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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC.                                                                                  SUPERIOR COURT
(FILED:  OCTOBER 13, 2011)
GARY LEMONT                                                                                      :
:
V.                                                                                               :                C.A. NO. PC 06-4776
:
ESTATE OF MARY DELLA                                                                             :
VENTURA                                                                                          :
DECISION
MCGUIRL, J.   Before this Court are the Estate of Mary Della Ventura‘s (―Defendant‖)
post-trial motions.   Gary Lemont (―Plaintiff‖) asserted a claim of premises negligence
against Defendant.    After a jury trial, a verdict was returned in  favor of Plaintiff.
Defendant renewed its previous Motion for Judgment as a Matter of Law and filed a
Motion for New Trial.   Jurisdiction is pursuant to G.L. 1956 § 8-2-14, Super. R. Civ. P.
50, and Super. R. Civ. P. 59.
I
FACTS
In September of  2003, Plaintiff visited the house owned by Defendant at  32
Waller Street, Providence, Rhode Island (―the property‖) to help a tenant at the property
move out of a second floor apartment.  Plaintiff was moving a nightstand when he paused
on the second floor landing.   Plaintiff leaned against the second floor landing‘s railing
while attempting to maneuver the nightstand, which Plaintiff later testified was too heavy
to carry alone.   Plaintiff leaned against the landing‘s railing, moving the nightstand.   One
of the railing‘s posts broke, resulting in Plaintiff‘s injury.




Plaintiff brought suit against Defendant, alleging premises negligence due to ―a
dangerous and unkempt stairway railing.‖ (Compl. ¶ 4.)   On the morning of the fourth
trial  date  certain,  September                                                                 27,   2010,  Plaintiff  gave  Defendant  an   ―Amended
Interrogatory  Answer.‖    This  document  stated  Plaintiff‘s  intent  to  call  a  building
inspector as an expert witness to testify to a building code and violations thereof on the
property.    The  Court  construed  Plaintiff‘s  action  as  an  oral  motion  in  limine  and
instructed the parties to prepare for a hearing on that motion.   At the hearing, Plaintiff
argued for the admissibility of a building code and a building code expert‘s testimony to
describe the alleged code violations on the property.   Plaintiff described how he planned
to incorporate this evidence into his case and the conclusions he would suggest the jury
draw therefrom in his closing argument.   Plaintiff did not state that he planned to call
upon the doctrine of res ipsa loquitur (―res ipsa‖) to provide an inference of negligence.
The Court denied Plaintiff‘s motion to admit the proffered building code.   In
ruling the code irrelevant and therefore inadmissible, the Court reasoned it was unclear
whether the code Plaintiff submitted, a document entitled ―International Residential Code
2003,‖ ever was or is in effect anywhere in Rhode Island.   The Court further reasoned
that, even if  ―International Residential Code  2003‖ was incorporated into the Rhode
Island Building Code, the Rhode Island Code was enacted decades after Defendant‘s
property was built.     Thus, the property was ―grandfathered in‖ and not bound by either
code.   Geloso v. Kenny, 812 A.2d 814, 817 (R.I. 2002) (citing Rodriquez v. Kennedy,
706 A.2d 922, 924 (R.I. 1998)).   Consequently, the building inspector‘s testimony, which
would explain the code‘s requirements and describe shortcomings on the property, was
also irrelevant and inadmissible.
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The trial was held October 6, 2010.   In support of his negligence claim, Plaintiff
testified and submitted photographs of the premises.   Plaintiff did not refer to res ipsa at
any point during the trial.   Towards the end of the trial, the Court invited the parties to
submit  proposed  jury  instructions.    The  Court  held  a  conference  to  discuss  the
instructions with the parties.    Plaintiff neither proposed instruction on res ipsa, nor
mentioned the doctrine at the conference.
The Court, as is its customary practice, instructed the jury after the close of the
evidence.   As res ipsa was never pleaded, brought up in a motion in limine, presented in
Plaintiff‘s case during the trial, suggested in Plaintiff‘s proposed jury instructions, or
mentioned in the jury instruction conference, the Court did not instruct the jury on this
evidentiary device.  The parties then delivered their closing arguments.
Plaintiff‘s  closing  argument  focused  on  the  ability  of  the  jury  to  make  an
inferential leap from the fact that Plaintiff fell when the railing broke to the conclusion
that either the railing or the landing constituted an unreasonably dangerous condition.
Plaintiff also encouraged the jury to find that the staircase landing was an unreasonably
dangerous condition that Defendant negligently permitted on her property, a finding
Plaintiff also suggested the jury could reach by taking an inferential leap from the fact
that Plaintiff fell.   Plaintiff further urged the jury to find that Defendant should have
known  about  the  condition  because  she  purchased  insurance.    Defendant  objected
numerous times during Plaintiff‘s closing argument.   Defendant renewed its previously-
filed Motion for Judgment as a Matter of Law and moved for a new trial.   The Court
reserved decision on these motions and permitted the matter to go to the jury.   The jury
returned a verdict for Plaintiff.
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II
LAW & ANALYSIS
A
Renewed Motion for Judgment as a Matter of Law
Defendant argues that it is entitled to a judgment as a matter of law because there
was no legally sufficient evidence to permit the jury to find negligence, even with the
inference of negligence that res ipsa could permit.  Defendant argues that given the dearth
of evidence, the jury had to have reached its verdict through speculation and conjecture.
(Def.‘s Mem. in Supp. of Def.‘s Mot. 1-2.)
In response, Plaintiff argues that the ―the jury found sufficient evidence that the
landlord was negligent and that such negligence was the proximate cause of Plaintiff‘s
injuries.‖  (Pl.‘s Mem. in Obj. to Def.‘s Mot. p.  1.)   Plaintiff further argues that the
evidence permitted the jury to infer negligence pursuant to res ipsa.                         (Pl.‘s Mem, in Obj.
to Def.‘s Mot. p. 3.)
Rule  50(a)(1) of the Rhode Island Superior Court Rules of Civil Procedure
provides:
―If during a trial by jury a party has been fully heard on an
issue and there is no legally sufficient evidentiary basis for
a reasonable jury to find for that party on that issue, the
court may determine the issue against that party and may
grant a motion for judgment as a matter of law against that
party with respect to a claim or defense that cannot under
the controlling law be maintained or defeated without a
favorable finding on that issue.‖
―The trial justice considers the evidence in the light most favorable to the nonmoving
party, without weighing the evidence or evaluating the credibility of witnesses, and draws
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from the record all reasonable inferences that support the position of the nonmoving
party.‖   Bliss Mine Road Condo. Ass'n v. Nationwide Prop. & Cas. Ins. Co., 11 A.3d
1078, 1083 (R.I. 2010) (quotations and citations omitted).                                       The trial justice must deny
the motion ―if there are factual issues on which reasonable people may draw different
conclusions.‖  Id. (quotations and citations omitted).
When a motion for a new trial is not granted,  ―the court is deemed to have
submitted the action to the jury subject to a later determination of the legal questions
raised by the motion.‖   Super. R. Civ. P. 50(b).   As was the case here, the movant may
renew his motion after the entry of judgment.   Id.                                              ―[I]n disposing of a renewed motion,
the court may allow the verdict to stand or may . . . order a new trial or direct the entry of
judgment as a matter of law.‖  Id.
Plaintiff‘s claim of premises negligence is governed by well settled principles of
law.                                                                                             ―A landlord owes a duty to ‗[m]ake all repairs and do whatever is necessary to put
and keep the premises in a fit and habitable condition.‘‖ Ramos v. Granajo, 822 A.2d 936
(R.I. 2003) (quoting G.L. 1956 § 34-18-22(a)(2) and citing Errico v. LaMountain, 713
A.2d  791,  793  (R.I.  1998)).   To demonstrate a breach of this duty, a plaintiff must
demonstrate that the injurious condition on the premises constituted an ―unreasonably
dangerous condition.‖    Errico,  713 A.2d at  794.      If the plaintiff presents sufficient
evidence of an unreasonably dangerous condition, the plaintiff must then demonstrate
that the landowner knew, or should have known, about the dangerous condition.  Id.
In his closing argument and in his objection to Defendant‘s motions, Plaintiff
argued that the jury could find, with the help of res ipsa, that either the railing or landing
constituted an unreasonably dangerous condition, and that Defendant had, or should have
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had,  notice  thereof.    Res  ipsa  is  an  evidentiary device  that                             ―establishes  inferential
evidence of a defendant's negligence, thus making out a prima facie case for a plaintiff,
and casts upon a defendant the burden of rebutting the same to the satisfaction of the
jury.‖  McLaughlin v. Moura, 754 A.2d 95, 98 (R.I. 2000) (quotations omitted).
―The mere occurrence of an accident, without more, does not warrant an inference
[derived pursuant to res ipsa] that a defendant has been negligent.‖ McLaughlin, 754
A.2d at 98; see also 57B Am. Jur. 2d Negligence § 1170 (2004)                                     (―A plaintiff is not
entitled to bring a case to a jury under res ipsa loquitur any time there is an unexplained
accident for which a defendant might plausibly be responsible.‖).                                 ―It is the function of
the court to determine whether the inference may reasonably be drawn by the jury.‖
Parrillo v. Giroux, 426 A.2d 1313, 1321 (R.I. 1981) (quoting Restatement (Second) Torts
§ 328(D) (1965)).
Before the Court permits the jury to infer negligence pursuant to res ipsa, the
Court must be satisfied that the plaintiff has ―‗produce[d] sufficient evidence from which
a reasonable [person] could say that, on the whole, it was more likely than not that there
was negligence on the part of the defendant.‘‖   Errico, 713 A.2d at 796 (quoting Parrillo,
426 A.2d at 1319) (alterations in original).   This preliminary showing ensures that ―‗the
causal  connection  between  negligence  and  a  plaintiff's  injury                              [is]  established  by
competent evidence and [is] not [] based on conjecture or speculation.‘‖   McLaughlin,
754 A.2d at 98 (quoting Skaling v. Aetna Ins. Co., 742 A.2d 282, 288 (R.I. 1999)).
If the evidence is sufficient to invoke the doctrine of res ipsa, that evidence,
together with res ipsa‘s permissible inference of negligence, creates ―a legally sufficient
evidentiary basis for a reasonable jury to find for that party on that issue.‖   Super. R. Civ.
6




P. 50; compare Errico, 713 A.2d 791 (permitting inference of negligence to arise from
evidence of defect, upholding trial justice‘s denial of Rule 50 motion) with McLaughlin,
754 A.2d 95 (prohibiting inference of negligence from arising because no evidence of
defect was presented, upholding trial justice‘s grant of Rule 50 motion).
At trial, Plaintiff argued that Defendant was negligent regarding both the railing
and the landing.   The Court cannot discern whether the jury found that Defendant was
negligent as a result of a defect in the railing, the landing, or both features because the
jury questionnaire merely asked the jury whether Plaintiff‘s injuries ―were proximately
caused by Defendants‘ negligence.‖  The jury questionnaire was framed this way because
until  Plaintiff‘s  closing  argument—which  was  delivered  after  the  instructions  and
questionnaire were prepared— the defective railing was the dangerous condition alleged
in Plaintiff‘s negligence claim.   The Court will address Defendant‘s motion as it applies
to each possible defect.
Our Supreme Court has had multiple occasions to evaluate whether a plaintiff
presented evidence sufficient to invoke the inference that a landowner was negligent and
caused the plaintiff‘s injuries.  For example, in Errico, a broken railing case, our Supreme
Court held that photographic and testimonial evidence that ―the railing‘s wooden spindles
appeared to be rotten‖ warranted the trial justice‘s instruction on res ipsa.                   713 A.2d at
795-96.   This ―observable evidence of the railing‘s physical deterioration‖ satisfied the
plaintiff‘s burden of producing sufficient evidence from which a reasonable person could
say that there was likely negligence on the part of the defendant.  Id. at 794-96.
Likewise, in Giron v. Bailey, another broken railing case, our Supreme Court
upheld the trial justice‘s determination that the plaintiff had ―provided sufficient evidence
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to survive a Rule 50 motion‖ such that ―[t]he jury wouldn‘t be speculating, they‘d be
drawing the reasonable inference that this was a damaged railing.‖                                 985 A.2d 1003, 1007
(R.I. 2009).   This evidence consisted of the plaintiff‘s testimony that he had jostled the
railing while moving a couch and told the landlord that the railing may have been
damaged as a result, a neighbor‘s testimony that at least one spindle was ―loose‖ and
another  ―bent,‖ and testimony that the landowner had actual knowledge of multiple
tenants‘ concern with the railing‘s condition.  Id. at 1006-1008.
In contrast, our Supreme Court has held that no inference of premises negligence
may arise where the plaintiff fails to present some evidence of a dangerous condition.
Without this preliminary showing, no jury question on negligence exists.   Ramos, 822
A.2d 936; McLaughlin, 754 A.2d 95; see also 57B Am. Jur. 2d Negligence § 1170 (―A
plaintiff is not entitled to bring a case to a jury under res ipsa loquitur any time there is an
unexplained accident for which a defendant might plausibly be responsible.‖).    For
example, our Supreme Court upheld the trial justice‘s grant of summary judgment in
favor of the defendant in Ramos, which, like the case at hand, was a premises negligence
case arising out of a broken railing.                                                              822 A.2d at 936.   Our Supreme Court reasoned that
―the plaintiff offered no evidence that the balcony was not properly maintained or that the
defendant had notice of any defect.‖   Id. at 938.   The Court was unconvinced that the
plaintiff‘s                                                                                        ―bare  allegation‖  of  foreseeable  injury  due  to  some  alleged  defect  was
sufficient to create an issue of fact.   Id. at 938.   Thus, our Supreme Court upheld the trial
justice‘s determination that no jury question existed.  Id.
Likewise, in McLaughlin, our Supreme Court upheld the trial justice‘s grant of
judgment as a matter of law for the defendants in a premises negligence case.                      754 A.2d
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95.   The plaintiff failed to present any evidence that the dangerous condition, viz., an
accumulation of snow and ice, existed, but argued that pursuant to res ipsa, the fact finder
could infer that the defendants were negligent.   Id. at 98.   Our Supreme Court first noted
that ―the mere occurrence of an accident, without more, does not warrant an inference
that a defendant has been negligent.‖   Id. at 98 (quotation omitted).  In upholding the trial
justice‘s determination that the plaintiff failed to invoke the doctrine of res ipsa—and
therefore failed to present a jury question on negligence—our Supreme Court reasoned
that the plaintiff‘s unsupported theory that he was injured by snow was ―‗not based on
any appropriate primary inference but would require a speculative leap that a jury would
not be permitted to make.‘‖   Id. at 98 (quoting Banks v. Bowen‘s Landing Corp., 652
A.2d 461, 464 (R.I. 1995)).
To the extent that the jury verdict was based on defective railing, Plaintiff failed
to satisfy the preliminary showing required to invoke the doctrine of res ipsa, let alone the
showing required to present a jury question.   Plaintiff offered no evidence that the railing
was not properly maintained or that the defendant had notice of any defect.   Ramos, 822
A.2d at 938.   There is no ―‗evidence from which a reasonable [person] could say that it
was more likely than not that there was negligence on the part of‘‖ Defendant.   Errico,
713 A.2d at 796 (quoting Parrillo, 426 A.2d at 1319).  If there was ―observable evidence‖
that the railing was defective, Plaintiff failed to capture that observation in the pictures he
submitted into evidence.   See Errico, 713 A.2d at 794-96.   Plaintiff offered neither lay
nor expert testimony concerning the condition of the railing before or after it broke and
whether the pieces broke as a result of a defect.   See Giron, 985 A.2d at 1006-1008 (pre-
break testimony that the railings were loose and bent  was sufficient to create jury
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question); Errico, 713 A.2d at 794-96 (post-break testimony that railing appeared rotten
was sufficient to create jury question); Dunnigan v. Kirkorian, 67 R.I. 472, 25 A.2d 221
(R.I. 1942) (post-break expert carpenter‘s testimony that landowner‘s attempted repairs
left railing unsafe was sufficient to create jury question).   Plaintiff offered no evidence
that any part of the railing had been previously damaged and was neglected or not
properly repaired.    See Giron,  822 A.2d at  936  (railing deteriorated and previously
damaged but not repaired sufficient to create jury question); Dunnigan, 67 R.I. 427, 25
A.2d  221  (railing  deteriorated and  inadequately repaired sufficient  to  create  a jury
question).    To find negligence in the case at hand, the jury had to have made an
impermissible ―‗speculative leap.‘‖   McLaughlin, 754 A.2d at 98 (quoting Banks, 652
A.2d at 464).
Plaintiff argues that sufficient evidence supports the verdict under the defective
railing theory because the ―testimony of [Plaintiff] and the photographs of the scene and
affidavits were undisputed.‖                                                                     (Pl.‘s Obj. 2.)   Plaintiff correctly asserts that the veracity of
Plaintiff‘s testimony and authenticity of the photographs went unchallenged.   This does
not  necessarily  mean,  however,  that  Plaintiff‘s  testimony  or  the  pictures  indicate
negligence.   Plaintiff candidly testified to that which was within his personal knowledge,
which  did  not  include  statements  indicating  a  defect  in  the  railing.    Rather  than
supporting a finding of defect, Plaintiff‘s uncontroverted testimony that he tested some of
the railings and found the confidence to proceed supports the conclusion that no defect
existed.                                                                                         Likewise,  the  photographs  may  accurately  reflect  the  railing,  but  the
photographs do not show a defect in the railing.   Thus, Defendant is entitled to Judgment
as a Matter of Law on Plaintiff‘s claim of defective railing.
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Perhaps due to the fact that the trial ended without any evidence of a railing
defect, Plaintiff changed tactics during his closing argument: Plaintiff urged the jury to
find that the landing upon which Plaintiff was standing with the nightstand was defective
in its size and/or shape.  This theory of negligence is also unsupported by the evidence.
In his objection to Defendant‘s motion, Plaintiff argues that the photographs of
the premises Plaintiff introduced earlier in the trial constitute sufficient evidence for a
jury question,  and  ultimately a  verdict,  on  landing  defect.    The  photographs  were
introduced in connection with Plaintiff‘s argument that the railing was defective.   No
nexus between the extremely poor quality photographs and a possible defect in the
landing was ever made at trial.   The allegedly defective landing was hardly visible, if
visible at all, in the photographs.  The Court finds that there was no evidence to indicate a
landing defect existed, let alone an unreasonably dangerous defect.   Thus, there is no
legally sufficient evidentiary basis for a reasonable jury to find for Plaintiff on the
defective landing issue, and Defendant is entitled to Judgment as a Matter of Law.
Plaintiff was fully heard on the issue of negligence.   No evidence of a defect in
either the staircase railing or landing was presented.   Consequently, there was no legally
sufficient evidentiary basis for a reasonable jury to find for Plaintiff on the issue of
negligence under either or both theories.   Defendant‘s Motion for Judgment as a Matter
of Law is GRANTED.
B
Motion for New Trial
Defendant alternatively moves for a new trial.    Defendant contends that the
verdict was against the weight of the evidence.   Defendant argues generally that Plaintiff
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presented no evidence that Defendant breached a duty; and specifically that there was no
evidence of a defect, no evidence that a reasonable inspection would have revealed a
defect; and no evidence that Defendant had actual or constructive notice of a defect.
Defendant also argues that multiple errors of law require a new trial.   Defendant
contends that it was an error of law to permit the case to go to the jury due to the absence
of evidence in support of Plaintiff‘s claim.   Defendant also contends that it was an error
of law to permit the case to go to the jury after Plaintiff‘s closing argument because (1)
Plaintiff introduced a new theory of liability in his closing argument; and (2) Plaintiff
incurably prejudiced Defendant by repeatedly referring to Defendant‘s liability insurance
coverage in violation of Rule 411 of the Rhode Island Rules of Evidence.   Defendant
objected numerous times, thereby preserving these grounds for the present motion.   See
State v. Fortes, 922 A.2d 143, 149 R.I. 2007 (discussing action required of a party who
finds prejudicial fault in his or her opponent‘s closing argument).   The Court sustained
these objections and delivered an instruction meant to cure any prejudice.
In response, Plaintiff argues that sufficient evidence supports the verdict, namely,
that the staircase landing could not support a person maneuvering furniture and that the
railing was ―breakable.‖  (Pl.‘s Obj. to Def.‘s Mot. for Directed Verdict  4.)   Plaintiff
argues that it was permissible for the jury to use res ipsa, but does not specifically address
the questions raised about the propriety of the timing of Plaintiff‘s introduction of this
doctrine.  Plaintiff also neglects to respond to Defendant‘s Rule 411 argument.
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1
Against the Weight of the Evidence
A motion for a new trial is governed by Rule 59 of the Rhode Island Superior
Court Rules of Civil Procedure.   A new trial may be granted when the verdict is against
the weight of the evidence.   Manning v. Bellafiore, 991 A.2d 399 (R.I. 2010).   When
ruling on a motion for a new trial on these grounds in a civil case tried to a jury, ―the trial
justice acts as a ‗superjuror‘ and ‗should review the evidence and exercise his or her
independent judgment in passing upon the weight of the evidence and the credibility of
the witnesses.‘‖  Connor v. Schlemmer, 996 A.2d 98, 114 (R.I. 2010) (quoting Seddon v.
Duke, 884 A.2d 413, 413 (R.I. 2005) (quotations omitted)).     While engaging in this
review, ―the trial justice must consider the evidence in light of the charge to the jury‖ in
order to determine ―whether the justice would have reached a different result from that of
the jury.‖   Blue Coast, Inc. v. Suarez Corp. Indus., 870 A.2d 997, 1008-09 (R.I. 2005)
(quotations omitted).
―[T]he trial justice need not engage in an exhaustive review and analysis of all
of the evidence and testimony presented at trial * * * [but] need only make reference to
such facts disclosed by the testimony as have motivated his or her conclusion.‖  Manning,
991 A.2d 399 (R.I. 2010) (quotations omitted).     The trial justice's decision on a motion
for a new trial is afforded great weight by our Supreme Court.  Dawkins v. Siwicki, 23 A.
3d 1142, 1159 (R.I. 2011) (citing Oliviera v. Jacobson, 846 A.2d 822, 829 (R.I. 2004).
―[Our Supreme Court] does not overturn a trial justice‘s decision in this regard unless the
trial justice overlooked or misconceived the evidence or otherwise was clearly wrong.‖
Dawkins, 23 A.3d at 1159 (citations and internal quotations omitted).
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As discussed, Plaintiff  presented no evidence  that the railing was defective.
Plaintiff presented no evidence, that the landing was defective.   Plaintiff presented no
evidence that Defendant knew or should have known about any defect on the premises.
With this dearth of evidence, any inference of negligence or knowledge drawn by the jury
must have been the result of speculation or conjecture.   Thus, the verdict is against the
weight of the evidence, and the rights of Defendant have been prejudiced thereby.   The
verdict fails to respond truly to the merits and to administer substantial justice between
the parties.   Turgeon v. Davis, 120 R.I. 586, 591, 388 A.2d 1172, 1185 (R.I. 1978).
Defendant‘s Motion for a New Trial is GRANTED.
2
Error of Law
A new trial is also appropriate when an  ―error of law occur[ed] at the trial.‖
Super. R. Civ. P. 59.   When reviewing the trial justice‘s decision on a motion for a new
trial based on error of law, our Supreme Court ―employs de novo review to determine
whether the trial justice committed legal error.‖   Riley v. Stone, 900 A.2d 1087, 1092
(R.I. 2006) (citing Votolato v. Merandi, 747 A.2d 455, 461 (R.I. 2000)).   An erroneous
jury instruction is an error of law that may warrant a new trial.   Maglioli v. J.P. Noonan
Transp., Inc., 869 A.2d 71, 75 (R.I. 2005).  A new trial is warranted due to erroneous jury
instructions                                                                                  ―only if it can be shown that the jury  ‗could have been misled‘ to the
resultant prejudice of the complaining party.‖   Kurczy v. St. Joseph Veterans Assoc., 820
A.2d 929, 944 (R.I. 2003).
Here,  the  jury was  not  instructed  on  the  doctrine  of  res  ipsa,  yet  Plaintiff
encouraged the jury to call upon this evidentiary device to decide the case.   It was an
14




error of law for the Court to permit the jury to consider the doctrine of res ipsa because,
as discussed, Plaintiff failed to make the preliminary showing required for invocation of
res ipsa.    See Errico, 713 A.2d at 796.
Even assuming that Plaintiff‘s case appropriately invoked res ipsa, the Court also
erred in permitting the jury to consider the doctrine because the Court did not provide
proper instruction thereon.                                                                      The Court instructed the jury on the law of premises
negligence.  Plaintiff introduced res ipsa and encouraged the jury to draw the inference of
negligence.  Res  ipsa  is  an  evidentiary device  whose  voluminous  history engenders
―confusion and disagreement [] concerning the nature, scope, and effect of the doctrine.‖
57B Am. Jur. 2d Negligence § 1165 (2004).     Even an instruction formulated through
careful consideration of both parties‘ suggestions has the potential to confuse and mislead
a jury to the resultant prejudice of a defendant.   Here, the jury received no instruction
from the Court on res ipsa.  It was an error of law for the jury to receive instruction on the
doctrine only through Plaintiff‘s closing argument because the instruction was confusing
and misleading to the prejudice of Defendant.  Kurczy, 820 A.2d at 944.
Lastly, Defendant argues that Plaintiff‘s violations of Rule  11 of the Rhode
Island Rules of Evidence require a new trial.   Plaintiff does not address this contention.
Rule 411 states that ―[e]vidence that a person was or was not insured against liability is
not admissible upon the issue whether he acted negligently or otherwise wrongfully.‖ R.I.
R. Evid. 411.   ―The rule is intended to discourage inquiry into a defendant‘s indemnity in
a manner calculated to influence the jury.‖   Cochran v. Dube, 114 R.I. 149, 152, 330
A.2d 76, 78 (R.I. 1975).   A reference to insurance coverage may be cured by a timely
cautionary instruction.  Id., 330 A.2d at 78.
15




The issue is whether Plaintiff‘s references to Defendant‘s liability insurance ―so
irreparably prejudiced the [D]efendant[] as to require a new trial.‖       Cochran v. Dube,
114 R.I. 149, 152, 330 A.2d 76, 78 (R.I. 1975).   Plaintiff directly associated Defendant‘s
purchase of liability insurance with Defendant‘s culpability numerous times.   During
Plaintiff‘s brief closing argument, Plaintiff pointed out that Defendant is ―the insurance
company‖ and mentioned ―insurance‖ no fewer than ten times.   Particularly troublesome
examples include Plaintiff‘s statements that Defendant ―had a dangerous [situation], so
she bought insurance to cover it in case there was an accident;‖ and that landowners
should ―honor you by insurance when [they] mak[e] mistakes.‖
Given the frequency and content of Plaintiff‘s references to Defendant‘s identity
as the property owner‘s liability insurer, the Court is suspect that the curative instruction
successfully ―offset the development of prejudice in the minds of the jurors.‖   Id., 330
A.2d at 78 (citing Lewis v. Allard, 108 R.I. at 534, 277 A.2d 744,  746 (R.I. 1971);
Harrod v. Ciamciarulo, 95 R.I. 504, 506, 188 A.2d 459, 460 (R.I. 1963)).   Nevertheless,
as ample grounds exist for granting Defendant‘s Renewed Motion for Judgment as a
Matter of Law and Motion for a New Trial, the Court declines to rule on whether
Plaintiff‘s references to Defendant‘s insurance status also warrant a new trial.
III
CONCLUSION
The Court GRANTS Defendant‘s Renewed Motion for Judgment as a Matter of
Law.   There was no legally sufficient evidentiary basis for a reasonable jury to find for
Plaintiff on the issue of negligence.
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In the alternative, the Court GRANTS Defendant‘s Motion for a New Trial on
two grounds.   First, the verdict failed to respond to the merits of the controversy because
the verdict was against the weight of the evidence.   Second, it was an error of law to
permit the jury to consider res ipsa loquitur because the evidence was insufficient to
invoke the doctrine and because the jury was not properly instructed on the doctrine.
Counsel for Defendant shall submit an appropriate order in accordance with this
decision.
17

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