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.

Continue Reading Rhode Island Court Bars Direct Claim Against Insurers of Alleged Tortfeasor

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.

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 A.2d 491, 496 (R.I. 2007).

 

In an attempt to establish these defenses, the defendants endeavored to elicit testimony from Mr. Smith that he was aware of the potential dangers associated with swimming in an unfamiliar body of water.  The goal was to demonstrate that he assumed the risk of his injuries, as he knew it was possible that he might strike his head on an underwater obstacle.  Additionally, the defendants argued that the dangers associated with swimming in an unknown body of water should be open and obvious to the reasonable person.  In particular, they asserted that a reasonable person is well aware of the dangers associated with diving into shallow water or with swimming in an unfamiliar body of water.

 

At the conclusion of a three-week trial, the jury rejected both defenses.  In particular, the jury found Mr. Smith did not assume the risk of his injuries as the pond was deep, the submerged rocks were not visible, and he saw other swimmers in the group safely emerge after traversing the water. For similar reasons, the jury concluded that the dangers, as described, were not open and obvious.

 

This case once again reinforces an important reminder to property owners in Rhode Island: it is imperative to warn of known dangers, no matter how unlikely they are to be encountered or how open or obvious the condition may seem to be.

 

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 concluded that Crane Co. owed a duty of care to Ms. Jones. First, the Court found that it was foreseeable to Crane Co. that asbestos fibers could be transmitted on an employee’s clothing and posed a risk to individuals residing with the employee, based on the 1972 Occupational Safety and Health Administration (OSHA) regulation “emphasiz[ing] the importance of preventing asbestos from leaving the worksite on employees’ clothes” and advising employers of measures to prevent such risks including providing employees with protective clothing. (citing Standard for Exposure to Asbestos Dust, 37 Fed. Reg. 110, 11318 (June 7, 1972), amending 29 C.F.R. § 1910, et seq.).  Second, the Court noted that the degree of certainty of injury, namely Ms. Jones’ diagnosis of malignant mesothelioma, was not contested.  Third, with regard to the closeness of the connection between Crane Co.’s conduct and the alleged injury, the Court listed several measures Crane Co. could have taken to prevent take-home exposure, such as providing uniforms, on-site showers and laundry services, and/or requiring employees to change their clothes before leaving the facility. Fourth, the Court  acknowledged that asbestos-related illnesses have a long latency period and therefore, the fact that Ms. Jones’ was not diagnosed until 25 years after the alleged exposures did not reduce the closeness of the connection.  Fifth, as to public policy considerations and the burden of imposing a legal duty on employers under the circumstances presented, the Court commented that asbestos poses a danger to public health and cumulative exposures can cause mesothelioma.  The Court rejected Crane Co.’s assertion that imposing a duty would subject it limitless liability and claims from “a seemingly immeasurable amount of people,” emphasizing that Rhode Island courts determine whether a duty exists on a case-by-case basis.  Moreover, it observed that measures Crane Co. could have undertaken to prevent household exposures were required by OSHA and not burdensome or onerous. Finally, the Court rejected Crane Co.’s argument that Ms. Jones’ relationship with Crane Co., as the sister-in-law of Crane Co.’s employee and household member, was too attenuated to support a duty.  The Court found that the plaintiffs had provided evidence of long-standing cohabitation between Ms. Jones and Mr. Nichols and that they acted as a single household unit during the relevant times with Ms. Jones regularly undertaking laundry duties for the household.

 

The Court further concluded that the plaintiffs had presented sufficient evidence to prevail against Crane Co.’s motion for summary judgment on the issue of causation.  Crane Co. argued that plaintiffs’ evidence was insufficient to meet the “frequency, regularity, proximity” test set forth in Sweredoski v. Alfa Laval, Inc., No. PC 2011-1544, 2013 WL 3010419, *2 (R.I. Super. June 13, 2013) (Gibney, P.J.).  The Court stated, the “issue of proximate causation is usually a question for the trier of fact that cannot be determined on summary judgment” and found that the plaintiffs had provided sufficient evidence of product identification, regular and frequent use, and proximate exposure to asbestos.  Specifically, Mr. Nichols had testified that he regularly worked closely with asbestos-containing insulation for approximately seven months.  He further testified that Ms. Jones “always” laundered his work clothes, and that there was visible dust in the air when she performed this task.  The plaintiffs’ pathology expert, Dr. James A. Strauchen, also opined that Ms. Jones’ cumulative exposure to asbestos caused her mesothelioma.  The Court held that this evidence satisfied the frequency, regularity, proximity test and was sufficient for a jury to conclude that exposure to asbestos from Mr. Nichols’ clothing was a substantial factor in causing of Ms. Jones’ disease.

 

Judge Taft-Carter’s decision denying Crane Co.’s motion for summary judgment is notable as the first instance in which a Rhode Island court has addressed the scope of duty an employer owes for “secondary” or “take-home” exposures.  While the decision demonstrates a willingness of the Court to extend an employer’s duty to household members of employees that demonstrate exposure to asbestos at a worksite that is controlled by the employer, the Court conducted  a multi-factor analysis that it stated it would apply going forward on a case-by-case basis.

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 a case of sex discrimination for Title VII purposes.” According to the Seventh Circuit, Title VII encompassed both her gender non-conformity and sexual orientation discrimination allegations.

 

The Eleventh Circuit held otherwise in Evans v. Georgia Regional Hospital, decided on March 10, 2017. The case involved a male-identifying security hospital security guard (Evans) allegedly dismissed from employment for failing to present as a woman. Like the plaintiff in Hively, Evans argued that she suffered discrimination due to her gender non-conformity, which she argued fell within the scope of Title VII’s prohibition of sex discrimination. The Eleventh Circuit agreed that Title VII protected against this type of discrimination, but found that she failed to make a prima facie showing of it. The Eleventh Circuit distinguished discrimination based on gender non-conformity from discrimination based on sexual orientation, and found that Title VII did not address the latter.

 

In Franchina v. City of Providence, decided on January 25, 2018, the First Circuit heard the city’s appeal of a verdict and judgment against it for a female firefighter’s Title VII claim that her employer provided her with a hostile workplace, where she suffered discrimination as both a woman and a lesbian. She proceeded under a “sex-plus” theory, or a gender discrimination claim alleging that an employer classifies employees based on their sex “plus” another characteristic (in this case, sexual orientation). The First Circuit held in denying the city’s challenge that the plaintiff’s claim of sexual orientation discrimination, although not technically redressable under Title VII, did not cause her meritorious sex discrimination claim to fail. In a jurisdiction following Zarda’s reasoning, this “sex-plus” heuristic becomes less meaningful or necessary for the plaintiffs to resort to, where sexual orientation itself becomes a protectable distinction. The difference between two jurisdiction’s analyses in cases like Franchina underscores the stakes in the national push for Circuit reconsideration of narrow judicial applications of Title VII.

 

After these cases, a pronounced Circuit split exists on the scope of Title VII’s coverage. On December 11, 2017, the Supreme Court refused certiorari for the plaintiff’s appeal in Evans, but more appeals to the Court’s jurisdiction on this issue appear imminent. The Second Circuit’s reversal appears to increase the impetus for the Supreme Court to address this question. In the meantime, state legislatures draft their own provisions aimed at remedying the type of discrimination typified by these suits.