Opinion
C. A. WC-2018-0221
01-10-2020
JENNIE A. CHRISTOFARO and DAVID CHRISTOFARO v. SHAWS SUPERMARKETS, INC., BIMBO BAKERIES USA, INC., and DONALD PELLEGRINO, JR.
For Plaintiff: Brittanee N. Bland, Esq. For Defendant: Thomas A. Pursley, Esq. David R. Walsh, Esq.
For Plaintiff: Brittanee N. Bland, Esq.
For Defendant: Thomas A. Pursley, Esq. David R. Walsh, Esq.
DECISION
TAFT-CARTER, J.
Before this Court for decision is Defendant Shaws Supermarkets, Inc.'s (Defendant) Motion for Summary Judgment. Defendant seeks judgment with respect to all counts of the Complaint dated April 26, 2018. Plaintiffs Jennie A. Christofaro and David Christofaro (collectively, Plaintiffs or the Christofaros) object to Defendant's motion. Jurisdiction is pursuant to Super. R. Civ. P. 56.
I
Facts and Travel
This action arises from injuries that Jennie A. Christofaro (Jennie) sustained on August 30, 2016 while shopping with her mother at Shaws Supermarket on Old Tower Hill Road in Wakefield, Rhode Island. Compl. ¶¶ 5, 12. While in the bread aisle, Jennie was struck on the back of her leg by a dolly stacked with pallets of bread products. Id. ¶ 5. The dolly was being pushed by Donald Pellegrino, Jr. (Mr. Pellegrino), a distributor hired by Bimbo Foods Bakeries Distribution, LLC (Bimbo Bakeries). Id. ¶¶ 5-6; Def.'s Mem. Supp. Mot. Summ. J. at Ex. C. At the time of the incident, Mr. Pellegrino was using the dolly to stock store shelves. Pls.' Mem. Opp'n. Mot. Summ. J. at 1. After the incident, Jennie was treated at South County Hospital for a laceration to her left ankle. Id. at 2. Jennie eventually underwent surgery to her Achilles tendon. Id.
Bimbo Bakeries USA, Inc. was incorrectly identified as a defendant in this action. The correct defendant is Bimbo Foods Bakeries Distribution, LLC. Def.'s Mem. Supp. Mot. Summ. J. at Ex. B.
Plaintiffs filed the instant action on April 26, 2018, alleging two counts. See Compl. In Count I of the Complaint, the Christofaros allege that Bimbo Bakeries is liable for their injuries because Mr. Pellegrino was an agent or employee of Bimbo Bakeries and was operating equipment within the scope of his employment or agency when Jennie was injured. Compl. ¶ 6. Jennie seeks damages from Mr. Pellegrino and Bimbo Bakeries for medical expenses, lost wages, and pain and suffering, and David Christofaro (David) seeks damages for loss of consortium. Compl. ¶¶ 7, 8.
In Count II, the Christofaros allege that Defendant owed them a duty of care to keep its premises reasonably safe for persons reasonably expected to be on the premises; that Defendant breached that duty of care; and Defendant caused their injuries. Id. ¶¶ 14-16. Jennie seeks damages from Defendant for medical expenses, lost wages, and pain and suffering. Compl. ¶ 17. David seeks damages from Defendant for loss of consortium. Id. ¶ 18.
Defendant filed its Motion for Summary Judgment on August 8, 2019. Plaintiffs filed their objection to the instant motion on October 8, 2019. The parties appeared before the Court for argument on November 18, 2019. The Court reserved its decision.
II
Standard of Review
"Summary judgment is appropriate when no genuine issue of material fact is evident from 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' and the motion justice finds that the moving party is entitled to prevail as a matter of law." Swain v. Estate of Tyre ex rel. Reilly, 57 A.3d 283, 288 (R.I. 2012) (quoting Beacon Mutual Insurance Co. v. Spino Brothers, Inc., 11 A.3d 645, 648 (R.I. 2011) (internal quotation omitted)). The moving party "bears the initial burden of establishing the absence of a genuine issue of fact." McGovern v. Bank of America, N.A., 91 A.3d 853, 858 (R.I. 2014) (citation omitted). The Court "views the evidence in the light most favorable to the nonmoving party[, ]" Mruk v. Mortgage Electronic Registration Systems, Inc., 82 A.3d 527, 532 (R.I. 2013), and "does not pass upon the weight or the credibility of the evidence[, ]" Palmisciano v. Burrillville Racing Association, 603 A.2d 317, 320 (R.I. 1992). Thereafter, "'the nonmoving party bears the burden of proving by competent evidence the existence of a disputed issue of material fact and cannot rest upon mere allegations or denials in the pleadings, mere conclusions or mere legal opinions.'" Mruk, 82 A.3d at 532 (quoting Daniels v. Fluette, 64 A.3d 302, 304 (R.I. 2013)).
"'The existence of a legal duty is purely a question of law, and the court alone is required to make this determination.'" Volpe v. Gallagher, 821 A.2d 699, 705 (R.I. 2003) (quoting Kuzniar v. Keach, 709 A.2d 1050, 1055 (R.I. 1998)); see also Rock v. State, 681 A.2d 901, 903 (R.I. 1996) (explaining that "as a general rule the existence of a duty is a question for the court and not for the jury") (citation omitted)). "'[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. . . .'" Newstone Development, LLC v. East Pacific, LLC, 140 A.3d 100, 103 (R.I. 2016) (quoting Lavoie v. North East Knitting, Inc., 918 A.2d 225, 228 (R.I. 2007)).
III
Analysis
A
Vicarious Liability
The crux of this dispute involves the Court answering the question of whether Mr. Pellegrino is an employee of the Defendant or an agent of Bimbo Bakeries. Def.'s Mem. Supp. Mot. Summ. J. at 7; Pls.' Mem. Opp'n. Mot. Summ. J. at 3. Defendant argues that it is not vicariously liable for Mr. Pellegrino's alleged negligence because Mr. Pellegrino was not its employee or agent. Def.'s Mem. Supp. Mot. Summ. J. at 7. Defendant reasons that its position is supported by the lack of contractual privity between it and Mr. Pellegrino; its lack of control over the means and methods of Mr. Pellegrino's work; and the existence of the distribution agreement between Bimbo Bakeries and Mr. Pellegrino. Id. Plaintiffs, on the other hand, argue that Defendant is not entitled to summary judgment as there is a genuine issue of material fact regarding whether Mr. Pellegrino is an independent contractor. Pls.' Mem. Opp'n Mot. Summ. J. at 3. They argue that the distribution agreement between Bimbo Bakeries and Mr. Pellegrino does not define the relationship between Defendant and Mr. Pellegrino; and Article 7 of the distribution agreement gives Defendant the power to control the means and methods of Mr. Pellegrino's work. Id. at 4-5. Furthermore, Plaintiffs argue that Defendant's right to control Mr. Pellegrino creates a genuine issue of material fact of whether Mr. Pellegrino was an employee or an agent of Defendant as opposed to an independent contractor.
As a general rule, "a party who employs an independent contractor generally will not be liable for the negligence of that contractor." Konar v. PFL Life Insurance Co., 840 A.2d 1115, 1117 (R.I. 2004) (citing Bromaghim v. Furney, 808 A.2d 615, 617 (R.I. 2002) (per curiam)) (citing East Coast Collision & Restoration, Inc. v. Allyn, 742 A.2d 273, 275 (R.I. 1999) (per curiam)). There are, however, exceptions to this general rule.
The rule does not apply when the independent contractor is engaged to perform inherently dangerous work. East Coast Collision & Restoration, Inc., 742 A.2d at 275. "[T]here are two types of inherently dangerous activities: generically hazardous activities-those which pose a danger regardless of the skill with which they are undertaken-and those activities which are dangerous under particular circumstances." Barry A. Lindahl, 1 Modern Tort Law: Liability and Litigation § 8:18 (2nd ed. 2019). Courts consider the factors delineated in Restatement (Second) Torts § 520 (1977) when analyzing whether an activity is ultra-hazardous or abnormally dangerous. Volpe, 821 A.2d at 711. Those factors include:
"(a) existence of high degree of risk of some harm to the person, land or chattels of others;
"(b) likelihood that the harm that results from it will be great;
"(c) inability to eliminate the risk by the exercise of reasonable care;
"(d) extent to which the activity is not a matter of common usage;
"(e) inappropriateness of the activity to the place where it is carried on; and
"(f) extent to which its value to the community is outweighed by its dangerous attributes."Id. (quoting Splendorio v. Bilray Demolition Co., 682 A.2d 461, 466 (R.I. 1996)). "Those factors are to be viewed as a whole and the weight apportioned to each should be dependent upon the facts in each particular case." Splendorio, 682 A.2d at 466 (citation omitted). An activity is not abnormally dangerous, however, "if the risks therefrom could be limited by the exercise of reasonable care." Id. (citation omitted).
In Volpe, the Rhode Island Supreme Court held that firearms are "so inherently dangerous * * * that a person of ordinary prudence in the exercise of reasonable care will take cautious preventive measures commensurate with the great harm that may ensue from the use of the gun by someone unfit to be entrusted with it." 821 A.2d at 712 (quoting Stoelting v. Hauck, 32 N.J. 87, 159 A.2d 385, 389 (1960)). Other examples of inherently dangerous activities include the use of dynamite, delivery of gasoline, creation of excavations, openings, or obstructions in a street, trenching, and demolition in a crowded section of a city. 30 C.J.S. What work is inherently dangerous § 265 (2019).
Here, Plaintiffs argue that there is a genuine issue of material fact as to whether Mr. Pellegrino's use of the dolly constitutes an inherently dangerous activity. Pls.' Mem. Opp'n Mot. Summ. J. at 7. The use of a dolly is not an inherently dangerous activity. While Jennie was injured by the dolly, there is no evidence in this record that the use of the dolly was inappropriate. Any risks that may arise from its use can be limited by the exercise of due care. See Splendorio, 682 A.2d at 466. Further, when using a dolly, as opposed to a gun or dynamite, a person of ordinary prudence exercising reasonable care would not typically take cautious measures "commensurate with the great harm" that would occur if an unfit person were using it. See Volpe, 821 A.2d at 712.
Second, the general rule is inapplicable when the one who engaged the independent contractor assumes a duty to supervise the independent contractor's work. East Coast Collision & Restoration, Inc., 742 A.2d at 275. "'[T]he test [as to] whether a person is an independent contractor is based on the employer's right or power to exercise control over the method and means of performing the work and not merely the exercise of actual control.'" Cayer v. Cox Rhode Island Telecom LLC, d/b/a Cox Communications, 85 A.3d 1140, 1144 (R.I. 2014) (quoting Absi v. State Department of Administration, 785 A.2d 554, 556 (R.I. 2001) (citation omitted)). The Rhode Island Supreme Court has held that one who employs an independent contractor does not assume a duty to supervise when the circumstances show that the employer did not witness or inspect the work while it was being done and was not involved in the work. See Bromaghim, 808 A.2d at 616, 617. Further, in Pastorelli v. Associated Engineers, Inc., the United States District Court for the District of Rhode Island held an engineering firm liable for the negligence of a subcontractor who installed ductwork because the firm expressly agreed in writing to "supervise the contractors" throughout the job. Compare Pastorelli v. Associated Engineers, Inc., 176 F.Supp. 159, 162 (D.R.I. 1959) with East Coast Collision & Restoration, Inc., 742 A.2d at 276 (holding that control exception to independent contractor rule did not apply because property owner did not assume a duty to supervise the work of subcontractors); see also Cayer, 85 A.3d at 1144 (holding that employer of independent contractor was not liable for independent contractor's negligence because the agreement explicitly disavowed employer-employee relationship).
Here, Defendant did not assume control over Mr. Pellegrino's work simply because he used the dolly to assist him in moving materials while stocking shelves at Defendant's store. Plaintiffs assume that Article 7 of the distribution agreement provides Defendant with the right to supervise; however, Plaintiffs overlook the fact that Defendant is not a party to the distribution agreement. Mr. Pellegrino and Bimbo Bakeries are the only parties to the agreement. Plaintiffs also have not established that Defendant knew that this provision existed. Moreover, the provision addresses the mutual obligations that Mr. Pellegrino and Bimbo Bakeries had to one another in the event an "Outlet" prescribes different procedures for accepting deliveries. The provision does not control Defendant's ability to direct Mr. Pellegrino. See Cayer, 85 A.3d at 1144. Furthermore, Defendant did not manage Mr. Pellegrino. For example, Defendant did not (1) select the products that would be delivered by Mr. Pellegrino; (2) schedule Mr. Pellegrino's routes or determine when Mr. Pellegrino would make deliveries to Defendant's store; or (3) monitor Mr. Pellegrino while he was stocking shelves with product. Def.'s Mem. Supp. Mot. Summ. J. at 4-5. It is undisputed that no employee of Defendant was in the proximity of Jennie and Mr. Pellegrino when the alleged injury occurred. See Bromaghim, 808 A.2d at 616, 617. Therefore, this Court concludes that Mr. Pellegrino was an independent contractor of Bimbo Bakeries.
Plaintiffs suggest that Defendant had the ability to control Mr. Pellegrino's means and methods of work because Article 7, recited below, gave Defendant such control:
"In the event any Outlet makes an independent determination to accept delivery of the Products by any method other than store door delivery, and so informs [Bimbo Bakeries] or [Mr. Pellegrino], the informed party shall immediately communicate to the other the service requirements and terms under which the Outlet now desires service, and provided those new service requirements continue to call for delivery in the Sales Area, [Mr. Pellegrino] shall have the first right to effect such alternative service."Pls.' Mem. Opp'n Mot. Summ. J. at Ex. C, 11-12.
B
Premises Liability
Next, Defendant argues that it is entitled to summary judgment because it did not have a duty to protect Jennie from the alleged negligence of Mr. Pellegrino, or to warn her of a possible incident. Def.'s Mem. Supp. Mot. Summ. J. at 6, 12. Specifically, Defendant argues that it had no duty to supervise or control Mr. Pellegrino's work. Id. at 9. Defendant reasons that there is no evidence to suggest that the incident that gave rise to Jennie's injury was foreseeable or that Defendant had any reason to know that it should have exercised control over Mr. Pellegrino. Id. at 11. Plaintiffs, on the other hand, argue that it is a question of fact whether Defendant exercised reasonable care to keep and maintain its premises in a safe condition. Pls.' Mem. Opp'n Mot. Summ. J. at 1. They suggest that it is a question of fact whether allowing Mr. Pellegrino to maneuver the dolly through the aisles of the store during business hours was a dangerous condition that gave rise to Defendant's purported duty of care to Jennie. Id. at 7. Plaintiffs also argue that foreseeability of the incident is a question of fact that precludes summary judgment. Id. at 8.
The existence of a legal duty is purely a question of law. Kuzniar, 709 A.2d at 1055; Volpe, 821 A.2d at 705. A legal duty is defined as
"an obligation imposed by the law upon a person. It requires that person to conform his or her actions to a particular standard. And it also carries with it a recognition that the law will enforce this duty to the benefit of other individuals to whom this duty is owed. Put another way, the existence of a legal duty depends on whether the interest that a defendant has allegedly invaded is entitled to legal protection."Kuzniar, 709 A.2d at 1055. There exists no "clear-cut formula" for making such a determination, and courts follow an "ad hoc approach" when considering 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. Hennessey v. Pyne, 694 A.2d 691, 697 (R.I. 1997) (quoting Kenney Manufacturing Co. v. Starkweather & Shepley, Inc., 643 A.2d 203, 206 (R.I. 1994)).
Foreseeability of harm is another factor the Court considers. Rock v. State, 681 A.2d 901, 903 (R.I. 1996). Foreseeability "relates to the natural and probable consequences of an act." Hueston v. Narragansett Tennis Club, Inc., 502 A.2d 827, 830 (R.I. 1986). "'[A] court's task in determining duty is to evaluate whether the type of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced by the victims of such conduct that liability appropriately may be imposed on the negligent party.'" Volpe, 821 A.2d at 705 (quoting Banks v. Bowen's Landing Corp., 522 A.2d 1222, 1226-27 (R.I. 1987)).
1
Restatement § 318: Duty to Control Third Parties
The Rhode Island Supreme Court has adopted the approach outlined in Restatement (Second) of Torts regarding a land possessor's liability to visitors and to those outside of the property for the negligence of third parties on the property. Id. at 706. According to § 318:
"when possessors of property allow one or more persons to use their land or personal property, they are, if present, under a conditional duty to exercise reasonable care to control the conduct of such users to prevent them from intentionally harming others or from conducting themselves on the possessors' property in a manner that would create an unreasonable risk of bodily harm to others. See Restatement (Second) Torts, § 318 at 126-27, entitled 'Duty of Possessor of Land or Chattels to Control Conduct of Licensee.' Two conditions, however, must exist for this duty to arise: the possessors of the property must (1) know or have reason to know that they have the ability to control the person(s) using their land, and (2) know or should know of the necessity and opportunity for exercising such control. Id. at 127. Thus, § 318 of the restatement does not create strict liability for those possessors of property who permit third parties to conduct an activity on their property that creates an unreasonable risk of bodily harm to others . . . ."Id. A duty will be imposed after a plaintiff establishes that a possessor of land was present, and had knowledge of the ability to control the third party and of the need and opportunity to control the third party. When the facts establish a "threshold showing" of such knowledge, these questions are to be determined by the factfinder. Id.
Presence is a question of fact. Id. While the possessor of the property need not be present at the time the harm occurs, the landowner's attendance is required when the third party is engaged in conduct that creates an "unreasonable risk of harm to others." Correia v. Bettencourt, 162 A.3d 630, 636 (R.I. 2017) (explaining Volpe with regard to the presence requirement). The plaintiff must therefore establish the property possessor's presence before a court can impose liability on the possessor for the conduct of third parties on the property. Id. at 637; see also id. at 636 ("The language of § 318 of the Restatement [ ] clearly expresses that a duty arises only if the landowner is present.").
Here, the conduct at issue is Mr. Pellegrino's use of the dolly on the sales floor. Defendant posits that no employee of Defendant was present while Mr. Pellegrino was stocking shelves. Thus, Plaintiffs must offer specific facts demonstrating Defendant's presence while Mr. Pellegrino was using the dolly. See id. at 636 (explaining that defendant does not need to be present when the harm is done but needs to be present when the harm-causing conduct is performed). Jennie testified at her deposition that she was unaware of any employee of Defendant in or around the area where she was injured. Def.'s Mem. Supp. Mot. Summ. J. at Ex. D, 103-104. Therefore, Plaintiffs have not set forth competent evidence creating a genuine issue of material fact as to Defendant's presence while Mr. Pellegrino was using the dolly on the sales floor.
Control is the second element under the duty of care analysis. Control is a condition precedent to a possessor's liability for a third-party's actions upon the land. "Where * * * the natural relationship between the parties * * * creates no inference of an ability to control, the actual custodial ability must affirmatively appear." Volpe, 821 A.2d at 720 (Shea, J.) (dissenting) (citation omitted). Knowledge and control are questions of fact. Id. at 707. "The responsibility of the owner or occupant of premises does not generally extend to an injury caused by the act of a third person over whom the owner or occupant had no control, and for whose acts he is not responsible, unless the occupant of the premises breached a duty of care he or she owed to the injured person to take adequate measures to control the actor and to afford protection against such an injury." 62 Am. Jur. Premises Liability § 6 at 371 (2005).
Here, the record is void of facts demonstrating that Defendant had an ability to control Mr. Pellegrino. Mr. Pellegrino was an independent contractor. Furthermore, Defendant had no knowledge of the provision in the distribution agreement. The plain language of Article 7 addresses the obligations of Mr. Pellegrino and Bimbo Bakeries to one another; the subject of the provision has no relevance to Defendant's right to control Mr. Pellegrino. Therefore, when viewing the evidence in a light most favorable to Plaintiffs, the Court concludes that Defendant did not know that it could control Mr. Pellegrino.
Knowledge of the necessity and opportunity to control the third party is the final element to establish a duty. The land possessor must have knowledge of the condition or conduct of the third party and the ability to control that conduct or condition. See Volpe, 821 A.2d at 708. In Volpe, the Court held that a homeowner was liable in a wrongful death action where her adult son who suffered from schizophrenia shot his next-door neighbor. The Court determined that the homeowner knew of the injury-causing conduct-her son's access to guns and ammunition despite his mental impairment-and her ability to control that conduct. Id. at 708-09.
Here, Defendant had no ability to control Mr. Pellegrino in light of Mr. Pellegrino's status as an independent contractor for Bimbo Bakeries. In addition, Defendant had no notice of the need to control Mr. Pellegrino. Defendant provided this Court with the affidavit of Jeffrey Sparfven. Mr. Sparfven, Defendant's Director of Human Resources, has worked for Defendant in various capacities and has worked in the grocery industry for over twenty years. Mr. Sparfven attested to knowing Mr. Pellegrino professionally for over ten years through his work in the grocery industry. He attested to his knowledge and experience with the "direct to store delivery" system that Defendant and other grocers use where vendors deliver products to the store. With respect to that system, he stated that "[i]t is assumed that the vendors [such as Bimbo Bakeries] hire competent delivery people who are reasonably careful when performing their deliveries, and therefore, do not need to be supervised." Aff. of Mr. Sparfven ¶ 24. Mr. Sparfven further indicated that the incident giving rise to the instant action is the only time that he knows of in the twenty plus years that he has worked in the grocery industry where a direct to store delivery person injured a customer. Id. ¶ 25. Moreover, Mr. Sparfven stated that he has never witnessed Mr. Pellegrino or any other direct to store delivery person acting in an unsafe manner. Id. ¶¶ 26, 31.
Mr. Sparfven's attestations establish that there is no genuine issue of material fact of Defendant's knowledge of the need to control Mr. Pellegrino. Plaintiffs argue that a factual issue exists as to foreseeability of Jennie's injury, but does not set forth any specific facts showing that Defendant's alleged failure to control or supervise Mr. Pellegrino's use of the dolly on the sales floor was "sufficiently likely to result in the kind of harm" that she experienced. Volpe, 821 A.2d at 705 (citation omitted).
Section 318 of the Restatement requires proof of presence, knowledge of the ability to control, and knowledge of the need to control. Plaintiffs have failed to establish each of these elements. As such, Plaintiffs' cause of action for premises liability under § 318 fails as a matter of law.
2
Duty to Warn
Plaintiffs also argue that Defendant had a duty to warn Jennie of the dangerous condition existing on Defendant's property-i.e. Mr. Pellegrino's use of the dolly. "With respect to invitees and licensees, courts must determine whether landowners have satisfied their affirmative duty to exercise reasonable care for the safety of all people reasonably expected to be upon the premises." Correia, 162 A.3d at 637 (quoting Bucki v. Hawkins, 914 A.2d 491, 495 (R.I. 2007)). "[T]hat 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." Bucki, 914 A.2d at 495 (citation omitted). "While it is true that a landowner does have a duty to either remediate or warn licensees and invitees on their property, this duty does not arise unless and until the property owner has at least constructive knowledge of the dangerous condition." Letizio v. Ritacco, 204 A.3d 597, 604 (R.I. 2019) (citing Fisher v. Almac's, Inc., 117 R.I. 244, 244-45, 366 A.2d 161, 162 (1976)). Constructive knowledge is that knowledge that "one using reasonable care or diligence should have, and therefore that is attributed by law to a given person." Black's Law Dictionary, 876-77 (7th ed. 1999).
Knowledge is the essence of a cause of action for failure of a duty to warn. Here, the alleged dangerous condition is Mr. Pellegrino's use of the dolly on the sales floor. It is undisputed that no employee of Defendant was present when Mr. Pellegrino was using the dolly to shelve products. Plaintiffs have therefore failed to set forth specific facts showing that Defendant had actual or constructive knowledge of Mr. Pellegrino's use of the dolly. See Bucki, 914 A.2d at 495. As a matter of law, Plaintiffs' cause of action for failure of duty to warn must fail.
IV
Conclusion
Plaintiffs have failed to establish that Defendant owed Jennie a duty of care. As such, the Court grants Defendant's Motion for Summary Judgment as to Counts I and II of the Complaint. Counsel shall submit the appropriate judgment for entry.