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Supreme Court
No. 2008-31-Appeal.
(PC 05-1428)
(PC 05-1429)
Michael Accetta                                                                                      :
v.                                                                                                   :
Doris Provencal.                                                                                     :
Michael Norato                                                                                       :
v.                                                                                                   :
Doris Provencal.                                                                                     :
Present:  Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
O P I N I O N
Chief Justice Williams, for the Court.   This matter comes to us on the appeal of
Michael Accetta and Michael Norato (collectively plaintiffs) after an unfavorable jury verdict in
the Superior Court. The plaintiffs were involved in a car accident in Providence, Rhode Island,
when Norato’s vehicle was hit from behind by Doris Provencal (defendant).1   Although the
defendant admitted that she was liable, she denied that her negligence was the proximate cause
of any injuries suffered by the plaintiffs and disputed that any damages had been incurred.  After
a one-day trial, the jury opted not to award damages to either plaintiff.   The plaintiffs have
asserted two issues on appeal: (1) whether the trial justice erred in admitting photographs of
1 On March  22,  2005, plaintiffs filed separate negligence actions against defendant.   These
actions subsequently were consolidated.
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Norato’s and the defendant’s vehicles as they appeared after the accident and (2) whether the
trial justice erred in failing to grant the plaintiffs’ motion for a new trial.
This case came before the Supreme Court for oral argument on December  8,  2008,
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 hearing the arguments of counsel and examining
the record and memoranda filed by the parties, we are of the opinion that this appeal may be
decided at this time without further argument or briefing.   For the reasons hereinafter set forth,
we affirm the judgment of the Superior Court.
I
Facts and Travel
Before a trial on the merits of this case commenced, the trial justice heard a motion in
limine from plaintiffs’ attorney, in which he sought to exclude any photographs of the vehicles
that were involved in the accident at issue.   The plaintiffs argued that admitting the photographs
into evidence without expert testimony would unfairly prejudice plaintiffs, would confuse and/or
mislead the jury, and would be contrary to public policy.   The plaintiffs were concerned that the
lack of physical damage to the vehicles depicted in the photographs might lead the jury to
conclude that plaintiffs had not been seriously injured.   The trial justice denied the motion and
stated that she would not allow expert testimony on the issue of whether the lack of physical
damage to the vehicles was related to an absence of bodily injury to plaintiffs.
The relevant facts were elicited at trial.   On August 27, 2003, after going out for coffee
and  doughnuts  in  Providence,  plaintiffs  were  in  Norato’s  car,  driving  from  the  corner  of
Plainfield and Killingly Streets to South Main Street.   While en route, between 9:30 and 10 a.m.,
Norato stopped his car at a traffic light on Service Road Number 7.   According to plaintiffs, the
car had been stopped at a red light when Norato’s car was hit from behind by a vehicle that
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defendant was driving.   Accetta testified that upon impact, he went forward, hit the windshield,
and then sat back in his seat.   He explained that immediately after the car was hit, he felt some
pain in his neck and back; he continued to feel this pain while waiting for the police to arrive on
the scene of the accident.   Norato provided a similar narrative, explaining that immediately after
the accident, he felt weak and had pain in both his neck and back.
The defendant, who also testified at trial, explained that on the morning of the accident,
she was on her way to visit someone at Rhode Island Hospital, when she came to a complete stop
at the same traffic light as plaintiffs on Service Road Number 7.   Her vehicle was stopped
approximately five feet behind Norato’s car.   When a driver in a car behind defendant honked
and held down the car horn, she became startled, took her foot off the brake, and pressed on the
gas pedal.   The defendant, who was driving a caravan, explained that when she accelerated, her
vehicle advanced at a speed of approximately four to five miles per hour.   After defendant’s
vehicle made contact with Norato’s, defendant testified that she became very emotional and
apologized to plaintiffs.
After the police left the scene of the accident, plaintiffs testified that they went to a
nearby medical center on Dean Street.   Although Norato left the medical center after waiting
more than an hour without seeing a doctor, Accetta saw a treating physician.    Norato did,
however, have X-rays taken at “another place,” on Broad Street.   Thereafter, plaintiffs each
sought  treatment  from  Joachim E.  Badway,  a chiropractor.    They  followed  an  apparently
identical therapy schedule: each plaintiff saw Dr. Badway three times a week for the first three to
four weeks after the accident and then continued to see Dr. Badway less frequently.   The total
treatment time for each plaintiff amounted to two and one-half months.
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At  the  close  of  Norato’s  testimony,  defendant’s  attorney  introduced  into  evidence
photographs of Norato’s car.  Norato testified that the photographs fairly and accurately depicted
his car as it had appeared after the accident.   These photographs were published to the jury.
Likewise, after defendant’s testimony, her attorney introduced photographs of defendant’s van
that were taken after the accident.  These photographs also were published to the jury.
During  closing  arguments,  defendant’s  attorney  referred  to  the  photographs  of  the
vehicles, urging the jurors to use their “common sense.”   He stated: “I would ask that you do
look at the exhibits.   I mean, you’ve looked at the photographs.   So you know, a picture is worth
a thousand words as the saying goes.”
When the case was submitted to the jury, the jurors were asked to determine the total
amount of damages suffered by Accetta, if any, and the total amount of damages suffered by
Norato, if any.   When the jury returned its verdict, after one hour of deliberations, it found that
neither plaintiff was entitled to damages.
Thereafter, plaintiffs filed a motion for a new trial or, in the alternative, additur.   The
plaintiffs argued two grounds for a new trial: (1) the photographs of the two vehicles involved in
the accident should not have been admitted into evidence because they were not relevant and (2)
the verdict was against the clear weight of the evidence because the parties had stipulated to
defendant’s liability.   After hearing from the parties, the trial justice denied this motion.   The
trial justice explained that the photographs “were part of the story” and that they “complemented
and  supplemented  the  testimony.”    Indeed,  she  remarked  that  the  photographs  supported
defendant’s  contention  that  this  was  a  low-impact  collision.    Moreover,  the  trial  justice
concluded that it was appropriate for defense counsel to advise the jurors to use their common
sense.   She noted that neither plaintiff’s testimony was compelling, yet defendant was quite
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credible.  Accordingly, the trial justice assumed that the jury must have found that plaintiffs were
not as credible as defendant and thus it had a proper basis for its verdict.   The plaintiffs timely
appealed.
II
Analysis
On appeal, plaintiffs allege two errors.   First, plaintiffs contend that the trial justice
improperly admitted into evidence photographs of the two vehicles involved in the car accident.
Second, plaintiffs maintain that the trial justice erred in denying their motion for a new trial.
A
Admissibility of the Photographs
The plaintiffs assert that the trial justice erred in admitting into evidence photographs of
both Norato’s and defendant’s vehicles as they appeared after the accident.    Because the
photographs did not portray any visible damage to either vehicle, plaintiffs allege that the jury
likely concluded that the impact of the collision did not cause plaintiffs any injuries.   The
plaintiffs contend that without any accompanying expert testimony, which the trial justice would
not permit, the photographs should not have been admitted into evidence.
It is well established that this Court applies a deferential standard when reviewing a trial
justice’s determination of the admissibility of evidence.   Giammarco v. Giammarco, 959 A.2d
531,  533  (R.I.  2008)  (mem.); Notarantonio v. Notarantonio,  941 A.2d  138,  149  (R.I.  2008)
(citing DiPetrillo v. Dow Chemical Co., 729 A.2d 677, 690 (R.I. 1999)); State v. McLaughlin,
935 A.2d 938, 942 (R.I. 2007).   Indeed, “the trial justice has wide discretion in determining the
relevancy, materiality, and admissibility of offered evidence, including photographs.”   State v.
Lora, 850 A.2d 109, 111 (R.I. 2004).   See also LaFerrier v. Turillo, 692 A.2d 692, 692 (R.I.
1997) (mem.) (“[T]he question of the materiality or relevancy of photographs is a matter of
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judicial discretion.”).   We will uphold the trial justice’s ruling unless the trial justice clearly has
abused his or her discretion and the evidence was “both prejudicial and irrelevant.”   State v.
Merida, 960 A.2d 228, 234 (R.I. 2008); see also Boscia v. Sharples, 860 A.2d 674, 678 (R.I.
2004) (“Unless evidence is of limited or marginal relevance and enormously prejudicial, the trial
justice should not act to exclude it.”) (quoting Wells v. Uvex Winter Optical, Inc., 635 A.2d
1188, 1193 (R.I. 1994)).
The admissibility of evidence is guided largely by the Rhode Island Rules of Evidence.
Rule 401 defines relevant evidence as “evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.”   As dictated by Rule 402, relevant evidence is generally
admissible unless otherwise prohibited by law.   Another limit on the general rule favoring the
admission of relevant evidence provides that relevant evidence “may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.”   Rule 403.   These determinations are confided to the sound discretion
of the trial justice.  Lora, 850 A.2d at 111; LaFerrier, 692 A.2d at 692.
In the case at bar, the trial justice admitted into evidence photographs of Norato’s vehicle
and defendant’s vehicle, which were taken after the accident.  In LaFerrier, 692 A.2d at 692, this
Court was faced with a nearly identical issue.   After a traffic accident, the defendant admitted
liability, yet the jury returned a verdict awarding no damages to the plaintiff.   Id.   At trial, the
trial justice had admitted into evidence photographs of the vehicles involved, which depicted
very little visible damage.   Id.   This Court upheld the trial justice’s determination, concluding
that                                                                                                       “the photographs were clearly probative on the issue of whether the accident caused
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plaintiff’s injuries.”   Id. at 692-93.   We further concluded that the plaintiff’s objections to the
photographs went “largely to the evidentiary significance of the photographs rather than to their
admissibility.”  Id. at 693.  Similarly, in Boscia, a case with substantially similar facts to those in
the instant matter, we concluded that the trial justice had abused her discretion in excluding
photographs of the vehicles involved in a collision that depicted little visible damage.   Boscia,
860 A.2d at 675-76, 678.   Upon reviewing our rules of evidence, we held that the photographs
were not “unduly prejudicial.”  Id. at 677.
After examining the record of the instant case, we conclude that the trial justice did not
abuse her discretion in ruling that the photographs of the vehicles were relevant.   The trial
concerned a motor vehicle accident and the issue for the jury was the amount of damages to be
awarded to plaintiffs based on the injuries suffered, if any.   Photographs of the scene of the
accident, and of the vehicles involved, certainly fall within the definition of relevant evidence as
provided by Rule 401.   Photographs depicting no damage to the vehicles indeed are relevant
when determining the force of the impact during the collision.   As the trial justice explained,
these photographs  “were part of the story” and they  “complemented and supplemented the
testimony” by supporting defendant’s contention that this was a low-impact collision.   In fact,
photographs showing no damage to the parties’ vehicles can be used to challenge plaintiffs’
credibility on the issue of whether the collision caused their alleged injuries.   Moreover, there
was no objection by plaintiffs to the effect that these photographs failed to accurately depict the
condition of the vehicles as they had appeared immediately after the accident.
Further,  plaintiffs’  argument  that  these  photographs  were  unduly  prejudicial  is  not
persuasive.   As we explained in LaFerrier, 692 A.2d at 693, plaintiffs’ objections go to the
weight, and not the admissibility, of the evidence.    Indeed, plaintiffs’ attorney had ample
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opportunity to cross-examine defendant with respect to the photographs and to present evidence
as to the severity of plaintiffs’ injuries.
The plaintiffs further argue that the photographs should not have been admitted absent
expert testimony.   These photographs depicted little or no damage to the vehicles.   The plaintiffs
maintain  that  the  admission  of  these  photographs  into  evidence  was  error  because  the
photographs likely misled the jury into concluding that plaintiffs’ injuries must not have been
caused by such a low-impact accident.   Relying on a Delaware case, plaintiffs assert that for
these photographs to have been admitted properly, the trial justice should have permitted the
testimony  of  an  expert  witness,  who  could  have  explained  that  substantial  bodily  injury
nevertheless could result from a car accident with minimal property damage.   See Davis v.
Maute, 770 A.2d 36 (Del. 2001).
In Davis, 770 A.2d at 40, the Delaware Supreme Court ruled that a party in a personal
injury action could not argue that minimal property damage translated into minimal personal
injury suffered by the plaintiff in the absence of accompanying expert testimony on that issue.
The Court further decided that the trial justice erred in admitting photographs depicting little
damage to the vehicles without providing a limiting instruction explaining that there was no
correlation between the damage to the vehicles and the injuries suffered by the plaintiff.   Id. at
42.
Although plaintiffs rely substantially on this Delaware case, we note that the Delaware
Supreme Court expressly limited Davis to its facts in a subsequent case, decided three years
later.   See Eskin v. Carden, 842 A.2d 1222, 1233 (Del. 2004) (rejecting the holding in Davis and
concluding  that  the  trial  justice  properly  had  excluded  expert  testimony  that  would  have
addressed the relationship between the force of a collision and any resulting physical injuries).
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Indeed, courts in other jurisdictions largely have declined to adopt the ruling set forth in Davis.
See, e.g., Brenman v. Demello, 921 A.2d 1110, 1120-21 (N.J. 2007) (rejecting the holding in
Davis and concluding that expert testimony is not required when a party seeks to admit into
evidence photographs of a vehicle involved in a car accident when the extent of the plaintiff’s
injuries are at issue); Mason v. Lynch, 878 A.2d 588, 598-601 (Md. 2005) (likewise rejecting
Davis and ruling that the collision photographs could be admitted into evidence absence expert
testimony).  Accordingly, we conclude that plaintiffs’ reliance on Davis is unavailing.
Furthermore, this Court’s previous case law clearly explains that expert testimony is not
required when admitting evidence of this nature.   In Boscia, 860 A.2d at 678, we stated that
“[t]his Court has never held that expert testimony is necessary to introduce into evidence
photographs of vehicles damaged in a collision to prove causation of passengers’ injuries.   We
decline to do so today.”  In keeping with our decision in Boscia, this Court once again declines to
adopt a rule that would require expert testimony to accompany admission into evidence of
photographs of vehicles that have been involved in a motor vehicle accident.
B
Motion for a New Trial
The plaintiffs argue that the trial justice erred in deciding not to grant their motion for a
new trial.   The plaintiffs provide two grounds that would, in their opinion, warrant a new trial.
They argue that the jury’s verdict was against the weight of the evidence because liability was
stipulated, yet the jury failed to award plaintiffs any damages.    They also argue that the
admission of the photographs of the vehicles into evidence was an error of law because these
photographs  caused  the  jury  to  conclude  wrongly  that  plaintiffs  were  not  entitled  to  any
damages.
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A trial justice’s role, when deciding whether to grant or deny a motion for a new trial, is
that of a so-called “superjuror.”  Murray v. Bromley, 945 A.2d 330, 333 (R.I. 2008).   “[T]he trial
justice ‘reviews the evidence, comments on the weight of the evidence and the credibility of the
witnesses,’ and exercises  [his or] her independent judgment in either granting or denying a
motion for a new trial.”   Skene v. Beland, 824 A.2d 489, 493 (R.I. 2003) (quoting Saber v. Dan
Angelone Chevrolet, Inc., 811 A.2d 644, 652 (R.I. 2002)).  If, after conducting this analysis, “the
trial justice concludes that the evidence is evenly balanced or that reasonable minds could differ
on the verdict, she [or he] should not disturb the jury’s decision.”  Id.  A new trial can be ordered
only  if  the  trial  justice  decides  that                                                            “the  verdict  is  against  the  fair  preponderance  of  the
evidence.”   Lieberman v. Bliss-Doris Realty Associates, L.P., 819 A.2d 666, 670 (R.I. 2003)
(quoting Montecalvo v. Mandarelli, 682 A.2d 918, 923 (R.I. 1996)).
When this Court reviews a trial justice’s ruling on a motion for a new trial, we apply an
abuse of discretion standard.   See State v. Russell, 950 A.2d 418, 433 (R.I. 2008); Bajakian v.
Erinakes, 880 A.2d 843, 851-52 (R.I. 2005).  Indeed, we have held that “a trial justice’s ruling on
a motion for new trial is entitled to great weight provided that he [or she] has ‘articulated an
adequate rationale for denying a motion.’”   State v. Cerda, 957 A.2d 382, 385-86 (R.I. 2008)
(quoting State v. Bergevine, 942 A.2d 974, 981 (R.I. 2008)).   See also Murray, 945 A.2d at 334
(“On appeal, this Court ‘will affirm a trial justice’s decision on a motion for a new trial as long
as the trial justice conducts the appropriate analysis, does not overlook or misconceive material
evidence, and is not otherwise clearly wrong.’”) (quoting Morrocco v. Piccardi, 674 A.2d 380,
382 (R.I. 1996)).
We will first address plaintiffs’ contention that the jury verdict was against the weight of
the evidence.   In ruling on plaintiffs’ motion for a new trial, the trial justice properly performed
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the role of a superjuror.   She reviewed the evidence, commented on the weight of the evidence
and the credibility of the witnesses, and exercised her independent judgment in ruling on
plaintiffs’ motion.   See Skene, 824 A.2d at 493.   Specifically, the trial justice noted that she
“might have found that plaintiffs sustained minor injuries to their necks and backs” and she “may
have awarded for their medical or chiropractic expenses and a small amount for the limited
period of mild to moderate pain and suffering.”  However, she also noted that the jury had “acted
reasonably in concluding that neither plaintiff was injured.”   She pointed out that plaintiffs had
provided virtually identical accounts of their injuries as well as their treatment, thereby impliedly
questioning their credibility; she noted, by contrast, that defendant proved to be a credible
witness.   In denying the motion for a new trial, the trial justice suggested that the jury may have
believed that plaintiffs were trying to take advantage of defendant’s mistake.   We are of the
opinion that the trial justice conducted the appropriate analysis and articulated an adequate
rationale  for  denying  the  motion.    Therefore,  we  will  sustain  the  trial  justice’s  denial  of
plaintiffs’ motion for a new trial.
Finally, as we explained above, the trial justice did not abuse her discretion in admitting
into evidence photographs of the vehicles.   Accordingly, we reject the plaintiffs’ argument that
the trial justice committed an error of law in admitting these photographs.
Conclusion
For the reasons stated herein, we affirm the judgment of the Superior Court.  The record
shall be remanded to the Superior Court.
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Supreme Court
No. 2008-31-Appeal.
(PC 05-1428)
(PC 05-1429)
Michael Accetta                                                         :
v.                                                                      :
Doris Provencal.                                                        :
Michael Norato                                                          :
v.                                                                      :
Doris Provencal.                                                        :
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 Tel. 222-3258
of any typographical or other formal errors in order that corrections
may be made before the opinion is published.




COVER SHEET
TITLE OF CASE:   Michael Accetta v. Doris Provencal; Michael Norato v. Doris
Provencal
DOCKET SHEET NO :       SU-08-0031
COURT:                                                                         Supreme Court
DATE OPINION FILED:   January 12, 2009
Appeal from
SOURCE OF APPEAL:    Superior                                                                                                                  County:    Providence
                                                                               JUDGE FROM OTHER COURT:    Associate Justice Netti C. Vogel
JUSTICES:                                                                      Williams, CJ., Goldberg, Flaherty, Suttell, and Robinson, JJ.
WRITTEN BY:                                                                    Chief Justice Frank J. Williams
ATTORNEYS:
For Plaintiff:                                                                 Peter Comerford
ATTORNEYS:
For Defendant:    Peter Clarkin

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