Dolores Voccola v. The Stop & Shop Supermarket Company, LLC v. Xpress Sweeping, Inc.

June 11, 2019
Supreme Court
No. 2017-371-Appeal.
No. 2018-136-Appeal.
(PC 15-5402)
Dolores Voccola :
v. :
The Stop & Shop Supermarket Company, :
LLC et al.
v. :
Xpress Sweeping, Inc. :
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 (401) 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2017-371-Appeal.
No. 2018-136-Appeal.
(PC 15-5402)
(Dissenting Opinion begins
on Page 8)
Dolores Voccola :
v. :
The Stop & Shop Supermarket Company, :
LLC et al.
v. :
Xpress Sweeping, Inc. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Goldberg, for the Court. The plaintiff, Dolores Voccola (plaintiff or Voccola),
appeals from the entries of summary judgment in the Superior Court in favor of the defendant,
The Stop & Shop Supermarket Company, LLC (Stop & Shop), and the third-party defendant,
Xpress Sweeping, Inc. (Xpress Sweeping) (collectively defendants). This case came before the
Supreme Court for oral argument on March 5, 2019, 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 carefully reviewing the record, we are satisfied that this appeal may be resolved without
further briefing or argument. For the reasons set forth in this opinion, we vacate the judgments
of the Superior Court.
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Facts and Travel
In the light most favorable to plaintiff, the facts, as set forth in the record, are as follows.
At approximately 7 a.m. on March 1, 2013, plaintiff parked her car in the parking lot of a Stop &
Shop supermarket located in Smithfield, Rhode Island.1 As she was walking from her car to the
entrance of the Stop & Shop, plaintiff slipped and fell on what she characterizes as black ice, and
suffered injuries to her right hand and wrist. The plaintiff filed suit against Stop & Shop on
December 10, 2015, alleging negligence on the part of Stop & Shop for her resulting injuries.2
Stop & Shop answered plaintiff’s complaint and also filed a third-party complaint against Xpress
Sweeping to defend, indemnify, and hold Stop & Shop harmless for any claims arising out of
Xpress Sweeping’s duty under defendants’ snow services agreement.3
Both Stop & Shop and Xpress Sweeping filed motions for summary judgment in
accordance with Rule 56 of the Superior Court Rules of Civil Procedure. Essentially, defendants
argued that plaintiff failed to assert sufficient facts necessary to satisfy the elements of her
negligence claim because plaintiff testified at her deposition that she did not see, feel, or in any
manner observe ice at or near the location of her fall. The defendants therefore argued that
plaintiff could only “speculate” that her fall was caused by black ice. The plaintiff objected to
defendants’ motions and claimed that her deposition testimony “was based on a sound inference
clearly supported by scientific fact.” She thus argued that summary judgment was not proper
1
While the complaint alleged that the incident occurred at the Stop & Shop in North Smithfield,
it is apparent from the record that plaintiff’s fall occurred at the Smithfield location.
2
The plaintiff’s complaint also named “John Doe” as a defendant pursuant to General Laws
1956 § 9-5-20; however, the record does not indicate whether plaintiff ascertained “John Doe’s”
identity.
3
According to Stop & Shop, Xpress Sweeping was contractually obligated to provide snow
services “to maintain pedestrian and vehicle safety” at the Stop & Shop location in Smithfield.
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because this testimony, coupled with meteorologist Steven Cascione’s affidavit and
meteorological report, gave rise to a disputed issue of material fact as to whether there was black
ice in the parking lot of the Stop & Shop where she fell. The defendants’ motions were heard
and decided together on September 20, 2017. After hearing the arguments of counsel, the trial
justice granted both motions, and separate Rule 54(b) final judgments were entered in favor of
defendants. The plaintiff filed notices appeal from both, and her appeals were consolidated in
this Court.
Standard of Review
“This Court reviews a grant of summary judgment de novo.” Long v. Dell, Inc., 93 A.3d
988, 995 (R.I. 2014) (brackets omitted) (quoting Sullo v. Greenberg, 68 A.3d 404, 406 (R.I.
2013)). “Summary judgment is a drastic remedy, and a motion for summary judgment should be
dealt with cautiously.” Rohena v. City of Providence, 154 A.3d 935, 937 (R.I. 2017) (brackets
omitted) (quoting Cruz v. DaimlerChrysler Motors Corp., 66 A.3d 446, 451 (R.I. 2013)).
Summary judgment is 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.” Plunkett v. State, 869 A.2d 1185, 1187 (R.I. 2005) (brackets omitted) (quoting Wright
v. Zielinski, 824 A.2d 494, 497 (R.I. 2003)). “Only when a review of the admissible evidence
viewed in the light most favorable to the nonmoving party reveals no genuine issues of material
fact, and the moving party is entitled to judgment as a matter of law, will this Court uphold the
trial justice’s grant of summary judgment.” National Refrigeration, Inc. v. Standen Contracting
Company, Inc., 942 A.2d 968, 971 (R.I. 2008) (quoting Carlson v. Town of Smithfield, 723 A.2d
1129, 1131 (R.I. 1999)).
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Analysis
On appeal, plaintiff argues that the Superior Court erred in granting summary judgment
in favor of defendants because a genuine issue of material fact exists as to whether there was
black ice in the area of the parking lot of Stop & Shop where plaintiff slipped and fell. In turn,
defendants argue that this Court should affirm the judgments because plaintiff failed to produce
sufficient evidence, beyond mere speculation and conjecture, that there was a dangerous
condition in the parking lot of Stop & Shop on March 1, 2013. We disagree with defendants’
contention.
It is well settled 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 damage.’”
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 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.” Bromaghim
v. Furney, 808 A.2d 615, 617 (R.I. 2002). “This Court has held that ‘complaints sounding in
negligence generally are not amenable to summary judgment and should be resolved by fact
finding at the trial court * * *.’” Dent v. PRRC, Inc., 184 A.3d 649, 653 (R.I. 2018) (quoting
Berard v. HCP, Inc., 64 A.3d 1215, 1218 (R.I. 2013)).
To avoid summary judgment, the burden is on plaintiff, the nonmoving party, to produce
competent evidence that establishes a genuine issue of material fact. Hill v. National Grid,
11 A.3d 110, 113 (R.I. 2011). One of the threshold inquiries in a slip-and-fall case is the
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existence of a dangerous condition on the premises, and, so, at the summary-judgment hearing,
plaintiff was required to present evidence that her fall was the result of an unseen danger, such as
black ice. The plaintiff submitted an affidavit prepared by meteorologist Steven Cascione that
analyzed the weather conditions the day before the incident, as well as the morning of plaintiff’s
fall. Mr. Cascione’s affidavit and attached report explained that the temperature fluctuation on
March 1, 2013, with a drop from 33.8 degrees at 4:15 a.m. to 30.2 degrees at 5:55 a.m., and then
back up to 33.8 degrees at 7:15 a.m., along with little wind and partly cloudy skies, was an ideal
condition for radiational cooling.4 Mr. Cascione expounded further upon the temperature
fluctuation and stated that, on February 28, 2013, the day before plaintiff’s fall, the temperature
reached a high of 42 degrees, which would allow for melting of any snow or ice on ground
surfaces. Mr. Cascione then reviewed two photographs taken in April 2016 that depicted a snow
pile similar to that which was near the area where plaintiff fell on March 1, 2013. He stated:
“After reviewing the pictures that you presented to me of a snow
pile in the Stop and Shop parking lot, it is through my
Meteorological expertise, that melting would occur from the snow
pile in question producing runoff on February 28th into the early
morning hours of March 1, 2013 before the temperature fell below
freezing. If the melting snow or runoff was not treated with a
deicing chemical, then ice would form from the below freezing
temperatures in the time frame stated earlier on the morning of
March 1, 2013. Also with the low sun angle around 7 AM on
March 1[,] 2013, it may have been hard to see the formation of ice
as it can often blend in with the asphalt. That is where the term
Black Ice comes from.”
Mr. Cascione’s affidavit concluded with the following: “It is my opinion that the cause of the
slip and fall suffered by [plaintiff] was a direct and proximate result of black ice o[n] the surface
4
According to Mr. Cascione, “radiational cooling” is a term used to describe “the release of
surface heating back into space before the radiation of the sun can heat up the surface at ground
level again.”
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of the asphalt that she had walked on, while traversing from her parked vehicle to the entrance of
Stop and Shop[.]”
In addition to Mr. Cascione’s affidavit, plaintiff also offered a transcript of her deposition
testimony in support of her opposition to defendants’ motions for summary judgment. She
testified that, at approximately 7 a.m. on March 1, 2013, it was neither raining nor snowing;
however, it was a cold day with no sun because it was still early morning. When she got out of
her car, she testified, the parking lot was “generally clean and dry[,]” except for a pile of snow
that was piled on and around a parking lot median between her car and the entrance to Stop &
Shop. She testified that, as she was walking to the entrance, she did not notice any ice on the
ground; however, when she fell it “felt like somebody pulled the rug out from under [her] and
[she] just went down and landed on [her] wrist[.]” When asked if she observed any ice on the
ground where she fell, plaintiff testified that she “did not notice ice or [she] would have avoided
it.” She also testified that, although she did not see any ice before or after her fall, she knew
there was black ice where she fell because otherwise she “wouldn’t have fallen the way [she]
did.”
At her deposition, plaintiff also presented two photographs taken approximately three
years after the incident that depicted how the area looked to her on the day she fell. The
photographs show a pile of snow adjacent to a handicapped parking spot on and around a parking
lot median directly across from the entrance to Stop & Shop. The plaintiff testified that, on the
day she fell, the snow pile was smaller than what was shown in the two photographs and that she
was not sure of the height of the pile on the day she fell, but that it was not “spread out this way.
I think it was just a pile.” She further testified: “[T]he reason I took the pictures is I wanted to
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show that this was where the snow was piled every storm. Since 2013, I have seen snow piled
there every time there’s a storm. It’s never cleared away.” (Emphasis added.)
Under our well-established summary-judgment standard, and viewing the evidence and
inferences to be drawn from the evidence in the light most favorable to plaintiff, we conclude
that plaintiff satisfied her burden of “produc[ing] competent evidence that proves the existence
of a disputed issue of material fact” such that a reasonable factfinder could conclude that the
cause of plaintiff’s fall was, in fact, black ice. Wyso v. Full Moon Tide, LLC, 78 A.3d 747, 750
(R.I. 2013) (brackets omitted) (quoting Sullo, 68 A.3d at 407). This is a fact that is capable of
proof by direct evidence or proof by inference. The defendants are free to challenge plaintiff’s
assertions and argue that there was no black ice present in the area of plaintiff’s fall, and that
plaintiff’s version of facts is incorrect. However, at the summary-judgment stage, a trial justice
must not weigh the evidence or make credibility determinations. Rather, a trial justice must view
the evidence in the light most favorable to the nonmoving party and determine if that party has
submitted sufficient evidence to create a genuine issue of material fact. We hold that plaintiff
has done so and that the trial justice erred in granting summary judgment in favor of defendants.
The sole issue before the trial justice was whether there were genuine issues of material
fact as to the dangerous condition that caused plaintiff’s fall that would preclude summary
judgment. In determining whether an issue is genuine for purposes of summary judgment, a trial
justice cannot consider the merits, make credibility determinations, evaluate testimony, or weigh
the evidence. Instead, the trial justice “must review the pleadings, affidavits, admissions,
answers to interrogatories, and other appropriate evidence from a perspective most favorable to
the party opposing the motion.” Gliottone v. Ethier, 870 A.2d 1022, 1027 (R.I. 2005) (quoting
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Steinberg v. State, 427 A.2d 338, 340 (R.I. 1981)). However, in the case at bar, the trial justice
undertook a factual determination and weighed expert testimony when she stated:
“[W]hat the [c]ourt is stuck with is this idea that what he looked at,
those pictures—and it’s interesting. As counsel points out, not
only can I say they’re not similar to the snowbanks that were
present on that day, your own client actually stated they’re not; that
the ones that were there that day were much smaller. I don’t know
how much value, or whether or not that rises to the level, I should
say, of the competent evidence that plaintiff needs to produce
because I don’t know that it is competent. It’s an opinion based
upon something entirely different.”
The trial justice also weighed the evidence when she stated:
“I don’t think this report says what you hoped it would say. If
that’s supposed to raise a genuine issue of fact whether there was
ice in the area at the time of plaintiff’s fall, and whether the ice, if
any, would have been noticeable on the asphalt, I don’t think this
gets you there. I think this last part that we’ve referenced, there’s
inferences that can be drawn. I think there’s a fine line or a tipping
point when we go from inferences to just pure speculation.”
At the summary-judgment hearing, it was not the moment for the trial justice to weigh the
evidence before her or make credibility assessments—that is a function that should be reserved
for the factfinder at trial. See Limoges v. Nalco Company, 157 A.3d 567, 571 (R.I. 2017).
Accordingly, we vacate the judgment granting summary judgment in favor of the defendants.
Conclusion
For the reasons set forth herein, we vacate the judgments of the Superior Court. The
papers in this case may be remanded to the Superior Court for further proceedings.
Justice Indeglia, with whom Justice Robinson joins, dissenting. Even in a negligence
claim, for a plaintiff to survive a motion for summary judgment he or she must submit competent
evidence sufficient to create a genuine issue of material fact to be resolved at trial. From my
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review of the record, however, Voccola merely presented speculative evidence on the issue of
the existence of black ice in the Stop & Shop parking lot on the day that she fell, making
summary judgment in favor of the defendants appropriate in this case. Therefore, I must
respectfully dissent.
“To prevail in a negligence action, the plaintiff must introduce competent evidence to
establish not only that the defendant owed a duty of care to the plaintiff and that that duty was
breached, but also that the defendant’s negligence was the proximate cause of the plaintiff’s
injury.” Kennedy v. Tempest, 594 A.2d 385, 388 (R.I. 1991). Specifically, on the element of
causation, “the 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 v. Kelly, 160
A.3d 300, 305 (R.I. 2017) (brackets omitted) (quoting McLaughlin v. Moura, 754 A.2d 95, 98
(R.I. 2000)).
Regarding a motion for summary judgment, this Court has stated that “[w]e will affirm a
trial court’s decision only if, after reviewing the admissible evidence in the light most favorable
to the nonmoving party, we conclude that no genuine issue of material fact exists and that the
moving party is entitled to judgment as a matter of law.” Bayview Loan Servicing, LLC v.
Providence Business Loan Fund, Inc., 200 A.3d 153, 156 (R.I. 2019) (emphasis added) (brackets
omitted) (quoting Cancel v. City of Providence, 187 A.3d 347, 350 (R.I. 2018)).
In the instant case, my primary concern is the fact that Voccola never properly identified
what had caused her to fall. In Russian v. Life-Cap Tire Services, Inc., 608 A.2d 1145 (R.I.
1992), this Court affirmed a hearing justice’s grant of summary judgment in favor of the
defendant, holding that the plaintiff failed to assert sufficient facts on which reasonable
inferences could be drawn identifying the defendants’ negligence as the proximate cause of the
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plaintiff’s injury. Russian, 608 A.2d at 1147, 1148. There, the plaintiff was injured on the
premises of one of the defendants, an automobile tire business, and claimed that he “felt
something hit him in the shins” prior to falling. Id. at 1147. However, the plaintiff never
identified what had actually hit him in the shins; rather, he testified that the work area was clear
of debris and tools in the immediate area where he fell. Id. at 1146. The plaintiff conjectured
that it may have been a car jack that caused his fall, but failed to present any evidence from
which one could rationally infer any negligence on the part of the defendants. Id. at 1147. In
affirming summary judgment in favor of the defendants, this Court reasoned that “the mere
happening of an accident does not in and of itself necessarily warrant a reasonable and legitimate
inference of negligence.” Id. (brackets omitted) (quoting Kennedy, 594 A.2d at 388); see
Habershaw v. Michaels Stores, Inc., 42 A.3d 1273, 1277 (R.I. 2012) (holding that a mere
allegation that retailer’s floor was “shiny” was insufficient to support a negligence claim arising
out of customer’s slip and fall because it was not competent evidence).
Here, Voccola stated in her deposition that at the time of her fall she did not observe any
ice; she did not touch the ground with her hand to feel if there was ice; she did not notice if her
clothes were wet; and, when she observed the pavement, she found it to be uniform and all one
color. Like the plaintiff in Russian, Voccola could not identify with any specificity what had
caused her fall. Russian, 608 A.2d at 1147. While Voccola may conjecture that black ice caused
her to fall, her own deposition testimony contradicts her theory. Because the mere fact that
Voccola fell “does not in and of itself necessarily warrant a reasonable and legitimate inference
of negligence[,]” her deposition testimony was not competent evidence on the existence of black
ice. Id. (quoting Kennedy, 594 A.2d at 388).
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Because Voccola’s deposition testimony was not enough to carry her past defendants’
motions for summary judgment, the only discovery material that might save her claim was the
affidavit of Steven Cascione (the Cascione affidavit). My concern here is that the majority
appears to believe that, when the hearing justice found that Cascione failed to lay a proper
foundation and excluded the Cascione affidavit as too speculative, she improperly weighed the
evidence. I disagree. From my review of the record, it appears that the hearing justice based her
decision to disregard the Cascione affidavit on Rule 56(e) of the Superior Court Rules of Civil
Procedure.
“We are cognizant that in considering a motion for summary judgment, the court does not
pass upon the weight and credibility of the evidence, but must consider the affidavits and other
pleadings in a light most favorable to the party opposing the motion.” Weaver v. American
Power Conversion Corporation, 863 A.2d 193, 200 (R.I. 2004). “However, we also have held
that naked and conclusory assertions in an affidavit are inadequate to establish the existence of a
genuine issue of material fact and thus do not afford a basis for reversal of a trial justice’s ruling
granting a motion for summary judgment.” Id. “The obvious rationale for this rule prevents a
party from dodging summary disposition with factual assertions in tailor-made affidavits
designed solely to create a mirage of material issues.” Id.It is well settled in this jurisdiction that “[b]efore admitting expert testimony, the trial
justice must evaluate whether the testimony that a party seeks to present to the jury is ‘relevant,
within the witness’s expertise, and based on an adequate factual foundation.’” Kurczy v. St.
Joseph Veterans Association, Inc., 820 A.2d 929, 940 (R.I. 2003) (emphasis in original) (quoting
Rodriquez v. Kennedy, 706 A.2d 922, 924 (R.I. 1998)); see also Franco v. Latina, 916 A.2d
1251, 1258 (R.I. 2007) (“An expert may not give an opinion without describing the foundation
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on which the opinion rests.”) (quoting Gorham v. Public Building Authority of Providence, 612
A.2d 708, 717 (R.I. 1992)). Rule 56(e) requires that “[s]upporting and opposing affidavits shall
be made on personal knowledge, shall set forth such facts as would be admissible in evidence,
and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”
(Emphasis added.) “[A]lthough an opposing party is not required to disclose in its affidavit all
its evidence, he or she 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.”
Jessup & Conroy, P.C. v. Seguin, 46 A.3d 835, 839 (R.I. 2012) (brackets omitted) (quoting
Bourg v. Bristol Boat Co., 705 A.2d 969, 971 (R.I.1998)).
In this case, the hearing justice correctly surmised that the Cascione affidavit was the
only evidence that might save Voccola’s claim, recounting:
“As counsel points out, not only can I say they’re not similar to the
snowbanks that were present on that day, your own client actually
stated they’re not; that the [snowbanks] that were there that day
were much smaller. I don’t know how much value, or whether or
not that rises to the level * * * of the competent evidence that
plaintiff needs to produce[.]”
The hearing justice then went on to discuss the rest of the Cascione affidavit, stating: “I think
that is speculation. I don’t think it’s competent evidence.” Furthermore, she found that “even
when I take all the inferences in the light most favorable to the plaintiff that would establish—
when I say ‘no evidence,’ [I mean] no competent evidence.” I think it is clear from the record
that the hearing justice made a Rule 56(e) determination regarding the speculative nature of the
Cascione affidavit.
The issue before us in the instant case is whether, at the summary-judgment stage, a
hearing justice may make an independent determination regarding the speculative nature of an
expert’s affidavit. Because caselaw regarding this issue in our jurisdiction is sparse, I look
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elsewhere for guidance. “This Court has stated previously that where the federal rule and our
state rule of procedure are substantially similar, we will look to the federal courts for guidance or
interpretation of our own rule.” Crowe Countryside Realty Associates., Co., LLC v. Novare
Engineers, Inc., 891 A.2d 838, 840 (R.I. 2006) (brackets omitted) (quoting Smith v. Johns-
Manville Corp., 489 A.2d 336, 339 (R.I. 1985)). Because Rule 56(e) is substantially similar to
its federal counterpart, this Court should look to federal court decisions to interpret whether a
hearing justice can make an independent 56(e) determination regarding an expert witness’s
testimony at the summary-judgment stage.
“Under Rule 56(e), affidavits supporting or opposing summary judgment must set forth
facts that would be admissible in evidence. A district court may exclude expert testimony where
it finds that the testimony has no foundation or rests on speculative evidence.” Schubert v.
Nissan Motor Corporation in U.S.A., 148 F.3d 25, 29 (1st Cir. 1998) (deletion omitted) (quoting
Casas Office Machines, Inc. v. Mita Copystar America, Inc., 42 F.3d 668, 681 (1st Cir. 1994)).
In Hayes v. Douglas Dynamics, Inc., 8 F.3d 88 (1st Cir. 1993), the United States Court of
Appeals for the First Circuit held that the expert affidavits in that case failed to produce
“sufficient support for the conclusion that the injury to [the decedent] was caused by the
defendant’s product.” Hayes, 8 F.3d at 92. There, the decedent, while sitting in the back seat of a
vehicle stopped at an intersection, was hit from behind by another vehicle fitted with a snowplow
unit that consisted of a metal lift channel that protruded outward from the front of the truck. Id. at
89. The plaintiff’s witness, who was an accident reconstruction expert, “used the police report,
autopsy report, death certificate, hospital and medical records, depositions, pictures of the
accident scene and vehicles, and the study conducted by [an independent company], in order to
reconstruct the accident.” Id. at 92. With that information, the expert opined in his affidavit that
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the decedent was struck in the head by sheet metal that had been pushed forward by the lift arm
of the snowplow, given that the blow to the head was the same size, shape, and rigidity, there had
been no other objects of the like near the decedent’s head, and, thus, the defendant’s product had
caused the injury. Id. at 93.
Nevertheless, the court disregarded the expert’s affidavit, reasoning that his “bald
assertion that no other part of the car or truck had that particular shape is difficult to accept,
given that [the expert] never had the opportunity to examine the [car] after the accident.” Hayes,
8 F.3d at 93. Furthermore, the court stated that the photographs of the car in which the decedent
had been seated were not clear enough to establish the size and shape of each piece of the
accident wreckage. Id. Thus, the court found that the expert had failed to provide any factual
details to support his theory, and omitted the affidavit for failing to meet the standards of a Rule
56(e) determination. See id. at 92, 93.
Here, Cascione provided the temperatures from the night and early morning prior to
Voccola’s fall, the size of the snowbank (taken from the photograph), and the low angle of the
sun—illustrating the ideal condition for the snowbank to melt, create a pool of water, then freeze.
Furthermore, Cascione opined that, given the low angle of the sun, a shadow could have formed
over the newly formed ice, making it difficult for Voccola to see any ice as she walked in the
Stop & Shop parking lot.
The main problem I see with the Cascione affidavit is that it was based on speculative
evidence. Cascione founded his opinion on photographs of a snowbank taken three years after
Voccola’s fall, and no testimony was provided as to the size or shape of the snowbank on the day
of the accident—the pictures merely indicated the same general area where the snowbank was
formed. Moreover, he based his opinion in part on Voccola’s deposition; and, in that deposition,
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when asked about the size and shape of the snowbank, Voccola merely stated that “[i]t must have
been in my line of view but I didn’t really notice it * * *.” Furthermore, Cascione never went
to the scene of the accident; as such, he could not determine whether any slopes, elevations, or
divots in the pavement could have prevented the alleged black ice from forming in the area
where Voccola fell. Finally, Cascione stated that there may have been a shadow, making it
difficult to see any ice formation in the Stop & Shop parking lot; however, Voccola directly
contradicted that fact in her deposition, when she testified that she did not observe any shadows
on the day of her accident.
Based on the above factors, the hearing justice determined that the Cascione affidavit was
not competent evidence, thus rendering it inadmissible. As such, she did not consider the
affidavit when ruling on the defendants’ motion for summary judgment. Because the Superior
Court, in the Rule 56 context, views only admissible evidence in a light most favorable to the
nonmoving party, there was nothing for the hearing justice to weigh when she granted summary
judgment in favor of the defendants. See Bayview Loan Servicing, LLC, 200 A.3d at 156. From
my review of the record in the instant matter, I cannot say that the hearing justice erred in
granting summary judgment in favor of the defendants, as neither Voccola’s deposition
testimony, nor the Cascione affidavit, was competent on the issue of the existence of black ice on
the day that Voccola fell.
For the above-stated reasons, I must respectfully dissent.
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
Dolores Voccola v. The Stop & Shop Supermarket
Title of Case
Company, LLC et al. v. Xpress Sweeping, Inc.
No. 2017-371-Appeal.
Case Number No. 2018-136-Appeal.
(PC 15-5402)
June 11, 2019
Date Opinion Filed
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Written By Associate Justice Maureen McKenna Goldberg
Providence County Superior Court
Source of Appeal
Judicial Officer From Lower Court Associate Justice Maureen B. Keough
For Plaintiff:
Richard A. Pacia, Esq.
Attorney(s) on Appeal For Defendants:
Gino Spinelli, Esq.
Stanley F. Pupecki, Esq.
James S. D’Ambra, Esq.
SU‐CMS‐02A (revised June 2016)