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Ice Resurfacer Poisoning Demonstrates High Summary Judgment Threshold

Posted in Litigation Trends, Products Liability, Rhode Island Courts

In DeLong v. Rhode Island Sports Center, Inc., et al., a former college hockey player successfully appealed a Rhode Island Superior Court decision granting an ice rink’s motion for summary judgment in a case alleging that he was poisoned by an ice resurfacer after finding that circumstantial evidence present in the record was sufficient to raise a factual dispute. 182 A.3d 1129 (R.I. 2018).

 

The plaintiff alleged that he inhaled noxious fumes that emanated from a malfunctioning ice resurfacer while playing in an ice hockey game at an enclosed arena in February, 2011. However, the plaintiff’s first indication that he had breathed injurious air resurfacing machine air did not come until the following morning when he and a teammate visited an emergency room after coughing up blood, from which doctors deduced that the plaintiff suffered from an acute lung injury as a result of carbon monoxide and nitrogen dioxide poisoning.

 

Accordingly, the plaintiff filed suit alleging that the ice rink defendants: negligently maintained their facility by allowing noxious fumes to permeate the air; failed to exercise reasonable care; or failed to provide adequate warnings. However, following discovery, the defendants successfully persuaded the trial court to grant 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.” Id. at 1131.

 

Specifically, the defendants pointed to: the plaintiff’s deposition testimony that he neither saw nor smelled any unusual fumes while at the ice rink; the lack of scientific evidence as to the air quality in the arena on the night in question; and evidence that the ice rink attendant’s twice-daily notation of the air quality had shown zero carbon monoxide, which the Rhode Island Department of Health confirmed the following day. Moreover, the ice rink’s facilities manager and the ice resurfacing machine driver each testified that neither was aware of any complaints regarding noxious fumes. The trial court, furthermore, intimated that the plaintiff’s “sickness was from another source, independent of the defendant’s facility” because the Department of Health’s testing was “more objective” and because the only people who fell ill were from the college hockey team. Id. at 1133. Based on this, the trial court granted summary judgment ruling that a lack of evidence that a defective condition existed at the sports center on day of the hockey game and it appeared that no one from the ice rink had notice of any such defect, if there was one.

 

On appeal, however, the plaintiff noted that: (1) the Department of Health does not and did not test nitrogen dioxide levels and did not test carbon monoxide levels until a day after the alleged incident, implying that poisonous ice resurfacer emissions had subsided by the time testing occurred; (2) his teammates and coach stated that they smelled gas in the air the night of the game; (3) the coach executed an affidavit stating that he witnessed the ice resurfacer malfunction and produce visible emissions; and (4) his teammates also ended up suffering very similar symptoms as he did.

 

Moreover—and perhaps most crucially—the plaintiff revealed that the defendants purchased an electric, non-propane-fueled ice resurfacing machine just months after the incident. As such, the plaintiff sought to take advantage of Rhode Island’s minority approach to the subsequent remedial measure rule. That is, unlike the Federal Rules of Evidence and the majority of states, under Rhode Island law:

 

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.

R.I. R. Evid. 407.

 

Thus, the Supreme Court held that the trial court could and should have considered this evidence to reject the ice rink’s motion for summary judgement.

 

In its review of the plaintiff’s appeal, the court clearly indicated that even circumstantial evidence, such as the ice rink upgrading to an electric ice resurfacer, was sufficient to rise to the level of a materially factual dispute and it held that the ultimate determination of whether a dangerous-or-defective-condition existed or whether the ice rink had notice of any alleged defect was best suited for a jury’s review. Additionally, the Supreme Court repeated its caution that “issues of negligence are ordinarily not susceptible to summary adjudication, but should be resolved by trial in the ordinary manner.” Id. at 1137 (quoting Gliottone v. Ethier, 870 A.2d 1022, 1028 (R.I. 2005)).

 

DeLong is an instructive reminder that summary judgment is a powerful, but drastic tool. Even though a court may be presented with compelling, “more objective” evidence, “the purpose of summary judgment is issue finding, not issue determination.” Estate of Giuliano v. Giuliano, 949 A.2d 389, 391 (R.I. 2008). Conflating these two principles only confuses the ultimate question to be decided on summary judgment—whether, based on the evidence presented, there are remaining issues of material fact and whether the matter should proceed to trial or face dismissal on some or all issues.