Barone v. Christmas Tree Shop , 2001 R.I. LEXIS 64 ( 2001 )

OPINION

WEISBERGER, Chief Justice.

This case came before us on the appeal of the plaintiff, Caroline Barone (plaintiff or Barone), from a judgment entered in the Superior Court in favor of the defendant, The Christmas Tree Shop (defendant or shop). The judgment was entered pursuant to an order of the trial justice granting the defendant’s motion for judgment as a matter of law. The plaintiff filed a timely appeal from the judgment. The plaintiffs sole issue on appeal is the propriety of the entry of judgment on behalf of the shop as a matter of law. The facts of the case insofar as pertinent to this appeal are as follows.

On February 2, 1996, plaintiff and her sister, Anna Simonelli (sister), were driven by the plaintiffs niece, Margaret Thompson (Thompson), to the shop in Warwick, Rhode Island, shortly before 10 a.m. The plaintiff and her sister left the automobile and entered the store.

At that time, it was snowing and wet outside the store. As they entered the store, it appeared that the floor around the service area was wet. The plaintiff walked down an aisle in the store looking for merchandise. She found two plush bunnies that she considered purchasing for her niece and nephew. She called to her sister to show the bunnies to her.

At that point, plaintiff testified that she “slipped on some wet substance” and fell. It is undisputed that the fall caused her to fracture her leg. At the time of the fall, she was wearing rubber-soled snow boots. The plaintiff did not notice any water on the floor while she was lying where she had fallen, awaiting assistance. The plaintiffs sister hurried to the spot where plaintiff had fallen, but also did not notice any water at that site, although she did notice water and puddles in other parts of the store.

Thompson returned to the store at about 11:15 a.m. after attending a meeting. When she arrived, she walked into the front portion of the store, where plaintiff was sitting in a chair. The plaintiff was in the vicinity of the service desk. Thompson noted that in this area there was heavy pedestrian traffic and the floor was wet. However, she did not go to the area where plaintiff had fallen and was unable to testify concerning the condition of that area. Thompson took plaintiff by car to Our Lady of Fatima Hospital, where she was treated.

At the conclusion of plaintiffs case, defendant moved for judgment as a matter of law. At that juncture, the trial justice denied the motion. Thereafter, defendant presented Judith Kerr (Kerr), an assistant store manager. This witness testified that although the floor throughout the store was tile, the area at the entrance was carpeted. There also were mats, called “water hogs,” in place near the entrance. These mats were designed to absorb excess water brought in by pedestrians. Kerr further testified that there were two maintenance men on duty that day whose duty it was to clean up debris and spills. Kerr testified that the area in which plaintiff fell was clean and clear of any water. The defendant presented a department head, Faith Needham, who testified that she was responsible for making certain that the front of the store near the entrance way was free of debris and puddles.

At the conclusion of defendant’s case, the shop renewed its motion for the entry of judgment as a matter of law. The trial justice granted the motion with the following comment:

“In this matter, while there is some evidence that [sic ] of the conditions that existed outside the store at the time, there’s no evidence, which has been offered, as to the condition of the floor at the precise location where the plaintiff fell. The testimony by the plaintiff, her witness, Ms. Simonelli, by the defendant’s witnesses, Ms. Kerr and Ms. Needham, that at the location where Mrs. Barone fell, no one saw any water.”

Standard of Review

It is well settled that this Court and the trial justice, in confronting the issue of the propriety of granting a judgment as a matter of law in favor of the defendant, must view the evidence in the light most favorable to the plaintiff and must draw all reasonable, favorable inferences from that testimony without weighing the testimony or assessing the credibility of the witnesses. See, e.g., D’Antuono v. Narragansett Bay Insurance Co., 721 A.2d 834, 836 (R.I.1998); Massart v. Toys R Us, Inc., 708 A.2d 187, 188-89 (R.I.1998); De-Christofaro v. Machala, 685 A.2d 258, 262 (R.I.1996); Grant v. Briskin, 603 A.2d 324, 327 (R.I.1992); AAA Pool Service & Supply, Inc. v. Aetna Casualty & Surety Co., 479 A.2d 112, 115 (R.I.1984). After examining the evidence as required and drawing all reasonable inferences in favor of the nonmoving party, the court may grant a motion for judgment as a matter of law only if there are no issues of fact upon which reasonable minds may differ. See AAA Pool Service & Supply, Inc., 479 A.2d at 115.

In the case at bar, it is most significant that neither plaintiff nor her sister described or testified concerning the nature of any water on the floor at the location where plaintiff fell, although both had noted the existence of water and puddles in other parts of the store, particularly near the entrance. The rule as set forth in numerous cases is that a plaintiff who has fallen must 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 that the owner or occupier of the premises should have taken steps to correct the condition. See Massart, 708 A.2d at 189.

In the case at bar, plaintiff and her witnesses presented no evidence of the nature and extent of water at the site of her fall and certainly no evidence from which an inference could be drawn concerning the length of time such a slippery substance or water was present at that place. Although plaintiff testified that she slipped “on some wet substance,” she did not observe the nature of the substance and did not describe any water at the place where she fell. Similarly, her sister did not notice any water at the site of the fall.

Consequently, the trial justice did not err in granting a motion for judgment as a matter of law since there was no issue of fact upon which reasonable minds might differ. There was a complete absence of evidence upon which the defendant’s negligence could be predicated. Therefore, the plaintiffs appeal is denied and dismissed. The judgment of the Superior Court is affirmed. The papers in the case are remanded to the Superior Court.

Chief Justice WILLIAMS did not participate.