Betty Belmore v. Cheryl Petterutti

June 29, 2021

Supreme Court

No. 2019-490-Appeal.
(KC 15-120)

Betty Belmore :

v. :

Cheryl Petterutti. :

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 (401) 222-3258 or
Email opinionanalyst@courts.ri.gov, of any
typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court

No. 2019-490-Appeal.
(KC 15-120)

Betty Belmore :

v. :

Cheryl Petterutti. :

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Justice Robinson, for the Court. This case arose as a result of a slip-and-

fall incident that occurred on the property of the defendant, Cheryl Petterutti. As a

consequence of that fall, the plaintiff, Betty Belmore, suffered multiple injuries

that required numerous reparative surgeries. The plaintiff thereafter filed suit in

Kent County Superior Court, alleging negligence on the part of the defendant and

seeking damages for the plaintiff’s injuries. In due course, the defendant moved

for summary judgment, which motion was granted by the hearing justice; and

judgment entered in the defendant’s favor. The plaintiff then timely appealed to

this Court. 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 examining the written and oral

submissions of the parties, we are of the opinion that cause has not been shown and

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

reasons set forth in this opinion, we vacate the judgment of the Superior Court.

I

Facts and Travel

On February 10, 2015, plaintiff filed a complaint in Kent County Superior

Court alleging that she had fallen down the exterior stairs of defendant’s house in

Warwick, Rhode Island, “due to the fact that there was no hand railing installed on

the stairs * * *.” She further alleged that defendant’s “failure to install and

maintain hand railings was negligent and in direct contravention to Rhode Island

statutory duty * * *.” Thereafter, discovery ensued.

On August 9, 2018, plaintiff was deposed. During that deposition, she stated

that she knew defendant because she had served as a babysitter for defendant’s

children on numerous occasions. She added that, even after she no longer served

as a babysitter at defendant’s residence, she continued her relationship with

defendant, whom she considered to be “a good friend.” The plaintiff further stated

at her deposition that, in addition to having gone to defendant’s house to babysit

the children, she had also been there several times for social visits, including as a

guest at defendant’s annual Christmas Eve dinner, to which event plaintiff was

invited consistently for ten years.

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The plaintiff stated that, on June 20, 2012, she went to defendant’s house to

deliver a bouquet of flowers from a birthday party that defendant had missed

earlier that day. She noted that, in order to access the front entrance of the house,

she had to climb “12 cement steps”1 which were “narrow and with no banister.”

The plaintiff stated that, even though she was “so familiar with the steps” as a

result of having used them on many occasions, after she exited the house she “went

all the way down to the bottom [and] fell on the gravel driveway * * *.” She

conceded that she did not know what caused her fall, and she also conceded that

she had not tried to grab anything for support as she was falling. The plaintiff

stated that, as a result of that fall, she injured her left shoulder and wrist, as well as

both knees; she added that, in the several years after she sustained those injuries,

she underwent multiple reparative surgeries.

On June 21, 2019, defendant filed a motion for summary judgment on the

grounds that plaintiff was “unable to prove that a dangerous condition existed” on

the property to which she could attribute her fall. The defendant further averred

that summary judgment at this stage was proper because she was “under no legal

duty to install handrails on the front stairs of her premises.” In support of her

1
Based on defendant’s deposition testimony as well as what is depicted on
photographs of defendant’s property which were entered as exhibits during her
deposition, it is clear that the subject stairs consisted of only six steps.

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argument, defendant attached to her motion a letter from James Younger, AIA,2

whom she had retained as an expert for this matter. In that letter, Mr. Younger

stated:

“While the plaintiff claims that the exterior steps required
a handrail, the state building code in effect at the time
includes a grandfathering provision. The Rhode Island
State Building Code, SBC-2, 10th edition, was in effect in
2012 on the date of the accident. That code presumed
existing buildings to meet provisions of the codes in
effect when built and allowed existing buildings and
occupancies to continue without change unless otherwise
cited by the building official * * *. No handrail is
required on this exterior step.”

The plaintiff subsequently filed an objection to that motion, arguing that

“there are genuine issues of material facts which exist and require jury

determination, namely, the absence of handrails which was a contributing factor to

the plaintiffs [sic] fall; the fact that defendant had knowledge of the defect and

failed to correct said defect.” Attached to plaintiff’s objection was a letter from her

own expert, which stated in pertinent part:

“The stairs on which [plaintiff] fell and was injured do
not have handrails. The building code for one and two
family residences calls for at least one handrail on stairs
having three or more risers. While the residence in
question may be grandfathered relative to the building
code, the stairs without handrails are dangerous

2
The AIA designation may be used by members of The American Institute of
Architects. See https://www.aia.org/pages/79961-using-the-aia-designation (last
visited June 28, 2021).

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especially to people with disabilities or senior citizens.”
(Emphasis added.)

On November 12, 2019, the parties were heard with respect to defendant’s

motion for summary judgment and plaintiff’s objection thereto. At that hearing,

the crux of plaintiff’s argument was that, even if the exterior stairs were in

compliance with the building code at the time of the fall, defendant was

nonetheless liable under a negligence standard. The defendant, on the other hand,

argued that “[t]he standard [in Rhode Island] is whether it was safe and complaint

[sic] with the building code and maintained in a reasonably safe condition on the

date of the loss, and unquestionably it was.” After hearing arguments from both

parties, the hearing justice stated as follows:

“[T]he Court is reluctant to -- there is a duty here. I
understand the duty. Both there’s a duty on the part of
the landlord and there’s a duty on the part of the plaintiff
to care for herself, of course. And normally questions of
breach of duty are questions for the jury. They are not
susceptible of summary adjudication normally.
“* * * But also one resisting summary judgment
must assert sufficient facts to satisfy the necessary
elements of his or her negligence claim, and if a plaintiff
fails to present evidence identifying defendant’s
negligence as the proximate cause of his or her injury, or
from which a reasonable inference of proximate cause
may be drawn, then summary judgment becomes
proper. * * *
“In this case [plaintiff] can’t even indicate how she
fell, nor can she show that the defendant was responsible
in any way or that there was proximate cause from the
act of the defendant to cause the fall and therefore
summary judgment is granted.” (Emphasis added.)

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The plaintiff thereafter timely filed a notice of appeal to this Court.

II

Standard of Review

“This Court reviews the granting of summary judgment de novo and applies

the same standards as the motion justice.” Holley v. Argonaut Holdings, Inc., 968

A.2d 271, 274 (R.I. 2009) (internal quotation marks omitted). We have stated that

we will “examine the evidence in a light most favorable to the nonmoving party,

and we will affirm the judgment 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.”

Ouch v. Khea, 963 A.2d 630, 632 (R.I. 2009). We have also emphasized that the

“purpose of the summary judgment procedure is issue finding, not issue

determination.” Walsh v. Lend Lease (US) Construction, 155 A.3d 1201, 1205

(R.I. 2017) (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

[hearing] justice must look for factual issues, not determine them.”).

III

Analysis

On appeal, plaintiff argues that the hearing justice erred in granting

summary judgment in favor of defendant because there remained genuine issues of

material fact that should have been submitted to the jury. The plaintiff more

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specifically contends that: (1) she “presented competent evidence sufficient to raise

a genuine issue of material fact as to whether one or more of the unremedied

dangerous conditions caused her to slip and fall;” and (2) the exterior stairs in front

of defendant’s house “presented unsafe conditions sufficient enough to raise a

genuine issue of material fact as to whether the defendant possessed constructive

knowledge of these unsafe conditions.” The plaintiff further avers that, “[i]n

deciding that owners of historic buildings do not have a duty to remedy unsafe

conditions, [the hearing justice] erred as a matter of law.”

The defendant, on the other hand, argues that all of plaintiff’s arguments

must fail. In particular, she first contends, that, pursuant to this Court’s raise-or-

waive rule, plaintiff has “waived her argument that the stairway is not subject to

grandfathering protection[.]” She next argues that the subject premises is

“grandfathered from compliance with the handrail requirement of the building

code” and that, therefore, she had no duty to provide a handrail. She finally

argues: (1) that plaintiff failed to raise a genuine issue of material fact as to what

caused her fall; and (2) that, by failing to raise below any argument as to any “new

dangerous condition” which may have caused the fall, she has waived such

argument on appeal.

However, we need not grapple with these competing arguments in this

opinion. It is not necessary for us to venture into that terrain because the hearing

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justice, with very little explanation, simply stated that there existed a duty “on the

part of the landlord” as well as “on the part of the plaintiff,” but then directly

proceeded to grant the motion for summary judgment in favor of defendant

because plaintiff could not indicate the cause of her fall or show that defendant was

“responsible in any way or that there was proximate cause from the act of the

defendant to cause the fall * * *.” (Emphasis added.)

After careful consideration of the travel of this case to date, it is our view

that the grant of summary judgment must be vacated and the case should be

remanded to the Superior Court for further proceedings. The plain blunt fact is that

the hearing justice chose to predicate his grant of summary judgment on his

determination that there was no showing of proximate cause.

The hearing justice’s ruling is inconsistent with this Court’s precedent with

respect to negligence actions. It is clear from our precedent that “[o]rdinarily the

determination of proximate cause * * * is a question of fact that should not be

decided by summary judgment.” Splendorio v. Bilray Demolition Co., Inc., 682

A.2d 461, 467 (R.I. 1996). By focusing on proximate causation in determining

whether or not to grant defendant’s motion for summary judgment, the hearing

justice passed upon an issue that is ordinarily inappropriate for summary judgment;

and we perceive nothing about this case that would make that ordinary principle

inapplicable here. Therefore, the hearing justice erred in granting the motion for

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summary judgment for the reason that he gave. Accordingly, we vacate the grant

of summary judgment, and we remand this case to the Superior Court for further

proceedings.3

IV

Conclusion

For the reasons set forth in this opinion, we vacate the judgment of the

Superior Court. We remand the case to that tribunal for such further proceedings

not inconsistent with this opinion as may be required.

3
We pause to note that defendant has cogently raised Geloso v. Kenny, 812
A.2d 814 (R.I. 2002), a case we distinguish because it was decided on proximate
cause after plaintiff had presented her case at trial and which was dismissed on a
motion made pursuant to Rule 50 of the Rhode Island Rules of Civil Procedure.
We note that the hearing justice decided the instant case at summary judgment and,
further, that the issue of duty is not before us in this case.

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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Title of Case Betty Belmore v. Cheryl Petterutti.

No. 2019-490-Appeal.
Case Number
(KC 15-120)

Date Opinion Filed June 29, 2021

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.

Written By Associate Justice William P. Robinson III

Source of Appeal Kent County Superior Court

Judicial Officer from Lower Court Associate Justice Jeffrey B. Lanphear

For Plaintiff:

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

Richard Finnegan, III, Esq.

SU-CMS-02A (revised June 2020)