Roland DeMaio v. Raymond A. Ciccone , 2013 R.I. LEXIS 26 ( 2013 )

Supreme Court
No. 2011-211-Appeal.
(PC 07-3147)
Roland DeMaio et al. :
v. :
Raymond A. Ciccone 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 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2011-211-Appeal.
(PC 07-3147)
Roland DeMaio et al. :
v. :
Raymond A. Ciccone et al. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Robinson, for the Court. The plaintiffs Roland DeMaio and Linda DeMaio
appeal from the entry of summary judgment in favor of the defendants Raymond A. Ciccone and
Cheryl A. Breggia.
This case came before the Supreme Court for oral argument pursuant to an order
directing the parties to show cause why the issues raised in this appeal should not be summarily
decided. After considering the record, the memoranda submitted to this Court on behalf of the
parties, and the oral arguments of counsel, we are of the opinion that cause has not been shown
and that the appeal may be resolved without further briefing or argument. For the reasons set
forth in this opinion, we reverse the Superior Court’s grant of summary judgment and vacate the
entry of final judgment.
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I
Facts and Travel
It is undisputed that, on October 18, 2006, a motor vehicle collision involving Mr.
DeMaio and Mr. Ciccone occurred on Hartford Avenue in Johnston. At the time of the collision,
Mr. DeMaio was riding his motorcycle and Mr. Ciccone was driving a 1995 Volkswagen Jetta
that belonged to his girlfriend, co-defendant Cheryl Breggia. On June 18, 2007, Mr. DeMaio and
his wife, Linda,1 filed a complaint naming Mr. Ciccone and Ms. Breggia2 as defendants. The
complaint alleged that Mr. Ciccone had been negligently operating the Jetta at the time of the
collision.
The defendants filed a motion for summary judgment on June 25, 2010. In their
accompanying memorandum of law, defendants contended that the evidence “established that the
plaintiff’s motorcycle struck the rear of the defendants’ motor vehicle.” Under Rhode Island
law, “[w]hen a case includes a claim or defense resulting from a rear-end collision between
vehicles, a prima facie case of negligence against the driver of the car in the rear is
established * * *.” Maglioli v. J.P. Noonan Transportation, Inc., 869 A.2d 71, 75 (R.I. 2005).
The defendants argued that the court should grant summary judgment in their favor because Mr.
DeMaio was unable to rebut the prima facie evidence of his own negligence, which prima facie
evidence arose from the fact of the rear-end collision.
1
It appears that Linda DeMaio’s claims are for loss of consortium resulting from the
injuries suffered by her husband. See, e.g., Olshansky v. Rehrig International, 872 A.2d 282,
291 (R.I. 2005).
2
Cheryl Breggia was not in her Jetta at the time of the accident. However, under Rhode
Island law, the owner of a vehicle may be liable for the acts of another person who operates the
owner’s car “with the consent of the owner.” G.L. 1956 § 31-33-6; see generally Pichardo v.
Stevens, 55 A.3d 762 (R.I. 2012).
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None of the parties identified any witnesses to the collision; accordingly, the motion
justice was presented with the conflicting stories of the two motor vehicle operators along with
the deposition testimony of Sgt. Christopher Correia (the investigating officer) as well as a police
report concerning the collision and police photographs of the scene. At the conclusion of a
hearing on November 9, 2010, the motion justice granted defendants’ motion for summary
judgment, stating that Mr. DeMaio had “struck * * * the Ciccone vehicle from the rear.” The
motion justice further stated that, “to rebut the presumption that he was negligent, Mr. DeMaio
needs more than just some speculation” regarding Mr. Ciccone’s negligence. We shall next
proceed to outline in greater detail the evidence presented to the motion justice.
A
Mr. DeMaio’s Version of the Events
This section of the opinion sets forth pertinent details regarding the night of the collision
as provided by Mr. DeMaio in his deposition testimony and in his answers to interrogatories.
Mr. DeMaio testified that he had been “driving bikes for 35 years”3 and had been
involved in only one accident prior to the collision in October of 2006; he thought that the earlier
accident had occurred “in the Seventies.” Mr. DeMaio stated that, whenever he rode his
motorcycle, “especially at nighttime, [he was] always glancing around.”
Mr. DeMaio further testified that, at approximately 8 p.m. on the night of the collision, he
was on his motorcycle heading East on Hartford Avenue. He stated that he was traveling “30, 35
miles an hour” down a straight section of the road with his lights on. He recalled that there was
no traffic in the area, and he added that he would have been “looking in the mirrors and checking
3
The word “bike” can properly be used to refer to a motorcycle as well as a bicycle and a
motorbike. See The American Heritage Dictionary of the English Language 179 (5th ed. 2011).
It is clear from the context of his deposition testimony that, when Mr. DeMaio stated that he had
been “driving bikes for 35 years,” he was referring to his use of motorcycles.
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everything” so as to survey the road. When asked at his deposition what was “the last thing that
[he] remember[ed] before the accident,” Mr. DeMaio replied:
“No one near me, I’m coming down Route 6 going maybe 35 miles
an hour, that’s the last thing I remember. So I don’t know where
Mr. Ciccone came out from. I’d like to know, but I have no idea.
He said that supposedly, my wife told me, that he came out, I
followed him and banged into him. I would have remembered
that. I’ve been driving bikes for 35 years, I definitely would have
remembered that.”
Mr. DeMaio testified that his first memory after losing consciousness consisted of
“waking up in the rescue” briefly; his next memory was of waking up again at the Trauma
Center in Rhode Island Hospital, where “a young doctor * * * was sewing [his] ear.”
Regarding the damage to his motorcycle, Mr. DeMaio stated that “the heavier damage
was all on the right-hand side,” noting that “[e]verything was crushed in, the crash bar, the tank,
the chrome, the peg was bent up, the foot pegs, and * * * the right front fender was damaged.”
Mr. DeMaio further testified that the man who removed the motorcycle from the scene of the
collision “said that it looked like the impact was on the right-hand side” of the motorcycle.
B
Mr. Ciccone’s Version of the Events
At his deposition, Mr. Ciccone painted a different picture of the events on the night of the
collision. He testified that he had been at Ms. Breggia’s home and then, “right around supper,”
he took her car to go to the store. He stated that, while on his way there, he came to the
intersection of Harding Avenue and Hartford Avenue. He said that, at that time, he stopped for
about five seconds and saw a motorcycle heading East on Hartford Avenue towards the
intersection. Mr. Ciccone testified that the motorcycle was the only vehicle that he saw on
Hartford Avenue at that time.
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Mr. Ciccone testified that he then turned East onto Hartford Avenue so that Mr.
DeMaio’s motorcycle was “over 200 yards, and maybe more” behind him and traveling in the
same direction. He estimated that he traveled for about thirty seconds before he reached the
entrance to the convenience store that was his destination. Mr. Ciccone stated that he then
“[came] to a complete stop * * * [on Hartford Avenue] because there’s usually cars at the
convenience store, so you [have] to take a look before you turn in.” He testified that, after
stopping, he started to turn right so that the Jetta was “slightly” at an angle, with the nose of the
car in the parking lot. Mr. Ciccone maintained that, at that moment, Mr. DeMaio’s motorcycle
struck the Jetta from behind.
Regarding the resulting damage to the Jetta, Mr. Ciccone testified as follows:
“The back left-hand side was hit, and I guess the bike kind of
wrapped a little bit and the back left rear on the side was hit—not
hit, it was like scraped on the side, but in the back was the—where
the impact was. On the side it was pushed a little bit in and
scraped on the back left rear, back left side was scraped too.”
C
Sergeant Correia’s Deposition and the Police Report
Christopher Correia, a sergeant in the Johnston Police Department who responded to the
collision, was also deposed in connection with this case. Sergeant Correia testified that he
carried out an investigation of the collision on the night of the incident. Sergeant Correia stated
that neither he nor any of the other responding officers were certified accident reconstructionists.
Unlike a “full accident reconstruction,” Sgt. Correia testified that the type of investigation he
performed would have been based on the “position of the vehicles or vehicle, the operators, what
they may have to say, location of damage on the vehicles that could indicate position or where
they were traveling from, any time from operators, independent witnesses, those kind[s] of things
to try to simulate that and put it all together.”
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Sergeant Correia did not interview Mr. DeMaio on the night of the collision because,
before an emergency vehicle came to take Mr. DeMaio to the hospital, he “was down and not in
condition to speak to.” Sergeant Correia added that he did not want to “push” Mr. DeMaio due
to the fact that he had “head injuries and [was] bleeding in the middle of the roadway.”
However, Sgt. Correia testified that he did interview Mr. Ciccone, who told him that “he was
struck in the rear by the motorcycle.”
After referring to his police report during his deposition, Sgt. Correia testified that “[i]t
appears that the motorcycle was also traveling eastbound behind the vehicle, wasn’t able to stop
and—based on the damage being at that driver’s back corner of the vehicle, tried to swerve
around and possibly caught the rear corner of the vehicle.” He testified that “on the right side of
the [motorcycle] there was red paint transfer across the gas tank as well as the front suspension
forks.” Sergeant Correia also identified photographs that were taken at the scene of the accident
by a fellow police officer.
The deposition of Sgt. Correia included the following exchange between Mr. DeMaio’s
attorney and the police officer:
Q: “Based on your years of investigating accidents, if Mr. Ciccone
had turned out of that side street in front of [Mr. DeMaio’s] bike,
would the damage have been to the same parts of his bike and Mr.
Ciccone’s vehicle?”
A: “It depends. It depends on the angle of when he pulled out at
the time. It’s possible that it could have been in the same spot, it’s
possible that it could have been in a different spot.”
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D
The Photographs
As part of their objection to defendants’ motion for summary judgment, plaintiffs
presented to the motion justice several photographs taken by the police on the night of the
collision, including the photograph that is attached as Appendix A to this decision.
II
Issue on Appeal
On appeal, Mr. and Mrs. DeMaio contend that they presented evidence tending to show
that Mr. Ciccone was negligent and that there are genuine issues of material fact as to whether
the October 18, 2006 incident was in actuality a rear-end collision. The plaintiffs therefore argue
that summary judgment was improperly granted in defendants’ favor.
III
Standard of Review
This Court reviews the granting of a motion for summary judgment in a de novo manner.
Jessup & Conroy, P.C. v. Seguin, 46 A.3d 835, 838 (R.I. 2012). We apply the same standards
used by the motion justice. Papudesu v. Medical Malpractice Joint Underwriting Association of
Rhode Island, 18 A.3d 495, 497 (R.I. 2011). We will affirm the grant of summary judgment
only “[i]f we conclude, after viewing the evidence in the light most favorable to the nonmoving
party, that there is no genuine issue of material fact to be decided and that the moving party is
entitled to judgment as a matter of law * * *.” Pereira v. Fitzgerald, 21 A.3d 369, 372 (R.I.
2011) (internal quotation marks omitted).
We are ever mindful that “[s]ummary judgment is a drastic remedy, and a motion for
summary judgment should be dealt with cautiously.” Estate of Giuliano v. Giuliano, 949 A.2d
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386, 390 (R.I. 2008) (internal quotation marks omitted). The motion justice “must refrain from
weighing the evidence or passing upon issues of credibility.” Doe v. Gelineau, 732 A.2d 43, 48
(R.I. 1999). Ultimately, the “purpose of the summary judgment procedure is issue finding, not
issue determination.” Estate of Giuliano, 949 A.2d at 391 (internal quotation marks omitted).
It should also be borne in mind that this Court has recognized that “issues of negligence
are ordinarily not susceptible of summary adjudication, but should be resolved by trial in the
ordinary manner.” See Gliottone v. Ethier, 870 A.2d 1022, 1028 (R.I. 2005) (collecting cases)
(internal quotation marks omitted); see also DeNardo v. Fairmount Foundries Cranston, Inc., 121
R.I. 440, 448, 399 A.2d 1229, 1234 (1979) (“In Rhode Island the general rule is that negligence
is a question for the jury unless the facts warrant only one conclusion.”). The motion justice may
treat the issue of negligence as a matter of law only if the “facts suggest only one reasonable
inference.” See Kennedy v. Providence Hockey Club, Inc., 119 R.I. 70, 77, 376 A.2d 329, 333
(1977).
IV
Analysis
Applying the just-summarized principles to the facts of this case, it is our opinion that
summary judgment should not have been granted.
It is true that this Court has long recognized that the fact of a rear-end collision
constitutes “prima facie evidence of [the] negligence of the driver of the second vehicle.” See
Barnes v. Quality Beef Co., 425 A.2d 531, 536 (R.I. 1981). Mr. Ciccone contends that he was
“rear-ended” by Mr. DeMaio’s motorcycle; on that basis, he argues that the evidence points to
but one conclusion—viz., that the plaintiff driver (Mr. DeMaio) was the only negligent party and
that, therefore, the defendant driver (Mr. Ciccone) cannot be liable. We disagree. In order to be
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able to benefit from the prima facie evidence, the party seeking to employ that evidentiary
principle must first establish that the motor vehicle collision was, in fact, a rear-end collision.
See Rachiele v. McGovern, 107 R.I. 241, 245, 266 A.2d 36, 38 (1970) (noting that the prima
facie evidence principle applies “where a rear-end collision is established” (emphasis added)).
Moreover, since the motion justice decided the issue of whether there was a rear-end collision in
the context of a summary judgment motion, he was required to make that determination while
“viewing the facts and all reasonable inferences therefrom in the light most favorable to”
plaintiffs. Delta Airlines, Inc. v. Neary, 785 A.2d 1123, 1126 (R.I. 2001).
The defendants certainly produced some evidence tending to show that the accident was a
rear-end collision: Mr. Ciccone testified that the motorcycle struck the “back left rear” of the
Jetta; and the police report that was presented to the motion justice states that the car “sustained
damage to the rear, rear tail light, and rear driver’s fender,” and it further notes that such damage
was “consistent with [Mr. Ciccone’s] statement that he was rear ended.” In addition, Sgt.
Correia testified that, based on his investigation on the night of the collision, it “appear[ed] * * *
[that Mr. DeMaio] tried to swerve around and possibly caught the rear corner of the vehicle.”
Notably and critical to our decision, however, plaintiffs presented conflicting evidence
which, if believed, would certainly create a genuine issue of material fact as to whether the
accident was in actuality a rear-end collision. Mr. DeMaio testified that, before the collision
took place, he had been riding his motorcycle on a straight section of road without any vehicles
in front of him. That testimony stands in stark contrast with the testimony of Mr. Ciccone, who
presented a version of the events where Mr. DeMaio would have been riding behind the Jetta
before the collision on Hartford Avenue; in fact, if Mr. Ciccone’s version is correct, the rear-end
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of the Jetta would have been directly in Mr. DeMaio’s line of sight for thirty seconds before the
impact.
For the motion justice to conclude that Mr. DeMaio rear-ended the Jetta, he would have
had to either disregard Mr. DeMaio’s testimony or deem it not worthy of belief. However,
summary judgment is not the moment for the court to make credibility assessments—a function
that should be reserved for the fact-finder at trial. Gelineau, 732 A.2d at 48; see also Pichardo v.
Stevens, 55 A.3d 762, 766 (R.I. 2012); Estate of Giuliano, 949 A.2d at 394 n.9.
It should also be noted that plaintiffs, as the nonmoving parties, directed the motion
justice’s attention to the photographs of the vehicle that were taken after the collision on
Hartford Avenue. Although those photographs depict damage to the rear left fender and rear left
taillight of the Jetta, they also reveal considerable damage to the left side of the car.
Significantly, the only indentations appear to be on that side of the vehicle. Further, while the
police report indicates that the damage may have been consistent with a rear-end collision, there
are other reasonable conclusions that a jury could reach given the facts presented to the motion
justice; in fact, Sgt. Correia admitted in his deposition testimony that the damage to the
motorcycle and the Jetta could also be consistent with Mr. Ciccone’s having hit the motorcycle
while pulling out onto Hartford Avenue. Given such conflicting evidence, the motion justice
should not have granted summary judgment based on his conclusion that the accident was a rear-
end collision.
In our view, not only does this evidence call into question whether the accident was a
rear-end collision, but it also creates a genuine issue of material fact regarding which operator
was negligent. This Court addressed a similar situation in Gliottone. In that case, the plaintiff
brought a negligence action after his car was involved in a collision with the defendant’s vehicle.
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See Gliottone, 870 A.2d at 1023. The plaintiff was traveling northbound when he began a left-
hand turn into a service station; at that point, the defendant’s car (traveling southbound) collided
with the plaintiff’s vehicle. See id. The plaintiff had no recollection of the collision other than
having seen a “white blur” just before his head hit the windshield. See id. The plaintiff testified
that he never saw the defendant’s vehicle, nor could he remember whether he was braking or
accelerating at the time of the crash. Id. at 1024. Only one eyewitness was deposed; she
testified (1) that the plaintiff did not use his directional signal, (2) that the defendant was
traveling between twenty-five and twenty-eight miles per hour at the time of the collision, and
(3) that the “plaintiff crossed into oncoming traffic so suddenly that defendant could not have
avoided the accident.” Id. The evidence also included photographs of the damage to the
vehicles. Id.The defendant in the Gliottone case filed a motion for summary judgment, arguing that
the “plaintiff had failed during discovery to raise evidence sufficient to create a genuine issue of
material fact about whether [the] defendant’s negligence had caused the collision.” Gliottone,
870 A.2d at 1024. The hearing justice granted summary judgment in the defendant’s favor, but
this Court reversed the decision on appeal. See id. at 1029. We stated that, “[a]lthough the
evidence of plaintiff’s negligence * * * [was] very strong * * * the photographs illustrate such
significant and severe front-end damage to [the plaintiff’s] vehicle that a jury reasonably could
infer that [the] defendant may have been speeding at the time of the accident.” Id. at 1028.
Similarly, with respect to the case at bar, the photographs from the scene of the collision
on Hartford Avenue reveal enough damage to the side of the Jetta that a jury reasonably could
infer that Mr. DeMaio’s motorcycle struck the side of the Jetta after Mr. Ciccone had negligently
pulled out in front of the motorcycle. While Sgt. Correia’s report notes that the damage was
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consistent with a rear-end collision, that report was composed without the benefit of Mr.
DeMaio’s statements concerning his perception of what transpired on the night of October 18,
2006. Mr. Ciccone asserts that he was struck from behind, but the photographs show
indentations on the side of the Jetta; and Sgt. Correia testified that it is possible that this damage
could have been caused by Mr. Ciccone’s having pulled out in front of Mr. DeMaio’s
motorcycle. That scenario would also be consistent with Mr. DeMaio’s testimony that, before he
lost consciousness, he had been traveling at a moderate speed down a straight road without
anyone in front of him.
Both scenarios are factually plausible. Accordingly, the summary judgment inquiry is at
an end: “when the facts support plausible but conflicting inferences on a pivotal issue in the case,
the judge may not choose between those inferences at the summary judgment stage.” See Coyne
v. Taber Partners I, 53 F.3d 454, 460 (1st Cir. 1995); see also Estate of Giuliano, 949 A.2d at 394
n.9 (“The weight of the evidence should not be evaluated at the summary judgment stage.”). It is
our opinion that there is sufficient conflicting evidence on the issue of negligence for this case to
be submitted to a fact-finder. See Holley v. Argonaut Holdings, Inc., 968 A.2d 271, 274 (R.I.
2009) (“It is well settled that issues of negligence are ordinarily not susceptible of summary
adjudication, but should be resolved by trial in the ordinary manner.” (internal quotation marks
omitted)).
V
Conclusion
For the reasons set forth in this opinion, we reverse the Superior Court’s grant of
summary judgment in favor of the defendants and vacate the entry of final judgment. The record
in this case may be remanded to the Superior Court.
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APPENDIX A
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: Roland DeMaio et al v. Raymond A. Ciccone et al.
CASE NO: No. 2011-211-Appeal.
(PC 07-3147)
COURT: Supreme Court
DATE OPINION FILED: February 1, 2013
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia JJ.
WRITTEN BY: Associate Justice William P. Robinson III
SOURCE OF APPEAL: Providence County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Stephen J. Fortunato, Jr.
ATTORNEYS ON APPEAL:
For Plaintiffs: Ruth DiMeglio, Esq.
For Defendants: Kathleen Wyllie, Esq.