Alexandria Kazarian v. New London County Mutual Insurance Company

Supreme Court

No. 2023-338-Appeal.
(PC 18-2237)

Alexandria Kazarian :

v. :

New London County Mutual Insurance :
Company 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 (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. 2023-338-Appeal.
(PC 18-2237)

Alexandria Kazarian :

v. :

New London County Mutual Insurance :
Company et al.

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

OPINION

Justice Long, for the Court. The plaintiff, Alexandria Kazarian (plaintiff or

Ms. Kazarian), appeals from a judgment of the Superior Court on a jury verdict in

favor of the defendant, New London County Mutual Insurance Company (defendant

or New London), in this negligence action involving a trip-and-fall accident in the

vicinity of property owned by the defendant’s insured. The plaintiff also appeals

from the denial of her motion for a new trial. This case came before the Supreme

Court pursuant to an order directing the parties to appear and show cause why the

issues raised in this appeal should not be summarily decided. After considering the

parties’ written and oral submissions and reviewing the record, we conclude that

cause has not been shown and that we may decide this case without further briefing

or argument. For the reasons set forth in this opinion, we affirm the judgment of the

Superior Court.

-1-
Facts and Procedural History

Ms. Kazarian filed a single-count complaint against defendant’s insured, Irene

Swiney (Ms. Swiney), after plaintiff’s trip-and-fall accident in the vicinity of

property owned by Ms. Swiney at 38 Gordon Street in Cranston, Rhode Island.1 Ms.

Kazarian subsequently amended the complaint to substitute New London as a

defendant in place of Ms. Swiney after Ms. Swiney passed away. Ms. Kazarian

alleged that on April 15, 2016, Ms. Swiney allowed a motor vehicle to be parked at

her property in such a negligent manner that the motor vehicle obstructed the

sidewalk and caused Ms. Kazarian to walk into the street and trip and fall over an

unsecured gas cap.

A three-day jury trial commenced on May 17, 2023. Ms. Kazarian’s first

witness, Stephen Mulcahy, a traffic safety manager for the City of Cranston

Department of Public Works, testified that sidewalk maintenance is the

responsibility of the abutting property owner and that the city’s parking ordinance

prohibited vehicles from parking on the sidewalks.

1
Ms. Kazarian also named as defendants Homeserve USA Energy Services (New
England) LLC, d/b/a National Grid Energy Services (New England) LLC, Robert F.
Strom, in his capacity as director of finance for the City of Cranston, and the City of
Cranston, and her first amended complaint added Narragansett Electric Company as
a defendant. However, New London was the only defendant at trial; Ms. Kazarian
stipulated to the dismissal of all claims against Narragansett Electric Company d/b/a
National Grid, Robert F. Strom, in his capacity as the finance director for the City
of Cranston, and the City of Cranston.
-2-
The defendant thereafter called John Corso, a highway superintendent for the

City of Cranston, to testify out of turn.2 Mr. Corso testified that he had not received

any complaints about a defect on Gordon Street around the time of the incident.

Portions of Ms. Swiney’s January 17, 2019 deposition testimony were read

into the record. 3 Ms. Swiney identified a red motor vehicle parked in front of her

property, depicted in photographs, as belonging to her friend, Maria Gioielli, who

visited Ms. Swiney almost daily and helped with household chores such as cutting

the grass, opening a can, or turning a screw. Ms. Swiney testified that she permitted

Ms. Gioielli to park her motor vehicle on the paved sidewalk in front of her property

on various occasions and that she knew that other visitors parked there as well.

Ms. Kazarian testified about her recollection of her trip-and-fall accident on

April 15, 2016. She said that she and her cousin went for an afternoon walk around

the block near Ms. Kazarian’s home; they were chatting and walking along

neighborhood sidewalks before arriving at the corner of Gordon Street. Ms.

2
A trial justice has discretion to control the mode and order of interrogating
witnesses under Rule 611(a) of the Rhode Island Rules of Evidence.
3
Ms. Swiney’s deposition transcript was not admitted as a full exhibit at trial. As a
result, the record does not indicate what particular parts of the transcript were read
into the record. However, the parties have attached copies of the deposition
transcript with redactions agreed upon prior to trial as exhibits to their papers
submitted to this Court, and the transcript also appears as an attachment to plaintiff’s
memorandum in support of her motion for a new trial. Accordingly, we reference
only the deposition testimony that both parties and the trial justice relied upon when
addressing the motions for judgment as a matter of law and for a new trial.
-3-
Kazarian explained that, as they approached Ms. Swiney’s property, she observed a

red motor vehicle blocking the sidewalk; to get around the motor vehicle, plaintiff

and her cousin walked in the street. In so doing, Ms. Kazarian testified, she stepped

on a gas cap with her right foot, causing the cap to flip upwards and sending her

“flying.” Ms. Kazarian testified that she never saw the gas cap in the street, which

was painted yellow with yellow arrows around it. Ms. Kazarian stated that she

suffered a broken fibula as a result of the incident. Ms. Kazarian also testified that

she saw the same red motor vehicle parked in the same area on Gordon Street

approximately fifty times following the day of her fall.

The parties agreed to the admission into evidence of multiple photographs of

Gordon Street and Ms. Swiney’s property. On direct examination, Ms. Kazarian

testified about a photograph depicting Ms. Gioielli’s motor vehicle parked on the

sidewalk in front of Ms. Swiney’s property, stating that her husband took the

photograph on the day of her trip-and-fall accident. During cross-examination,

defense counsel questioned Ms. Kazarian about the photograph taken by her husband

as well as other photographs (1) that depicted Ms. Swiney’s property and (2) that

both parties agreed were taken fourteen days after Ms. Kazarian’s trip-and-fall

accident. Defense counsel queried Ms. Kazarian about observable differences in the

appearance of shrubbery depicted in various photographs and asked Ms. Kazarian

how to account for the significant growth of a garden bush depicted in the

-4-
photographs within only ten days. Ms. Kazarian responded that that was beyond her

expertise but maintained that the photograph taken by her husband was taken on the

day of her fall. She also maintained that April 15, 2016, was a beautiful, sunny day,

even though defense counsel questioned whether the photograph instead

demonstrated that the road was wet.

Ms. Kazarian indicated uncertainty during her cross-examination testimony

about another photograph that depicted the red motor vehicle parked on the sidewalk

in front of Ms. Swiney’s property, equivocating about whether it was also taken by

her husband on the day of her fall. Furthermore, Ms. Kazarian’s testimony on

cross-examination revealed discrepancies in her prior statements relating to (1) the

timing of the incident, (2) her activities after the fall and during her recovery period,

and (3) her educational background.

The defendant rested, and plaintiff moved for judgment as a matter of law.

Ms. Kazarian argued that Ms. Swiney was negligent in knowingly allowing Ms.

Gioielli to obstruct the sidewalk in front of her property in violation of two city

ordinances and in disregard of pedestrians. Ms. Kazarian also asserted that an

unpaid, master-servant relationship existed between Ms. Swiney and Ms. Gioielli;

as such, plaintiff contended that Ms. Swiney was liable for plaintiff’s injury because

it was suffered at the hands of Ms. Swiney’s servant, whether done at Ms. Swiney’s

direction or in the course of the servant’s employment.

-5-
The trial justice denied plaintiff’s motion, explaining that it was within the

purview of the jury to evaluate Ms. Kazarian’s evidence and to determine the

credibility of her testimony.

During closing arguments, defense counsel emphasized the observable

differences in the appearance of shrubbery depicted in various photographs.

Additionally, counsel for defendant made the following statement to the jury:

“Imagine if this was your house, if someone did this. Would you find that you were

accountable?”

Approximately one hour into deliberations, the jury asked whether they could

see the transcript of Ms. Swiney’s deposition testimony. Outside of the presence of

the jurors, the trial justice proposed that he would explain that there was no redacted

transcript, but that he could read portions of the testimony if the jury indicated

exactly what they were looking for. Counsel for plaintiff suggested that the trial

justice omit the word “redacted” from his response so that the jury “do[esn’t] read

in between the lines” and the trial justice agreed. Additionally, counsel for plaintiff

said:

“[M]y son indicated to me, you know when I was outside
with him, that he recalled that when [defense counsel] was
giving her closing that she indicated to the jury, as
homeowners imagine if this happened to you, words to the
effect. I don’t know verbatim. But that was a point that he
recalled.”

-6-
The trial justice responded that he did not recall hearing the statement. He

called the jury back into the courtroom and responded to their question as follows:

“[P]ortions of the deposition were read. We don’t have a
redacted transcript, which means we do not have the parts
that were not read and blocked out. * * * If you want
portions of this read, we may be able to do that, it depends
on how broad your question is.”

The jury continued deliberating and returned shortly thereafter with a verdict in favor

of defendant.

Ms. Kazarian filed a combined motion for a new trial and a renewed motion

for judgment as a matter of law pursuant to Rules 50 and 59 of the Superior Court

Rules of Civil Procedure. The plaintiff asserted that she needed only to prove that

Ms. Swiney knew that the motor vehicle was parked on the sidewalk that day and

that Ms. Gioielli had no reasonable necessity for doing so. Alternatively, plaintiff

contended that, even if Ms. Swiney did not know that Ms. Gioielli parked on the

sidewalk on the day in question, she was still responsible for plaintiff’s injury under

the doctrine of respondeat superior because Ms. Swiney and Ms. Gioielli engaged in

a master-servant relationship. Ms. Kazarian also argued that a new trial was

appropriate because (1) defense counsel violated the “golden rule” in her closing

argument to the jury by asking them to put themselves in Ms. Swiney’s shoes; (2)

the trial justice used the word “redacted” in his response to the jury’s question after

agreeing not to, and thus “the response to the jury question may well have caused

-7-
misunderstanding with the jury producing a verdict that did not meet the merits of

the controversy”; and (3) defense counsel’s argument concerning “grass growth”

was speculation and conjecture.

The trial justice issued a bench decision denying plaintiff’s motion on June 8,

2023. He reviewed the evidence and testimony presented at trial and said that he

questioned Ms. Kazarian’s credibility as a witness; he ultimately determined that he

would have come to the same conclusion as the jury. Addressing the violation of

the golden rule, the trial justice explained,

“I’m not sure if [an objection based on the golden rule]
was raised on the record. [Counsel for plaintiff] said he
didn’t hear it. It was someone in the back who * * * heard
it, a member of his family heard it and told him about it,
hearing it. That’s how I remember it being brought to the
attention of the Court. Then why pray tell didn’t anyone
ask the stenographer, [who’s] been sitting here[,] for a
transcript? There is no transcript today to show that there
was a problem, and as I indicated, I never heard it.

“So if there was a violation, a transcript should have been
submitted by now and there was time to correct it.”

The plaintiff filed a timely notice of appeal on June 14, 2023. She assigns

error to the trial justice’s decisions denying her motions for judgment as a matter of

law and a new trial and also argues that the trial justice erred by informing the jury

that a redacted version of the deposition transcript was not available.

-8-
Motion for Judgment as a Matter of Law

Ms. Kazarian argues that the trial justice erred in denying her motion for

judgment as a matter of law, asserting that it was “uncontradicted” (1) that Ms.

Swiney was aware that Ms. Gioielli parked her motor vehicle on the sidewalk and

(2) that there was no reasonable necessity for Ms. Gioielli to do so.

We review de novo a decision denying a motion for judgment as a matter of

law, and we are bound by the same rules and standards as the trial justice: We must

view the evidence and draw all reasonable inferences in favor of the nonmoving

party, without weighing the evidence or passing on the credibility of witnesses.

Dextraze v. Bernard, 253 A.3d 411, 416 (R.I. 2021). “[I]f there is evidence

supporting the nonmoving party or evidence on which reasonable minds can differ,

the jury is entitled to decide the facts and the motion should be denied.” Gianquitti

v. Atwood Medical Associates, Ltd., 973 A.2d 580, 590 (R.I. 2009) (quoting Lutz

Engineering Company v. Industrial Louvers, Inc., 585 A.2d 631, 635 (R.I. 1991)).

Our examination of the record reveals that reasonable minds could disagree

on whether, in fact, Ms. Gioielli’s motor vehicle obstructed the sidewalk on the

afternoon of April 15, 2016, when Ms. Kazarian testified that she tripped and fell.

Ms. Kazarian initially testified that she observed a red motor vehicle blocking the

sidewalk when she and her cousin went for a walk on a sunny, beautiful afternoon.

However, her testimony on cross-examination was somewhat equivocal when asked

-9-
about different photographs depicting Gordon Street and Ms. Swiney’s property.

Additionally, Ms. Kazarian made contradictory statements about the timing of her

fall and other matters, and her cross-examination testimony could well have raised

doubts about her veracity, particularly when considered in connection with the

photographic evidence.

Ms. Kazarian argues that “[c]learly there were violations of numerous

ordinances prohibiting parking on the sidewalk,” when Ms. Gioielli parked her

motor vehicle in front of Ms. Swiney’s property while there to perform chores; and

she further relies on Brey v. Rosenfeld, 72 R.I. 28, 48 A.2d 177 (1946), for the

proposition that such violations, by Ms. Gioielli as Ms. Swiney’s servant, constituted

negligence because her obstruction of the sidewalk was unreasonable and

unnecessary. Her argument is flawed for two primary reasons. First, Ms. Kazarian’s

reading of Brey ignores that it is generally the province of the factfinder to determine

the reasonableness and necessity of a defendant’s obstruction of a sidewalk. Brey,

72 R.I. at 34, 48 A.2d at 180 (“Ordinarily, whether defendant was temporarily

making a reasonable and necessary use of the sidewalk is a question of fact and is to

be determined in light of the circumstances of each case.”). Second, her argument

also ignores this Court’s obligation to view the evidence, her entire testimony, and

all reasonable inferences from that evidence and testimony in favor of New London,

the nonmoving party, when we assess the propriety of the denial of her motion for

- 10 -
judgment as a matter of law. Dextraze, 253 A.3d at 416. In viewing the photographs,

Ms. Kazarian’s testimony, and all reasonable inferences as required, we are satisfied

that the trial justice did not err in allowing the jury to decide whether a red motor

vehicle blocked the sidewalk on the afternoon of April 15, 2016, and if so, whether

that was a reasonable and necessary use of the sidewalk at that time. Accordingly,

we perceive no error in the decision of the trial justice to deny plaintiff’s motion for

judgment as a matter of law.

Motion for a New Trial

We review a trial justice’s decision on a motion for a new trial with deference.

Dextraze, 253 A.3d at 416. “This Court will affirm a trial justice’s decision on a

motion for a new trial as long as the trial justice conducts the appropriate analysis,

does not overlook or misconceive material evidence, and is not otherwise clearly

wrong.” Zarembka v. Whelan, 176 A.3d 485, 487-88 (R.I. 2018) (quoting Bitgood

v. Greene, 108 A.3d 1023, 1028 (R.I. 2015)). “In 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.” Dextraze, 253

A.3d at 416 (quoting Letizio v. Ritacco, 204 A.3d 597, 602 (R.I. 2019)). “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.” Id. (quoting Letizio, 204 A.3d at 602).

- 11 -
Ms. Kazarian argues that the trial justice erred in denying her motion for a

new trial in light of statements made by defense counsel during closing arguments

to the jury: (1) a golden rule argument and (2) what Ms. Kazarian characterizes as

“a frivolous and baseless theory about ‘grass growth.’” We consider plaintiff’s

arguments about each of these statements to the jury in turn.

a. The Golden Rule Argument

On appeal, Ms. Kazarian refines an argument made to the trial justice as a

basis for her motion for a new trial; in her papers filed in this Court, she quotes an

excerpt of defense counsel’s closing argument and argues that the trial justice

erroneously overruled an objection based on a violation of the golden rule and failed

to provide a cautionary instruction. Specifically, she cites the following statements

by defense counsel during closing arguments: “It’s your job to make sure that

everybody in this case is treated fairly and reasonably. Imagine if this was your

house, if someone did this. Would you find that you were accountable?”

We noted in State v. Belen, 220 A.3d 1224 (R.I. 2019), that “the Supreme

Court of Connecticut has stated that a golden rule argument ‘urges jurors to put

themselves in a particular party’s place or into a particular party’s shoes.’” Belen,

220 A.3d at 1230 n.6. We have not had occasion to decide whether to adopt the

“golden rule” doctrine, but we have long adhered to the requirement that “rulings

made by a trial justice with respect to alleged misconduct of counsel before a jury

- 12 -
[raise] a question of error of law, which under our practice cannot be reviewed by

the trial justice [on a motion for a new trial], but must be brought before us after

objection is made and a ruling is given thereon.” Peloso v. Imperatore, 107 R.I. 47,

50, 264 A.2d 901, 903-04 (1970).

We have thoroughly examined the transcript of the closing arguments to the

jury in this case. Although defense counsel made the statements as quoted in Ms.

Kazarian’s papers before this Court, it is clear from our examination of the transcript

that plaintiff neither objected contemporaneously nor requested a cautionary

instruction prior to jury deliberations. 4 Ms. Kazarian has failed to preserve this issue

for our review; we will not review a question of error of law, particularly one that

invokes a doctrine not previously recognized in Rhode Island, when counsel did not

timely object and the trial justice did not have the opportunity to provide a ruling

regarding the alleged error. Peloso, 107 R.I. at 50, 264 A.2d at 903-04.

b. The Grass-Growth Argument

Ms. Kazarian also argues that the trial justice erred in denying her motion for

a new trial in light of defense counsel’s references and allusions to “grass growth”

that she contends amount to a “frivolous and baseless theory.” She cites with

specificity to the following statements by defense counsel: “And this is the

4
Our close review of both the written motion for new trial and the transcript of the
corresponding oral argument on the motion also reveals that plaintiff did not quote,
cite to, or provide the trial transcript for consideration by the trial justice.
- 13 -
photograph that Ms. Kazarian wants you to believe was taken on the same day. And

I don’t know about you, but I don’t think shrubs change that much in 15 days. It’s

just not going to happen. It can’t happen and we all know that.” Ms. Kazarian

asserts that such argument was “baseless speculation and conjecture” in the absence

of testimonial support by a lay or expert witness pursuant to Rules 701 and 702 of

the Rhode Island Rules of Evidence, or in the absence of evidence that was

admissible pursuant to Rule 901 of the Rhode Island Rules of Evidence.

However, Ms. Kazarian fails to articulate with any clarity how the trial justice

erred in allowing references or allusions to “grass growth.” Moreover, it is clear

from our examination of the entire transcript of the proceedings below that Ms.

Kazarian did not at any time object to any questions, statements, or arguments about

“grass growth.” As such, we deem the issue to be waived. Peloso, 107 R.I. at 50,

264 A.2d at 903-04.

We are satisfied that the trial justice conducted an appropriate analysis of

plaintiff’s motion for a new trial and cannot conclude that his decision to deny the

motion was erroneous.

Jury Instruction on Redacted Transcript

Finally, Ms. Kazarian argues that the trial justice erred in using the word

“redacted” when responding to a question from the jury, asserting that his use of the

word was prejudicial. More specifically, she contends that jurors “came away with

- 14 -
the belief that what they had heard regarding Ms. Swiney’s testimony was not the

full testimony and that substantive portions had been left out.”

We acknowledge that the trial justice used the word “redacted” when

responding to a question posed by the jury amid deliberations, notwithstanding his

initial agreement to refrain from doing so. However, Ms. Kazarian once again failed

to object contemporaneously or otherwise put the trial justice on notice of her

concern about the trial justice’s use of “redacted” immediately after having done so.

Furthermore, Ms. Kazarian references no legal authority in support of her

contentions and she has again failed to articulate how the trial justice’s use of

“redacted” constitutes judicial error. Without any meaningful discussion of this

issue, we deem it waived. Broccoli v. Manning, 208 A.3d 1146, 1149 (R.I. 2019).

Accordingly, we cannot conclude that the trial justice erred by informing the

jury that a redacted version of Ms. Swiney’s deposition transcript was not available.

Conclusion

For the foregoing reasons, we affirm the judgment of the Superior Court on

the jury verdict in favor of the defendant, and remand the papers to the Superior

Court.

- 15 -
STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Alexandria Kazarian v. New London County Mutual
Title of Case
Insurance Company et al.
No. 2023-338-Appeal.
Case Number
(PC 18-2237)

Date Opinion Filed March 14, 2025

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

Written By Associate Justice Melissa A. Long

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Jeffrey A. Lanphear

For Plaintiff:

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

Lauren D. Wilkins, Esq.