Ian DeLong v. Rhode Island Sports Center, Inc. , 182 A.3d 1129 ( 2018 )


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  • May 8, 2018
    Supreme Court
    No. 2017-91-Appeal.
    (PC 14-611)
    Ian DeLong                    :
    v.                      :
    Rhode Island Sports Center, Inc., 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 Tel. 222-3258 of any typographical or other
    formal errors in order that corrections may be made before the opinion is
    published.
    Supreme Court
    No. 2017-91-Appeal.
    (PC 14-611)
    Ian DeLong                      :
    v.                        :
    Rhode Island Sports Center, Inc., et al.     :
    Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
    OPINION
    Justice Flaherty, for the Court. The plaintiff, Ian DeLong, a former college hockey
    player, alleged that he inhaled noxious fumes while playing in a game at an arena owned by the
    defendant DRF Arena, LLC, and operated by the defendant Rhode Island Sports Center, Inc. He
    claimed that he, along with several other teammates, became ill upon returning to school after a
    hockey game against Johnson & Wales University at the defendants’ arena. The plaintiff alleged
    that he began coughing up blood the next morning and sought medical treatment. He ultimately
    brought a negligence suit against the defendants, who filed and prevailed on a motion for
    summary judgment. The plaintiff timely appealed to this Court.
    This case came before the Supreme Court, sitting at Lincoln High School, pursuant to an
    order directing the parties to appear and show cause why the issues raised in this appeal should
    not summarily be decided. After considering the parties’ written and oral submissions, and after
    reviewing the record, we conclude that cause has not been shown and that this case may be
    -1-
    decided without further briefing or argument. For the reasons set forth in this opinion, we vacate
    the judgment of the Superior Court and return the case thereto for trial.
    I
    Facts and Travel
    In the complaint that he filed in the Superior Court, plaintiff alleged that on February 17,
    2011, defendants negligently maintained their ice rink facility in North Smithfield by allowing
    noxious fumes to permeate the air. This, according to plaintiff, created a dangerous condition on
    the premises, and defendants failed to exercise reasonable care or provide adequate warnings.
    As a result, plaintiff claimed, he became ill with acute respiratory problems, including carbon
    monoxide and nitrogen dioxide poisoning. The defendants answered, denying that plaintiff was
    entitled to relief.
    Discovery ensued, and on May 13, 2015, defendants filed a motion for summary
    judgment. They argued that there were no genuine issues of material fact regarding (1) the
    existence of a dangerous or defective condition; (2) the notice to defendants of any such
    condition; and (3) the causal connection between that condition and any injury that may have
    been sustained by plaintiff. Indeed, defendants maintained that plaintiff had failed to put forth
    evidence of any of those elements, all of which are necessary to establish a premises liability
    claim. Therefore, defendants asserted, they were entitled to judgment as a matter of law.
    To support their motion, defendants pointed to plaintiff’s deposition statement that he
    neither saw nor smelled any unusual fumes while playing hockey at defendants’ ice rink. They
    further highlighted the dearth of scientific evidence as to the air quality in the arena on the night
    of the game. In fact, defendants proffered evidence that the carbon monoxide levels in the
    facility that night were zero, as demonstrated by the ice rink attendant’s twice-daily notation of
    -2-
    the air quality reading and the Rhode Island Department of Health’s confirmation the following
    day. Therefore, defendants argued, plaintiff had no proof that there was a dangerous or defective
    condition present in the arena, thus failing to prove even the first element of his claim.
    Continuing to the remaining elements, defendants maintained that they had no notice,
    actual or constructive, of any potential defect, even assuming one were to have existed. In
    making that assertion, they relied on the deposition testimony of two employees: Rick
    Beauregard, the facilities manager, and David L’Etoile, who was responsible for operating a
    Zamboni to resurface the ice before, during, and after games. 1 Each stated that he was not aware
    of any complaints ever having been made regarding noxious fumes, and L’Etoile attested that he
    never observed or smelled any fumes while resurfacing the ice rink. Finally, as to causation,
    defendants underscored plaintiff’s own deposition statements.          The plaintiff admitted that,
    despite his assumption and belief that it was noxious fumes within the arena that caused his
    injury, he could not say with complete certainty what it was that made him fall ill. And,
    according to defendants, even if plaintiff were to prove that he was exposed to airborne toxins,
    he had no evidence that that exposure occurred on defendants’ premises.
    The plaintiff opposed defendants’ motion for summary judgment.                   By way of
    background, he explained that, after a game between his team, Curry College, and Johnson &
    Wales University at defendants’ ice rink, “[p]laintiff and a large number of his teammates
    suffered respiratory illnesses” from nitrogen dioxide, a toxin that can be emitted by Zambonis.
    On the night in question, the Curry College hockey team traveled to the game by bus, and
    plaintiff said he detected no fumes during the ride. Once at the rink, the team went into the
    1
    A “Zamboni,” which derives its name from its inventor, is a machine used to resurface an ice
    rink. The resurfacer shaves the ice, washes the ice, and leaves behind a layer of fresh ice-making
    water, which freezes to create a smooth sheet of ice.
    -3-
    visitors’ dressing room, outside of which were situated two propane-fueled Zambonis; one was
    stored out in the open next to the locker room, the other in a garage near the locker room. One of
    those Zambonis was used to resurface the ice between the first and second periods, between the
    second and third periods, and at the end of the game. After the game, the team remained in the
    rink for a little over half an hour before returning to Curry College on the same bus that had
    transported them to the rink. Later that evening, one of plaintiff’s teammates asked plaintiff—
    who himself was already coughing—to bring him to the hospital because he was coughing up
    blood. By the next morning, plaintiff, too, was coughing up blood and he went to the emergency
    room. A number of plaintiff’s teammates reportedly also experienced the same symptoms. At
    the hospital, the plaintiff was diagnosed with an acute lung injury resulting from carbon
    monoxide and nitrogen dioxide poisoning.
    The plaintiff responded to defendants’ summary-judgment arguments with evidence of
    his own. In terms of proof of a defect, and to rebut defendants’ contention that the Department
    of Health air quality report was dispositive of the issue, plaintiff offered a regulation showing
    that the Department of Health does not require testing for nitrogen dioxide and that it does not do
    so itself. Furthermore, the arena was not tested for carbon monoxide by the Department of
    Health until the next day, and simply opening doors or windows can properly ventilate a facility
    and improve air quality, as James Bruckshaw, an official from the department, acknowledged in
    his deposition. The plaintiff also provided an affidavit from the head coach of his hockey team,
    Robert Davies. Coach Davies submitted that, based on a lifetime spent in ice rinks, he can
    immediately discern air quality when entering a rink.         He said that, upon walking into
    defendants’ facility on February 17, 2011, he could smell some kind of gas. In addition, Coach
    Davies noted that the Zamboni broke down while it was resurfacing the ice during an
    -4-
    intermission, causing a delay in the action. He further swore that this Zamboni produced a
    gaseous odor that progressively worsened over time and that it “released a thick blue film that
    permeated the air.” Coach Davies thereafter heard several of his players begin to cough. In that
    regard, plaintiff produced affidavits from two of his teammates who recounted smelling gas in
    the air inside the arena and experiencing symptoms similar to plaintiff’s upon returning to Curry
    College. And lastly, as further evidence of the presence of a dangerous or defective condition,
    plaintiff pointed to defendants’ purchase of a new electric Zamboni just months later. As
    Bruckshaw explained at his deposition, electric Zambonis do not produce combustion emissions,
    as do those that are propane-fueled.       Accordingly, plaintiff argued that he had produced
    competent evidence that successfully rebutted defendants’ contention that there was no genuine
    issue of fact as to the air quality in the arena on the night in question, and thus the issue should
    be left to a factfinder.
    With respect to the issue of prior notice of the defect, plaintiff pointed to Coach Davies’
    affidavit, in which he swore that he had asked a rink attendant if it would be possible to open the
    doors to the facility because of the smell of gas. Coach Davies also stated that he had become
    aware of prior similar incidents involving three other college hockey teams. In that regard,
    plaintiff submitted a newspaper article detailing how players from the Salve Regina University
    hockey team fell ill following a game against Johnson & Wales at defendants’ facility on
    February 5, 2011. 2
    2
    The plaintiff later supplemented his objection to defendants’ motion for summary judgment
    with an affidavit from the head coach of the Salve Regina hockey team. The coach attested that
    at least three of his players became ill following the above-referenced game, and he thereafter
    informed the head coach at Johnson & Wales that he thought there was a problem with the air
    quality in defendants’ ice rink that warranted investigating. When the Salve Regina coach
    learned of the even “more extensive” bouts of sickness befalling the Curry College hockey team,
    -5-
    Finally, in terms of establishing a causal link between the defect and plaintiff’s injury,
    plaintiff highlighted the impressions contained in his medical records: “[a]cute hypoxic
    respiratory failure caused by inhalation of toxic fumes * * * at the hockey rink” and “[a]cute
    onset of cough * * * caused by early chemical pneumonitis as a result of exposure to toxic
    irritating fumes.” 3 The records listed plaintiff’s discharge diagnosis as “Acute Lung Injury” and
    “Carbon Monoxide and Nitrous Oxide exposure[,]” and described the course of his hospital
    treatment as “22 [year] old male with nitrogen dioxide and carbon monoxide exposure from
    Zamboni machine at a hockey rink, came with cough hemoptysis.” 4 Those records, according to
    plaintiff, were enough for his case to survive summary judgment.
    A hearing on the motion was held before a justice of the Superior Court on January 19,
    2016, and the motion justice rendered a bench decision the same day. He began by stating: “It
    appears from this record that there is a lack of evidence that a defective condition existed at the
    Sports Center on the date of the injury and it further appears that no one from the Sports Center
    had notice of any such defect, if there was one.” As for the defect itself, the motion justice found
    that plaintiff’s own testimony—that he did not see or smell any fumes in the rink, and that
    something else theoretically could have caused his sickness—negated his claim. The motion
    justice also put stock in the fact that the Department of Health’s air quality test, conducted the
    day after the alleged exposure, came back negative for toxins, and the “more objective”
    evidence, as the motion justice coined it, was that the only people who fell ill were from the
    he contacted Coach Davies and told him what had happened to players on his team just a couple
    of weeks earlier.
    3
    The impressions also went on to state, however, that the “possibility of infectious process such
    as atypical pneumonia cannot be totally excluded * * *.”
    4
    The papers before this Court are replete with inconsistencies as to nitrous versus nitrogen and
    oxide versus dioxide. Because it appears to be the most common in the medical records, we
    have chosen to refer to the toxin as “nitrogen dioxide” throughout this opinion.
    -6-
    Curry College hockey team, seeming to indicate that their sickness was from another source,
    independent of defendants’ facility.
    As to the notice element, the motion justice cited the deposition testimony of both
    Beauregard and L’Etoile that they did not see or smell any fumes in the arena on the night in
    question, and that neither of them recalled receiving any complaints about air quality that night
    or at any other time. The motion justice expressed his view that plaintiff was relying on nothing
    more than “testimony that somebody saw blue smoke coming from the Zamboni, that the
    plaintiff obviously told the people at the emergency room that the smoke came or the fumes
    came from the locker room, but yet that in and of itself is not sufficient evidence * * *.” As the
    motion justice saw it, the evidence offered by plaintiff essentially amounted to “supposition[.]”
    The motion justice declined to consider the newspaper article as evidence of notice because
    “[n]ewspaper articles are not admissible,” and, he said, the affidavit from the Salve Regina coach
    to that effect did not necessarily result in knowledge of the problem being imparted to
    defendants. And finally, according to the motion justice, Coach Davies’ affidavit claiming that
    he had asked someone at the rink to open the doors for ventilation purposes was not enough to
    create an issue of fact regarding whether defendants had sufficient notice. Consequently, the
    motion justice granted defendants’ motion for summary judgment.
    II
    Standard of Review
    When we review the granting of a party’s motion for summary judgment, we do so de
    novo. Van Hoesen v. Lloyd’s of London, 
    134 A.3d 178
    , 181 (R.I. 2016). “In doing so, we
    ‘examin[e] the case from the vantage point of the trial justice who passed on the motion for
    summary judgment, * * * view[ing] the evidence in the light most favorable to the nonmoving
    -7-
    party * * *.’” 
    Id. (quoting Sullo
    v. Greenberg, 
    68 A.3d 404
    , 406 (R.I. 2013)). We will affirm
    the judgment only “if we conclude that there are no genuine issues of material fact and that the
    moving party is entitled to judgment as a matter of law * * *.” 
    Id. (quoting Sullo
    , 68 A.3d at
    406-07). And, of course, we are ever mindful that “[s]ummary judgment is a drastic remedy, and
    a motion for summary judgment should be dealt with cautiously.” Faber v. McVay, 
    155 A.3d 153
    , 156 (R.I. 2017) (quoting Cruz v. DaimlerChrysler Motors Corp., 
    66 A.3d 446
    , 451 (R.I.
    2013)).
    III
    Discussion
    The single question with which we are faced in this appeal is whether summary judgment
    was improperly granted. The summary-judgment procedure begins when the movant files papers
    seeking to establish the absence of a genuine dispute with respect to the material facts of the
    case. Estate of Giuliano v. Giuliano, 
    949 A.2d 386
    , 391 (R.I. 2008). It then becomes necessary
    for the nonmoving party to demonstrate by competent evidence that a disputed issue of material
    fact does indeed exist. 
    Id. It is
    the court’s function to look for such factual issues, but not to
    determine them one way or the other. 
    Id. In that
    light, we are tasked with examining whether there is a genuine issue of material
    fact that should have precluded summary judgment in this case. “In cases involving a latent
    defect, the plaintiff must prove that sufficient evidence existed to show that the defendants knew
    or should have known of an unsafe condition on their premises.” Cooley v. Kelly, 
    160 A.3d 300
    ,
    304-05 (R.I. 2017) (quoting Bromaghim v. Furney, 
    808 A.2d 615
    , 617 (R.I. 2002)). Of course,
    “[t]he mere existence of [a dangerous or defective] condition * * * is not sufficient to charge
    [the] defendant with negligence.” 
    Id. at 305
    (quoting Antonakos v. Providence Institution for
    -8-
    Savings, 
    94 R.I. 382
    , 385, 
    181 A.2d 101
    , 103 (1962)); see also Hernandez v. Fernandez, 
    697 A.2d 1101
    , 1103 (R.I. 1997) (“As we have long held, the mere occurrence of an accident,
    without more, does not warrant an inference that a defendant has been negligent.”). Rather, to
    make out a prima facie premises liability case, the “plaintiff ‘must present evidence of an unsafe
    condition 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 the condition.” 
    Cooley, 160 A.3d at 305
    (quoting 
    Bromaghim, 808 A.2d at 617
    );
    see also 
    Hernandez, 697 A.2d at 1103
    (“Unless there is evidence, direct or inferential, that [the
    defendant] knew, or by the exercise of reasonable care in inspecting and maintaining its premises
    should have known, of such condition for a long enough period of time prior to the accident, it
    cannot be charged with notice thereof as a matter of law. Such notice is necessary to impose
    upon it the duty of alleviating the danger or of warning plaintiff of its existence.” (quoting
    
    Antonakos, 94 R.I. at 385
    , 181 A.2d at 103)). And certainly a “causal connection between
    negligence and a plaintiff’s injury must be established by competent evidence and may not be
    based on conjecture or speculation.” 
    Cooley, 160 A.3d at 305
    (quoting McLaughlin v. Moura,
    
    754 A.2d 95
    , 98 (R.I. 2000)). “It is also clear, however, that a plaintiff is not required to
    demonstrate with absolute certainty each precise step in the causal chain between the tortfeasor’s
    breach of duty and the injury. Rather, ‘[c]ausation is proved by inference.’” Skaling v. Aetna
    Insurance Co., 
    742 A.2d 282
    , 288 (R.I. 1999) (quoting Cartier v. State, 
    420 A.2d 843
    , 848 (R.I.
    1980)).
    Here, then, it was incumbent upon plaintiff to show: (1) the existence of a dangerous or
    defective condition on defendants’ premises; (2) defendants’ notice of that condition for a
    sufficient period of time; and (3) a causal link between that condition and plaintiff’s injury. We
    -9-
    will examine these elements one by one to determine whether there was a factual dispute; only if
    there was not such a dispute would our function then turn to analyzing whether defendants were
    entitled, based on the undisputed facts, to judgment as a matter of law.
    First, arguing that there was no issue of fact in terms of the defect, defendants pointed to:
    plaintiff’s statement that he did not see or smell any fumes inside defendants’ facility; plaintiff’s
    paucity of scientific evidence that there were any airborne toxins lingering on the night in
    question; the notation in the ice rink log of the air quality reading that night; and the results of
    testing conducted by the Department of Health showing no carbon monoxide in the rink the
    following day. The plaintiff responded in kind. He highlighted the following evidence: the
    Department of Health did not conduct a test to determine the levels of nitrogen dioxide and did
    not perform its carbon monoxide test until a day later; affidavits from his coach and teammates
    swearing that they smelled gas in the air the night plaintiff was injured, that his coach witnessed
    the Zamboni malfunction and produce visible emissions, and that his teammates also ended up
    suffering very similar symptoms as he did; and that defendants purchased an electric, non-
    propane-fueled Zamboni just months later. 5 In our judgment, based on the competing evidence,
    the dangerous-or-defective-condition element is factually disputed, and the issue remains to be
    resolved by a finder of fact.
    Second, asserting the absence of a factual dispute about whether defendants had notice of
    any alleged defect, defendants offered deposition statements made by two of their employees that
    they were unaware of any previous complaints about noxious fumes in the rink, and that they had
    5
    Under Rhode Island law, evidence that defendants bought a new, electric Zamboni shortly after
    the incident involving plaintiff could have been considered by the motion justice in passing on
    the motion for summary judgment. See R.I. R. Evid. 407 (“When, after an event, measures are
    taken which, if taken previously, would have made the event less likely to occur, evidence of the
    subsequent measures is admissible.”).
    - 10 -
    never observed any themselves. The plaintiff then submitted evidence in rebuttal: Coach Davies’
    affidavit attesting that he had asked someone working at the rink the night of the game to open
    the doors due to the gaseous smell, and that he was aware of similar incidents involving other
    teams at defendants’ facility; an affidavit from the coach of the Salve Regina hockey team
    describing his team’s experience; and a newspaper article describing that occurrence. 6 As was
    the case with respect to the first element, it is our view that whether defendants had notice of the
    dangerous condition at all and whether that notice was of a sufficient duration to impose on
    defendants a duty to fix the danger or warn of its existence are factual issues properly left to the
    determination of a jury.
    Third and finally, claiming there were no disputed facts as to causation, defendants relied
    on plaintiff’s acknowledgement that, despite his belief that it was noxious fumes in the arena that
    caused his sickness, he could not say so with 100 percent conviction. The defendants also
    argued that plaintiff had no evidence that any such exposure occurred on their premises, breaking
    the causal chain plaintiff needed to build. In rebuttal, plaintiff came forward with his medical
    records, which contained his diagnosis and which indicated that he had presented with an injury
    after inhaling toxic fumes at the ice rink. It appears from the transcript of the hearing that the
    6
    Although the motion justice ruled that newspaper articles in general are not admissible, and he
    therefore did not take into account the article that plaintiff submitted, we note that he could have
    done so. The article was competent evidence for the purpose for which plaintiff offered it—
    namely, as proof of defendants’ prior notice of the defective condition. Hearsay is an out-of-
    court statement offered to prove the truth of the matter asserted. R.I. R. Evid. 801(c). The
    plaintiff did not introduce the article to prove that members of the Salve Regina hockey team
    became ill following a game at defendants’ facility; rather, he offered it to establish that
    defendants were or should have been aware of the problem before plaintiff was injured.
    - 11 -
    motion justice considered the medical records, but simply found them to be insufficient evidence
    of causation. 7
    As we have explained, “proximate cause can be established by circumstantial evidence,
    and specific direct evidence of * * * proximate cause is not always necessary.” Rose v. Brusini,
    
    149 A.3d 135
    , 140 (R.I. 2016) (quoting Seide v. State, 
    875 A.2d 1259
    , 1268 (R.I. 2005)). Thus,
    even putting the medical records aside, the affidavits of plaintiff’s teammates and coach were
    proper circumstantial evidence of causation as well. In our opinion, it bears emphasizing that
    “[o]rdinarily the determination of proximate cause * * * is a question of fact that should not be
    decided by summary judgment.” 
    Id. (quoting Munroe
    v. Cheaters Holding Corp., 
    808 A.2d 645
    ,
    646 (R.I. 2002)).
    The genuine issues of material fact in this case are clear and manifest. It appears to us
    that the motion justice impermissibly weighed the evidence in resolving those factual disputes—
    a function unquestionably reserved to the province of the jury. See Limoges v. Nalco Company,
    
    157 A.3d 567
    , 571 (R.I. 2017); Williams v. Alston, 
    154 A.3d 456
    , 460 (R.I. 2017). As this Court
    previously has observed, “[t]he purpose of the summary-judgment procedure is to identify
    disputed issues of fact necessitating trial, not to resolve such issues.” Plainfield Pike Gas &
    Convenience, LLC v. 1889 Plainfield Pike Realty Corp., 
    994 A.2d 54
    , 58 (R.I. 2010) (quoting
    Rotelli v. Catanzaro, 
    686 A.2d 91
    , 93 (R.I. 1996)). We have also cautioned that “issues of
    negligence are ordinarily not susceptible of summary adjudication, but should be resolved by
    7
    We agree that this evidence could have been considered, including those parts of the medical
    records that made reference to the ice rink. See R.I. R. Evid. 803(4) (“Statements made for
    purposes of medical diagnosis or treatment and describing medical history, or past or present
    symptoms, pain, or sensations, or the inception or general character of the cause or external
    source thereof insofar as reasonably pertinent to diagnosis or treatment, but not including
    statements made to a physician consulted solely for the purposes of preparing for litigation or
    obtaining testimony for trial.”).
    - 12 -
    trial in the ordinary manner.” DeMaio v. Ciccone, 
    59 A.3d 125
    , 130 (R.I. 2013) (quoting
    Gliottone v. Ethier, 
    870 A.2d 1022
    , 1028 (R.I. 2005)); 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.”).
    In our considered opinion, the issues of fact inherent in this case necessitated a trial; there was
    not only one possible conclusion.      Accordingly, the defendants’ alleged negligence was a
    question that should have been left for the jury, and it was error to dispose of the case by
    summary judgment.
    IV
    Conclusion
    For the reasons stated above, we vacate the judgment of the Superior Court. The record
    shall be remanded to the Superior Court.
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    STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS
    SUPREME COURT – CLERK’S OFFICE
    OPINION COVER SHEET
    Title of Case                        Ian Delong v. Rhode Island Sports Center, Inc., et al.
    No. 2017-91-Appeal.
    Case Number
    (PC 14-611)
    Date Opinion Filed                   May 8, 2018
    Suttell, C.J., Goldberg, Flaherty, Robinson, and
    Justices
    Indeglia, JJ.
    Written By                           Associate Justice Francis X. Flaherty
    Source of Appeal                     Providence County Superior Court
    Judicial Officer From Lower Court    Associate Justice Richard A. Licht
    For Plaintiff:
    Mark B. Morse, Esq.
    Attorney(s) on Appeal                For Defendants:
    Charles F. Gfeller, Pro Hac Vice
    Stephen Adams, Esq.
    Jenna Rae Pingitore, Esq.
    SU-CMS-02A (revised June 2016)