Jean Laprocina, as Administratrix of the Estate of George N. Laprocina v. Nicole C. Lourie

May 26, 2021

Supreme Court

No. 2019-191-Appeal.
(PC 13-6459)

Jean Laprocina, as Administratrix of :
the Estate of George N. Laprocina

v. :

Nicole C. Lourie 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. 2019-191-Appeal.
(PC 13-6459)

Jean Laprocina, as Administratrix of :
the Estate of George N. Laprocina

v. :

Nicole C. Lourie et al. :

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

OPINION

Justice Goldberg, for the Court. This case came before the Supreme

Court on April 6, 2021, on appeal by the plaintiff, Jean Laprocina, as

Administratrix of the Estate of George N. Laprocina,1 from a Superior Court

judgment in favor of the defendant, The Narragansett Electric Company

(Narragansett), following the grant of Narragansett’s motion for summary

1
George Laprocina died on October 12, 2016, and his estate was substituted as the
plaintiff on March 31, 2017. For the sake of clarity, we will refer to George
Laprocina by his first name. No disrespect is intended.
-1-
judgment.2 On appeal, the plaintiff asserts that (1) the trial justice abused her

discretion by granting Narragansett’s motion for summary judgment after,

according to the plaintiff, another justice of the Superior Court had denied

essentially the same motion; (2) Narragansett had a duty to maintain and repair

streetlights; and (3) questions of fact remained as to whether Narragansett was

negligent and whether it had actual or constructive knowledge of the

malfunctioning streetlight. For the reasons that follow, we affirm the judgment of

the Superior Court.

Facts and Travel

The facts before us are tragic. On December 30, 2010, George Laprocina

was walking across Allens Avenue at the intersection of Toronto Avenue in

Providence, Rhode Island, when he was struck by a motor vehicle operated by

defendant Nicole Lourie and owned by defendant Christine Lourie. The front

passenger side of the vehicle impacted George, causing his head to strike the

2
While there were other defendants named in the amended complaint in this
case—namely, Nicole C. Lourie; Christine M. Lourie; the City of Providence (the
city) by and through its Treasurer James J. Lombardi, III, in his official capacity;
the State of Rhode Island (the state); Verizon; John Doe A, B, and C; and Doe
Corporation No. 1 and No. 2—only The Narragansett Electric Company is
involved in the appeal before this Court.
We pause to note that the collision giving rise to this claim occurred over ten
years ago, and the injured plaintiff has since passed away; however, the case has
been pending in the Superior Court against the Louries, the city, the state, and the
John Doe defendants since 2013. We are directing that the case be resolved in a
timely manner once the papers are returned to the Superior Court.
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passenger side windshield. George suffered multiple bodily fractures, severe head

trauma, and permanent brain damage.

In 2013, plaintiff commenced a negligence action in the Superior Court, and

later filed an amended complaint alleging, inter alia, that the area where the

collision occurred was not properly illuminated at the time of the incident because

Narragansett allowed a “rolling blackout” to occur or failed to repair, replace, and

maintain the streetlights in the area, which created a dangerous condition to

pedestrians.

On October 22, 2014, Narragansett filed its initial motion for summary

judgment, arguing that it owed no duty of care to George because its duty to

maintain the streetlights in the area of the incident is governed by a tariff approved

by the Rhode Island Public Utilities Commission (the PUC streetlight tariff),

which, Narragansett maintained, limits any duty owed by Narragansett regarding

its rendered services solely to its customer—the City of Providence (the city).

See R.I.P.U.C. No. 2031-A. The PUC streetlight tariff contains a disclaimer of

liability, which states that Narragansett’s “duties and obligations under this tariff

extend only to the [city], and not to any third parties. [Narragansett] * * *

specifically disclaims any liability to third parties arising out of [Narragansett]’s

obligations to [the city] under this section.” Id. at Sheet 6.

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A hearing on the motion for summary judgment was held on February 9,

2016. The trial justice denied Narragansett’s motion, finding that the liability

disclaimer contained in the PUC streetlight tariff was overly broad in absolving

Narragansett of liabilities in all situations—to wit, even in cases of willful or

wanton misconduct—and was therefore contrary to public policy and not

enforceable.

More than two years later, Narragansett filed a second motion for summary

judgment based on new grounds and a purportedly expanded record. Narragansett

argued that, under principles of common law negligence and contract law, it had no

duty to George to maintain the streetlight in question. A hearing on Narragansett’s

second motion for summary judgment was held before a different trial justice. The

second trial justice determined that the issue before her turned on a common law

duty analysis and, after analyzing the factors outlined in the seminal case of Banks

v. Bowen’s Landing Corp., 522 A.2d 1222 (R.I. 1987),3 she concluded that

3
The Banks factors include:

“(1) the foreseeability of harm to the plaintiff, (2) the
degree of certainty that the plaintiff suffered an injury,
(3) the closeness of connection between the defendant’s
conduct and the injury suffered, (4) the policy of
preventing future harm, and (5) the extent of the burden
to the defendant and the consequences to the community
for imposing a duty to exercise care with resulting
liability for breach.” Banks v. Bowen’s Landing Corp.,
522 A.2d 1222, 1225 (R.I. 1987).
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Narragansett did not owe a duty of care to George. The second trial justice entered

an order granting Narragansett’s motion for summary judgment on February 20,

2019, and defendant sought and received a judgment in accordance with Rule 54(b)

of the Superior Court Rules of Civil Procedure; final judgment entered in favor of

Narragansett on March 18, 2019. The plaintiff timely appealed from that judgment.

Standard of Review

This Court reviews a trial justice’s grant of summary judgment de novo.

Ballard v. SVF Foundation, 181 A.3d 27, 34 (R.I. 2018). “Although summary

judgment is recognized as an extreme remedy, to avoid summary judgment the

burden is on the nonmoving party to produce competent evidence that proves the

existence of a disputed issue of material fact.” Id. (brackets and deletion omitted)

(quoting Sullo v. Greenberg, 68 A.3d 404, 407 (R.I. 2013)). We, like the trial

justice, “view the evidence in the light most favorable to the nonmoving party, and

if we conclude that there are no genuine issues of material fact and that the moving

party is entitled to judgment as a matter of law, we will affirm the judgment.” Id.

(brackets omitted) (quoting Sullo, 68 A.3d at 406-07).

Law of the Case Doctrine

We first address plaintiff’s argument that, under the law of the case doctrine,

the second trial justice abused her discretion in granting summary judgment after

the first summary-judgment motion had been denied. We reject this contention.

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“The law of the case doctrine provides that, ‘after a judge has decided an

interlocutory matter in a pending suit, a second judge, confronted at a later stage of

the suit with the same question in the identical manner, should refrain from

disturbing the first ruling.’” Lynch v. Spirit Rent-A-Car, Inc., 965 A.2d 417, 424

(R.I. 2009) (quoting Chavers v. Fleet Bank (RI), N.A., 844 A.2d 666, 677 (R.I.

2004)). However, the law of the case doctrine “is a flexible rule” and “may be

disregarded when a subsequent ruling can be based on an expanded record.” Id.

(quoting Chavers, 844 A.2d at 677). “When presented with an expanded record, it

is within the trial justice’s sound discretion whether to consider the issue.” Felkner

v. Rhode Island College, 203 A.3d 433, 445 (R.I. 2019) (quoting Ferguson v.

Marshall Contractors, Inc., 745 A.2d 147, 152 (R.I. 2000)).

In 2014, Narragansett moved for summary judgment on the basis that it was

immune from liability pursuant to the liability disclaimer contained in the PUC

streetlight tariff. The trial justice denied that motion based on a determination that

the liability disclaimer was void as against public policy because it absolved

Narragansett of all liability with respect to third parties. Nearly four years after the

filing of its first motion for summary judgment, Narragansett filed a second

motion, on different grounds from the first, claiming it had no common law duty or

contractual duty to repair the streetlight. As such, the second trial justice was

confronted with what could be characterized as a different question that required a

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separate analysis. See Lynch, 965 A.2d at 424 (holding that law of the case

doctrine did not preclude consideration of a second motion for summary judgment

that was based on new arguments and an expanded record). Because the record

reveals that different, although closely connected, arguments were raised and

considered on each summary-judgment motion, we are satisfied that the judgment

in this case was not issued in contravention of the law of the case doctrine.4

Duty

The primary issue on appeal is narrow: whether Narragansett owed a legal

duty to George, a pedestrian, to maintain the streetlight in question.

To properly assert a claim for negligence, “a plaintiff must establish a

legally cognizable duty owed by a defendant to a plaintiff, a breach of that duty,

proximate causation between the conduct and the resulting injury, and the actual

loss or damage.” Ouch v. Khea, 963 A.2d 630, 633 (R.I. 2009) (quoting Selwyn v.

Ward, 879 A.2d 882, 886 (R.I. 2005)). “Although complaints sounding in

negligence generally are not amenable to summary judgment and should be

resolved by fact finding at the trial court, the existence of a duty is a question of

law.” Berard v. HCP, Inc., 64 A.3d 1215, 1218 (R.I. 2013); see Ouch, 963 A.2d at

633 (noting that whether a defendant owes a plaintiff a duty of care “is a question

4
On the other hand, because whether a duty exists is always a question of law in a
negligence action, the second trial justice could have reasonably concluded that
this question should have been raised in the first summary-judgment motion; but it
was nonetheless within her discretion to reach the issue.
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of law to be determined by the court”). To survive summary judgment, a plaintiff

must demonstrate that he or she is owed a legal duty by the defendant before they

are “entitled to a factual determination on each of the remaining elements: breach,

causation, and damages.” Ouch, 963 A.2d at 633. In the absence of a legal duty,

“the trier of fact has nothing to consider” and the grant of summary judgment is

proper. Berard, 64 A.3d at 1218 (quoting Holley v. Argonaut Holdings, Inc., 968

A.2d 271, 274 (R.I. 2009)).

The plaintiff argues that Narragansett’s duty to repair and maintain

streetlights extends to individual members of the public. The plaintiff first asserts

that the PUC streetlight tariff and the city’s ordinances establish this duty—

particularly, the city’s duty to report inoperable streetlights to Narragansett and

Narragansett’s duty to replace them. The plaintiff claims that there is a “concerted

partnership” between the city and Narragansett to report and repair streetlights.

Once the PUC adopts a tariff, it becomes the standard for determining the

duties and obligations between a regulated public utility and its customer.5 See

G.L. 1956 §§ 39-1-3 and 39-3-10. Narragansett provided streetlight services to the

5
The PUC is vested with “the exclusive power and authority to supervise, regulate,
and make orders governing the conduct of companies offering to the public”
services such as streetlighting. General Laws 1956 § 39-1-1(c). We have
recognized that this provision “represent[s] a clear legislative intent to grant the
commission broad powers as it seeks to establish a system of rates which will be
just and equitable to all concerned including the utility and its customers.” Rhode
Island Chamber of Commerce Federation v. Burke, 443 A.2d 1236, 1237 (R.I.
1982).
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city pursuant to the PUC streetlight tariff that governs the terms of service,

installation, maintenance, and payment for streetlight services. See R.I.P.U.C. No.

2031-A. The tariff provides: “All inoperable lamps which are owned and

maintained by [Narragansett] will be spot replaced. The [city] is responsible for

notifying [Narragansett] of inoperable lamps.” Id. at Sheet 7. The tariff further

provides that Narragansett’s “duties and obligations under this tariff extend only to

the [city], and not to any third parties.”6 Id. at Sheet 6.

Under the PUC streetlight tariff, Narragansett owes a duty to the city. The

tariff does not impose any affirmative duty upon Narragansett to conduct

inspections to ensure the functionality of streetlights. Significantly, the tariff

plainly places the responsibility on the city to notify Narragansett of inoperable

streetlights. Additionally, even if the streetlight at issue was inoperative or

malfunctioning at the time of the incident, the city ordinances cited by plaintiff

6
We note, without deciding the validity of the disclaimer of liability provision set
forth in the PUC streetlight tariff, that, as declared by the first trial justice,
exculpatory clauses that completely absolve a company of all liability with respect
to third parties, even in cases of willful or wanton misconduct or gross negligence,
may not comport with public policy considerations.
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clearly provide that the city has a duty to inspect streetlights, and not Narragansett.7

The city ordinances and the PUC streetlight tariff simply do not establish a duty of

care owed by Narragansett to individual pedestrians injured as a result of an

inoperable streetlight. Cf. Wyso v. Full Moon Tide, LLC, 78 A.3d 747, 751, 752

(R.I. 2013) (holding that an ordinance requiring property owners to maintain an

abutting sidewalk does not create a duty to individual passersby).

We now turn to the relevant common law duty factors to determine whether

Narraganset owed a duty in this case. Because we have not yet had the opportunity

to address the issue of whether a utility owes a duty to private individuals to

maintain streetlights, we begin by discussing cases from other jurisdictions

concerning this issue.

A majority of jurisdictions have concluded that motorists or pedestrians

injured in vehicular accidents allegedly caused, at least in part, by inoperative

streetlights were not entitled to recover from the utilities that were obligated to

provide the streetlights. See, e.g., Turbe v. Government of Virgin Islands, 938 F.2d

7
The Providence Code of Ordinances, Supp. No. 4, § 23-125 (July 15, 2019),
places a duty upon the city’s public service engineer to inspect electrical fixtures to
ensure that they are maintained in “a proper and safe manner and condition,” and
to inform the city council if the public utility fails to repair or maintain them.
Section 23-139 requires the chief of police to report daily to the city’s public
service engineer on city streetlight outages. Moreover, not cited by plaintiff, § 23-
136 gives the public service engineer “the general control and supervision of all
public lights used by the city for illuminating its streets, highways, parks and
public places.”
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427, 432, 433 (3d Cir. 1991) (holding that utility owed no duty to pedestrian who

was assaulted because inoperable light did not increase risk of harm but rather

returned the lighting conditions to their natural state); Estate of Flygare v. Ogden

City, 405 P.3d 970, 977, 978 (Utah Ct. App. 2017) (holding that utility owed no

duty to pedestrian injured in crosswalk to repair inoperable streetlight because the

absence of light did not place the plaintiff in a worse position than he would have

been if no streetlight was ever installed); Blake v. Public Service Company of New

Mexico, 82 P.3d 960, 965, 966, 967 (N.M. Ct. App. 2003) (considering public

policy and holding that public utility owed no duty to pedestrians to maintain

streetlights because failure to repair a streetlight “does not launch any instrument

of harm, given that the darkness of the street is obvious to travelers and given that

there are other methods of seeing in the darkness, i.e., automobile headlamps”);

Martinez v. Florida Power & Light Co., 785 So.2d 1251, 1252, 1253 (Fla. Dist. Ct.

App. 2001) (holding that utility owed no duty to pedestrian killed by a motor

vehicle while crossing a street where streetlight was not functioning); Vaughan v.

Eastern Edison Company, 719 N.E.2d 520, 521, 523 (Mass. App. Ct. 1999)

(holding that utility owed no duty to pedestrian injured while in a crosswalk that

was unlit due to inoperative streetlights); White v. Southern California Edison

Company, 30 Cal. Rptr. 2d 431, 434, 437 (Cal. Ct. App. 1994) (holding that utility

owed no contractual or common law duty to moped driver injured in a collision

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that occurred at an intersection where streetlights were not functioning); Shafouk

Nor El Din Hamza v. Bourgeois, 493 So.2d 112, 117 (La. Ct. App. 1986) (holding

that the “failure of [the utility] to provide adequate street lighting was at most the

deprivation of a benefit; it was not the violation of a duty”); Quinn v. Georgia

Power Co., 180 S.E. 246, 248 (Ga. Ct. App. 1935) (holding utility owed no duty to

general public to maintain inoperable streetlight); Cochran v. Public Service

Electric Co., 117 A. 620, 621 (N.J. 1922) (holding that utility owed duty to city

concerning inoperable streetlights but not to the general public).

In White, the California Court of Appeal determined that the defendant

utility owed no duty to a moped driver who was injured in a collision allegedly

caused by inoperative lighting at an intersection. White, 30 Cal. Rptr. 2d at 434,

437. The court described the issue of duty as a “policy consideration[,]” and

explained that the issue requires consideration of “not only the foreseeability of

harm to a plaintiff but also the burdens to be imposed against a defendant.” Id. at

437. Specifically, the court considered:

“the cost of imposing this liability on public utilities, the
current public utility rate structures, the large numbers of
streetlights, the likelihood that streetlights will become
periodically inoperable, the fact that motor vehicles
operate at night with headlights, the slight chance that a
single inoperative streetlight will be the cause of a motor
vehicle collision, and the availability of automobile
insurance to pay for damages.” Id.

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Consequently, the White court concluded that “[t]he burden on the public utility in

terms of costs and disruption of existing rate schedules far exceeds the slight

benefit to the motoring public from the imposition of liability.” Id.

Similarly, in Vaughan, the Appeals Court of Massachusetts declared that the

defendant utility owed no duty to a pedestrian who alleged that her injuries were

due to inoperative streetlights. Vaughan, 719 N.E.2d at 523, 524. Relying on

White, the Vaughan court considered duty as an “allocation of risk” that required

“balancing the foreseeability of harm * * * against the burden to be imposed.” Id.

(quoting White, 30 Cal. Rptr. 2d at 435). In adopting the majority rule that utilities

have no common law duty to injured third parties to maintain streetlights, the court

concluded that, although “relieving the electric company of liability may leave the

‘loss on the shoulders of the individual plaintiff,’” id. at 523-24 (quoting Prosser &

Keeton, Torts § 4, at 24),

“the imposition of tort liability on those who must render
continuous service of this kind to all who apply for it
under all kinds of circumstances could also be ruinous
and the expense of litigation and settling claims over the
issue of whether or not there was negligence could be a
greater burden to the rate payer than can be socially
justified.” Id. at 524 (brackets omitted) (quoting Prosser
& Keeton, Torts § 93, at 671).

The court also noted that “[t]he failure to maintain an installed street light does not

create a risk greater than the risk created by the total absence of a streetlight.” Id. at

525 (quoting White, 30 Cal. Rptr. 2d at 437).
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The aforementioned cases applied factors that are closely aligned with

Rhode Island jurisprudence. In Rhode Island, there is no bright-line rule for

determining whether a legal duty exists. The determination of duty must be made

on a case-by-case basis. Willis v. Omar, 954 A.2d 126, 130 (R.I. 2008). However,

as noted supra, in Banks, this Court adopted the following list of factors to

consider when deciding whether a duty exists in a particular situation:

“(1) the foreseeability of harm to the plaintiff, (2) the
degree of certainty that the plaintiff suffered an injury,
(3) the closeness of connection between the defendant’s
conduct and the injury suffered, (4) the policy of
preventing future harm, and (5) the extent of the burden
to the defendant and the consequences to the community
for imposing a duty to exercise care with resulting
liability for breach.” Banks, 522 A.2d at 1225.

This Court also has cautioned that Banks did not limit the scope of factors

that we should consider in future cases with different factual scenarios. See, e.g.,

Wyso, 78 A.3d at 751. We have recognized that the duty inquiry should also

reflect consideration of “all relevant factors, including the relationship of the

parties, the scope and burden of the obligation to be imposed upon the defendant,

public policy considerations, and notions of fairness.” Carlson v. Town of South

Kingstown, 131 A.3d 705, 709 (R.I. 2016) (quoting Woodruff v. Gitlow, 91 A.3d

805, 814 (R.I. 2014)).

In Wyso, we distinguished Banks, which involved a premises-liability claim

against property owners brought by an invitee who was injured on the landowner’s
- 14 -
property; Wyso involved a slip-and-fall on a public sidewalk not owned or

controlled by the defendants. Wyso, 78 A.3d at 751. Because a property owner’s

duty arises from “the landowner’s possession of the premises and his or her

attendant right and obligation to control the premises[,]” id., we declined in Wyso,

and also in other cases, to find a duty where an injury occurred on property not

owned or controlled by the defendant. See id. at 749, 751-52 (finding no duty

where the plaintiff was injured on public sidewalk abutting the defendant’s

business); Maguire v. City of Providence, 105 A.3d 92, 96 (R.I. 2014) (finding no

duty where the plaintiff was injured while walking on a sidewalk outside a

shopping mall); Ferreira v. Strack, 636 A.2d 682, 684, 686-67 (R.I. 1994) (finding

no duty where the plaintiffs were injured while crossing public street adjacent to

the defendant’s property because, inter alia, the defendants had no control over the

property where the injury occurred).

With these considerations in mind, we turn to the case at bar. Narragansett

does not own, control, or maintain the subject area; rather, the city has exclusive

ownership and control of its public streets. The city’s public service engineer

inspects electrical fixtures within the city and is vested with “the general control

and supervision of all public lights used by the city for illuminating its streets,

highways, parks and public places.” Providence Code § 23-136; see § 23-125.

Additionally, there is no relationship between the parties in the case at bar that

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would justify the imposition of a duty: The decedent was a member of the public

who was a pedestrian but had no special or direct relationship with Narragansett.

As for foreseeability of harm, while we glean a variety of unfortunate events that

can befall members of the public using a public street in darkness, we must

“acknowledge[] that duty is a flexible concept, that seeks to balance the degree of

foreseeability of harm against the burden of the duty to be imposed.” Volpe v.

Gallagher, 821 A.2d 699, 716 (R.I. 2003) (brackets omitted) (quoting McClung v.

Delta Square Limited Partnership, 937 S.W.2d 891, 901 (Tenn. 1996)).

If Narragansett were to be held liable to third parties for incidents allegedly

caused, in part, by inoperable streetlights, then it would be required to alter its

business operations by inspecting, maintaining, and replacing thousands of

streetlights on hundreds of streets in the city. The cost of this mandate would

result in a substantial burden on the part of the utility and a cost to its ratepayers

that is not contemplated by the PUC streetlight tariff. To conclude that

Narragansett owes a legal duty to pedestrians or individual members of the public

to inspect and maintain streetlights would unreasonably expand the zone of

obligation of the public utility and, indeed, impose an undue burden. The extent

and cost cannot be justified by “the slight chance that a single inoperative

streetlight will be the cause of a motor vehicle collision[.]” White, 30 Cal. Rptr. 2d

at 437. At night, motor vehicles generally are driven with headlights illuminating

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the way; therefore, “it is unlikely that a single inoperable streetlight will be a

substantial factor in causing a collision[.]” Id.

Considering the facts of this case in conjunction with well-settled Rhode

Island law and the prevailing view of jurisdictions that have considered this issue,

we conclude that a public utility generally owes no common law duty to individual

third parties who are allegedly injured, at least in part, as a result of inoperable

streetlights.

Conclusion

For these reasons, we affirm the judgment of the Superior Court. The papers

in this case may be returned to the Superior Court.

Justice Long did not participate.

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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

Jean Laprocina, as Administratrix of the Estate of
Title of Case
George N. Laprocina v. Nicole C. Lourie et al.
No. 2019-191-Appeal.
Case Number
(PC 13-6459)

Date Opinion Filed May 26, 2021

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

Written By Associate Justice Maureen McKenna Goldberg

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Melissa A. Long

For Plaintiff:

Mark A. Fay, Esq.
Attorney(s) on Appeal For Defendant:

Mark P. Dolan, Esq.
Mark P. Dolan, Jr., Esq.

SU-CMS-02A (revised June 2020)