Lieberman v. Bliss-Doris Realty Associates, L.P.

819 A.2d 666, 2003 R.I. LEXIS 93, 2003 WL 1869880

• Court: Supreme Court of Rhode Island
• Decided: April 14, 2003
• Docket: 2002-191-Appeal
• Status: Published

Opinions

OPINION

PER CURIAM.

This case came before the Court for oral argument on February 3, 2003, pursuant to an order that had directed all parties to appear and to show cause why the issues raised in this appeal should not summarily be decided. After considering the arguments of counsel and the memoranda filed by the parties, we are of the opinion that cause has not been shown and shall proceed to decide the appeal at this time.

The defendants, Bliss-Doris Realty Associates, L.P., et al. (defendants) appeal the trial justice’s order granting plaintiffs motion for a new trial following entry of judgment in favor of defendants after a jury trial. For the reasons set forth below, we sustain defendants’ appeal.

This premises liability matter arose from an injury that plaintiff, Terry S. Lieberman (plaintiff), suffered on February 11, 1997, while descending a common stairwell on defendants’ property at 245 Waterman Street, Providence (hereinafter Doris Building). The plaintiff was an independent contractor employed as a part-time copywriter at Roberta Segal and Associates, situated on the fourth floor of the Doris Building.¹ The plaintiff testified that she routinely used the stairs to get to and come from the parking lot. On the night of the incident, plaintiff worked late, until 6:45 p.m. After leaving her office on the fourth floor, she realized that the hall lights were off. She turned on the lights in the hall and went through the fire door, which opened into the stairwell. The plaintiff testified that the lights on the fourth-floor landing were off, but, the stairway was lit by lights at a lower-floor landing. Rather than turn on the lights on the fourth-floor landing, she chose to walk down the stairs guided only by the lighting below. Without warning, the lights went out while plaintiff was midway between floors. She did not call out for someone to turn the lights on because she thought that she was alone and that the lights went out mechanically. She paused, hoping that her eyes would adjust to the darkness. However, plaintiff testified, the stairwell remained pitch black and she continued down the remaining stairs while holding the banister for support. She lost her footing and fell down the stairs, landing on the third-floor platform. She experienced tremendous pain in her left knee, her left hip, and both feet. After she cried out, a man turned the lights on and appeared in the stairwell to help plaintiff negotiate the remaining stairs. The plaintiff was unable to identify the man.² She drove herself home that night, and returned to work the next day.

The next day she complained to her boss and to defendant, Bliss-Doris Realty Associates, of having fallen down the stairs. She reported that someone had turned the lights out on her, and suggested that the building management install motion sensor lighting to remedy the problem. Approximately one month after the accident, motion sensors were installed, including in the stairwell where plaintiff had fallen. The defendants’ manager, Irving Schwartz (Schwartz), testified that they were installed to conserve electricity and to prevent a future accident such as the one involving plaintiff.

Schwartz testified about the policies and practices in place at the time of the accident as they pertained to maintenance of the building’s common areas. The tenants in the building, including Roberta Segal and Associates, paid a portion of their rent to maintain the common areas. Under the building lease agreement, if the operating costs for the common areas increased, the tenants paid a percentage of that increase. The lease agreement with Roberta Segal and Associates also indicated that the landlord would supply electrical lighting for the halls, stairways, and passageways diming reasonable business hours, defined as weekdays 8 a.m. to 10 p.m. and Saturdays 9 a.m. to noon. However, Schwartz testified that the cleaning crew, who worked from 5 p.m. to 10 p.m., typically turned off the lights at approximately 7 p.m. The parking lot lights remained lit until 10 p.m., and, according to Schwartz, were visible through the windows inside the stairwell that plaintiff had used.

The defendants moved for judgment as a matter of law at the close of evidence. The motion was denied, and on October 25, 2001 the jury returned a verdict for defendants. On November 5, 2001, plaintiff filed a motion for a new trial pursuant to Rule 59(a) of the Superior Court Rules of Civil Procedure. She alleged that the verdict was against the weight of evidence, and challenged the instruction given to the jury about Rhode Island’s notice requirement in negligence cases.

After a hearing held on January 4, 2002, plaintiffs motion for a new trial was granted. Based on his own independent evaluation of the evidence and testimony, the trial justice held that the court could not sustain the jury’s verdict that defendants were not negligent, and that reasonable minds could not differ in the ruling. He also said that the court committed an error of law in charging the jury on notice separately from its other negligence instructions.³

The defendants filed a timely notice of appeal. They argue that plaintiff failed to meet her burden in a premises liability case, which required proof that a defective condition existed; that defendants had notice of the dangerous condition; and that their failure to warn or make the premises safe had proximately caused plaintiffs injury. The defendants argue that the sudden switch of lights by an unknown individual does not amount to a defective condition. The defendants also argue that they could not be charged with notice when plaintiff presented no evidence suggesting that there were previous similar incidents in the stairway; that although they were bound to provide lighting until 10 p.m., pursuant to the lease with Roberta Segal and Associates, plaintiff was not a party to the contract and had no rights under the lease; and that the fair preponderance of the evidence supported the jury’s verdict.

The plaintiff argues that the trial justice properly granted the motion for a new trial. She submits that the verdict was against the weight of the fair preponderance of the evidence because defendants created an unreasonable risk in their practice of . shutting off the lights at 7 p.m. without warning foreseeable plaintiffs such as Mrs. Lieberman. The plaintiff also argues that the ' subsequent installation of motion sensor lights was conclusive proof of defendants’ negligence. Moreover, plaintiff submits that the trial justice committed an error of law in his misleading instruction to the jury on notice, given only after completing his instructions and conferring with counsel.⁴

It is well settled that in considering a motion for a new trial, “the trial justice acts as a ‘superjuror.’ ” Saber v. Dan Angelone Chevrolet, Inc., 811 A.2d 644, 652 (R.I.2002) (quoting English v. Green, 787 A.2d 1146, 1149 (R.I.2001)). The trial justice’s decision to grant or deny a motion for new trial after reviewing the evidence and commenting on the credibility of the witnesses “will not be disturbed unless he [or she] has overlooked or misconceived material and relevant evidence or was otherwise clearly wrong.” English, 787 A.2d at 1149 (quoting Kurczy v. St. Joseph Veterans Association, Inc., 713 A.2d 766, 770 (R.I.1998)). Thus, “[i]f the trial justice determines that the verdict is against the fair preponderance of the evidence, a new trial should be ordered.” Montecalvo v. Mandarelli, 682 A.2d 918, 923 (R.I.1996) (citing Barboto v. Epstein, 97 R.I. 191, 194, 196 A.2d 836, 837 (1964)). However, if the trial justice determines that reasonable minds could differ on the verdict, the jury’s verdict should not be disturbed. Saber, 811 A.2d at 652 (citing Rezendes v. Beaudette, 797 A.2d 474, 477-78 (R.I.2002)).

The law on general premises liability in Rhode Island is well settled. This Court has stated:

“[A] landowner has a duty to exercise reasonable care for the safety of persons reasonably expected to be on the premises, and that duty inclúdes an obligation to protect against the risks of a dangerous condition existing on the premises, provided the landowner knows of, or by the exercise of reasonable care would have discovered, the dangerous condition.” Tancrelle v. Friendly Ice Cream Corp., 756 A.2d 744, 752 (R.I.2000) (citing Cutroneo v. F.W. Woolworth Co., 112 R.I. 696, 698, 315 A.2d 56, 58 (1974)).

The burden of proving that “sufficient evidence existed to show that the defendants knew or should have known of an unsafe condition on their premises” is on the plaintiff. Bromaghim v. Furney, 808 A.2d 615, 617 (R.I.2002) (quoting Massart v. Toys R Us, Inc., 708 A.2d 187, 189 (R.I.1998)). Moreover, plaintiff also must prove that “the condition existed for a long enough time so the owner of the premises should have taken steps to correct the condition.” Id. (citing Barone v. Christmas Tree Shop, 767 A.2d 66, 68 (R.I.2001)).

This Court has held that a landowner’s duty of care includes an obligation to provide adequate illumination in common areas. In Lamont v. Central Real Estate Co., 110 R.I. 438, 294 A.2d 195 (1972), a landowner was held hable for injuries suffered by a business invitee because the lighting in a stairwell landing was insufficient to reveal the puffy floor tile that had caused the plaintiff to fall. However, in Lamont this Court did not state whether inadequate lighting would alone be sufficient to find liability in the absence of the defective tile.

This Court recently considered this issue in Kurczy v. St. Joseph Veterans Association, Inc., 713 A.2d 766 (R.I.1998). In Kurczy, a child was injured when he fell down an unfit, concrete stairwell at a wedding reception.⁵ This Court ruled,

“Having concluded * * * that the stairwell did in fact create a dangerous condition and that the association knew or should have known of that dangerous condition and negligently failed to warn of or to remedy the situation, a jury could not thereafter reasonably reach any conclusion other than that it was the dangerous stairwell condition that was the proximate cause of [the plaintiffs] injuries.” Kurczy, 713 A.2d at 771-72.

However, the facts in Kurczy are distinguishable from this case because, as in Lamont, the dangerous condition was not solely attributed to the lack of fighting. Rather, in Kurczy the plaintiffs asserted several dangerous conditions, including the defendant’s failure to remove leaves from the steps, and the existence of a protruding metal grate and drain-pipe near the stairs. Kurczy, 713 A.2d at 771 n. 5.

This Court’s ruling in Dodge v. Parish of the Church of the Transfiguration, 106 R.I. 342, 259 A.2d 843 (1969) most closely resembles the circumstances of this case. In Dodge, the plaintiff was a business invitee who injured herself while walking down a dimly fit churchyard sidewalk. Id. at 344, 259 A.2d at 844. This Court ruled that the landowner’s duty to maintain its premises in a reasonably safe condition “included an obligation by the church to provide adequate illumination of the cement walk * * *." Id. at 348, 259 A.2d at 846. However, “the plaintiff still must convince the jury that the defendant breached this duty, that this breach was the proximate cause of her injuries and finally, she must demonstrate her freedom from conduct which in law might be classified as contributory negligence.” Id. at 348, 259 A.2d at 847.

In the present case, we conclude that reasonable minds may differ about whether defendant was negligent. The trial justice determined that “[t]he situation was created by the defendants that would have permitted either another tenant or a worker * * * to turn off the fights * * * while somebody could have been present, causing that person to * * * injure themselves.” However, there is no case law in Rhode Island supporting the contention that the act of turning off adequately working lights is itself a defect or dangerous condition on the property. Moreover, plaintiff had access to a light switch on the fourth-floor landing that would have illuminated her path down the steps, but instead chose to rely on the lighting below. After the lights below went out, plaintiff chose to continue her descent without calling for help. We note that the trial justice accepted defendant’s installation of motion sensor lights as evidence of negligence. While such evidence is admissible under Rule 407 of the Rhode Island Rules of Evidence, the plaintiff still bears the burden of proving that defendant knew of or should have known of a dangerous condition on the premises, and failed to exercise due care to remove the dangerous condition within a reasonable time. Tancrelle, 756 A.2d at 752.

We find that the evidence in this case could have reasonably supported a verdict for either plaintiff or defendant. In particular, the jury could have concluded that defendant provided adequate lighting because there was a light switch available to plaintiff on the fourth-floor landing. Moreover, plaintiff did not allege that there was any defect in the stairwell. These facts allowed the jury to reasonably conclude that defendant was not negligent. Consequently the motion for a new trial should have been denied.

The trial justice’s second basis for granting a new trial was that he committed an error of law by instructing the jury on notice after he had completed his charge and at a bench conference with counsel realized he had not included the instruction on notice. Under this Court’s ruling in Votolato v. Merandi, 747 A.2d 455, 460-61 (R.I.2000), a decision to grant a new trial because of an error of law is subject to a de novo standard of review.

The trial justice concluded that the jury placed undue consideration on the notice instruction “in derogation of the Court’s preliminary statement to them when it charged to the jury that they were to take the instructions of the Court as a whole without relying exclusively on any one instruction standing alone as stating the law.” On review, this Court must view the instruction “as a whole in light of the meaning and interpretation that a jury composed of ordinary, intelligent lay persons would give them.” Hodges v. Brannon, 707 A.2d 1225, 1228 (R.I.1998) (quoting Montecalvo, 682 A.2d at 922). “Thus, ‘[w]e shall not exaggerate out of context a single word or phrase or sentence in an instruction; rather, the challenged portion will be examined in the context of the entire instruction.’” State v. Perry, 779 A.2d 622, 625 (R.I.2001) (quoting State v. Brezinski, 731 A.2d 711, 713 (R.I.1999) (per curiam)).

A case on point is Perry. In Perry, the criminal defendant challenged a portion of the jury instructions that reminded the jury that the' only expert witness who testified about the victim’s cause of death had appeared on behalf of the state. This Court ruled,

“the challenged statements did not im-permissibly invade the province of the jury — nor unfairly comment upon Perry’s failure to call a medical witness— particularly when they are viewed in light of the charge as a whole * * *. Significantly, the trial justice’s challenged statements were indeed accurate. Although Perry faults the trial justice’s timing and placement of these comments * * * we do not believe that this statement served to cancel out or to override all the other instructions the trial justice previously had given to the jury on this subject.” Id. at 626.

In this case, there was no indication that the jury placed undue emphasis on the instruction about notice. Moreover, the trial justice’s instruction on premises liability was correct. In Tancrelle, this Court approved a virtually identical jury instruction on premises liability. We held,

“[v]iewed in its entirety, we are satisfied that the trial court’s instruction accurately states the law in Rhode Island that a landowner has a duty to exercise reasonable care for the safety of persons reasonably expected to be on the premises, and that duty includes an obligation to protect against the risks of a dangerous condition existing on the premises, provided the landowner knows of, or by the exercise of reasonable care would have discovered, the dangerous condition.” Tancrelle, 756 A.2d at 752.

We conclude that the jury instruction was correct, and the manner in which the trial justice charged the jury on notice was not error. Therefore, granting the motion for new trial was an error.

For these reasons the defendants’ appeal is sustained, the order granting a new trial is vacated, and the papers of the case are remanded to the Superior Court for entry of judgment for the defendants.

1 . The defendant Bliss-Doris Realty Associates, L.P., also was located on the fourth floor of the Doris Building.

2 . The manager and treasurer of Bliss-Doris Realty Associates, L.P., Irving Schwartz, was designated to speak on behalf of defendants. He testified that four members of a cleaning crew, including one man, were on duty the night of February 11, 1997. However, whether the male crew member turned off the lights or was the person who helped plaintiff was not determined at trial.

3 . The trial justice had charged the jury with an extensive instruction on the standard for negligence in a premises liability case. In a side bar conference the trial justice indicated that he was not sure whether he gave the instruction on notice of danger or defect. The trial justice subsequently gave a separate notice instruction to the jury.

4 . On the element of notice, the trial justice instructed the jury as follows:

"Ladies and gentleman * * * I neglected to instruct you that in order for you to find a landowner liable, you must find that the landowner * * * either knew or should have known of a dangerous condition on the premises and failed to exercise due care to remove the dangerous condition after a reasonable time of having discovered the condition. In this case, Mrs. Lieberman must prove * * * that a dangerous condition was — existed on the premises for a sufficiently long period of time in order to have allowed and afforded the defendants with reasonable notice of the existence of the condition. And that the defendants * * * failed to remedy the condition or warn the plaintiff * * * of the dangerous condition."

5 . It should be noted that because the child's own behavior was not to blame, the parties agreed that contributory negligence was not an issue.