Supreme Court
No. 2016 -129 -Appeal. (PC 13 -5924 )

Karen Dent :

v. : PRRC, Inc., d/b/a Price Rite. :

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 222 -3258 of any typographical or other formal errors in order that corrections may be made before the opinion is published. May 22, 2018- 1

- Supreme Court
N o. 2016

- 129

- Appeal. ( PC 13

- 5924 ) (Dissent begins on Page 13)

Karen Dent :

v. : PRRC, Inc., d/b/a Price Rite. :

Pre sent: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia , JJ. O P I N I O N Justice Goldberg , for the Court. This case came before the Supreme Court on December 5 , 2017, 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 , Karen Dent (plaintiff or Dent), appeals from a final jud gment granting the motion of the defendant , PRRC, Inc. d/b/a Price Rite (defendant or Price Rite), for summary judgment on count one of the plaintiff’s complaint , and also granting the defendant’s motion to dis miss the remaining four counts. After hearing the arguments of counsel and examining the memoranda submitted by the parties, we are of the opinion that cause has not been shown and that this case should be decided without further briefing or argument. We affirm in part and vacate in part the judgmen t of the Superior Court.
Facts and Travel On August 22, 2012, plaintiff was shopping with her husband at the Price Rite store located at 325 Valley Street in Providence. The plaintiff’s husband placed two bottles of a- 2

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beverage identified as Sunny Delight 1 into their shopping cart . The product was displayed in aisle six of the store, and plaintiff then separated from her husband to locate a restroom

. Shortly thereafter, plaintiff returned to aisle six in search of her husband, but she slipped on a “brownis h oily substance ” and was immobilized. Meanwhile , a porter 2 was mopping up liquid in an adjacent aisle. 3 Coincidentally, plaintiff’s husband noted that one of the bottles of Sunny Delight in his shopping cart had been leaking , and that some of the conten ts of the bottle had spilled out as he continued to shop. David Walmsley (Walmsley) , a sto re manager at Price Rite, testified at a deposition that the Sunny Delight bottl es arrive at the store in boxes and are then transported on pallets to the area of the store where they will be displayed

. Also, Jeffrey Sparfven (Sparfven), a former Price Rite manager, testified at his deposition that t he boxes arrive from the warehouse shrink

- wrapped
i n cellophane and are unwrapped and inspected by a manager to verify t hat the quantity and qual ity of the items are correct. 4 According to Sparfven, t he receiving manager then shrink

wraps the boxes and places them in storage until they are needed , at which point a store employee once again removes the shrink

- wrap with a bo x cutter

. Walmsley al so testified that , typically , fifty boxes of Sunny Delight, with eight bottles in each box, are stacked on top of each other on the wooden pallet. According to Walmsley , no ne of the Price Rite employee s are asked

1 Sunny Delight, also referred to as “SunnyD ,” is an orange

- colored soft drink marketed a s an orang e juice

- based product and offered in a variety of flavors.

2 A porter is an employee of Price Rite whose duty it is to maintain the floors and the restrooms of the store.
3 A video , taken on Price Rite’s security camera , captures the porter mo pping the aisle adjacent to aisle six and plaintiff’s slip

- and

- fall accident. However, the video is not time

- stamped and is not continuous ly streaming, because the camera records only if it is triggered by movement in the aisle.

4 According to Sparfven , t he cellophane is cut open using a box cutter.- 3

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to inspect products for defects before they are sold in the store. Finally, Walmsley explained that the store’ s protocol for spills is: “I f [an employee] see[s] something on the floor, the protocol is for them to stand at that spot until they can get [ the ] attention of a por ter, and they stay there until the porter arrives.” On November 20, 2013, plaintiff filed a three

- count complaint against defendant ; she subsequently amended that c omplaint in February 2016. T he amended complaint consisted of five counts: negligence ; br each of contract; “ mode of o peration” ; failure to warn; and breach of the implied warranties of merchantability, fitness for use, and fitness for a particular purpose. Prior to the filing of plaintiff’s amended complaint, defendant had moved for summary j udgment on the negligence claim , arguing that Price Rite could only be liable under a theory of negligence if it knew or should have known that the dangerous condition existed for a sufficient period of time within which to remedy the dangerous condition , and that not enough time had elapsed such that defendant could be liable under the theory of constructive notice. The plaintiff objected to the motion for summary judgment, arguing that defendant had to have know n of the dangerous condition because a port er was cleaning up the spill , and that there was no question that the bottle was defective. After a hearing, t he trial justice granted defendant’s motion with respect to the negligence count , stating:

“[A] plaintiff who has fallen m ust present evidence to prevail against the owner of the premises showing that he or she fell because of an unsafe condition on the premises of which the defendant was or should have been aware and that the condition existed for a long enough period of time so the owner or occup ier of the premises should have taken steps to correct the condition * * *

. “ Dent has failed to show that there was any notice given to the defendant

. * * * [O] bviously it wasn’t so obvious that it would call attention to somebody .” (Emphasis added.)- 4

-

After plaintiff was granted leave to file an amended complaint, defendant moved to dismiss the remaining counts under Rule 12(b)(6) of the Superior Court Rules of Civil Procedure

. In its motion, defendant argued that: (1) because the parties were not in a contractual relationship , the breach

- of

- contract claim should be dismissed; (2) mode of operation is not a cause of action, but merely a means of proving notice with respect to negligence, a count which had already been dismissed; (3) the duty

- to

- warn cl aim should fail because the court had already decided that Price Rite did not have notice of the leaking bottle; and (4) the breach

- of

- warranty claims should be dismissed because no sale had occurred. In response to defendant’s motion, plaintiff filed a m otion for reconsideration of the order granting summary judgment , 5 and also moved for summary judgment under a theory of strict product liability. A hearing was held in March 2016 on defendant’s motion to dismiss the remaining counts , plaintiff’s Rule 60 motion, and plaintiff’s motion for summary ju dgment. 6 The trial justice granted defenda nt’s motion to dismiss counts 2 through 5 of plaintiff’s complaint , and accordingly den ied both of plaintiff’s
motions. The plaintiff timely appealed. On appeal , plain tiff argues that the question of whether defendant knew or should have known of the dangerous condition from the broken bottle is a disput ed issue of material fact, and therefore summ ary judgment should not have been granted . As to her breach

- of

- contract claim, plaintiff argues that defendant has a responsibility to maintain the property in a safe manner for its inten ded business invitee guests. Turning to the mode

- of

- operation count, plaintiff argues that this Court should adopt mode of operation as a di stinct cause of action. As to her failure

- to

-

5 While there is no procedural vehicle for a motion for “ reconsideration,” this Court considers such motions under Rule 60 of the Superior Cour t Rules of Civil Procedure, entitled “Relief from Judg ment or Or der.”

6 A n original transcript of this hearing was not transmitted to this Court on appeal.- 5

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warn claim, plaintiff argues that a retailer has a duty to warn consumers of dangerous or defective conditions that it knows of, or reasonably should have known of, and therefore the trial justice erred in dism issing this claim

. Finally, plaintiff contends that her breach

- of

- warranty claims were properly ple d ; she therefore asks this Court to reverse the trial justic e and enter summary judgment in her favor on this coun t. We address these issues seriatim

. Sta ndard of Review This Court reviews a trial justice’s decision granting summary judgment de novo. See Sola v. Leighton , 45 A.3d 502, 506 (R.I. 2012); Lynch v. Spirit Rent

- A

- Car, Inc. , 965 A.2d 417, 424 (R.I. 2009 ). It is well established that “ [ s ] ummary j udgment is a drastic remedy, and a motion for summary judgment should be dealt with cautiously.” Cruz v. D ai mler Chrysler Motors Corp. , 66 A.3d 446, 451 (R.I. 2013) ( quoting DeMaio v. Ciccone , 59 A.3d 125, 129 (R.I. 2013)). Moreover, “[s]ummary judgment i s appropriate only when the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment

as [a] matter of law.’” Sola , 45 A.3d at 506 (quoting Plunkett v. State , 869 A.2d 1185, 1187 (R.I. 2005)) . This Court has held that “complaints sounding in negligence generally are not amenable to summary judgment and should be resolved by fact finding a t t he trial court * * *. ” Berard v. HCP, Inc. , 64 A.3d 1215, 1218 (R.I. 2013) ; see Martin v. Marciano , 871 A.2d 911, 915 (R.I. 2005). In passing on a Rule 12(b) motion to dismiss, “this Court applies the same standard as the trial justice.” Narragansett El ec tric Co. v. Minardi , 21 A.3d 274, 278 (R.I. 2011)

. “We thus are confined to the four corners of the complaint and must assume all allegations are true, resolving any doubts in plaintiff’s favor.” Id. Additionally, “[a] motion to dismiss may be granted only ‘if- 6

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it appears beyond a reasonable doubt that a plaintiff would not be entitled to relief under any conceivable set of facts[.]’” Id. (quoting Estate of Sherman v. Almeida , 747 A.2d 470, 473 (R.I. 2000)). Analysis Negligence It is well

- settled juri sprudence that “to prevail on a claim of 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 da mage.’” Habershaw v. Michaels Stores, Inc. , 42 A.3d 1273, 1276 (R.I. 2012) (quoting Holley v. Argonaut Holdings, Inc. , 968 A.2d 271, 274 (R.I. 2009)). Specifically, with respect to a slip

and

- fall claim , a plaintiff “must present evidence of an unsafe co ndition on the premises of which the defendant was aware or should have been aware, and that the condition existed for a long enough time so the owner of the premises should have taken steps to correct [it].” Id. (quoting Bromaghim v. Furney , 808 A.2d 615 , 617 (R.I. 2002)); see also Barone v. Christmas Tree Shop , 767 A.2d 66, 68 (R.I. 2001); Massart v. Toys R Us, Inc. , 708 A.2d 187, 189 (R.I. 1998). This burden is not insurmountable , and may be established through circumstantial evidence. It is undispute d that defendant , in its capacity as a business owner, owed a legally cognizable duty to plaintiff , a customer in its retail establishment. Common law premises liability “imposes an affirmative duty upon owners and possessors of property[ ] to exercise

re asonable care for the safety of persons reasonably expected to be on the premises * * * includ[ing] 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 reasona ble care would have- 7

-

discovered, the dangerous condition.” Cooley v. Kelly , 160 A.3d 300, 304 (R.I. 2017) (quoting Kurczy v. St. Joseph Veterans Association, Inc. , 820 A.2d 929, 935 (R.I. 2003)). This Court has consistently held that:

“[T] he common law d istinctions between invitees and licensees have long been abolished. * * * Instead, our courts apply a reasonableness test to premises liability actions, requiring the determination of whether a landowner has satisfied his or her ‘affirmative duty to exerc ise reasonable care for the safety of all people reasonably expected to be upon the premises.’” Phelps v. Hebert , 93 A.3d 942, 946

- 47 (R.I. 2014) (quoting Bucki v. Hawkins , 914 A.2d 491, 495 (R.I. 2007)). Having overcome the hurdle to establish that def endant owed plaintiff a legally cognizable duty, plaintiff was then entitled to a factual determination with respect to whether defendant had notice, actual or constructive, of the dangerous condition on its premises

— which if answered in the affirmative, w ould amount to negligence. See Wyso v. Full Moon Tide, LLC , 78 A.3d 747, 750 (R.I. 2013)

. This Court has adhered to the long

- standing principle that

“ [g]enerally, the question of negligence is a question of fact to be determined by the jury * * *. ” Clar ke v. Rhode Island Electric Lighting Co. , 16 R.I. 463, 465, 17 A. 59, 60 (1889) ; see also Berard, 64 A.3d at 1218 ; Volpe v. Gallagher , 821 A.2d 699, 705 (R.I. 2003) (“[I] t is still the function of the jury to determine the existence of those predicate fact s that trigger the presence of the legal duty.”)

. We note at the outset of this analysis that summary judgment in accordance with Rule 56 is issue determination , not issue resolution. In carrying out this function, we do not deem it necessary to view t he voluminous video surveillance evidence or scour deposition testimony or indeed to weigh that evidence to determine whether the evidence, viewed in its totality, and in the light most favorable to plaintiff, leads us to conclude, as we do unequivocally, that this case presents us with genuine issues of material fact that are committed to the factfinder.- 8

-

At the summary

-

judgment hearing, plaintiff’s negligence count hinged on whether
defendant knew or sh ould have known about the presence of liquid on the f loor that caused plaintiff’s fall. This is a question of fact for the jury , not for the trial justice at the summary judgment stage

. See Mead v. Papa Razzi Restaurant , 840 A.2d 1103, 1108 (R.I. 2004). We note that, in general, “issues of negligence are ordinarily not susceptible of summary adjudication, but should be resolved by trial in the ordinary manner.” Gliottone v. Ethier , 870 A.2d 1022, 1028 (R.I. 2005) (quoting Rogers v. Peabody Coal Co. , 342 F.2d 749, 751 (6 th Cir. 1965)). This Court “frown[s ] upon the disposition of negligen ce claims by summary judgment * * *. ” Wyso , 78 A.3d at 750. The sole issue before the trial justice was whether or not there were genuine issues of material fact as to defendant’s notice o f the spill that would preclude summary judgment. It was not the function of the trial justice to decide those issues or to comment on the probative value of the evidence. See Hill v. National Grid , 11 A.3d 110, 114 (R.I. 2011) (“[M] otions for summary judgment should be denied where ge nuine issues of material fact are present.”)

. In viewing the evidence in the lig ht most favorable to plaintiff, we conclude that plaintiff satisfied her burden of “prod uc[ing] competent evidence that prove [ s ] the existence of a disputed issue of material fact [

. ] ” Wyso , 78 A.3d at 750 (quoting Sullo v. Greenberg , 68 A.3d 404, 406 (R.I. 2013)). The plaintiff put forth a video taken by defenda nt’s security camera that depict s plaintiff slipping and falling in an aisle of defendant’s st ore. Significantly, the camera records only when it is triggered by movement in the aisle and does not record continuously, thus creating the existence of a question of fact with respect to how long the dangerous condition existed before plaintiff slipped and fell. Additiona lly , plaintiff presented deposition testimony- 9

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from defendant’s employees that, at the very least, raise s an issue of material fact with respect to defendant’s safet y procedures or lack thereof. Moreover, we are of the opinion that the trial justice committ ed reversible error when he weighed the evidence in his decision granting summary judgment. It is the function of the jury to determine the significance and weight of the evidence that relate s to the claim of negligence, and a trial justice should not “ar rogate to [himself] the function of determining such facts under the guise of deciding what legal duty (if any) is owe d to the plaintiff * * *. ” Volpe , 821 A.2d at
70 5. Here, the trial justice unequivocally undertook a factual determination when he state d:

“I have trouble accepting that if that’s the case then it would have been leaking when the person picked it up, when your client picked it up or your client’s husband picked it up, and it would have been less

—unless he picked it up within an instant aft er that package was put there and there is no evidence of that.” Additionally, the trial justice found :

“Although Dent has argued that a porter had noticed the drops, whatever the substance was, and began cleaning them on a different aisle before Dent fel l, this is not established in the record. I interrupted argument to allow us to look at the video and cannot show

— it’s clear that he was mopping another aisle[ ], but there is no indication that that mopping occurred prior to the mopping in Aisle 6. Ther e is nothing to

— Dent has failed to show that there was any notice given to the defendant. In fact, there are people who are walking down Aisle 6 before she fell. They don’t appear to stop. They don’t appear to look at anything. They don’t appear to cal l attention to anything. That doesn’t necessarily mean that the substance wasn’t there. It just means that obviously it wasn’t so obvious that it would call attention to somebody. It appears that once she fell, obviously the porter came and started mopp ing. ” (Emphasis added.)
We are of the opinion that the trial justice’s statements reflect opinion

- based credibility and factual evaluations of t he evidence presented in this case, an impermissible function at the
summary - judgment stage

.- 10

-

We pause to add ress defendant ’s argument that plaintiff failed to prove an essential element of her claim

— notice

—

because she failed to produce evidence with respect to the length of time the liquid substance was o n defendant’s floor. The d efendant cite s to Barone and
Ma ssart , both cited supra , to support its position that plaintiff was required to present evidence showing that she fell because of an u nsafe condition on the premises , of which defendant was aware or should have been aware , and that the condition existed f o r a long enough period of time that defendant should have corrected it. See Barone , 767 A.2d at 68 ; Massart , 708 A.2d at 188

. The d efendant’s reliance on Barone and Massart is misplaced and is of no moment to the case at bar , because those cases were dec ided at trial, in the conte x t of motions for judgment as a matter of law. T here is no requirement a t the summary

- judgment stage for a plaintiff to produce direct evidence of how long a spill has existed on a floor , because this fact is capable of circumst antial proof

. W e have never required a plaintiff to produce direct evidence , and we do not require that now. The temporal aspect of a slip

- and

- fall case can be proven by circumstantial evidence, which is presented to the factfinder. Accordingly, we vaca te the judgment granting summary judgment for defendant.

Breach of Contract , Failure to Warn, and Breach of Implied Warranty We now turn to plaintiff’ s claim s for breach of contract , failure to warn, and breach of warranty . On appeal, plaintiff alleges that she entered defendant’s store as a business invitee, in anticipation of paying adequate consideration for its products , and that defendant breached this contract by failing to maintain the property in a safe manner. It appe ars that plaintiff is
attem pting to shoehorn a straightforward premises

- liability claim into a breach

- of

- contract claim. The basis of plaintiff’s b reach

- of

- contract claim is that de fendant failed to maintain its property in a safe condition. As previously noted , common law premise s liability imposes a duty on- 11

-

landowners to “exercise reasonable care for the safety of persons reasonably e xpected to be on the premises * * *. ” Cooley , 160 A.3d at 304 (quoting Kurczy , 820 A.2d at 935 ). Having already addressed plaintiff’s negligence c laim, we need not delve any further into the mischaract erized breach

- of

- contract claim; a dismissal was proper. Accordingly, we affirm that portion of the judgment dismissing plaintiff’s breach

- of

- contract claim. Similarly, plaintiff’s failure

- to

- warn c laim is simply another inaccurately articulated negligence claim. A duty to warn arises when a defendant has notice of the dangerous propensities of a product. See Thomas v. Amway Corp. , 488 A.2d 716, 721 (R.I. 1985); Scittarelli v. Providence Gas Co. , 4 15 A.2d 1040, 10 43 (R.I. 1980). Having already determined that genuine issues of material fact remain with respect to whether defendant had notice of the spill, we need not address this duplicitous claim

. Therefore, we affirm the d ismissal of plaintiff’s
failure

- to

- warn claim. Lastly, plaintiff’s breach

- of

- warrant y claims are without merit because there was not a sale under the facts before us. A claim for breach of impl ied warranty of merchantability requires a plaintiff to “prove that the product is d efective, that it was in a defective condition at the time it left the hands of the seller, and that said defect is the proximate cause of the injury.” Lariviere v. Dayton Safety Ladder Co. , 525 A.2d 892, 896 (R.I. 1987) (quoting Plouffe v. The Goodyear T

ire & Rubber Co. , 118 R.I. 288, 294, 373 A. 2d 492, 495 (1977)). Moreover,
G.L. 1956 § 6A

- 2

- 314 provides that “a warranty that the goods shall be merchantable is implied
in a contract for their sale if the seller is a merchant with respect to goods of that kind.” (Emphasis added.) It is inconceivable that plaintiff could succeed on a claim of breach of impl ied warranty of merchantability when a co ntract for sale was never realized

.- 12

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Likewise, a breach of implied warranty of fitness for a particula r purpose “arises when the seller has reason to know the buyer’s particular purpose and that the buyer is relying on the seller’s skill or judgment to furnish appropriate goods and the buyer relies on the seller’s skill or judgment.” Lariviere , 525 A.2d a t 897. A claim of breach of implied warranty of fitness for a particular purpose is meritorious only if a sale has actually occurred. Our applicable statute
states: “Where the seller at the time of contracting has reason to know any

particular purpose fo r which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is, unless excluded or modified under the next section, an implied warranty that the goods shall be fit for such purpo se.” Section 6A

- 2

- 315 (emphasis added). The plaintiff’s claim of breach of implied warranty of f itness for a particular purpose must also be dismissed in light of the fact that plaintiff and defendant never entered into a cont ract for the sale of the Su nny Delight; therefore, plaintiff is not entitled to relief beyond a reasonable doubt.
See Laurence v. Sollitto , 788 A.2d 455, 456 (R.I. 2002)

. Mode of Operation Lastly, in her amended complaint, plaintiff asserted a claim under the theory of “ mode of operation ” that is separate and distinct from her negligence claim. The plaintiff contends that mode of operation is not a form of negligence, but rather modifies how the notice requireme nt of premises liability is met; she cite s to Massachusetts common l aw in support of her position. See Sheehan v. Roche Brothers Supermarket s , Inc. , 863 N.E.2d 1276, 1283 (Mass. 2007). However, the Massachusetts Supreme Judicial Court declared in Sheeha n that “the adoption of the mode of operation approach will not modif y the general rule governing premises liability requiring a plaintiff to prove that an owner had either actual or constructive notice of an unsafe condition on the premises.” Id. at 1286. Mode of operation does not constitute a distinct cause of ac tion, but- 13

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rather is a theory that alters the burden of proving actual or constructive notice in premises liability cases. See id. at 1286 n.9 (“Adoption of the mode of operation approach is not an adoption of a wholly new law, but merely a refinement of the ele ments of proof in premises liability cases.”)

. We are satisfied that the issue of mode of operation does not give rise to a distinct claim in a negligence action. Recently, t his Court had occasion to consider the viability of mode of operation in the sl ip

- and

- fall context . In Bates

- Bridgmon v. Heong’s Market, Inc. , 152 A.3d 1137 (R.I. 2017), the plaintiff assigned error to the refusal of the trial justice to instruct the jury on the theory of mode of operation. Bates

- Bridgmon , 152 A.3d at 1145. We det ermined that the plaintiff failed to request an instruction on mode of operation , and we declined to adopt the theory under our supervisory powers in the face of a record that was devoid of any argument or analysis at the trial level. See i d. We decline to do so at this juncture. Accordingly, we affirm the dismissal of the plaintiff’s mode of operation count. Conclusion For the reasons set forth herein, we vacate the judgment of the Superior Court granting summary judgment in favor of the defendant on t he plaintiff’s negligence claim, and we affirm the dismissal of the remaining counts of the plaintiff’s complaint. The papers may be remanded to the Superior Court.

Justice Robinson , dissenting . I must respectfully but most vigorously record my dissent from the majority’s opinion in this case. It is my position that Karen Dent failed to point to any evidence , direct and/or circumstantial , on the basis of which one could infer that PRRC, Inc. d/b/a Price Rite (Price Rite), had actual or constructive knowledge of the spill which purportedly- 14

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cause d her to fall and sustain an injury. For that reason, I am definitely of the opinion that summary judgment was appropriately granted in this case. I am well aware of the following normative consideration relative to motions under Rule 56 of the Superior C ourt Rules of Civil Procedure in negligence cases: “ In Rhode Island the general rule is that negligence is a question for the jury unless the fac ts warrant only one conclusion.” 1 DeNardo v. Fairmount Foundries Cranston, Inc. , 121 R.I. 440, 448, 399 A.2d
1 229, 1234 ( 1979) ; see also Gliottone v. Ethier , 870 A.2d 1022, 1028 (R.I. 2005) . However, as one reflects upon that fundamental principle, it is important n ot to gloss over the adjective “general” as well as the explicit “unless” clause in the just

- quoted sentence. Stated differently, the law is clear that there can be cases (exceptional perhaps, but real nonetheless) where summary judgment is appropriate even in the context of a case of alleged negligence. See generally Haynes v. Alfred A. Knopf Inc. , 8 F.3d 1222, 1234 (7th Ci r. 1993) (Posner, C. J.) (“ [S]ummary judgment is prope rly granted to a defendant when on the basis of the evidence obtained in pretrial discovery no reasonable jury could rend er a verdict for the plaintiff.” ) ; see also Wray v. Green , 126 A.3d 476, 479

- 80 (R.I. 2015) . In my judgment, this is one of those

cases. We have been repeatedly explicit with respect to a plaintiff’s burden when a defendant moves for summary judgment: the plaintiff has the burden of “produc[ing] competent evidenc e t[o] prove[] the existence of a disputed issue of material fact[.]” Moura v. Mortgage Electronic

1 Over the years, I have repeatedly articulated my conviction that disposition of civil cases by summary judgment is a procedural tool that should be engaged in with particular caution and circumspection. See , e.g. , DeMaio v. Ciccone , 59 A.3d 125, 129 (R.I. 2013) (“ Summary judgment is a drastic remedy, and a motion for summary judgment s hould be dealt with cautiously.” ); Estate of Giuliano v. Giuliano , 949 A.2d 386, 390 (R.I. 2008 ). I have also joined in opini ons of this Court to the effect that only rarely should negligence cases be disposed of by that mechanism. See , e.g. , Limoges v. Nalco Co. , 157 A.3d 567, 571 (R.I. 2017) ; Gliottone v. Ethier , 870 A.2d 1022, 1028 (R.I. 2005). However, rarely does not mean never.- 15

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Registration Systems, Inc. , 90 A.3d 852, 856 (R.I. 2014) (internal quotation marks omitted) ; see Wyso v. Full Moon Tide, LLC , 78 A.3d 747, 750 (R.I. 2013); DeM arco v. Travelers Insurance
Co. , 26 A.3d 585, 605 (R.I. 2011); Cullen v. Lincoln Town Council , 960 A.2d 246, 248 (R.I. 2008). While a plaintiff confronted with a summary judgment motion need not “disclose * * * all [his or her] evidence, [said plaintif f] must demonstrate that he [ or she] has evidence of a substantial nature, as distinguished from legal conclusions, to dispute the moving party on material issues of fact.” Mruk v. Mortgage Electronic Registration Systems, Inc. , 82 A.3d 527, 532 (R.I. 201 3)

. Put another way, the plaintiff “ cannot rest on allegations or denials in the pleadings or on conclusions or legal opinions.” Cooley v. Kelly , 160 A.3d 300, 304 (R.I. 2017) (internal quotation marks omitted); see Habershaw v. Michaels Stores, Inc. , 42 A.3d 1273, 1275 (R.I. 2012); Empire Acquisition Group, LLC v. Atlantic Mortgage Co., Inc. , 35 A.3d 878, 882 (R.I. 2012) . Failure to abide by the above

- cited principles as to the non

- movant’s responsibility
in the Rule 56 context can be fatal to the non

- movant. See Rohena v. City of Providence , 154 A.3d 935, 938 (R.I. 2017) (“Because the plaintiff failed to produce evidence showing that the city possessed the requisite knowledge to have ‘willfully or maliciously’ failed to guard or warn of a known danger , this argument does not carry the day.”). In this premises liability case, one of the es sential elements that plaintiff was required to prove in order to prevail is that Price Rite had actual or constructive notice of the unsafe condition that purportedl y caused her to fall. See Cooley , 160 A.3d at 304

- 05. Accordingly, when confronted with a summary judgment motion filed by defendant, she was required to produce competent evidence of either actual or constructive notice

. Moura , 90 A.3d at 856.
A fter m y thorough perusal of the record in this case and viewing all of the evidence in the light most favorable to plaintiff , I am unable to conclude that she produced any such evidence , either- 16

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direct or circumstantial

. The majority relies on the following evid ence as predicates for its conclusion that plaintiff satisfied her burden of production as the non

- moving party under Rule
56 : a “video taken by defendant’s security camera * * * depict [ ing ] plaintiff slipping and falling in an aisle of defendant’s store” and “deposition testimony from defendant’s employees * * * .” The video in question shows what happened at the moment that plaintiff slipped. 2 The majority

2 I consider it important to clarify certain statement s made in the Facts and Travel portion of the majority opinion with respect to the video tape evidence at issue. The following are the statements in that opinion to which I am referring:

“[P]laintiff returned to a isle six in search of her husband, but she slipped on a ‘brownish oily substance’ and was immobilized. Meanwhile, a porter[] was mopping up liquid in an adjacent aisle. 3 ”
Footnote 3 that relates to the just

- quoted sentences reads as follows:

“A video, ta ken on Price Rite’s security camera, captures the porter mopping the aisle adjacent to aisle six and plaintiff’s slip

- and

- fall accident. However, the video is not time

- stamped and is not continuous ly str eaming , because the camera records only if it is tri g gered by movement in the aisle

. ” In my judgment, neither of those statements is wholly accurate

. When one reviews the video footage in this case , it is clear that , o f the many videos contained in the record, no single video shows both plaintiff’s slip and fall as well as a porter mopping in an adjacent aisle. In actuality , there is a video of aisle six , which shows plaintiff’s slip and fall , and another video of an adjacent aisle , which shows a porter mopping. However, as the majority candidly n otes , these video s are not time

- stamped , nor are they continuous streaming videos. As such, we have no way of knowing that plaintiff slipped and fell while (the majority says “[m]eanwhile” ) a porter was mopping in an adjacent aisle. We know only that tho se two events happened , but there is no evidence in the record that they happened contemporaneously. Indeed, plaintiff’s counsel conceded as much to th e hearing justice , stating that “[t]here is no absolute way to absolutel y determine that because of timestamps.” ( It is clear from the record that , in referencing time stamps, plaintiff’s counsel was referring to the lack of time stamps on the surveillance video s . ) Additionally, in the bench decision that he rendered just after viewing the videos which plaintiff asserted were relevant to her case, the hearing justice made the following statement with respect to the evidence of the porter mopping in an adjacent aisle : “Although Dent has argued that a porter had noticed the drops, whatever the substance w as, and began cleaning them on a different aisle before Dent fell, this is not established in the record.”- 17

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opinion correctly states that the video did not record continuously and was triggered by
movement. That fact alone, however, does not create, as the majority seems to contend, an issue of material fact. I agree with the majority that it is unclear from the video how long the liquid on whic h p laintiff slipped had been present on the floor . H owever , it was not plaintiff’s burden to point to evidence only to show that it was not clear how long the spill was present on the floor ; rather, she was required to point to competent evidence based on wh ich one could infer that the spill existed , at the location in question, for such a duration as to amount to constructive notice. The video in question does not in any way support an inference that the spill existed for a long enough time to amount to con structive notice ; and , for that matter, it does not establish a genuine issue of material fact

. Pimentel v. Deut sche Bank National Trust Co. , 174 A.3d 740, 744 (R.I. 2017) (“[A] demonstration of mere factual disputes will not defeat summary judgment; the requirement is that there be no genuine issue of material fact. ”) (emphase s in original) (internal quotation marks omitted). The plaintiff based her objection to defendant’s summary judgment
motion on nothing more than conjecture and speculation and facts of a non

- probative nature; so scantily supported an objection is insufficient to permit the non

- movant to survive a motion for summary judgment. See , e.g. , Habershaw , 42 A.3d at 1274

- 75, 1277 (deposition testimony by the plaintiff that the floor where sh e slipped and fell was “shiny” was not “competent evidence of defendant’s negligence and plaintiff’s allegation [was] nothing more than conjecture or speculation”) (internal quotation marks omitted)

. The majority also relies upon what it characterizes as t he “deposition testimony from defendant’s employees.” The majority, however, does not provide any explanation with respect

I would add as well that , even if I were to accept the facts exactly as set forth by the majority, it would not alter my belief that Ms. Dent failed to produce competent evidence to survive summary judgment.- 18

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to w hat specific statements of the employees it is relying upon. Contained in the record are the deposition s of Jeffrey O. Sparfven , a former Price Rite store manager; David Walmsley, a current (at the ti me of deposition) store manager; and Brian Betances, a former assistant
manager. H owever, after my thorough review of the deposition testimony of all three individuals , I remain entr enched in the belief that Ms. Dent has presented no competent evidence

on the basis of which on e could infer that there was actual or constructive notice in this case.
W e have repeatedly stated that “s ummary judgment should enter against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s

case * * *.” Holley v. Argonaut Holdings, Inc. , 968 A.2d 271, 274 (R.I. 2009) (internal quotation marks omitted); see Genao v. Litton Loan Servicing, L.P

. , 108 A.3d 1017, 1021 (R.I. 2015) ; see also Lavoie v. North East Knitting, Inc. , 918 A.2d 225, 228 (R.I. 2007) ( “[C]omplete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” ) (alterat ion in original) (internal quotation marks omitted). Ms. Dent has failed to make such a showing in this case. Accordingly, in my judgment, summary judgment was appropriately entered against her. See Cooley , 160 A.3d at 305 (stating that “our review of t he testimony presented by * * * plaintiff[] has disclosed no evidence of knowledge, actual or constructive, of a dangerous condition on * * * defendant’s part. * * * And [w]hen no evidence of * * * defendant’s negligence exists, the granting of [summary ju dgment] by the trial ju stice is legally required ”) (internal quotation marks omitted). For the foregoing reasons, I must record my vigorous dissent from the majority’s opinion in this summary judgment case.STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

SUPREME COURT

– CLERK’S OFFICE OPINION COVER SHEET

Title of Case Karen Dent v. PRRC, Inc., d/b/a Price Rite. Case Number No. 2016

- 129

- Appeal. (PC 13

- 5924) Date Opinion Filed May 22, 2018 Justices Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ. Written By Associate Justice Maureen McKenna Goldberg Source of Appeal Providence County Superior Court Judicial Officer From Lower Court Assoc iate Justice Richard A. Licht

Attorney(s) on Appeal For Plaintiff: Rondal J. Resmini, Esq.
For Defendant: Douglas L. Price, Esq. Matthew Ryan O’Connor, Esq.

SU

- CMS

- 02A (revised June 2016)