Rickey v. Boden
Rickey v. Boden
Opinion of the Court
OPINION
This is a civil action in which the plaintiffs, Lillian L. Rickey (Lillian) and Everett A. Rickey (Everett), appeal from the direction of verdicts for two of the defendants, Herbert Boden, Jr. (Boden), and Rho-de Island Hospital Trust Company (the trust company) on the plaintiffs’ sole allegation that the defendants negligently maintained a stairway.
The record reveals that on January 22, 1971, Lillian was working as an elevator operator in a building at 15 Westminster Street, Providence. During her coffee break that morning, at approximately 9:45 a. m., Lillian slipped and fell while climbing the south-side stairway between the eleventh and twelfth floors of the Westminster Street building on her way to a twelfth-floor room that her employer, Rhode Island Hospital Trust National Bank (the national bank), had designated as an employees’ coffee-break area. According to her testimony, Lillian fell at a point at which the stairway begins to curve upward from right to left in a 180-degree turn. She remembered that she had been proceeding upward along the left-hand side of the stairway, grasping a handrail as she went. She recalled that as she was placing her left foot on the first of five wedge-shaped winding treads and was shifting from her right foot to her left foot, her left foot slipped off the tread, and she fell backwards down the stairs. She further testified that at the point at which she fell, the handrail that she had been grasping joined with a supporting post which, she claimed, was too awkward for her to hold onto in her ascent. The width of the winding tread at the point from which Lillian’s left foot slipped was approximately three inches. The width of that same tread at its midpoint, approximately twelve inches from the base of the handrail, was about nine and seven-eighths inches. The regularly shaped stairway treads were uniformly about ten inches in width. At the time Lillian fell, there was no handrail on the right-hand side of the stairway proceeding upward. Lillian apparently suffered considerable injuries as a result of her fall, and she did not return to her job until September 22, 1971.
At the close of all the evidence, the two remaining defendants, the trust company and Boden, moved for directed verdicts. The trial justice granted the trust company’s motion but reserved decision on Bo-den’s motion and permitted the case against Boden to go to the jury. The jury returned a verdict for plaintiffs against Boden, awarding damages in the sum of $55,000. Notwithstanding the jury verdict, the trial justice thereafter granted Boden’s motion for direction. Additionally, the trial justice granted Boden’s subsequent conditional motion for a new trial, explaining that he wished to ensure a new trial for Boden in the event that the direction for Boden was overturned on appeal. The plaintiffs have appealed to this court the directions for Boden and the trust company and the order granting Boden a new trial in the event the direction in his favor is overturned.
I
With respect to the decision to direct a verdict for Boden, the trial justice explained he was basing his decision on several reasons, including his finding that even if Boden had negligently maintained the stairway, Lillian was precluded, as a matter of law, from recovering against Boden because of the doctrine of assumption of the risk. Because we agree with the trial justice that the doctrine of assumption of the risk effectively precludes recovery by plaintiffs against Boden, we need not discuss the merits of the other reasons he offered in support of his decision or the propriety of his conditional order for a new trial for Boden.
It is elementary that in considering a motion for a directed verdict, the trial
The doctrine of assumption of risk is an affirmative defense
Generally, the resolution of the issue whether a plaintiff assumed the risk of injury is for the trier of fact. If the facts suggest only one reasonable inference, however, the issue becomes a question of law for the trial justice and may be the basis of a directed verdict. Iadevaia v. Aetna Bridge Co., R.I., 389 A.2d 1246, 1249 (1978).
Accordingly, in examining the record in the light most favorable to plaintiffs, we find that the evidence supports the trial justice’s decision in granting Boden’s motion for direction on the basis of the doctrine of assumption of the risk. Lillian herself testified that she had used the stairway on a daily basis for several years prior to the date of her fall. The record indicates that at all pertinent times there were no material changes in the condition of the stairway. Moreover, Lillian does not dispute that she knew of the absence of a handrail along the outside wall of the stairwell or that at a certain point in the stairway the treads became wedge-shaped and thus narrowed at the points closest to the inside handrail. In light of these facts and circumstances, we conclude that Lillian knew of the condition and structure of the stairs and that as a matter of law she knowingly assumed the ordinary risks associated with walking on the narrow portion of the treads, including the chance that she might slip and fall because of inadequate footing on the narrow portion of the treads. Cf. Gatti v. World Wide Health Studios of Lake Charles, Inc., 323 So.2d 819, 822 (La.App. 1975) (plaintiff charged as matter of law with assuming ordinary risks attending use of steam room with wet floor, which risks included chance of slip and fall); Birdsall v. Counts, 450 S.W.2d 136, 140-41 (Tex.Civ.App. 1970) (plaintiff charged as matter of law with assuming ordinary risks attending use of stairway without handrail and in absence of adequate lighting, which risks included chance of slip and fall).
The plaintiffs argue, however, that Lillian did not voluntarily encounter the
In the case before us, Lillian had several options reasonably available to her. There is nothing in the record to indicate that Lillian was under any compulsion to use the coffee room during her break. To the contrary, her testimony indicates that the employees of the national bank could leave the Westminster Street building during their coffee or lunch breaks. This choice notwithstanding, Lillian elected to proceed to the coffee room. Furthermore, Lillian chose to walk on the inside portion of the stairway treads which she knew to be considerably narrower than the middle or outside portions of the treads.
II
The plaintiffs next assert that the trial justice erred in granting the trust company’s motion for direction. The trial justice found that at the time of Lillian’s fall the trust company existed, if at all, as a shell corporation that did not have any assets and that did not own or otherwise have control over the Westminster Street building. The trial justice therefore saw no basis on which -the trust company could be liable to plaintiffs.
The plaintiffs contend that in light of evidence they submitted tending to show that at all material times the trust company held record title to the Westminster Street building and that, as far as the Secretary of State was concerned, the trust company held an unrevoked legislative charter and was in good corporate standing, the trial justice’s decision to grant a directed verdict for the trust company was erroneous.
The trust company presented on its behalf James Kelly, an attorney, who testified that the trust company and the national bank merged as of May 29, 1969. Furthermore, the exhibits introduced in connection with Mr. Kelly’s testimony disclosed that on February 19, 1969, in accordance with 12 U.S.C.A. § 215a (West Supp. 1980), the trust company (then a state-chartered trust company) and the national bank (then a national banking association) entered into a merger agreement. Under the terms of the agreement the trust company was to merge with and into the national bank, subject to the approval of the Comptroller of the Currency. On May 26,1969, the Comptroller of the Currency approved this agreement to be effective as of the close of business on May 29,1969, some eighteen months before Lillian’s fall.
The effect of a merger under 12 U.S.C.A. § 215a is. set forth in subsection (e) thereof, which in pertinent part provides:
“The corporate existence of each of the merging banks or banking associations participating in such merger shall be merged into and continued in the receiv*545 ing association and such receiving association shall be deemed to be the same corporation as each bank or banking association participating in the merger. All rights, franchises, and interests of the individual merging banks or banking associations in and to every type of property (real, personal, and mixed) * * * shall be transferred to and vested in the receiving association by virtue of such merger without any deed or other transfer.”
The language of the second-quoted sentence conclusively supports the trial justice’s finding that the trust company was a mere shell exercising no actual control or management over the real estate and therefore was not liable to the plaintiffs. On May 29, 1969, the effective date of the merger agreement, the national bank received any property interests that the trust company may have had, including the trust company’s apparent title interests in the Westminster Street building, regardless of the absence of any deed or other transfer of title. The language of the first-quoted sentence does not change this result. That language is intended solely to preserve to a receiving association any previously existing rights of an individual merging bank, especially those rights exercised under fiduciary appointments of state courts. See Fidelity-Baltimore National Bank v. United States, 328 F.2d 953 (4th Cir.), cert. denied, 379 U.S. 823, 85 S.Ct. 48, 13 L.Ed.2d 34 (1964). Thus we conclude that the trust company had no duty to maintain the stairway on which Lillian fell and, therefore, could incur no liability for her injuries.
The plaintiffs’ appeal is denied and dismissed, the judgments appealed from are affirmed, and the case is remanded to the Superior Court.
. The record discloses that plaintiff Lillian L. Rickey resumed her duties on September 22, 1971, on a part-time basis only. Moreover, she subsequently needed further medical care for which she apparently had to leave her job in September of 1973. The record does not, however, definitively indicate whether any of her disabilities or medical needs after September 22, 1971, were a result of her fall.
. In their action against Herbert Boden, Jr., plaintiffs also named the workers’ compensation insurer of Rhode Island Hospital Trust National Bank, Liberty Mutual Insurance Company, as a defendant. The case against Liberty Mutual Insurance Company was, however, subsequently discontinued.
. General Laws 1956 (1968 Reenactment) § 28-29-20, has since been reenacted as G.L. 1956 (1979 Reenactment) § 28-29-20. P.L. 1979, ch. 39, § 1.
.To permit the instant complaint to proceed, plaintiffs have executed an appropriate indemnity agreement with the workers’ compensation insurer of Rhode Island Hospital Trust National Bank. See generally Brimbau v. Aus-dale Equipment Rental Corp., R.I., 376 A.2d 1058, 1061 (1977).
. The affirmative defense of assumption of risk must be pleaded and proved by a defendant. Iadevaia v. Aetna Bridge Co., R.I., 389 A.2d 1246, 1249 (1978). The defendant Herbert Bo-den, Jr., raised the defense of assumption of risk in his answer.
. The record discloses that a service elevator also provided access to the twelfth floor. It is unclear, however, if this elevator was reasonably available to plaintiff Lillian L. Rickey at the pertinent time. We have therefore assumed, consistently with our standards governing review of directed verdicts, that the elevator was not available to her.
Dissenting Opinion
dissenting.
I respectfully disagree with that portion of the Chief Justice’s opinion which holds that the Rickeys’ claim against Boden is barred by Mrs. Rickey’s assumption of the risk. Assuming that Mrs. Rickey was well aware of the risk she incurred by using the stairway to the bank’s twelfth floor, there is evidence in the record which would support a finding by the jury that Mrs. Rickey’s options as to how she would arrive at the twelfth floor for her mid-morning coffee break were somewhat limited.
The trial justice, in directing the verdict, gave no reasons why he believed that Mrs. Rickey had assumed the risk. However, when he granted the new-trial motion, he observed that there was an alternate route available to Mrs. Rickey-the freight elevator.
When the Chief Justice mentions an opportunity whereby Mrs. Rickey could leave the building and enjoy her coffee break elsewhere, he overlooks the fact that Mrs. Rickey’s fall occurred in the midst of the 1971 winter. The record is completely barren as to what were the meteorological conditions at the time of her fall, to wit, January 22, 1971. The defense presented no evidence as to whether on that particular day it was cold, warm, raining, snowing, or whether the sidewalks were sheathed with ice.
I would vote for a new trial since in his grant of the conditional new-trial motion, the trial justice found that there was an absence of proof of the lack of a railing on the right-hand wall being the proximate
. The freight elevator was the only elevator that ascended to the twelfth floor.
Reference
- Full Case Name
- Lillian L. RICKEY Et Al. v. Herbert BODEN, Jr., Et Al.
- Cited By
- 31 cases
- Status
- Published