                                                     Supreme Court

                                                     No. 2011-243-Appeal.
                                                     (PC 10-54)


Argelis Pichardo                :

         v.                     :

Julie Stevens 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. 2011-243-Appeal.
                                                                    (PC 10-54)


             Argelis Pichardo                 :

                     v.                       :

            Julie Stevens et al.              :


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

                                         OPINION

       Justice Robinson, for the Court. The plaintiff, Argelis Pichardo, appeals from the entry

of summary judgment in favor of the defendant, Julie Stevens.

       This case came before the Supreme Court for oral argument pursuant to an order

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

decided. After considering the record, the memoranda submitted to this Court on behalf of the

parties, and the oral arguments of counsel, we are of the opinion that cause has not been shown

and that the appeal may be resolved without further briefing or argument. For the reasons set

forth in this opinion, we reverse the Superior Court’s grant of summary judgment.

                                                  I

                                        Facts and Travel

                                                  A

                                The Collision of October 19, 2007

       A police report attached as an exhibit to the memorandum in support of Ms. Stevens’s

motion for summary judgment (the Accident Report) sets forth details relative to an automobile



                                              -1-
collision that gave rise to the underlying lawsuit; we proceed now to summarize those details in

pertinent part. On October 19, 2007, a 1996 Toyota Camry registered to Ms. Stevens (the

Camry) struck a car that was parked at 14 Warrington Street in Providence. The parked car was

registered to Mr. Pichardo. One of Mr. Pichardo’s co-workers saw the incident and flagged

down a police officer. The witness told the police officer that he followed the Camry to Early

Street after it left the scene of the collision. The witness saw ―a black male wearing blue jeans

and a dark sweatshirt exit the vehicle and possibly enter‖ a house at 152 Early Street. After

speaking with the witness, the police officer knocked on the front door. No one answered. The

police then had the Camry towed from the scene and ―a hold was * * * placed on the [Camry] for

the registered owner,‖ Ms. Stevens. Neither party has contested the accuracy of the Accident

Report.

                                                B

                                         The Litigation1

          On January 6, 2010, Mr. Pichardo filed a complaint in Superior Court against Ms.

Stevens seeking damages pursuant to G.L. 1956 §§ 31-33-6 and 31-33-7. The former of the two

just-referenced statutes provides that a vehicle owner may be liable for the acts of another person

who operates the owner’s car ―with the consent of the owner.‖ Section 31-33-6. The latter

statute provides (1) that evidence that the defendant was the registered owner of a car involved in

an accident or collision ―shall be prima facie evidence‖ of the defendant-owner’s consent and (2)

that ―the absence of consent shall be an affirmative defense to be set up in the answer and proved

by the defendant.‖ Section 31-33-7. Ms. Stevens raised such an affirmative defense in her

answer to Mr. Pichardo’s complaint.

1
         For the sake of narrative clarity, we have deliberately placed our description of the
litigation of this case at an early point in this ―Facts and Travel‖ section.


                                               -2-
       On December 16, 2010, Ms. Stevens filed a motion for summary judgment; in the

memorandum that accompanied her motion, Ms. Stevens contended that ―the driver was

operating the [Camry] without [her] consent‖ at the time of the collision.            Ms. Stevens’s

memorandum stated that, after her insurance company notified her of the collision, she ―realized

that her vehicle was no longer in the possession of the friend with whom she had left it.‖

Attached to her memorandum, Ms. Stevens submitted, inter alia, her affidavit (the Affidavit) and

a copy of a stolen vehicle report that she filed with the police in Taunton, Massachusetts, on

October 27, 2007 (the Stolen Vehicle Report). In her Affidavit, Ms. Stevens averred: (1) that on

the day of the collision, she had boarded a flight for West Palm Beach, Florida, at 7:45 a.m.; (2)

that the Camry, which she admittedly owned, ―was a stolen vehicle;‖ and (3) ―that the

unidentified driver described in the [Accident Report] * * * did not have [her] consent to operate

[the Camry].‖     The memorandum filed in support of Ms. Stevens’s motion for summary

judgment argued that, ―[i]n light of [the Affidavit] and the [Stolen Vehicle Report], there can be

no genuine dispute that the driver was operating the vehicle without the consent of Ms. Stevens

at the time of the accident, thus relieving Ms. Stevens of any liability for the driver’s actions.‖ In

addition to the Affidavit and the Stolen Vehicle Report, Ms. Stevens also submitted to the court a

police record of her visit to the Taunton Police Department (the Incident Report), the previously

referenced Accident Report, and an e-mail from Southwest Airlines confirming Ms. Stevens’s

trip to Florida on October 19, 2007 at 7:45 a.m.

       Mr. Pichardo filed an objection to Ms. Stevens’s motion for summary judgment, and he

requested that the court continue the scheduled hearing on Ms. Stevens’s motion so that he could

take Ms. Stevens’s deposition. Mr. Pichardo’s counsel then deposed Ms. Stevens on March 21,

2011. The motion justice ultimately granted Ms. Stevens’s motion for summary judgment at the




                                                -3-
conclusion of an April 26, 2011 hearing; she ruled that ―the car was stolen, and * * * [Ms.

Stevens] did not give permission for anyone to drive the vehicle.‖

                                                 C

                                         The Deposition

       As previously indicated, counsel for Mr. Pichardo took Ms. Stevens’s deposition on

March 21, 2011. The following paragraphs summarize the relevant portions of Ms. Stevens’s

testimony at that deposition.

       Ms. Stevens testified that, at 4:30 p.m. on Thursday, October 18, 2007 (the day before the

collision), she drove the Camry in order to go fishing with her daughter in Taunton. Upon

arriving in the vicinity of the pond that was their destination, she left the car in a parking lot.

When they were done fishing, Ms. Stevens and her daughter returned to the parking lot, but they

discovered that the Camry was missing. Ms. Stevens testified that she did not call the police

because she thought that her husband (from whom she had recently separated) may have taken

the Camry without telling her. However, Ms. Stevens also acknowledged during her deposition:

(1) that her husband did not have a key to the Camry on the day when she said the car was taken;

(2) that at no time in the past had he taken the car without her permission; and (3) that, although

she had told her husband that she was taking their daughter fishing, she had not told him where

they were going. Ms. Stevens further testified that there was only one key to the Camry and that

she had that key in her possession while she was fishing.

       Ms. Stevens further testified that, instead of calling the police, she phoned a friend to pick

up her and her daughter at the parking lot. Ms. Stevens stated that, when she returned home that

evening, she called her husband to ask whether he had taken the Camry. He told her that he did

not have the car. Again, Ms. Stevens did not call the police to report her missing Camry.




                                               -4-
       Ms. Stevens also testified that, on October 19 (the day after the fishing trip and the day of

the collision), she took a 7:45 a.m. flight from Providence in order to visit relatives in Florida.

Ms. Stevens stated that she returned from her trip to Florida three days later (i.e., October 22).

Greeting her at the door was a note stating that the post office was holding a certified letter for

her. She retrieved the letter ―days later;‖ it was from a garage in Providence that had her Camry.

Ms. Stevens testified that, once she received the certified letter, she ―immediately‖ contacted the

owner of the garage, who told her that her car had been towed following an accident. The garage

owner also advised Ms. Stevens that ―there was a hold on [her Camry]‖ and that she needed to

contact the police before she could pick it up. Ms. Stevens testified that this phone call was the

first time she had heard of the collision. Although the Camry was damaged in the collision, Ms.

Stevens testified that she did not remember anyone at the garage or anyone from her insurance

company having mentioned that there was evidence of tampering with the ignition or damage to

the steering column.

       Eventually, on October 27, 2007, Ms. Stevens contacted the police in Taunton about her

missing Camry.

                                                D

                                       The Police Report

       As noted, on October 27, 2007, Ms. Stevens went to the Taunton Police Department to

report her Camry as stolen. She made this initial contact with police nine days after the alleged

theft took place and five days after she returned from her trip to Florida. In the Stolen Vehicle

Report, Ms. Stevens filled out a section in which she indicated that the Camry had been stolen

since 10 a.m. on October 18, 2007—the same day that Ms. Stevens testified that she took the

Camry to go fishing at 4:30 p.m. Ms. Stevens signed this section of the Stolen Vehicle Report




                                               -5-
under penalty of perjury. Conversely, the Incident Report prepared by the Taunton police—a

summary of Ms. Stevens’s visit to the police station on October 27—notes that Ms. Stevens told

the police that she ―JUST RETURNEED [sic] HOME FROM FLORIDA AND RECEIVED A

CERTIFIED LETTER THAT THEY HAD HER CAR WHICH SHE LEFT AT A FRIENDS

[sic] HOME WHEN SHE LEFT LAST FRIDAY 10/19.‖ (Block capital letters in original.)

                                                II

                                        Issue on Appeal

       On appeal, Mr. Pichardo contends that inconsistencies in the evidence create genuine

issues of material fact as to whether or not Ms. Stevens gave the unidentified driver consent to

use her Camry on October 19, 2007. For that reason, he argues that summary judgment was

incorrectly granted in Ms. Stevens’s favor.

                                               III

                                      Standard of Review

       We review the granting of a motion for summary judgment in a de novo manner. Hazard

v. East Hills, Inc., 45 A.3d 1262, 1268 (R.I. 2012). We apply the same standards and rules as did

the motion justice. Generation Realty, LLC v. Catanzaro, 21 A.3d 253, 258 (R.I. 2011). We

have often reiterated the principle that ―[s]ummary judgment is appropriate when, viewing the

facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party,

the court determines that there are no issues of material fact in dispute, and the moving party is

entitled to judgment as a matter of law.‖ Delta Airlines, Inc. v. Neary, 785 A.2d 1123, 1126

(R.I. 2001).

       However, we are ever mindful that ―[s]ummary judgment is a drastic remedy, and a

motion for summary judgment should be dealt with cautiously.‖ Estate of Giuliano v. Giuliano,




                                              -6-
949 A.2d 386, 390 (R.I. 2008) (internal quotation marks omitted); see also Gardner v. Baird, 871

A.2d 949, 952 (R.I. 2005) (―[S]ummary judgment is an extreme remedy that warrants cautious

application.‖); DePasquale v. Venus Pizza, Inc., 727 A.2d 683, 685 (R.I. 1999) (―This Court has

consistently acknowledged that summary judgment is a harsh remedy that must be applied

cautiously.‖). It is well established that, ―[w]hen a genuine issue of fact exists, * * * the trial

justice must not decide the issue.‖ Gliottone v. Ethier, 870 A.2d 1022, 1027 (R.I. 2005) (internal

quotation marks omitted). Further, the motion justice ―must refrain from weighing the evidence

or passing upon issues of credibility.‖       Doe v. Gelineau, 732 A.2d 43, 48 (R.I. 1999).

Ultimately, the ―purpose of the summary judgment procedure is issue finding, not issue

determination.‖ Estate of Giuliano, 949 A.2d at 391 (internal quotation marks omitted); see also

Steinberg v. State, 427 A.2d 338, 340 (R.I. 1981) (―[I]n ruling on a motion for summary

judgment, the trial justice must look for the factual issues, not determine them.‖).

                                                IV

                                             Analysis

       The critical issue in this case is whether or not the evidence presented to the motion

justice created an issue of material fact as to whether the unidentified driver had Ms. Stevens’s

consent to drive the Camry at the time of the collision. Section 31-33-7 governs proof of consent

to operate a motor vehicle. It provides as follows:

                      ―In all civil proceedings, evidence that at the time of the
               accident or collision the motor vehicle was registered in the name
               of the defendant, shall be prima facie evidence that it was being
               operated with the consent of the defendant, and the absence of
               consent shall be an affirmative defense to be set up in the answer
               and proved by the defendant.‖ Section 31-33-7 (emphasis added).




                                                -7-
We have noted that the General Assembly, in enacting this statute, acknowledged that there is

―greater justice * * * [in] placing the burden of proof of consent upon the owner of a motor

vehicle * * *.‖ Kent v. Draper Soap Co., 75 R.I. 30, 35, 63 A.2d 571, 574 (1949).

       This Court has previously been crystal clear regarding the effect that the just-cited statute

has in the summary judgment context.         In Kent, decided more than six decades ago, we

announced that ―rarely under [§ 31-33-7] can it be ruled as a matter of law that an affirmative

defense has been made out or that a prima facie case under the statute has been overcome.‖

Kent, 75 R.I. at 37, 63 A.2d at 575. We further stated that, in cases where § 31-33-7 is in issue,

evidence of vehicle registration ―cannot be treated as a mere presumption;‖ instead, this ―prima

facie evidence remains in the case throughout the trial and is entitled to be weighed like any

other evidence upon the question of fact as to consent.‖ Kent, 75 R.I. 36–37, 63 A.2d at 575.

Accordingly, sworn statements that a driver involved in a collision ―did not have permission to

use [the defendant-owner’s] automobile * * * are relevant to [the defendant-owner’s] attempt to

establish [an] affirmative defense under § 31-33-7, but they are not sufficient to prove that

defense at the summary judgment stage.‖ Andreoni v. Ainsworth, 898 A.2d 1240, 1244 (R.I.

2006) (emphasis added).

       We have recognized that only a ―rare and exceptional case‖ would take the issue of

consent out of the hands of a jury and ―prove as a matter of law the [affirmative] defense‖ under

§ 31-33-7.2 See Hill v. Cabral, 62 R.I. 11, 19, 2 A.2d 482, 485 (1938). There is, however,



2
        This Court has referenced an example of a ―rare and exceptional case‖ when, in dictum, it
stated that ―[a] situation in which a car rental agency expressly limits who is allowed to drive its
vehicle * * * may be the rare and exceptional case that proves the affirmative defense of lack of
consent as a matter of law.‖ Andreoni v. Ainsworth, 898 A.2d 1240, 1243 n.7 (R.I. 2006)
(discussing LaFratta v. Rhode Island Public Transit Authority, 751 A.2d 1281 (R.I. 2000)). In
such a case, summary judgment in favor of a rental agency-defendant would be appropriate
because, absent some ambiguity or amendment to the original rental agreement, the plain


                                               -8-
nothing ―rare and exceptional‖ about Ms. Stevens’s case. See id. In moving for summary

judgment, she pointed to two pieces of evidence—her Affidavit and the Stolen Vehicle Report—

to support her position that the unidentified driver did not have her consent to drive the Camry

on the day of the collision.

       As an initial matter, the Affidavit is insufficient for Ms. Stevens to prevail on summary

judgment. We addressed this very issue in Andreoni, 898 A.2d at 1241; in that case, a vehicle

owner was named as a defendant in a lawsuit after her car was involved in a collision. She

provided ―deposition testimony and a sworn affidavit‖ in support of her argument that the person

driving her car at the time of the accident did not have her consent. Id. The motion justice

granted summary judgment in favor of the defendant-owner based on the absence of consent. Id.

On appeal, this Court reversed the grant of summary judgment, holding that when a motion

justice is presented with (1) prima facie evidence of consent pursuant to the express terms of

§ 31-33-7 and (2) sworn statements maintaining that the owner did not give consent to the driver

involved in the accident, such conflicting evidence as to the issue of consent creates an issue of

fact for a jury to decide. Andreoni, 898 A.2d at 1244; see also Avedesian v. Butler Auto Sales,

Inc., 93 R.I. 4, 13, 170 A.2d 604, 608 (1961) (recognizing that this Court has ―held * * * that

evidence that [a] vehicle was registered in [a] defendant’s name was enough to take the question

of consent to the jury‖).

       Ms. Stevens’s Affidavit does not resolve the issue of consent in this case. It is undisputed

that Ms. Stevens was the registered owner of the Camry at the time of the collision; as expressly

provided for in § 31-33-7, that fact alone serves as prima facie evidence that she gave consent to

the unidentified driver. Her Affidavit, however, fails to overcome the prima facie evidence


language of the contract would limit the rental agency’s consent to drivers named in the
agreement. See id.


                                               -9-
created by statute. Looking at the competing evidence together, there is unquestionably an

unresolved material issue of fact in this case. To allow the motion justice to grant summary

judgment based on the Affidavit alone would ignore the General Assembly’s decision to make

ownership ―prima facie evidence‖ of consent. See § 31-33-7; see also Kent, 75 R.I. at 37, 63

A.2d at 575 (noting that rarely under § 31-33-7 can the affirmative defense be proven as a matter

of law—―especially * * * when the proof rests upon oral testimony introduced by the party upon

whom the burden rests and upon inferences from the surrounding circumstances‖).

       Ms. Stevens sought to bolster her argument by referencing the Stolen Vehicle Report.

That document, however, does not transform this matter into a ―rare and exceptional case‖ that

would entitle Ms. Stevens to summary judgment. See Hill, 62 R.I. at 19, 2 A.2d at 485. Rather,

when viewed in the context of the remaining evidence presented to the motion justice (including

the prima facie evidence), the Stolen Vehicle Report only highlights the need for a fact-finder to

weigh the evidence and make credibility determinations. For instance, the Stolen Vehicle Report

indicates that the Camry was stolen on Thursday, October 18, 2007 ―off of Bay [Street],‖ where

Ms. Stevens testified that she had gone fishing with her daughter. The Incident Report, however,

states that Ms. Stevens ―LEFT [the Camry] AT A FRIENDS [sic] HOME WHEN SHE LEFT

[for Florida] LAST FRIDAY 10/19‖—a position that Ms. Stevens reiterated in arguing for

summary judgment. Next, Ms. Stevens wrote in the Stolen Vehicle Report that the Camry had

been missing since 10 a.m. on October 18. This is inconsistent with her deposition, in which she

testified that she took the Camry to go fishing with her daughter at 4:30 p.m. on that same day.

       Ms. Stevens argues that, as a matter of law, the unidentified driver did not have her

consent to drive her Camry on the day of the collision. Yet, as the above-summarized evidence

so amply demonstrates, the record is replete with unanswered questions with respect to the




                                              - 10 -
consent issue. We do not mention those inconsistencies for the purpose of accusing Ms. Stevens

of mendacity. The point is that, at the summary judgment stage, such determinations should not

be made in the face of competing evidence. See Estate of Giuliano, 949 A.2d at 394. In our

opinion, the motion justice erred in choosing to believe two pieces of evidence (the Affidavit and

portions of the Stolen Vehicle Report) while overlooking the statute-based prima facie evidence

and relevant factual discrepancies. See Kent, 75 R.I. at 37, 63 A.2d at 575 (―Except in some rare

and unusual circumstances, the credibility of the witnesses and the weight of the evidence are in

the first instance for the consideration of the trier of the facts.‖).

        Summary judgment is a ―drastic step‖ that should ―only [be granted] if the case is legally

dead on arrival.‖ See Mitchell v. Mitchell, 756 A.2d 179, 185 (R.I. 2000). This case is very

much alive. A jury must decide its fate.

                                                    V

                                              Conclusion

        For the reasons set forth in this opinion, we reverse the Superior Court’s grant of

summary judgment in favor of Ms. Stevens. The record in this case may be remanded to the

Superior Court.




                                                  - 11 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Argelis Pichardo v. Julie Stevens et al.

CASE NO:              No. 2011-243-Appeal.
                      (PC 10-54)

COURT:                Supreme Court

DATE OPINION FILED: November 27, 2012

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

WRITTEN BY:           Associate Justice William P. Robinson III

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Sarah Taft-Carter

ATTORNEYS ON APPEAL:

                      For Plaintiff: Desiree M. Santilli, Esq.

                      For Defendant: David O. Brink, Esq.
