                                                              Supreme Court

                                                              No. 2015-214-Appeal.
                                                              (KC 12-23)


     Deborah Bates-Bridgmon et al.         :

                   v.                      :

Heong’s Market, Inc. d/b/a Roch’s Market   :

                 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. 2015-214-Appeal.
                                                                  (KC 12-23)


      Deborah Bates-Bridgmon et al.           :

                       v.                     :

Heong’s Market, Inc. d/b/a Roch’s Market      :

                   et al.                     :



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

                                         OPINION

        Justice Indeglia, for the Court.      The plaintiffs, Deborah Bates-Bridgmon and her

husband, Jackie Bridgmon (Deborah, Jackie, or plaintiffs), appeal following a Superior Court

judgment in favor of the defendant, Heong’s Market, Inc., d/b/a Roch’s Market (Roch’s Market

or defendant). 1

        This appeal arises from Deborah’s fall at Roch’s Market in West Warwick. The plaintiffs

subsequently brought suit against defendant for the injuries Deborah sustained from her fall.

After a trial in the Kent County Superior Court, a jury rendered a verdict for defendant.

Following the unfavorable verdict, plaintiffs moved for a new trial and additur, pursuant to Rule

59 of the Superior Court Rules of Civil Procedure. After hearing the parties, the trial justice

denied the motion, concluding that he would not have reached a different result from that

reached by the jury.



1
  To avoid confusion between Deborah Bates-Bridgmon and Jackie Bridgmon, we will refer to
them as Deborah and Jackie, respectively. No disrespect is intended.



                                               -1-
       On April 13, 2015, plaintiffs appealed and argued that the trial justice erred by denying

their motion for a new trial and not instructing the jury on the “mode of operation” theory.

Alternatively, plaintiffs ask this Court to adopt that theory for “the adjudication of premises

liability claims brought by business invitees seeking compensation for injuries arising out of a

business owner’s self-service mode of operation.” For the reasons set forth, we affirm the

judgment of the Superior Court.

                                                  I

                                         Facts and Travel

       The event underlying this appeal is Deborah’s fall that occurred on March 23, 2009, at

Roch’s Market.     On January 9, 2012, plaintiffs filed a complaint alleging that defendant

negligently maintained the market’s premises; that defendant breached a contractual duty owed

to Deborah, a business invitee, by failing to maintain the property in a reasonable and safe

manner; and that Jackie suffered a loss of consortium. On October 6, 2014, plaintiffs moved to

amend their complaint so as to add an additional count based on the theory of mode of

operation. 2 This motion was granted on November 3, 2014. With respect to this theory,

plaintiffs alleged that “by its mode of operation, [defendant] is responsible for such negligence



2
 In their papers before us, plaintiffs describe the theory of mode of operation as “allow[ing] for a
shifting in the burden of proof onto the party who was in the best position to identify the loss and
cause of an injury sustained by an invitee, particularly in self-service retail establishments.”
They cite to Sheehan v. Roche Brothers Supermarkets, Inc., 863 N.E.2d 1276 (Mass. 2007),
where the Supreme Judicial Court of Massachusetts explained the theory:

               “Courts adopting this approach have concluded that where an
               owner's chosen mode of operation makes it reasonably foreseeable
               that a dangerous condition will occur, a store owner could be held
               liable for injuries to an invitee if the plaintiff proves that the store
               owner failed to take all reasonable precautions necessary to protect
               invitees from these foreseeable dangerous conditions.” Id. at 1283.



                                                -2-
and foreseen conditions on its premises.” A trial was held from February 24 through February

26, 2015.

       Deborah testified first. She stated that, on March 23, 2009, between 2:00 p.m. and 3:30

p.m., she entered Roch’s Market, a grocery store she frequented, to purchase meat. After leaving

the meat department, Deborah turned a corner, took a few steps, and slipped on what she later

discovered was “cucumber and oil and debris” from the nearby salad bar. When asked whether

she saw a warning sign near the salad bar, Deborah responded, “No.” She testified that she

yelled for help to an employee “a few feet” away from her, but was not acknowledged because

that person was assisting another customer.        When asked whether there were any other

employees in the area, Deborah replied, “No, other than people behind, like, the meat counter

and the deli counter.” Deborah said that she then crawled to the prepared foods department and

used a rail to lift herself up. She eventually got the aforementioned employee’s attention and

told her that she fell and needed help. Deborah said that the employee offered assistance and

wiped the floor. She testified that the manager of the meat department came over and spoke with

her. Deborah said that he told her that there was no one available, at that time, to complete an

incident report.

       Deborah said that she experienced pain “[i]mmediately after the fall” because she landed

in a contorted position. She testified that she had discomfort in her lower back, right upper back,

right arm, right side, knee, ankle, and foot. The next morning, after a poor night’s sleep,

Deborah went to the emergency room. There, x-rays were taken that revealed no fractures.

Deborah testified that she was told she had soft-tissue injuries. MRIs taken later, however,

revealed that she had bulging and degenerative disks and multiple tears in her meniscus.




                                               -3-
       Deborah noted that she was collecting disability benefits from the state for fibromyalgia,

anxiety, depression, and circulatory issues. She distinguished the pain from her fall from the

fibromyalgia pain, stating, “It’s a constant pain or like an ache or a throb. It’s different from

fibromyalgia, that sharp twitchy electrical current pain.” She testified that she had experienced

the pain from her fall daily.

       Her husband, Jackie, testified next. He described his wife’s health before her fall as

“good” and stated that they were able to do everything that they wanted to do. Jackie testified

that, prior to Deborah’s fall, he required her help because of his own health issues. Discussing

the effect that Deborah’s injuries had on their life, Jackie said, “[O]ur life’s just done. We do

nothing.” He testified that, after his wife’s fall, he called Roch’s Market and spoke with the

meat-department manager. He recounted the incident and told the manager that Deborah was

taken to the emergency room. Jackie testified that he wanted to fill out an incident report;

however, the manager whom he spoke with told him to call an attorney.

       Next, Ting Chan, the owner of Roch’s Market, testified. 3 She said that she purchased the

market in January 2008. Chan testified that she was not at the store on the day of Deborah’s fall,

however, the “general manager,” Carl R. Masiello, told her that a customer fell. She noted that,

at that time, they did not have the customer’s name or any other information about her. She said

that Deborah had not filed an incident report. She testified that Masiello, whom she described as

a reliable and credible employee, never told her whether the customer was injured and also did

not mention Jackie’s phone call. When asked about Jackie’s testimony that a Roch’s Market

manager told him to call an attorney, Chan testified that “I don’t think any of our employee[s]

would say things like that. Any kind of call like this, it will be directed to the manager or to me
3
 Chan was first called by plaintiffs as an adverse witness and was subsequently called by
defendant as its witness.



                                               -4-
* * * .” Chan described Roch’s Market’s policy for accidents involving customers. She said that

a manager would fill out an injury report based on the customer’s responses, so that Roch’s

Market would have the customer’s name, contact information, and a description of what

happened.

       Chan testified that there was no salad bar in Roch’s Market when she purchased the store.

It was installed in mid- to late 2008 and was continuously used in that capacity until the end of

2010 or the beginning of 2011. Chan said that, although the structure still remained, self-serve

salad items were no longer available. Instead, it contained wrapped sandwiches. Chan testified

that Roch’s Market stopped selling salad at the salad bar because it was not sufficiently

profitable. When asked whether Deborah’s injury influenced this decision, Chan replied, “It just

didn’t generate enough business for us.” Chan was also asked if any changes had been made to

the area near the salad bar after Deborah’s incident, to which she replied, “No.”   She testified

that Roch’s Market did not put mats around the salad bar area because that would be a hazard as

customers could trip on them.

       The testimony of Masiello was introduced. 4 He said that he was working the day of

Deborah’s incident; however, he did not speak with her himself. Masiello testified that he

verbally reported the incident to his superior. He said that he knew that Deborah sustained

injuries from her fall, but he did not know the nature of her injuries. He also confirmed that

there was “something on the floor.”

       Masiello was asked whether spills occurred often at the salad bar, to which he replied,

“Not to my knowledge, no, I wouldn’t say so.” He did state, however, that he occasionally saw

spills at the salad bar. When questioned about the policies of Roch’s Market concerning the
4
 Because Masiello was unavailable to testify, plaintiffs’ attorney read the transcript of his
December 17, 2014, deposition into the record.



                                              -5-
salad bar, Masiello stated that there was not a particular employee assigned to monitor customers

at that site. He noted, however, that the deli employees could view it from their station to see if

it needed tending to, and a chef at Roch’s Market periodically checked the salad bar to ensure

that it was full. When asked whether there were mats or other protective materials near the salad

bar to absorb possible spills, Masiello replied in the negative. He was also asked whether there

were any warnings cautioning customers to be careful of spills and to notify a Roch’s Market

employee in case of a spill, to which he again replied in the negative.

       Both parties then rested, and defendant moved under Rule 50 of the Superior Court Rules

of Civil Procedure for a judgment as a matter of law. The defendant argued that, although it was

undisputed that Deborah fell on oil and cucumber, “[t]here’s no evidence there was actual notice

to the store or anybody employed by the store * * * concerning the presence of something on the

floor.” The defendant also asserted that there was no evidence to support the conclusion that a

Roch’s Market employee had constructive notice of the spill, giving defendant a reasonable

opportunity to clean it up before Deborah fell.

       The plaintiffs also moved for a judgment as a matter of law. On the issue of notice, they

argued that the “salad bar is equivalent to a leaky drainpipe where * * * it’s a constant danger.”

They noted that Roch’s Market lacked policies with respect to maintaining safety near the salad

bar, and argued that “[t]he defect is already in existence in the nature of the product and the

business in which they’re selling it.” They further contended that “even without mode of

operation, without breach of contract, without any of those theories[,] * * * [t]here is still under

the normal traditional concepts of negligence, due care obligation and causation, enough there to

find for the [p]laintiff as a matter of law.” After hearing each party on their respective motions,




                                                  -6-
the trial justice denied plaintiffs’ motion for a judgment as a matter of law and reserved deciding

defendant’s motion. 5

       The trial justice then instructed the jury on the law. On the issue of duty, the trial justice

said, “[d]efendant owed a duty to * * * [p]laintiff to exercise reasonable care to keep and

maintain [its] premises in a reasonably safe condition for * * * food and grocery shopping * * *

taking into account the nature of the operations and activities being conducted on * * *

[d]efendant’s premises at the time.” After completing his instructions, the trial justice invited the

parties’ counsel to approach at sidebar, and plaintiffs’ attorney requested instructions on the

collateral-source rule, subsequent remedial measures pursuant to Rule 407 of the Rhode Island

Rules of Evidence, and aggravation of pre-existing injuries. In response to these requests, the

trial justice said that he did not think that those issues were raised in plaintiffs’ papers. The trial

justice stated that counsel did not provide him with written jury instructions and said, “[i]t may

have made it to the clerk, but not to me.” The plaintiffs’ attorney, however, maintained that he

did provide them, stating, “I have in my jury instructions, you know, the count of mode of

operation and breach of contract and as part of my complaint.” 6

       With respect to an instruction on the collateral-source rule, the trial justice determined

that he did not “see any reason for it given the exhibit that’s in the record. I don’t see any

5
  Although before us plaintiffs broadly asserted that, “The [t]rial [j]ustice committed reversible
error in failing to grant [p]laintiff’s * * * [r]equest for directed verdict as to negligence * * *,”
they failed to develop an argument. “Generally, we will consider an issue to be waived when a
party ‘[s]imply stat[es] an issue for appellate review, without a meaningful discussion thereof or
legal briefing of the issues * * * .’” Bucci v. Hurd Buick Pontiac GMC Truck, LLC, 85 A.3d
1160, 1170 (R.I. 2014) (quoting State v. Chase, 9 A.3d 1248, 1256 (R.I. 2010)). Accordingly,
we will not address this issue on appeal.
6
  We note that the above-referenced document does not appear within the lower court’s file.
Although plaintiffs provided this Court with a document entitled “Jury Instructions,” there is no
indication that the Superior Court had this document, as it is not time-stamped as received by
that court, or signed by plaintiffs’ counsel.



                                                 -7-
mention of insurance or other mention of insurance. I don’t even want to raise the likelihood of

the jury thinking about something they shouldn’t be thinking about.” Additionally, the trial

justice determined that the evidence did not warrant an instruction on subsequent remedial

measures. The trial justice did, however, instruct the jury on the issue of aggravation, stating,

“The defendant in a personal injury case takes his plaintiff as he finds the plaintiff, and cannot

defend based on the fact that the accident merely aggravated a pre-existing condition.” The trial

justice then asked the parties’ counsel if they wanted to discuss anything else regarding the jury

instructions, to which plaintiffs’ attorney responded, “No, your Honor.”

       The jury then deliberated; and, on February 26, 2015, it found that plaintiffs had not

proved “by a fair preponderance of the evidence that [d]efendant was negligent and said

negligence was the proximate cause of any injury sustained by [p]laintiff[.]”

       On March 1, 2015, plaintiffs moved for a new trial and additur, pursuant to Rule 59. A

hearing on the motion was held on April 2, 2015. On the issue of notice, plaintiffs argued that

“notice is implied if there were employees in the area that recognize[d] the defect and [had] an

opportunity to address it.” They argued that Deborah’s fall was foreseeable because the products

that Roch’s Market sold at its salad bar had the potential to spill onto the floor. The plaintiffs

contended that Roch’s Market’s removal of salad items from the salad bar was a subsequent

remedial measure. Additionally, plaintiffs addressed a point that they vigorously focused on

during trial: that defendant lacked notice after Deborah’s incident. They argued that, “[T]here

was a lot of suggestion by [Chan], * * * that she didn’t know about the incident in question. * * *

But it was clear that her own manager/supervisor [Masiello] indicated right from the onset that

they were aware of it.”




                                               -8-
       The defendant objected to plaintiffs’ motion and argued that there was no evidence from

which the jury could find that Roch’s Market had reasonable notice of the spillage and an

opportunity to correct it. The defendant discussed the theory of mode of operation, noting that it

was not the law in Rhode Island, and that the jury rendered a verdict consistent with Rhode

Island law.

       In deciding plaintiffs’ motion for a new trial, the trial justice first summarized the

evidence adduced at trial. He addressed the issue of whether defendant was aware of Deborah’s

fall after it occurred, and he concluded that this issue was a “red herring” because the relevant

notice inquiry is whether defendant had notice of the condition that caused Deborah to slip and

fall, not defendant’s after-the-fact notice of the fall. He also noted the numerous health issues

that Deborah suffered from prior to her fall and stated that he—and presumably the jurors—had

difficulty distinguishing Deborah’s pre-existing ailments from those caused by the fall.

       The trial justice noted that, in instructing the jury, he “made some revisions to the general

instructions that [he] felt were necessary to tailor the instructions on general duties to the facts of

this particular case * * * .” In doing so, the trial justice “focused the jury’s attention to the fact

that in considering this reasonable care, you take into account that there was a salad bar here, a

self-service salad bar.” The trial justice agreed with the jury’s conclusion because plaintiffs’

“presentation was unpersuasive, not only to the issue of negligence, but also with respect to her

attempt to establish that her complaints and medical treatment were proximately caused by the

accident.” Accordingly, the trial justice denied plaintiffs’ motion for a new trial.




                                                 -9-
       On April 13, 2015, plaintiffs appealed. 7 They argue that the trial justice erred by denying

plaintiffs’ motion for a new trial and failing to charge the jury on the mode of operation theory.

Further, plaintiffs ask this Court to adopt that theory “as the standard in which slip and fall cases

are analyzed in Rhode Island * * * .”

                                                 II

                                        Standards of Review

       As plaintiffs raise multiple issues on appeal, our standard of review differs with respect to

each issue. “With regard to the motion for a new trial, it is well settled that our review of a trial

justice's decision is deferential.” Pawtucket Redevelopment Agency v. Brown, 106 A.3d 893,

899 (R.I. 2014) (quoting Martin v. Lawrence, 79 A.3d 1275, 1283 (R.I. 2013)). “A trial justice's

role in considering a motion for a new trial is that of a superjuror, who must weigh the evidence

and assess the credibility of the witnesses.” Gomes v. Rosario, 79 A.3d 1262, 1265 (R.I. 2013)

(quoting McGarry v. Pielech, 47 A.3d 271, 280 (R.I. 2012)).                “After undertaking this

independent analysis, the trial justice must uphold the jury verdict if he or she ‘determines that

the evidence is evenly balanced or is such that reasonable minds in considering the same

evidence could come to different conclusions * * *.’” Free & Clear Co. v. Narragansett Bay

Commission, 131 A.3d 1102, 1109 (R.I. 2016) (quoting Yi Gu v. Rhode Island Public Transit

Authority, 38 A.3d 1093, 1099 (R.I. 2012)). “This Court will not upset that determination unless

the moving party demonstrates that ‘the trial justice overlooked or misconceived material and

relevant evidence or was otherwise clearly wrong.’” Id. (quoting Yi Gu, 38 A.3d at 1099).



7
  The order denying plaintiffs’ motion for a new trial was entered on April 16, 2015. “Although
[the plaintiffs] filed [their] notice of appeal before a judgment was entered, we routinely have
treated such an appeal as timely filed.” Muschiano v. Travers, 973 A.2d 515, 520 n.6 (R.I.
2009).



                                               - 10 -
       “[T]his Court reviews jury instructions in a de novo manner.” Ferris Avenue Realty,

LLC v. Huhtamaki, Inc., 110 A.3d 267, 284 (R.I. 2015). We examine “jury instructions ‘in their

entirety to ascertain the manner in which a jury of ordinarily intelligent lay people would have

understood them.’” Free & Clear Co., 131 A.3d at 1109 (quoting Riley v. Stone, 900 A.2d 1087,

1092 (R.I. 2006)). “[E]ven if an instruction is erroneous, reversal is warranted only if it can be

shown that the jury could have been misled to the resultant prejudice of the complaining party.”

King v. Huntress, Inc., 94 A.3d 467, 482 (R.I. 2014) (quoting Botelho v. Caster's, Inc., 970 A.2d

541, 545 (R.I. 2009)).

                                                 III

                                             Discussion

                                                  A

                                      Motion for a New Trial

       On appeal, plaintiffs maintain that the trial justice erred in denying their motion for a new

trial. In support of this assertion, plaintiffs discuss and dispute various findings that the trial

justice made in deciding the motion. Specifically, they assert that the trial justice ignored the

fact that defendant repeatedly denied having knowledge of Deborah’s fall. The plaintiffs also

fault the trial justice for his “contradiction” because he summarized Deborah’s testimony about

the fall, yet found that she never explained the details of the fall. Additionally, they dispute the

trial justice’s finding about Deborah’s injuries, stating, “The [t]rial [j]ustice attempted to make

light of * * * [p]laintiff’s damages indicating that her testimony did not reflect injuries related to

the incident.”

       We are satisfied that the trial justice properly conducted the new-trial analysis. He

summarized the evidence adduced at trial and concluded that he would not have reached a




                                                - 11 -
different result from that reached by the jury.            The trial justice found plaintiffs’ case

“unpersuasive” and noted its deficiencies, specifically with respect to negligence and causation.

On the issue of Deborah’s fall, the trial justice found that “the evidence was scant in terms of

details” as “[s]he didn’t say how she fell, whether she fell backwards, forwards, sideways.”

With respect to the issue of notice, the trial justice concluded that there was no evidence about

how long the spillage was on the floor. He also addressed defendant’s notice of Deborah’s fall

after it occurred and concluded that the pertinent question of notice was “what notice

[defendants] had of the defect, or, if you want to call it, the condition that caused the fall, not

what they knew afterwards.” Lastly, on the causation issue, the trial justice found it difficult to

distinguish between Deborah’s pre-existing health problems and those caused by the fall, and he

concluded that the evidence concerning her health was “murky at best.”

         As the record reveals, there is nothing to indicate that “the trial justice overlooked or

misconceived material and relevant evidence or was otherwise clearly wrong” and therefore, we

will not disturb his decision. Free & Clear Co., 131 A.3d at 1109 (quoting Yi Gu, 38 A.3d at

1099).

                                                    B

                                           Jury Instructions

         Additionally, plaintiffs argue that the trial justice erred in declining to instruct the jury on

the theory of mode of operation. They contend that, prior to trial commencing, the trial justice

told both parties that he would instruct the jury on said theory. The plaintiffs also maintain that a

review of the record reveals “an extensive memorandum prior to the trial on mode of operation

by way of its [m]otion in [l]imine.”




                                                  - 12 -
       Under Rule 51(b) of the Superior Court Rules of Civil Procedure, “No party may assign

as error the giving or the failure to give an instruction unless the party objects thereto before the

jury retires to consider its verdict, stating distinctly the matter to which the party objects and the

grounds of the party's objection.” Rule 51(b) “bars a party from challenging an erroneous

instruction unless [the party] lodges an objection to the charge which is specific enough to alert

the trial justice as to the nature of [the trial justice's] alleged error.” Ferris Avenue Realty, LLC,

110 A.3d at 285 (quoting Botelho, 970 A.2d at 548). Further, this Court’s long-standing raise-

or-waive rule “precludes us from considering issues at the appellate level that were not properly

presented before the trial court.” Botelho, 970 A.2d at 547. “[W]e are especially rigorous in the

application of the raise-or-waive rule when considering objections to jury instructions.” Id. at

548.

       Here, plaintiffs’ attorney neither requested an instruction on mode of operation nor

objected when the trial justice did not instruct the jury on it. During the sidebar discussion

concerning jury instructions, plaintiffs’ attorney clearly requested instructions on the collateral-

source rule, subsequent remedial measures, and aggravation of pre-existing injuries. Although

counsel tangentially mentioned the mode of operation theory in passing, he did not request a

specific instruction on it. He merely stated, “I have in my jury instructions, you know, the count

of mode of operation and breach of contract and as part of my complaint.” Further, when given

an additional opportunity to raise any requests or concerns with respect to the jury instructions,

the attorney responded, “No, your Honor.” Thus, we deem this issue waived.

       Finally, we reject the plaintiffs’ alternative request for this Court to adopt the theory of

mode of operation.      Having concluded that the plaintiffs waived their request for a jury

instruction on the theory, their plea to this Court to adopt it is akin to a request to exercise our




                                                - 13 -
supervisory powers. “[I]t is well-established that this Court under its general supervisory powers

can exercise its inherent power to fashion an appropriate remedy to serve the ends of justice.”

Clarke v. Morsilli, 723 A.2d 785, 786 (R.I. 1998)(mem.). However, “where ‘[c]reation of a new

rule * * * will affect a large number of cases,’ such creation of a new rule ‘may require input

from many sources.’” State v. Barros, 24 A.3d 1158, 1166 (R.I. 2011) (quoting State v. Feng,

421 A.2d 1258, 1273 (R.I. 1980)). As the plaintiffs did not properly request a jury instruction on

the theory of mode of operation or object to the absence of such an instruction, this Court is

without the benefit of the lower court’s analysis and decision-making on the matter. Because

“[t]he exercise of our supervisory jurisdiction is an extraordinary measure,” this Court will not

“consider the merits of adopting such a rule in light of the circumstances presented in this case.”

Feng, 421 A.2d at 1273.

                                                IV

                                           Conclusion

        For the reasons stated herein, we affirm the judgment of the Superior Court. The record

shall be returned to that tribunal.




                                              - 14 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

                                     Deborah Bates-Bridgmon et al. v. Heong’s Market,
Title of Case
                                     Inc. d/b/a Roch’s Market et al.
                                     SU-15-0214-Appeal.
Case Number
                                     (KC 12-23)
Date Opinion Filed                   January 24, 2017
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Gilbert V. Indeglia

Source of Appeal                      Kent County Superior Court

Judicial Officer From Lower Court    Associate Justice Bennett R. Gallo
                                     For Plaintiffs:

                                     Ronald J. Resmini, Esq.
                                     Adam J. Resmini, Esq.
Attorney(s) on Appeal
                                     For Defendants:

                                     Dennis J. Roberts, II, Esquire




SU-CMS-02A (revised June 2016)
