsel for Rite Aid was present at trial, presumably for the purpose of arguing
Rite Aid’s motion for judgment as a matter of law. We are hard pressed to understand why a
party with the benefit of summary judgment in its favor would appear at trial to move for
judgment as a matter of law at the close of plaintiff’s evidence.
4
  The plaintiff later dismissed his appeal against Venditelli, with prejudice.
                                                    4
                                                II

                                            Discussion

                                                 A

                                Motion for Summary Judgment

       On appeal, plaintiff contends that Rite Aid owed him a duty based on his status as an

invitee, regardless of any indemnification agreement Rite Aid may have had with Riverside.5

       It is a core principle that we review a hearing justice’s grant of a motion for summary

judgment de novo. High Steel Structures, Inc. v. Cardi Corporation, 152 A.3d 429, 433 (R.I.

2017). We affirm the hearing justice’s decision “only if, after reviewing the admissible evidence

in the light most favorable to the nonmoving party, we conclude that no genuine issue of material

fact exists and that the moving party is entitled to judgment as a matter of law.” Boucher v.

Sweet, 147 A.3d 71, 73 (R.I. 2016) (quoting Newstone Development, LLC v. East Pacific, LLC,

140 A.3d 100, 103 (R.I. 2016)). “Summary judgment is appropriate when no genuine issue of

material fact is evident from the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits if any, and the motion justice finds that the

moving party is entitled to prevail as a matter of law.” Providence Journal Co. v. Rhode Island

Department of Public Safety ex rel. Kilmartin, 136 A.3d 1168, 1173 (R.I. 2016) (quoting Beacon

Mutual Insurance Co. v. Spino Brothers Inc., 11 A.3d 645, 648 (R.I. 2011)).




5
  Rite Aid argues that plaintiff did not comply with Article I, Rule 3(c) of the Supreme Court
Rules of Appellate Procedure by failing to list Rite Aid’s correct corporate name in the notice of
appeal, and, as a result, should be barred from pursuing this appeal. Rule 3(c) provides that
“[t]he notice of appeal shall specify the party or parties taking the appeal and shall designate the
judgment, order or decree or part thereof appealed from.” However, at oral argument plaintiff
explained that the inaccuracy amounted to no more than a scrivener’s error, and Rite Aid’s
counsel did not rebut this characterization. Consequently, we treat the error as such and, as a
result, see no need to deny plaintiff his appeal on this basis.
                                                 5
       “To establish a negligence claim, a plaintiff must demonstrate ‘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.’” Flynn v. Nickerson Community

Center, 177 A.3d 468, 476 (R.I. 2018) (quoting Wells v. Smith, 102 A.3d 650, 653 (R.I. 2014)).

Thereafter, for a plaintiff to survive summary judgment on a negligence claim, he or she “must

show that he or she is owed a legal duty by the defendant before the three other elements of his

or her negligence claim will be considered.” Id. “[W]hether a defendant is under a legal duty in

a given case is a question of law.” Brown v. Stanley, 84 A.3d 1157, 1162 (R.I. 2014) (quoting

Willis v. Omar, 954 A.2d 126, 129 (R.I. 2008)).

       In Rhode Island, owners and possessors of property have a duty “to exercise reasonable

care for the safety of persons reasonably expected to be on the premises * * * include[ing] [sic]

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.” Lucier v. Impact Recreation, Ltd., 864 A.2d 635, 639 (R.I. 2005)

(quoting Kurczy v. St. Joseph Veterans Association, Inc., 820 A.2d 929, 935 (R.I. 2003)). With

respect to liability of landlords, “a landlord is not liable for injuries that the guest of a tenant

suffers on the leased premises, unless the injury results from the landlord’s breach of a covenant

to repair in the lease, or from a latent defect known to the landlord but not known to the tenant or

guest, or because the landlord subsequently has assumed the duty to repair.” Id. at 640; see

Holley v. Argonaut Holdings, Inc., 968 A.2d 271, 274 (R.I. 2009); see also Reek v. Lutz, 90 R.I.

340, 344, 158 A.2d 145, 147 (1960) (when a landowner “rents portions of [his or her] property to

various tenants but retains control over the portions thereof which are used in common by all the

tenants, he [or she] has the duty to keep such portions in a reasonably safe condition”).



                                                  6
       Here, the lease provisions to which Rite Aid points did, in fact, obligate Riverside to

control the parking lot. It is undisputed that the lease agreement between Riverside and Rite Aid

provided that Riverside would “keep[] the Common Areas * * * free of snow, ice, water * * *.” 6

It further stated that Riverside would “begin to remove accumulated snow and ice from the

Common Areas and diligently prosecute the removal thereof.” (Emphasis added.) The lease

also specified that Riverside could “deposit accumulated ice and snow on portions of the non-

exclusive parking areas and other parts of the Common Areas to the extent necessary under the

circumstances * * *”; it provided, however, that “in no event shall any such deposit materially

interfere with or otherwise materially disrupt [Rite Aid’s] use of the Premises, the visibility of

the premises from [the street], and/or the operation of [Rite Aid’s] business.” Moreover, the

lease granted Rite Aid “a non-exclusive license” to utilize “the Common Areas in common with

* * * other tenants of the Shopping Center, and their respective employees, customers, invitees,

licensees, and visitors * * *.” (Emphasis added.) It is abundantly clear from the lease agreement

that Riverside retained the role of clearing snow from the parking lot where Rite Aid is located,

and that Rite Aid also shared its use of the parking lot with other tenants of Riverside. 7 See

MacFarlane v. Applebee’s Restaurant, 378 P.3d 1286, 1287, 1292 (Utah Ct. App. 2016) (holding

that tenant business owner had no duty to a plaintiff injured when she slipped in the parking lot

where the property’s landlord was responsible for maintaining the common areas, per the lease

agreement, and the tenant-restaurant had “non-exclusive right of use [of the parking lot] in

common with others and with no attendant responsibility or authorization for * * * snow

removal”); see also Holmes v. Kimco Realty Corp., 598 F.3d 115, 124-25 (3d Cir. 2010)

6
  The definition of “Common Areas” in the lease includes walkways and parking areas.
7
  At oral argument, Riverside’s counsel explained that Riverside had withdrawn its objection to
Rite Aid’s motion for summary judgment after it had deposed plaintiff and clarified that he had
tripped in the parking lot as opposed to Rite Aid’s entranceway.
                                                7
(declining to impose a duty “on an individual tenant for snow removal from the common areas of

a multi-tenant parking lot when the landlord has retained and exercised that responsibility”).

Rite Aid, therefore, as the tenant, did not have any duty to clear those common areas. See

Lucier, 864 A.2d at 640. As such, we agree with the hearing justice that summary judgment in

favor of Rite Aid was appropriate because Rite Aid owed no duty to plaintiff in this case.8

                                                   B

                                   Trial and Post-Trial Rulings

                                                   1

                        Exclusion of the Photographs of the Parking Lot

       The plaintiff argues that the trial justice erred in granting defendants’ motion in limine,

precluding the admission of plaintiff’s photographs of snow piles on dates after the February 5,

2014 incident. In general, “the admissibility of evidence is within the sound discretion of the

trial justice * * *.” Cappuccilli v. Carcieri, 174 A.3d 722, 729 (R.I. 2017) (quoting Martin v.

Lawrence, 79 A.3d 1275, 1281 (R.I. 2013)). We “will not interfere with the trial justice[’]s

decision unless a clear abuse of that discretion is apparent.” Berman v. Sitrin, 101 A.3d 1251,

1259 (R.I. 2014) (quoting Morel v. Napolitano, 64 A.3d 1176, 1179 (R.I. 2013)).

       Rule 401 of the Rhode Island Rules of Evidence defines relevant evidence as “evidence

having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

8
  At oral argument, plaintiff’s counsel indicated that, at trial, he had objected to the trial justice’s
jury instructions to the extent that there was no mention of the reason for Rite Aid’s removal
from the case. Yet, plaintiff does not appear to challenge the jury instructions in his papers, and
as such we do not address that issue now. See Deutsche Bank National Trust Company for
Registered Holders of Ameriquest Mortgage Securities, Inc. v. McDonough, 160 A.3d 306, 311
n.2 (R.I. 2017) (“Generally, we deem an issue waived when a party [s]imply stat[es] an issue for
appellate review, without a meaningful discussion thereof * * *.” (quoting A. Salvati Masonry
Inc. v. Andreozzi, 151 A.3d 745, 750 (R.I. 2017))).
                                                   8
evidence.” Yet, Rule 403 of the Rules of Evidence “vests a trial justice with discretion to

exclude relevant evidence ‘if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative evidence.’” Boscia v. Sharples, 860

A.2d 674, 678 (R.I. 2004) (quoting R.I. R. Evid. 403).

       In reviewing the record, we are satisfied that the trial justice did not abuse his discretion

when he excluded the photographs. One of the photographs at issue was taken of the parking lot

after a heavy snowfall a number of weeks after the incident, and the others were taken a year or

so after plaintiff’s accident. The trial justice outlined his reasons for determining that the

photographs were irrelevant and stated that, even assuming some relevance, he did not “feel that

the probative value of these photos, taken long after the incident in question, outweigh[ed] the

prejudicial effect [they] could have on the jury.” See Cappuccilli, 174 A.3d at 733 (“In weighing

that minimal probative value against the significant prejudice that the trial justice recognized, we

cannot agree that the trial justice abused his considerable discretion in excluding the evidence.”).

Not only are we satisfied that the trial justice did not abuse his discretion in ruling that the

pictures are irrelevant to Kemp’s claims, we also conclude that he did not abuse his discretion in

determining that any scintilla of relevance would be outweighed by the prejudicial effect of the

photographs before the jury. See id. Accordingly, we hold that the trial justice did not abuse his

discretion in granting defendants’ motion in limine.

                                                 2

                                     Motion for a New Trial

       With respect to his appeal from the order denying his motion for a new trial, plaintiff

maintains that the motion should have been granted because, based on the facts at trial, only one



                                                 9
conclusion could have been reached—that Riverside was negligent, and, thus, the jury did not

correctly apply the law regarding negligence. In addition, plaintiff submits that the existence of

unusual circumstances precluded application of the Connecticut Rule regarding snow removal.

See Terry v. Central Auto Radiators, Inc., 732 A.2d 713, 717 (R.I. 1999).

       “[I]t is well settled that our review of a trial justice’s decision [on a motion for a new

trial] is deferential.” Bates-Bridgmon v. Heong’s Market, Inc., 152 A.3d 1137, 1143 (R.I. 2017)

(quoting Pawtucket Redevelopment Agency v. Brown, 106 A.3d 893, 899 (R.I. 2014)). “[I]n

considering a motion for a new trial, the trial justice sits as a super juror and is required to make

an independent appraisal of the evidence in * * * light of his [or her] charge to the jury.”

Berman, 101 A.3d at 1260 (quoting King v. Huntress, Inc., 94 A.3d 467, 481 (R.I. 2014)). “If,

after conducting this analysis, the trial justice concludes that the evidence is evenly balanced or

that reasonable minds could differ on the verdict, she [or he] should not disturb the jury’s

decision.” Martin, 79 A.3d at 1283 (quoting Accetta v. Provencal, 962 A.2d 56, 62 (R.I. 2009)).

“If the trial justice has performed this task, then his or her decision * * * ‘will not be disturbed

unless the plaintiff can show that the trial justice overlooked or misconceived material and

relevant evidence or was otherwise clearly wrong.’” Berman, 101 A.3d at 1260 (quoting Botelho

v. Caster’s, Inc., 970 A.2d 541, 546 (R.I. 2009)).

       The Connecticut Rule “permits a * * * business invitor[] to ‘await a reasonable time after

the end of a storm to clear snow and ice only in the absence of unusual circumstances.’” Terry,

732 A.2d at 717 (quoting Cooks v. O’Brien Properties, Inc., 710 A.2d 788, 792 (Conn. App. Ct.

1998)). Kemp’s own testimony demonstrates that it was still snowing when he arrived at Rite

Aid. At trial, he testified that it had been snowing “off and on a little” when he reached the store,

and there “wasn’t much snow on the ground * * *.”



                                                 10
       Moreover, our review of the record indicates that there was no evidence at trial that any

unusual circumstances existed to warrant the application of the exception to the Connecticut

Rule. In Berardis v. Louangxay, 969 A.2d 1288 (R.I. 2009), we concluded that there was no

evidence of any unusual circumstances where the plaintiff fell near the entrance of a bar during a

snowstorm. Berardis, 969 A.2d at 1292, 1293. There, we explained that it is understood that “a

patron of a bar must use the entranceway to get access to the establishment and that an

entranceway accumulates ice and snow in a snowstorm.”            Id. at 1293.   Here, in denying

plaintiff’s motion for a new trial, the trial justice referenced the Connecticut Rule, determining

that the jury “could very well [have found] that [Riverside] did not have a duty to * * * Kemp in

the sense that the landlord gets a reasonable time after the storm has ceased to remove the

accumulation.” The trial justice further determined that there had been no evidence presented to

warrant application of the special-circumstances exception to the Connecticut Rule. We agree

that plaintiff failed to put forth any evidence of unusual circumstances regarding the snowy

conditions in the parking lot on the day of the incident. See id. at 1292, 1293. Consequently, we

hold that the trial justice was not clearly wrong in denying plaintiff’s motion for a new trial

based on the application of the Connecticut Rule. See id.

       With respect to the pile of snow that was in the parking lot that day, plaintiff argues that

the trial justice should have found that Riverside failed to remove snow and inspect the

walkways, including the snow pile left from a previous storm. Furthermore, plaintiff contends

that the trial justice erred by finding Rite Aid cashier Deborah Monaghan credible as a trial

witness because, among other things, she testified that she had not seen the pile of snow that day.

       “[A] plaintiff in a slip and fall case 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



                                                11
existed for a long enough time so the owner of the premises should have taken steps to correct

the condition.” Bromaghim v. Furney, 808 A.2d 615, 617 (R.I. 2002). In the case before us, we

are tasked with reviewing the trial justice’s ruling on the motion for a new trial. We will only

overturn that ruling if the trial justice “overlooked or misconceived material and relevant

evidence[,]” and we are satisfied that neither happened here. Berman, 101 A.3d at 1260 (quoting

Botelho, 970 A.2d at 546).

       In denying plaintiff’s motion for a new trial, the trial justice highlighted that Kemp

explained that he had tripped on the concrete parking stop, not on the large pile of snow.

Nonetheless, Kemp had testified that it was snowing when he arrived at Rite Aid and also that

the pile of snow forced him to park his truck “farther to the right.” Even taking this testimony

into account and finding Kemp credible, the trial justice simultaneously found defendants’

witnesses credible, and he ultimately agreed with the jury’s verdict. Specifically, he expressed

that “the evidence in this case does not strongly preponderate against the jury verdict, nor is it

sharply conflicting and it is such that reasonable minds could reach different conclusions[.]” We

cannot say that the trial justice “either overlooked or misconceived evidence or that he was

clearly wrong,” and, thus, we must uphold his denial of the motion for a new trial. Cappuccilli,

174 A.3d at 732.

       Turning to plaintiff’s contention that the trial justice erred by finding Monaghan credible,

we emphasize that whether or not an individual witness is credible is squarely a determination

for the trial justice. See Gomes v. Rosario, 79 A.3d 1262, 1267 (R.I. 2013). “This Court,

reading an inanimate transcript, is not well positioned to weigh evidence or determine

credibility.” Id. As a result, and based on the record, we are satisfied that the trial justice did not

err in finding Monaghan credible. Her testimony regarding the snow pile does not necessitate



                                                  12
that her testimony regarding other details was unreliable. Accordingly, the trial justice did not

abuse his discretion by finding her testimony credible, and thereafter denying the motion for a

new trial. See Bates-Bridgmon, 152 A.3d at 1143.

                                               III

                                          Conclusion

       Therefore, the order and judgment appealed from are affirmed. The record may be

returned to the Superior Court.




                                               13
