Ralph Mangiarelli, Jr. v. Town of Johnston

March 1, 2023

Supreme Court

No. 2022-28-Appeal.
(PC 16-5893)

Ralph Mangiarelli, Jr. :

v. :

Town of Johnston 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
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Supreme Court

No. 2022-28-Appeal.
(PC 16-5893)

Ralph Mangiarelli, Jr. :

v. :

Town of Johnston et al. :

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

OPINION

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

on December 1, 2022, pursuant to an order directing the parties to appear and show

cause why the issues raised in this appeal should not be summarily decided. The

plaintiff, Ralph Mangiarelli, Jr., appeals from an order of the Superior Court denying

his motion for a new trial following a jury verdict in favor of the defendants, the

Town of Johnston (town); Joseph Chiodo, in his capacity as Treasurer for the town;

Arnold Vecchione, in his capacity as Public Works Director for the town; and John

Joe, alias.1 On appeal, the plaintiff claims that the trial justice erred in denying his

1
Although a party named John Joe is referred to as John Doe at times, this individual
was never identified at trial. Our references to defendants do not include John Joe.
-1-
motion for a new trial.2 For the reasons set forth herein, we affirm the judgment of

the Superior Court.

Facts and Travel

This is a slip-and-fall case. On July 28, 2016, plaintiff went to the Johnston

Town Hall to pay his tax bill. He parked in the visitors parking lot in the rear of the

town hall and made his way towards the building’s rear entrance. According to

plaintiff, he walked through the parking lot towards the building; and, as he was

stepping up onto the curb, tripped and fell onto a staircase that leads up to the

entrance of the building. The plaintiff testified that:

“[T]here’s a crosswalk to go into the new patio * * * and
as I was walking up, it’s on an angle. And the crosswalk
meets the angle, but it’s not straight. And as I took one
step up on the patio, my second foot still was on the
asphalt. When I took another step with my right foot, not
realizing my foot caught the top of the curbstone, I shot
towards the stairway going * * * up the stairway of the
back of [t]own [h]all.”

As a result of his fall, plaintiff suffered a fractured wrist, injuries to his ribs, and

scrapes to an arm and leg. A town hall employee called 911; rescue personnel from

2
The procedural posture of this case is anything but smooth. Although plaintiff
argues that the trial justice erred by denying his motion for a new trial and by
granting defendants’ motion for judgment as a matter of law, we note that judgment
entered on the jury’s verdict only, not by way of judgment as a matter of law.
Furthermore, plaintiff appeals only from the denial of his motion for a new trial and
not from the decision granting defendants’ motion for judgment as a matter of law.
Therefore, we confine our analysis to the appropriateness of the trial justice’s denial
of plaintiff’s motion for a new trial.
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the Johnston Fire Department transported plaintiff to Our Lady of Fatima Hospital

in North Providence, where he received treatment for his injuries.3

Prior to plaintiff’s fall, in 2015, the rear entrance to the town hall had been

reconstructed. The project included the demolition of the preexisting sidewalk and

stairs, as well as the installation of a new ramp, stairs, handrail, sidewalk, and curb.

The plaintiff testified that his fall occurred during his first visit to the town hall after

the reconstruction had been completed. At the time, there was no yellow striping or

signage in place on or near the curb. However, the record discloses that the

construction was completed in accordance with all applicable codes.4 After the

incident, the town painted the edge of the curb yellow, and placed cones with signs

reading “step up” on the curb.

The plaintiff filed this action on December 22, 2016, alleging one count of

negligence. He claimed that defendants were “negligent in maintaining the

premises” of the town hall in a “clean, good and safe condition,” by failing to warn

invitees such as him of a “dangerous condition”—namely, an “uneven and unmarked

curbing” that lacked “any yellow highlighting or warning.” The plaintiff alleged

that, as a result of defendants’ breach, he sustained personal injuries and damages.

3
Before plaintiff left the town hall on a stretcher, a town employee was given his
tax payment and plaintiff was mailed a receipt a few days later.
4
These codes include the Rhode Island State Building Code, the Rhode Island Fire
Safety Code, and the ADA Standards for Accessible Design.
-3-
A jury trial on plaintiff’s negligence claim took place over the course of two

days on October 24 and October 25, 2019. During trial, plaintiff’s theory of the case

was that the town was negligent because the curb presented a dangerous condition

of which defendants failed to warn. At the conclusion of plaintiff’s case, defendants

moved for judgment as a matter of law pursuant to Rule 50 of the Superior Court

Rules of Civil Procedure, arguing that plaintiff had presented no evidence as to the

applicable standard of care or whether the existence of an angled curb constituted a

breach of the standard of care. According to defendants, expert testimony was

required to prove that the curb constituted a dangerous condition. The plaintiff

objected and proffered his own motion for judgment as a matter of law. He argued

that whether the angle of the curb constituted a dangerous condition was within the

ken of the average juror and therefore, expert testimony was not required. The trial

justice reserved her decision on the motions.

The defendants rested without presenting any evidence and renewed their

motion for judgment as a matter of law. The trial justice again reserved decision on

the motion. The trial justice then charged the jury, in relevant part:

“This is a negligence case, so let me say, generally,
negligence is defined as the failure of one person, acting
in a given set of circumstances, to exercise that degree of
care for the safety, interest or property of another person
that a reasonably prudent person would ordinarily exercise
in the same or similar circumstances.

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“Breaking that down, in order to establish
negligence, a plaintiff must prove the following: One, that
the defendant owed the plaintiff a duty of care; two, that
the defendant breached that duty; and, three, that the
plaintiff suffered damages as a proximate result of
defendant’s breach.

“* * *
“In considering whether defendant owes a duty of
care to plaintiff, you may consider the facts and
circumstances of a particular case including the nature of
the relationship and the nature of the transaction.
“* * *
“In this particular case -- we’re talking about these
ideas of negligence -- it is the plaintiff’s claim that the
Town of Johnston had a duty to maintain its premises[,]
specifically the area immediately adjacent to Town Hall,
in a clean, safe condition for the general public and
anticipated invitees.”

The trial justice also read aloud to the jury the questions on the verdict form. The

verdict form included three questions:

“1. Do you find that [p]laintiff proved by a preponderance
of the evidence that [d]efendant breached its duty to
maintain the premises at or around Johnston Town Hall in
a safe condition free from any dangerous or defective
conditions on July 28, 2016?
“* * *

“2. Do you find that [p]laintiff proved by a preponderance
of the evidence that [d]efendant’s breach of its duty of care
was the proximate cause of the [p]laintiff’s injuries?

“* * *

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“3. If you answered ‘Yes’ to Question 2, what amount of
damages do you award to [p]laintiff, Ralph Mangiarelli,
Jr.?”

Upon conclusion of the charge, plaintiff objected at sidebar, arguing that the charge

as given improperly assigned to the jury the responsibility of determining whether

defendants owed plaintiff a duty of care. Notably, however, there was no objection

to the verdict form.

The jury returned a verdict for defendants. The trial justice then granted

defendants’ motion for judgment as a matter of law, reasoning that plaintiff failed to

present any evidence that the angle of the curb constituted a dangerous condition.

Although the trial justice granted defendants’ motion for judgment as a matter of

law, she entered judgment in favor of defendants not as a matter of law, but on the

jury’s verdict.

Thereafter, plaintiff filed a motion for a new trial pursuant to Rule 59 of the

Superior Court Rules of Civil Procedure.5 A hearing was held during which plaintiff

argued that a new trial was warranted based upon three claims of error. First,

plaintiff asserted that the trial justice improperly tasked the jury with determining

whether defendants owed a duty of care to plaintiff. Second, plaintiff contended that

the verdict form improperly set forth plaintiff’s burden of proof as a “preponderance

5
The plaintiff also filed a motion for judgment as a matter of law pursuant to Rule
50 of the Superior Court Rules of Civil Procedure, which the trial justice denied.
-6-
of the evidence” rather than a “fair preponderance of the evidence.” Lastly, plaintiff

argued that the trial justice erred by determining that expert testimony was required

to support plaintiff’s claim that the angle of the curb created a dangerous condition.

The defendants, on the other hand, argued that no evidence was presented at trial

that the angle of the curb made it defective or dangerous.

The trial justice denied plaintiff’s motion for a new trial. The trial justice

explained that there was insufficient evidence presented at trial to prove that the curb

was defective. Although the trial justice acknowledged that the language she used

to instruct the jury was “inartful,” she concluded that the claimed errors with the jury

instructions did not warrant a new trial. First, the trial justice rejected plaintiff’s

argument that the jury instructions improperly charged the jury with determining

whether defendants owed a duty of care to plaintiff because the verdict form, which

plaintiff had an opportunity to review beforehand, presumed that defendants owed

plaintiff a duty and tasked the jury with deciding whether defendants breached that

duty to plaintiff. Second, the trial justice explained that, although the verdict form

set forth the burden as a preponderance of the evidence and omitted the word “fair,”

plaintiff failed to raise an objection based upon this omission on the verdict form.

In accordance with this bench decision, an order entered denying plaintiff’s motion

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for a new trial. Final judgment entered for defendants in accordance with the jury

verdict.6 The plaintiff filed a timely notice of appeal.

Before this Court, plaintiff claims that the trial justice erred by (1) instructing

the jury to determine whether the town owed plaintiff a duty of care; (2) omitting

the word “fair” from the term “fair preponderance of the evidence” on the verdict

form; and (3) determining that expert testimony was required to establish that the

angle of the curb constituted a dangerous condition.

Standard of Review

“It is well-settled that ‘[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.’” Yi Gu v. Rhode Island Public Transit Authority, 38 A.3d 1093,

1099 (R.I. 2012) (quoting Pollard v. Hastings, 862 A.2d 770, 777 (R.I. 2004)).

“[T]he trial justice must consider, in the exercise of his [or her] independent

judgment, all the material evidence in the case, in the light of his [or her] charge to

the jury and pass on its weight and the credibility of the witnesses, determine what

evidence is believable, and, decide whether the verdict rendered by the jury responds

6
On January 21, 2022, final judgment was entered solely for the town. Following a
prebriefing conference before this Court, the case was remanded to the Superior
Court for the entry of a corrected final judgment in favor of the town; Joseph Chiodo,
in his capacity as Treasurer for the town; and Arnold Vecchione, in his capacity as
Public Works Director for the town. Final judgment for these defendants entered on
July 20, 2022.
-8-
to the evidence presented and does justice between the parties.” 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 Company v. Narragansett Bay Commission, 131

A.3d 1102, 1109 (R.I. 2016) (quoting Yi Gu, 38 A.3d at 1099). “If, however, the

verdict is not supported by credible evidence, a new trial should be ordered.”

Oliveira v. Jacobson, 846 A.2d 822, 826 (R.I. 2004). “If the trial justice has carried

out the duties required by Rule 59 of the Superior Court Rules of Civil Procedure

and our decided cases, his or her decision is accorded great weight by this Court and

will not be disturbed unless the plaintiff can show that the trial justice overlooked or

misconceived material and relevant evidence or was otherwise clearly wrong.”

McGarry, 47 A.3d at 280 (quoting Botelho v. Caster’s, Inc., 970 A.2d 541, 546 (R.I.

2009)).

The plaintiff’s appellate claims also require us to evaluate the instructions

given to the jury by the trial justice. “Our review of jury instructions is de novo.”

Yangambi v. Providence School Board, 162 A.3d 1205, 1216 (R.I. 2017). “[T]his

Court examines jury instructions ‘in their entirety to ascertain the manner in which

a jury of ordinarily intelligent lay people would have understood them.’” Riley v.

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Stone, 900 A.2d 1087, 1092 (R.I. 2006) (quoting Parrella v. Bowling, 796 A.2d

1091, 1101 (R.I. 2002)). “A charge need only adequately cover[] the law.”

Yangambi, 162 A.3d at 1217 (quoting State v. Long, 61 A.3d 439, 445 (R.I. 2013)).

“We do not examine single sentences or selective parts of the charge; rather, ‘the

challenged portions must be examined in the context in which they were rendered.’”

Riley, 900 A.2d at 1092-93 (quoting Parrella, 796 A.2d at 1101).

Analysis

We begin by addressing plaintiff’s claim that the trial justice improperly

charged the jury with determining whether defendants owed a duty of care to

plaintiff. The plaintiff contends that, because the trial justice gave oral instructions

regarding duty, the “[j]ury reviewed the [v]erdict [s]heet with a belief that it was up

to them to answer the questions after first determining whether a duty of care

existed.” According to plaintiff, the verdict form did not cure the trial justice’s

“misstatement of the law” because the verdict form did not “expressly inform[] the

[j]ury to disregard the previous instructions about needing to determine whether a

duty of care existed.” We disagree.

“In setting forth a negligence claim, ‘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.’” Berard v. HCP, Inc., 64 A.3d 1215, 1218 (R.I. 2013) (quoting Holley v.

- 10 -
Argonaut Holdings, Inc., 968 A.2d 271, 274 (R.I. 2009)). We have repeatedly held

that “[w]hether a duty exists in a particular situation is a question of law to be

decided by the court.” Berman v. Sitrin, 991 A.2d 1038, 1043 (R.I. 2010) (quoting

Ferreira v. Strack, 636 A.2d 682, 685 (R.I. 1994)); see also Berard, 64 A.3d at 1218-

19; Ouch v. Khea, 963 A.2d 630, 633 (R.I. 2009).

In the case at bar, although the trial justice explained, generally, the elements

a plaintiff must prove to establish a negligence claim—including the existence of a

duty owed by defendants to plaintiff—the verdict form contained only three

questions posed to the jury, and required the jury to answer the questions of breach,

causation, and damages. The first question, concerning breach, asked the jury to

determine whether defendant “breached its duty.” (Emphasis added.) Thus, the

verdict form established that defendants owed plaintiff a duty of care and the jury

was tasked with deciding, inter alia, whether there was a breach. Examining the

jury instructions in their entirety and in the context in which they were rendered,

Riley, 900 A.2d at 1092-93 (quoting Parrella, 796 A.2d at 1101), we are satisfied

that the trial justice did not err in instructing the jury as to the element of duty.

The plaintiff next claims that the trial justice erred by omitting the word “fair”

from the phrase “fair preponderance of the evidence” on the verdict form. The

plaintiff cites section 301.2 of the Model Civil Jury Instructions for Rhode Island:

“The burden is on the plaintiff to prove by a fair
preponderance of the evidence that he/she has suffered
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damages as a proximate result of defendant’s
[negligence/breach of contract/wrongful conduct]. * * * A
plaintiff must prove by a fair preponderance of the
evidence the particular element of damage that he/she
suffered and the extent of such damage.” (Emphasis
omitted.)

The plaintiff, however, did not object to the verdict form, despite the opportunity to

review the form before it was submitted to the jury. “[A]ccording to this Court’s

long-standing, and staunchly adhered to, raise-or-waive rule, ‘a litigant cannot raise

an objection or advance a new theory on appeal if it was not raised before the trial

court.’” E.T. Investments, LLC v. Riley, 262 A.3d 673, 676 (R.I. 2021) (quoting

Cusick v. Cusick, 210 A.3d 1199, 1203 (R.I. 2019)). “With respect to jury

instructions, it is imperative that a focused objection ‘specific enough to alert the

trial justice as to the nature of [the trial justice’s] alleged error’ in giving any jury

instruction (including a trial justice’s failure to instruct as to a particular issue) must

be made on the record after the jury is instructed and before it retires to deliberate.”

Berman v. Sitrin, 101 A.3d 1251, 1266 (R.I. 2014) (quoting King v. Huntress, Inc.,

94 A.3d 467, 483 (R.I. 2014)). “Counsel’s objection to the jury instruction must be

made before the jury retires because ‘once alerted to the perceived error in the

instruction that has been given, the trial justice has an opportunity to cure the alleged

deficiencies before the jury retires for deliberations.’” State v. Viveiros, 45 A.3d

1232, 1243-44 (R.I. 2012) (quoting State v. Crow, 871 A.2d 930, 935 (R.I. 2005)).

Because plaintiff did not object to the omission of the word “fair” on the verdict
- 12 -
form before the jury retired to deliberate, we conclude that plaintiff has waived this

claim of error.

We note, however, that were this argument preserved for appeal, we would

find it unpersuasive.7 Although the word “fair” was excluded from the verdict form,

the trial justice included it in her oral instructions to the jury, explaining that “the

law requires that the plaintiff prove that which he or she asserts or claims by a fair

preponderance of the evidence.” Reviewing the jury instructions in their entirety,

we perceive no error. See Riley, 900 A.2d at 1092-93 (quoting Parrella, 796 A.2d at

1101).

Lastly, plaintiff contends that the trial justice erred by concluding that expert

testimony was required to establish that the angle of the curb constituted a dangerous

condition. We disagree. “In any negligence action * * * the plaintiff must establish

a standard of care and prove, by a preponderance of the evidence, that the defendant

deviated from that standard of care.” Riley, 900 A.2d at 1095. To establish a

negligence claim, “there must be evidence of a breach of a legal duty and evidence

that the breach proximately caused plaintiff’s harm.” Morales v. Town of Johnston,

7
We are hard-pressed to discern a material difference in “preponderance of the
evidence” and “fair preponderance of the evidence.” A “preponderance of the
evidence” means “that the trier of fact ‘* * * believe[s] that the facts asserted by the
proponent are more probably true than false.’” Narragansett Electric Company v.
Carbone, 898 A.2d 87, 99-100 (R.I. 2006) (quoting Parker v. Parker, 103 R.I. 435,
442, 238 A.2d 57, 61 (1968)).
- 13 -
895 A.2d 721, 732 (R.I. 2006). “Without evidence of a specific act or omission by

[the defendant] that indicate[s] a deviation from the proper standard of care, the

plaintiff cannot prove negligence.” Id.; see also Lapierre v. Greenwood, 85 R.I. 484,

487, 133 A.2d 126, 127 (1957) (“[I]t is necessary that a plaintiff * * *, to recover,

must allege and prove some specific acts of commission or omission by the

defendant which amount in law to negligence * * *.”) (quoting Faubert v.

Shartenberg’s Inc., 59 R.I. 278, 281, 195 A. 218, 219 (1937)). “Moreover, expert

testimony is required to establish any matter that is not obvious to a lay person and

thus lies beyond common knowledge.” Mills v. State Sales, Inc., 824 A.2d 461, 468

(R.I. 2003).

In the present case, the trial justice determined that a new trial was not

warranted because the plaintiff failed to present any expert testimony that

established that the angle of the curb constituted a dangerous condition. The only

evidence presented at trial as to the angle of the curb was the plaintiff’s testimony

that the curb was “on an angle” and was “not straight,” as well as photos of the curb,

and evidence of subsequent remedial measures, including the painting of the area.

The plaintiff presented no evidence regarding the appropriate angle of a curb, nor

did he present any evidence that the angle of the curb at issue in this case was

defective or a deviation from the standard of care, thus constituting a dangerous

condition. We conclude that the plaintiff has failed to show “that the trial justice

- 14 -
overlooked or misconceived material and relevant evidence or was otherwise clearly

wrong.” McGarry, 47 A.3d at 280 (quoting Botelho, 970 A.2d at 546). We therefore

will not disturb the trial justice’s decision denying the plaintiff’s motion for a new

trial. See id.

Conclusion

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

Superior Court. The papers in this case may be returned to the Superior Court.

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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 Ralph Mangiarelli, Jr. v. Town of Johnston et al.

No. 2022-28-Appeal.
Case Number
(PC 16-5893)

Date Opinion Filed March 1, 2023

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

Written By Associate Justice Maureen McKenna Goldberg

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Maureen B. Keough

For Plaintiff:

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

Ryan D. Stys, Esq.

SU-CMS-02A (revised November 2022)