                                                         Supreme Court

                                                         No. 2012-195-Appeal.
                                                         No. 2012-359-Appeal.
                                                         (WC 10-633)


       Peter Wyso                   :

            v.                      :

Full Moon Tide, LLC, 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. 2012-195-Appeal.
                                                                No. 2012-359-Appeal.
                                                                (WC 10-633)


                Peter Wyso                    :

                     v.                       :

        Full Moon Tide, LLC, et al.           :


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

                                         OPINION

       Justice Flaherty, for the Court. The plaintiff, Peter Wyso, appeals from summary

judgment entered against him and in favor of a tenant and property owner in a personal injury

action. Wyso contended that he sustained injuries when he tripped and fell on a public sidewalk

that was uneven and replete with cracks. On October 2, 2013, this case came before the Supreme

Court pursuant to an order directing the plaintiff to appear and show cause why the issues raised

should not summarily be decided. We have considered the record and the written and oral

submissions of the parties, conclude that cause has not been shown, and proceed to decide the

appeal without further briefing or argument. For the reasons set forth in this opinion, we affirm

the order of the Superior Court.




                                               -1-
                                           Facts and Travel

          On September 6, 2007, Wyso, who was vacationing on Block Island, was walking along

a public sidewalk in the Town of New Shoreham 1 when he tripped and fell on a cracked and

uneven section of the sidewalk that abutted 104 Water Street. The plaintiff contended that he

suffered injuries as a result of the fall. The property that abuts the sidewalk at 104 Water Street

is owned by Frederick and Deborah Howarth (the Howarths) and was leased to retailers Full

Moon Tide, LLC and Strings & Things, Inc. (Full Moon Tide). 2

          The plaintiff filed suit in Washington County Superior Court on September 1, 2010,

alleging that defendants’ negligence was the proximate cause of his injuries. The complaint

alleged that defendants “negligently failed to inspect, repair, and/or maintain its premises free

from defect and/or dangerous condition causing plaintiff to fall and suffer injuries * * * .” It is

significant that Wyso did not allege that defendants were responsible for creating or causing the

defects in the sidewalk. On November 14, 2011, Full Moon Tide filed a motion for summary

judgment, arguing that there were no genuine issues of material fact and that defendant was

entitled to judgment as a matter of law. On January 5, 2012, plaintiff filed a motion to amend his

complaint, alleging in that proposed amendment that, in addition to the negligence claim,

defendants owed plaintiff a duty to warn of the dangerous condition of the sidewalk.

          On January 17, 2012, the trial justice granted Full Moon Tide’s motion for summary

judgment. He found that plaintiff had not raised a genuine issue of material fact and further that

he had failed to demonstrate that Full Moon Tide owed plaintiff a duty of care. The trial justice




1
    The Town of New Shoreham is situated on Block Island.
2
    Unless otherwise noted, the parties will be collectively referred to as “defendants.”
                                                  -2-
also denied plaintiff’s motion to amend the complaint, reasoning that there was no duty to warn

plaintiff of the condition of the sidewalk. 3 Wyso filed a timely appeal to this Court.

          On March 5, 2012, the Howarths filed their own motion for summary judgment. The

Howarths maintained, as had Full Moon Tide, that there were no genuine issues of material fact

and that defendant was entitled to judgment as a matter of law. On May 21, 2012, the same

justice granted the Howarths’ motion for summary judgment. The justice found that plaintiff had

not raised a genuine issue of material fact and had failed to demonstrate that the Howarths owed

plaintiff either a duty of care or a duty to warn. The plaintiff filed a timely appeal on June 11,

2012. 4

          Before this Court, plaintiff advances two arguments. Wyso first maintains that the trial

justice erred when he granted summary judgment because there are genuine issues of material

fact. Second, he contends that defendant breached a duty of care.

                                           Standard of Review

          “[T]his Court reviews a grant of summary judgment de novo.” Sullo v. Greenberg, 68

A.3d 404, 406 (R.I. 2013) (quoting Sacco v. Cranston School Department, 53 A.3d 147, 149-50

(R.I. 2012)). “Examining the case from the vantage point of the trial justice who passed on the

motion for summary judgment, ‘[w]e view the evidence in the light most favorable to the

nonmoving party, and 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[,]’ we will affirm the judgment.” Id. at

406-07 (quoting Sacco, 53 A.3d at 150). “Although summary judgment is recognized as an

extreme remedy, * * * to avoid summary judgment the burden is on the nonmoving party to



3
  The motion to amend was granted by rule of the court with respect to the property owners
because the Howarths did not file an objection to the motion.
4
  In an order dated April 25, 2013, this Court consolidated the two appeals.
                                                -3-
produce competent evidence that ‘prove[s] the existence of a disputed issue of material fact[.]’”

Id. (quoting Mutual Development Corp. v. Ward Fisher & Co., 47 A.3d 319, 323 (R.I. 2012)).

                                           Discussion

       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.’” Willis v. Omar, 954 A.2d 126,

129 (R.I. 2008) (quoting Mills v. State Sales, Inc., 824 A.2d 461, 467 (R.I. 2003)). Although we

have frowned upon the disposition of negligence claims by summary judgment, the existence of

a duty is nonetheless a question of law. See Ouch v. Khea, 963 A.2d 630, 633 (R.I. 2009)

(whether a defendant owes a plaintiff a duty of care “is a question of law to be determined by the

court” (citing Martin v. Marciano, 871 A.2d 911, 915 (R.I. 2005))); see also Gliottone v. Ethier,

870 A.2d 1022, 1028 (R.I. 2005) (noting difficulties that can arise when disposing of negligence

claims through summary judgment).

       In the absence of such a duty, “the trier of fact has nothing to consider and a motion for

summary judgment must be granted.” Holley v. Argonaut Holdings, Inc., 968 A.2d 271, 274

(R.I. 2009) (quoting Banks v. Bowen's Landing Corp., 522 A.2d 1222, 1225 (R.I. 1987)). The

existence of a duty of care is a legal question reserved for the trial justice, not for the jury.

Banks, 522 A.2d at 1224.      “Only when a party properly overcomes the duty hurdle in a

negligence action is he or she entitled to a factual determination on each of the remaining

elements: breach, causation, and damages.” Ouch, 963 A.2d at 633.

       The plaintiff’s complaint alleged that defendants owed him a duty to maintain the

sidewalk abutting its premises in a safe condition. The complaint was amended, at least with

respect to the Howarths, to include a duty to warn him of the condition of the sidewalk. The



                                              -4-
plaintiff argues that it was the breach of those duties that caused his injuries. However, in our

opinion, he overlooked a significant amount of our jurisprudence providing that a property owner

owes no duty to individuals for the condition of public sidewalks when the property owner has

taken no action to create the dangerous condition. See Berman v. Sitrin, 991 A.2d 1038, 1047

(R.I. 2010) (“It is a well-established legal principle in this jurisdiction, as well as others, that a

landowner whose property abuts a public way has no duty to repair or maintain it.”).               In

Saunders v. Howard Realty Co., 118 R.I. 31, 371 A.2d 274 (1977), a plaintiff made a strikingly

similar claim to the one made here by Wyso. In that case, we held that a property owner has no

obligation to repair a defective sidewalk when there is no evidence that the property owner is the

cause of the defect. Id. at 31, 371 A.2d at 274.

       On appeal, plaintiff argues that a duty should be recognized because this Court has taken

an ad hoc approach to determine a duty. In Banks, we established a five-factor approach that

considers all relevant circumstances, including foreseeability of harm, closeness of connection

between a defendant’s conduct and a plaintiff’s injury, and the consequences of imposing a duty

to exercise care with resulting liability for breach of the duty. Bucki v. Hawkins, 914 A.2d 491,

495 (R.I. 2007) (citing Banks, 522 A.2d at 1225).

       However, we believe that plaintiff’s reliance on Banks is misplaced for two reasons.

First, we have cautioned that the factors in Banks were “case specific and should not be taken or

construed to limit the scope of factors that we shall consider in future cases involving different

factual situations.” Ferreira v. Strack, 636 A.2d 682, 685 n.2 (R.I. 1994). In Ferreira, which

involved a claim of a property owner’s duty of care to pedestrians on a public highway, we

considered factors that differed from those outlined in Banks because the public highway was not

owned, possessed, or controlled by the defendants. Id. We concluded in Ferreira that the



                                                -5-
defendants owed no duty of care to the plaintiffs because the injuries that were claimed occurred

in an area that was beyond the property owner’s control. Id. at 685.

         Second, Banks was a premises-liability negligence claim against property owners that

was lodged by an invitee who was on the landowner’s property at the time of the injury. See

Banks, 522 A.2d at 1223-24. A property owner owes a duty of care to those whom he can

reasonably expect to be on his property. O’Brien v. State, 555 A.2d 334, 338 (R.I. 1989). The

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. Ferreira, 636 A.2d

at 685. Here, however, plaintiff’s injuries occurred on a public sidewalk that was not within

defendants’ control or possession.

         Undaunted, plaintiff next argues that the source of defendants’ duty of care arises from

Section 15(a) of the Town of New Shoreham Ordinances, which addresses maintenance and

repair of sidewalks. 5 In our opinion, this analysis also is misplaced because we have decided

previously that a municipal ordinance does not create a duty to maintain a public sidewalk for

individual passers-by. Gillikin v. Metro Properties, Inc., 657 A.2d 1060, 1061 (R.I. 1995); see

also Arenas v. Riveredge Village Associates, 688 A.2d 858, 858 (R.I. 1997) (mem.). Any duty



5
    Section 15(a) of the Town of New Shoreham Ordinances reads as follows:

                         “All owners or agents of owners with property abutting and
                fronting upon any plaza, street, or alley within the corporate limits
                of the town are required to keep the public sidewalks including the
                authorized installations thereon and therein and the curb, and curb
                and gutter immediately abutting their property in good order and
                repair. Each such owner shall be liable to the town for all losses to
                the town or recoveries from the town for damages to person or
                property of others caused by his failure or that of his agents to
                repair and keep in good order and reasonable safe condition of all
                such sidewalks abutting and fronting his property upon any plaza,
                street, or alley within the corporate limits of the town.”
                                                -6-
created by the New Shoreham ordinance inures to the benefit of the municipality and not to

individuals. See Martin v. Altman, 568 A.2d 1031, 1031 (R.I. 1990) (“The ordinance of the City

of Providence * * * creates only a duty to the municipality at large and not to individual passers-

by.”). Indeed, the ordinance cited by plaintiff goes even further than the ordinance at issue in

Martin, because it states explicitly that a property owner who fails to keep a public sidewalk in

good order and repair “shall be liable to the town” for losses or recoveries.

       The plaintiff next argues that the defendants owed him a duty to warn of the condition of

a defective sidewalk. 6 This argument also falls short because a property owner who owes no

duty of care to an individual also owes no duty to warn those individuals. See Berman, 991 A.2d

at 1048. In another case from Block Island, we held that a moped lessor owed a lessee no duty to

warn of dangerous conditions on public roadways. Ohms v. State Department of Transportation,

764 A.2d 725, 727 (R.I. 2001). A sidewalk is not a road, but it is nevertheless a public way

about which an abutting property owner does not have a duty to warn those who use the

sidewalk. 7

                                            Conclusion

       For the foregoing reasons, we affirm the judgment of the Superior Court, and the record

in this case shall be remanded to that tribunal.




6
  The plaintiff’s argument here applies only to the Howarths because the trial justice denied the
motion to amend as to Full Moon Tide, and that order was not appealed. The Howarths did not
object to the plaintiff’s motion to amend which was, therefore, granted by rule of the court.
7
  The plaintiff has not demonstrated that the factual circumstances surrounding his fall on the
sidewalk differ in any significant way from defendants’ version. We fail to see any genuine issue
of material fact.
                                                   -7-
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Peter Wyso v. Full Moon Tide, LLC, et al.

CASE NO:              No. 2012-195-Appeal.
                      No. 2012-359-Appeal.
                      (WC 10-633)

COURT:                Supreme Court

DATE OPINION FILED: November 1, 2013

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

WRITTEN BY:           Associate Justice Francis X. Flaherty

SOURCE OF APPEAL:     Washington County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Brian P. Stern

ATTORNEYS ON APPEAL:

                      For Plaintiff: Kara M. Fay, Esq.

                      For Defendants: Kevin S. Cotter, Esq.
                                      Audra L. Medeiros, Esq.
