In a recent decision, the Rhode Island Superior Court ruled that claims brought against a dissolved entity’s insurers are barred pursuant to R.I. General Laws § 27-7-2.  This statute bars direct actions against insurers of alleged tortfeasors absent very limited exceptions.

In Shirley D’Amico, et al. v. A.O. Smith Corp., et al. (C.A. PC12-0403), the Rhode Island Superior Court examined whether one of those exceptions to R.I. General Laws § 27-7-2, which allows direct actions against the insurers of a bankrupt entity, similarly permits a direct action against the insurers of a dissolved entity.  The underlying facts of the case were straightforward.  Plaintiff alleged that her husband, Frank D’Amico, died from malignant mesothelioma proximately caused by occupational exposure to asbestos.  This exposure, according to Plaintiff, took place during Mr. D’Amico’s service in the United States Navy and his subsequent employment at various golf courses.  Plaintiff filed the original complaint on January 25, 2012.  After multiple amendments, Plaintiff filed a fifth amended complaint on June 11, 2015, to include Grover S. Wormer Company (“Wormer”) as a defendant.  In accordance with Michigan Corporate Code, [1]Wormer was dissolved as of January 10, 2008.  As such, on February 28, 2018, the Court dismissed Plaintiff’s claims against Wormer, finding they were barred by the laws of State of Michigan.


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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
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In a recent case, a Rhode Island Jury awarded $31.3 million to Brett and Stacie Smith after a 2014 swimming accident in a pond at the University of Rhode Island left Mr. Smith paralyzed from the chest down.  The jury found that the University of Rhode Island was negligent in its failure to post warning signs and to inform its guests that swimming was prohibited.

The Smiths were attending a wedding during the weekend of July 25, 2014, at the Whispering Pines Conference Center.  After the rehearsal dinner, several members of the wedding party decided to go swimming in Louttit Pond.  After twenty or so minutes in the water, Mr. Smith and some others swam to, and climbed atop, a large rock in the middle of the pond.  They dove off and began to swim away from the rock.  While swimming underwater, Mr. Smith struck his head on a submerged rock, causing his paralysis.

The case focused on whether the defendants owed Mr. Smith a duty of care.  The plaintiffs argued that a duty existed for the defendants to post warning signs indicating that swimming was not allowed or describing the potential danger.  Conversely, the defendants argued that no duty existed as Mr. Smith assumed the risk of his injuries and that the potential dangers were open and obvious.

At trial, the major issue primarily focused on whether it was reasonably foreseeable that individuals would swim and be injured in the subject pond.  The plaintiffs put forth evidence that the management of the property had outlawed swimming in the pond due to potentially dangerous conditions, but did not install signs that forbade swimming on the property or warned of the dangers that the pond possessed.   The plaintiffs argued that this failure constituted negligence, as it was foreseeable that: 1) people would swim in the pond; 2) the very nature of the property lent itself to swimming as it promoted access to the outdoors, specifically, the water as well as numerous outdoor activities; and 3) the pond had a dock and a canoe launching point which encouraged people to use the water.

The defendants asserted two main defenses: 1) Mr. Smith assumed the risk of his injuries; 2) the condition was open and obvious. In Rhode Island, assumption of the risk is an affirmative defense that absolves a defendant of liability regardless of the defendant’s own negligence.  Loffredo v. Merrimack Mutual Fire Ins. Co., 669 A.2d 1162 (R.I. 1996).  To prevail on the assumption of the risk defense, defendants need to show that a plaintiff voluntarily encountered an unreasonable risk and appreciated its unreasonable character.  Id.  In examining this subjective standard, one must look at what the particular plaintiff saw, knew, understood, and appreciated.  Id.  As for the open-and-obvious defense, a property owner in Rhode Island is not liable for injuries that a guest suffered while on an owner’s premises when that guest was engaging in an open and obvious danger. Bucki v. Hawkins, 914
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On April 16, 2018, a Rhode Island court addressed for the first time whether an entity owes a duty of care to protect non-employees from exposure to the asbestos-tainted work clothes of the entity’s employee.  In a decision denying the defendant Crane Co.’s motion for summary judgment in the matter of Carolyn Nichols, as Executrix of the Estate of Iva Pearl Jones, et al. v. Allis Chalmers Product Liability Trust, et al., C.A. No. PC-2008-1134, Judge Sarah Taft-Carter held that while the existence of such a duty is determined on a case-by-case basis, the plaintiffs had presented sufficient evidence to establish that Crane Co. had a duty to protect against such “secondary” or “take-home” exposure.  The decision is significant in that the Court demonstrated a willingness to impose such a broad duty upon an employer if certain factors are met through the plaintiff’s evidence.

In the Jones matter, the plaintiffs alleged that the decedent, Iva Pearl Jones (“Ms. Jones”) was exposed to asbestos from the clothing of her brother-in-law, Stanley Nichols (“Mr. Nichols”) while Mr. Nichols was employed by Crane Co. from 1979 to 1980 and resided in the same home as Ms. Jones and other family members.  The testimony also established that Ms. Jones “always” did the laundry, including Mr. Nichols’ work clothes.  Ms. Jones was diagnosed with mesothelioma in 2005 and passed away in 2007.  The plaintiffs alleged that Crane Co. failed to take adequate precautions to prevent asbestos fibers from leaving the work site and failed to warn employees of a foreseeable risk of take-home exposures to their cohabitants. Following discovery, Crane Co. moved for summary judgment on all counts asserting that it had no duty of care to Ms. Jones, its employee’s sister-in-law, and that the plaintiffs had failed to establish that the alleged exposure to asbestos from Mr. Nichols’ clothing caused Ms. Jones’ disease.

The Court, noting that an employer’s duty to protect against “take-home” exposures is an issue of first impression in Rhode Island, recognized the division of existing authority in other jurisdictions that have addressed the issue in NY, MD, GA, TN, NJ, IL, and ND. The Court held that it need not find a “special relationship” between Crane Co. and Ms. Jones to impose a duty because the plaintiffs allegations were based upon Crane Co.’s own alleged misfeasance in utilizing asbestos-containing products and not on an alleged failure of Crane Co. to protect against the actions of a third-party tortfeasor.  Instead, the Court held that under Rhode Island law, the existence of a duty of care is determined on a case-by-case basis considering the following factors: (1) the foreseeability of the harm; (2) the degree of certainty of injury; (3) the closeness of connection between the defendant’s conduct and the plaintiff’s injury; (4) the policy of preventing future harm; (5) the burden to the defendant and consequences to the community in imposing a legal duty; and (6) the relationship between the parties.

After considering the above-factors, the Court
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Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the bases of race, color, national origin, religion, and sex. Federal circuits are currently split on whether discrimination based on sexual orientation falls within the scope of discrimination based on sex (and therefore within the scope of Title VII’s prohibition). On February 26, 2018, the en banc Second Circuit Court of Appeals found in Zarda v. Altitude Express that Title VII’s prohibition of discrimination based on sex does in fact cover discrimination based on sexual orientation, overturning its own precedent holding from almost twenty years prior. This result signals increased viability for challenges advocating a broader interpretation of Title VII to remedy sexual orientation discrimination, as well as a potential pushback by the Jeff Sessions-helmed Justice Department as these challenges arise.

Zarda involved a skydiving instructor (Zarda) who alleged that his employer (Altitude Express) fired him in response to a customer telling them of his sexual orientation. The U.S. District Court for the Eastern District of New York granted summary judgment in favor of Altitude Express on Zarda’s claim, finding that Title VII failed to cover sexual orientation discrimination, and that Zarda failed to establish the type of gender-stereotyping claim covered by the act. The District Court considered itself bound by the Second Circuit’s 17-year-old decision in Simonton v. Runyon, and held that, absent an en banc review by the Second Circuit reversing Simonton, Second Circuit precedent required dismissal. Zarda appealed the summary judgment to the Second Circuit, which granted an en banc review. Writing the majority opinion, Judge Robert Katzmann wrote in the majority opinion that sexual orientation discrimination necessarily involves sex discrimination, as it means discrimination against someone based on their own sex in relation to the sex of those to whom they are sexually attracted. Katzmann noted that although Congress had not sought to address sexual orientation discrimination in Title VII, laws like Title VII “often go beyond the principal evil to cover reasonably comparable evils,” which in this case included sexual orientation discrimination. The Second Circuit thus reversed Simonson, vacated the summary judgment, and remanded the Title VII claim to the District Court.

By allowing such a claim to proceed under Title VII, the Second Circuit joined the Seventh Circuit, which found last April that Title VII covers sexual orientation discrimination in its decision in Hively v. Ivy Tech Community College of Indiana. Hively concerned an adjunct professor who alleged that her employer passed her up for full employment because she was openly gay. Hively argued that she faced discriminated for failing to conform to female stereotypes, and because she publicly identified as a lesbian. The Seventh Circuit reversed and remanded the summary judgment in favor of her employer. It found that “discrimination on the basis of sexual orientation is a form of sex discrimination” and that “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth
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