110 F. Supp.2d 62 (2000) | Cited 0 times | D. Rhode Island | August 24, 2000


John D. and Corliss E. Butler have brought this action onbehalf of their minor child, Bryan A. Butler ("plaintiff"), forinjuries he sustained as the result of the alleged negligence ofMcDonald's Corporation ("defendant"), its agents, servants, and/oremployees in maintaining the premises of a franchised restaurantand in training and supervision of its agents, servants and/oremployees.

The matter is now before the Court on defendant's motion forsummary judgment pursuant to Rule 56 of the Federal Rules of CivilProcedure.

Because genuine issues of material fact exist, this Courtdenies defendant's motion for summary judgment.

I. Facts/Background

For eleven years defendant has leased a restaurant buildingand premises at 6595 Post Road, North Kingstown, Rhode Island("franchise restaurant") to James Cooper ("Cooper"). Defendantalso has a license franchise agreement that allows Cooper tooperate the business under the McDonald's name according to avariety of requirements and conditions typically found infranchise arrangements. It is undisputed that the employeesworking at the franchise restaurant are not employees of defendantbut rather are employees of Cooper.

On or about July 25, 1997 plaintiff was a patron at thefranchise restaurant. Plaintiff was in the company of otherminors (young teens) who frequently visited this particularMcDonald's restaurant and other "fast-food" establishments.Plaintiff and his companions were awaiting the arrival of Mr.Groves, father to one of the boys, for a ride back home.Plaintiff saw what he believed to be the Groves car in the parkinglot and exited the south side door of the restaurant to inform Mr.Groves that the boys needed more time. After exiting plaintiffrealized that he was mistaken — it was not the Groves car.Plaintiff turned to re-enter the restaurant. As plaintiff pushedagainst the door it shattered, resulting in injury to his righthand which has required two corrective surgeries and physicaltherapy.

Plaintiff, through his parents, filed this action onSeptember 2, 1998 seeking damages. Plaintiff claims the injurywas caused by the negligence of the franchise restaurant operatorand/or his employees, but he seeks to hold defendant liablebecause of the nature of the relationship between defendant andthe franchise restaurant.

Specifically, plaintiff alleges there was a "spider crack" inthe glass portion of the door for a period of time exceeding twoweeks, and that the franchise restaurant operator and/or hisemployees knew or should have known of this unsafe condition. Asa result, plaintiff claims that the alleged unsafe conditionshould have been repaired, and that the failure to repair thealleged unsafe condition and the resultant structural weakness inthe glass was the proximate cause of his injuries.

Defendant has filed a motion for summary judgment on twogrounds. The first basis for the motion is that the relationshipbetween defendant and the franchise restaurant does not triggerliability on defendant's part. Specifically, defendant deniesthat it owed a duty of due care to plaintiff as a result of itslandlord/tenant relationship with the franchise restaurant, and itdenies that its franchisor/franchisee relationship causes it to bevicariously liable through an agency theory or the doctrine ofapparent agency. Defendant's second claim is that the undisputedfacts establish that any negligence on the part of defendant, thefranchise restaurant operator and/or his employees, if any therebe, cannot be the proximate cause of plaintiff's injury sinceplaintiff has proffered no expert witness testimony on that point.The Court has heard oral argument and considered the briefs filedby the parties and themotion for summary judgment is now in order for decision.

II. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure sets forththe standard for ruling on summary judgment motions:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(c).

Therefore, the critical inquiry is whether a genuine issue ofmaterial fact exists. "Material facts are those `that mightaffect the outcome of the suit under the governing law.'"Morrissey v. Boston Five Cents Sav. Bank, 54 F.3d 27, 31 (1stCir. 1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248, 91 L.Ed.2d 202, 106 S.Ct. 2505 (1986)). "A dispute as toa material fact is genuine `if the evidence is such that areasonable jury could return a verdict for the nonmoving party.'"Id.

On a motion for summary judgment, the Court must view all evidenceand related inferences in the light most favorable to thenonmoving party. See Springfield Terminal Ry. Co. v. CanadianPac. Ltd., 133 F.3d 103, 106 (1st Cir. 1997). "When the factssupport plausible but conflicting inferences on a pivotal issue inthe case, the judge may not choose between those inferences at thesummary judgment stage." Coyne v. Taber Partners I, 53 F.3d 454,460 (1st Cir. 1995). Similarly, "summary judgment is notappropriate merely because the facts offered by the moving partyseem more plausible, or because the opponent is unlikely toprevail at trial." Gannon v. Narragansett Elec. Co., 777 F. Supp. 167,169 (D.R.I. 1991). Summary judgment is only available whenthere is no dispute as to any material fact and only questions oflaw remain. See Blackie v Maine, 75 F.3d 716, 721 (1st Cir.1996). Additionally, the moving party bears the burden of showingthat no evidence supports the nonmoving party's position. SeeCelotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

III. Discussion

Under Rhode Island law, to establish a prima facie case ofnegligence, a plaintiff must show that: (1) the defendant owed aduty of due care to the plaintiff; (2) the defendant breached thatduty; (3) the defendant's negligent acts constitute both theactual and proximate cause of the plaintiff's injuries; and (4)the plaintiff has suffered actual damages. See Volpe Fleet Nat'lBank, 710 A.2d 661, 663 (R.I. 1998); Russian v. Life-Cap TireServs., Inc., 608 A.2d 1145, 1147 (R.I. 1992); Dunning v. Kerzner,910 F.2d 1009, 1013 (1st Cir. 1990) (applying Rhode Island law).

Through the doctrine of respondeat superior, a party can beheld vicariously liable for the torts of another. Vicariousliability often arises from a employer-employee relationship or aprincipal-agent relationship. See Vargas Mfg. Co. v. Friedman,661 A.2d 48, 53 (R.I. 1995); Reccko v. Criss Cadillac Co.,610 A.2d 542, 544 (R.I. 1992). ("It is well settled that acorporation is liable in compensatory damages for the tortiousconduct committed by its agents while acting within the scope oftheir authority"). See also Restatement (Second) Agency § 214,cmt. a (1958). Plaintiff does not allege the existence of anemployer-employee relationship. The issue presented by thismotion then, with regard to vicarious liability, is whetherdefendant can be made liable by application of an agency theory orthe doctrine of apparent agency.

A. Landlord's Duty of Care

The duty of care element of negligence "is an obligationimposed by the law upon a person. It requires that person toconform his or her actions to a particularstandard." Kuzniar v. Keach, 709 A.2d 1050, 1055(R.I. 1998).

It is a well-settled rule in the State of Rhode Island that alandlord is not liable for injuries sustained by the guest of atenant on the tenant's premises, unless the injury results fromviolation of a duty of maintenance and repair of commonpassageways with respect to a residential lease, or from thelandlord's breach of a covenant to repair in the lease, or from alatent defect known to the landlord but not known to the tenant orguest, or because the landlord has assumed the duty to repair.See Coppotelli v. Brewer Yacht Yard at Cowesett, Inc.,636 A.2d 1326, 1327 (R.I. 1994); Izen v. Winoker, 589 A.2d 824, 828 (R.I.1991); Ward v. Watson, 524 A.2d 1108, 1109 (R.I. 1987); Corcionev Ruggieri, 139 A.2d 388, 391 (R.I. 1958); Whitehead v Comstock &Co., 56 A. 446, 447 (R.I. 1903).

None of the above doctrines apply to this case. The lease inquestion is commercial. It contains no covenant for defendant torepair or maintain the premises. Plaintiff does not claim thatthe injury resulted from a latent defect known to defendant andnot to the franchise restaurant operator. Finally, plaintiff doesnot claim that defendant, as landlord, assumed a duty to repairthe premises. Indeed, the lease contains precise language thatthe tenant, the franchise restaurant operator, has the duty tomaintain and repair the premises. Therefore, as landlord,defendant did not owe a duty of due care to plaintiff in thiscase.

B. Vicarious Liability

1. Agency

Agency is "`the fiduciary relation which results from themanifestation of consent by one person to another that the othershall act on behalf and subject to his control, and consent by theother so to act.'" Toledo v. Van Waters & Rogers, Inc.,92 F. Supp.2d 44, 52 (D.R.I. 2000) (citing Lawrence v. Anheuser-Busch,Inc., 523 A.2d 864, 867 (R.I. 1987) (quoting Restatement(Second)Agency § 1(1) (1958))). The Rhode Island Supreme Court hasoutlined three elements that must be shown in order for an agencyrelationship to exist: (1) the principal must manifest that theagent will act for him, (2) the agent must accept the undertaking,and (3) the parties must agree that the principal will be incontrol of the undertaking. See Rosati v. Kuzman, 660 A.2d 263,265 (R.I. 1995). See also, Silvestri v. Pawtucket Mem'l Hosp.,1991 WL 789928 at *2 (R.I.Super.). "It is essential to therelationship that the principal have the right to control the workof the agent, and that the agent act primarily for the benefit ofthe principal." Lawrence, 523 A.2d at 867 (citing NarragansettWire Co. v. Norberg, 376 A.2d 1, 5 (R.I. 1977)). In contrast, anindependent contractor relationship exists where one is retainedto perform a task independent of and not subject to the control ofthe employer. See Toledo, 92 F. Supp.2d at 53 (citing Webbier v.Thoroughbred Protective Bureau, Inc., 254 A.2d 285, 289 (R.I.1969) and McAlice v. Safeco Life Ins. Co., 1997 WL 839882 at *2(R.I.Super.), aff'd, 741 A.2d 264 (R.I. 1999)). Therefore, the keyelement of an agency relationship is the right of the principal tocontrol the work of the agent. See Lauro v. Knowles,739 A.2d 1183, 1185 (R.I. 1999); Rosati, 660 A.2d at 265. The criticalissue then in determining defendant's liability under an agencytheory is whether defendant had the right to control the franchiserestaurant operator's activities and operations.

Defendant argues that it cannot be held liable because noagency relationship exists. Defendant relies on a recent RhodeIsland Supreme Court case where summary judgment was affirmed fordefendant physician on the question of agency in regard to hiscontrol of a team of anesthesia personnel. See Lauro, 739 A.2d at1184. However, the Court in Lauro reasoned that the evidence ofcontrol was insufficient because plaintiff's attorneyadmitted that defendant physician did not control the anesthesiapersonnel and there was no evidence in the record to support theright to control. See id. at 1185.

The strongest evidence put forward by defendant that anagency relationship does not exist is the franchise licenseagreement itself which explicitly states that no agency has beencreated thereby. However, a party cannot simply rely onstatements in an agreement to establish or deny agency. SeeSilvestri, 1991 WL 789928 at *2. Rather, an agency relationshipis essentially determined by examining whether there is a right ofcontrol of one party over another. See id. Further, defendantoffers an affidavit from its Senior Corporate Attorney stating onbehalf of defendant that defendant does not own, operate, or havea right to control the franchise restaurant.

Plaintiff claims that these representations are hollow sincedefendant maintains a right to control the operations andmanagement of the franchise restaurant through operational andtraining manuals, a franchise license agreement, and an operator'slease and license agreement. Additionally, plaintiff claimsdefendant exercises a right to control through defendant'srequirement that the restaurant conform to the McDonald's"comprehensive" system, the frequent and detailed inspections ofthe premises and its operations, the taking of profits, and theright of defendant to terminate the agreement for material breach.

Other courts have reached different conclusions as to whetherthese elements of a franchise agreement are sufficient to createan issue of fact regarding the existence of an agency relationshipbetween a franchisor and a franchisee. For example, in Hoffnaglev. McDonald's Corp., 522 N.W.2d 808, 809 (Iowa 1994), on whichdefendant relies, the Court examined the defendant's right tocontrol the franchisee in the context of determining whether ornot the defendant owed a duty of due care to an employee of thefranchisee under the employer-independent contractor testcontained in the Restatement (Second) of Torts Section 414. TheCourt, awarding summary judgment to the defendant franchisor,concluded that the defendant's "authority is no more than theauthority to insure `the uniformity and standardization ofproducts and services offered by a [franchisor's] restaurant.[Such] obligations do not affect the control of dailyoperations.'" Id. at 814 (quoting Little v. Howard Johnson Co.,455 N.W.2d 390, 394 (Mich.Ct.App. 1990)). See also Folsom v.Burger King, 958 P.2d 301, 303 (Wash. 1998).

However, in Miller v. McDonald's Corp., 945 P.2d 1107, 1111(Or. Ct. App. 1997), the Court, in examining the existence vel nonof an agency relationship between the franchisor and thefranchisee, reached the opposite conclusion. The Court noted thatthe franchise agreement "did not simply set standards that [thefranchisee] had to meet. Rather, it required [the franchisee] touse the precise methods that [the franchisor] established. . . .[Thefranchisor] enforced the use of those methods by regularly sendinginspectors and by its retained power to cancel the [franchiseagreement]." Id. The Court, denying the defendant franchisor'smotion for summary judgment, concluded that such evidence wouldsupport a finding that the franchisor had a right to control thefranchisee such that an agency relationship existed. See id.

The Rhode Island Supreme Court has outlined the indicia forthe right to control in an agency relationship. Relevant examplesinclude a principal's beneficial interest in the agent'sundertaking, written agreements between the parties, andinstructions given to the agent by the principal relating to howto conduct business. See Baker v. ICA Mortgage Corp.,588 A.2d 616, 617 (R.I. 1991); Lawrence, 523 A.2d at 867.

Because plaintiff has offered the aforesaid evidence todemonstrate defendant's requisite right to control the franchiserestaurant,and because the Court finds the reasoning in Miller more persuasivethan that in Hoffnagle, the Court concludes that a reasonablejury could find that an agency relationship exists and that defendantcan be held vicariously liable. Therefore, on the issue of whetherdefendant can be held vicariously liable for the negligence of itsfranchised restaurant under an agency theory, summary judgment mustbe denied.

2. Apparent Agency

Since defendant's motion for summary judgment must be deniedbecause there are disputed issues of fact as to whether thefranchise restaurant operator is an agent of defendant, the Courtdoes not need to address the applicability of the doctrine ofapparent agency. However, since plaintiff will undoubtedly relyon that doctrine at trial, this Court should give the parties someguidance in that respect.

In Rhode Island the doctrine of apparent agency, sometimescalled agency by estoppel or ostensible agency, was intended toprovide recourse to third parties who justifiably contract underthe belief that another is an agent of a principal anddetrimentally suffer as a result of that reliance. See Calendav. Allstate Ins. Co., 518 A.2d 624, 628 (R.I. 1986); Petrone v.Davis, 373 A.2d 485, 487 (R.I. 1977). "The doctrine of apparentagency exists in order to allow third parties to depend on agentswithout investigating their agency before every singletransaction." Schock v. United States., 56 F. Supp.2d 185, 193(D.R.I. 1999) (citing Menard & Co. Masonry Bldg. Contractors v.Marshall Bldg. Sys. Inc., 539 A.2d 523, 526 (R.I. 1988)). Thedoctrine also serves the purpose of promoting responsible businesspractices and protecting third party reliance on reasonableperceptions of a party's agency. See id.

In 1993 the Rhode Island Supreme Court extended the doctrineof apparent agency to the realm of torts for the first time in amedical negligence case. The Court quoted the Restatement(Second) Agency § 267 (1958):

`One who represents that another is his [or her] servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he [or she] were such.'

Rodrigues v. Miriam Hosp., 623 A.2d 456, 462 (R.I. 1993). AccordGiamo v. Congress Motor Inn, 847 F. Supp. 4, 8 (D.R.I. 1994).The Court set forth the criteria for determining whether thedoctrine of apparent agency applied in a medical-malpracticeaction against a hospital for the actions of an independentcontractor physician:

The patient must establish (1) that the hospital, or its agents, acted in a manner that would lead a reasonable person to conclude that the physician was an employee or agent of the hospital, (2) that the patient actually believed the physician was an agent or a servant of the hospital, and (3) that the patient thereby relied to his detriment upon the care and skill of the allegedly negligent physician.

Rodrigues, 623 A.2d at 462. However, the Court did not explicitlystate that this legal concept applies to all actions in tort. Infact, when this Court (Torres, J.) recently dealt with theapplicability of the doctrine to the tort of misrepresentation, itindicated when commenting on multiple causes of action in acontractual apparent agency case:

By contrast, the applicability of the doctrine of apparent authority is much more limited in tort cases. Ordinarily, a plaintiff who is injured by the negligence of a putative agent would be hard-pressed to demonstrate that the injury resulted from reliance upon the agent's apparent authority.

Lawton v. Nyman, 62 F. Supp.2d 533, 538 (D.R.I. 1999). TheCourt also reasonedthat applying apparent agency in a medical malpractice case wherea patient submits to treatment in reliance upon the hospital'sjudgment with respect to the physician's qualifications isjustifiable. See id. In contrast, a plaintiff who is struckby a vehicle and then claims reliance on the fact that the driverwas an agent of the vehicle owner would have a difficult taskestablishing that reliance. See id.

However, there are some situations in which such reliance maybe justified and Rodrigues indicates that the Rhode Island SupremeCourt might extend the doctrine to those situations. For example,Restatement (Second) Agency § 267 (1958) illustrates the followingsituation: An individual hires a cab because he recognizes thename "ABC Cab Company" on the cab and understands the ABC CabCompany to have a reputation for safe and reliable transportation.However, unknown to the individual, the cab driver is actually anindependent contractor who pays a fee to use the ABC Cab Companyname and other services. If the cab driver gets into an accidentwith another car then the cab passenger could possibly hold theABC Cab Company liable as a principal because of his or herreliance on the apparent agency of the cab driver. However, thedriver of the other car could not claim apparent agency becausethe requisite reliance is not present. See Restatement (Second)Agency § 267 cmt. a, illus. 1 (1958).

It is by no means clear that the Rhode Island Supreme Courtwill apply the doctrine of apparent agency to a franchisor/franchiseesituation. But, if it did, clearly it would require the plaintiff toprove: (1) that the franchisor acted in a manner that would lead areasonable person to conclude that the operator and/or employees ofthe franchise restaurant were employees or agents of the defendant;(2) that the plaintiff actually believed the operator and/oremployees of the franchise restaurant were agents or servants of thefranchisor; and (3) that the plaintiff thereby relied to hisdetriment upon the care and skill of the allegedly negligent operatorand/or employees of the franchise restaurant. See Rodrigues, 623A.2d at 462 (citing Soar v. Nat'l Football League Players Assoc.,438 F. Supp. 337, 342 (D.R.I. 1975), aff'd, 550 F.2d 1287 (1st. Cir.1977)); Calenda, 518 A.2d at 628; Petrone, 373 A.2d at 487-488).

Other jurisdictions have used similar criteria in applyingthe apparent agency doctrine to torts in a franchise situation.See Crinkley v. Holiday Inns, Inc., 844 F.2d 156, 157 (4th Cir.1988) (apparent agency test applied to a hotel franchiserelationship); Gizzi v. Texaco, Inc., 437 F.2d 308, 309 (5thCir.), cert. denied 404 U.S. 829 (1971) (apparent agency testapplied to a gas station franchise relationship); Miller, 945 P.2dat 1112 (apparent agency test applied to the instant defendant ina similar franchise relationship); Orlando Executive Park, Inc. v.P.D.R., 402 So.2d 442, 449 (Fla. Dist. Ct. App. 1981) (apparentagency test applied to a hotel franchise relationship). Thesecases are instructive but by no means determinative as to what theRhode Island Supreme Court would do in this case.

The first requirement, whether defendant acted in manner thatwould lead a reasonable person to conclude that the operatorand/or employees of the franchise restaurant were employees oragents of the defendant, was discussed in Miller. In Miller theplaintiff sought damages for an injury she sustained when she bitinto a sapphire stone contained in a sandwich. See Miller, 945P.2d at 1108. The Court described examples of defendant'sbehavior that could lead a reasonable person to believe that thefranchise restaurant was an agent of the defendant franchisor.These included all means and methods that would maintain an "imageof uniformity" among all of defendant's restaurants, including"national advertising, common signs and uniforms, common menus,common appearance, and common standards."Miller, 945 P.2d at 1113. Accord Crinkley, 844 F.2d at 167;Gizzi, 437 F.2d at 310; Orlando, 402 So.2d at 449-450.

Plaintiff argues that defendant encourages third persons tothink that they are dealing with defendant when they visit one ofdefendant's franchised restaurants. This belief stems from acustomer's difficulty in differentiating between a restaurant thatis corporate-owned from one which is franchised. Plaintiff pointsto defendant's national advertising campaign, highly visible logosthroughout the restaurant and on food packaging, a requirementthat the employees wear uniforms of designated color, design andother specifications, and volumes of required standards withrespect to nearly all aspects of the franchise restaurant'smaintenance, appearance, and operation. Seemingly, the purpose ofdefendant's mandatory procedures and requirements for theappearance and operation of franchised restaurants is to promoteuniformity in both product and environment.

Certainly it is arguable that plaintiff, as well as any othercustomer of defendant's restaurants, would reasonably concludethat the restaurant is owned by defendant and operated bydefendant's employees. Because plaintiff has produced enoughevidence to support the view that a reasonable person wouldconclude that the operator and/or employees of the franchiserestaurant were employees or agents of defendant, the questionmust be resolved by the jury.

Second, plaintiff has indicated that he simply went to thefranchise restaurant because he and his friends wanted"McDonald's" food, as they had done on numerous occasions. Nowheredoes plaintiff indicate that he did or could differentiate afranchised restaurant from a corporate-owned restaurant.Therefore, whether plaintiff actually believed that the franchiserestaurant operator and/or his employees were agents of defendantis a question of fact best left for trial and resolution by thejury.

Finally, whether plaintiff relied to his detriment upon thecare and skill of the allegedly negligent operator and/oremployees of the franchise restaurant again presents a factualissue.

It is obvious that the issue of apparent agency will have tobe submitted to the jury and after the jury has answeredinterrogatories, the Court may decide to certify questionsregarding the applicability of the doctrine of apparent agency tothis case to the Rhode Island Supreme Court.

C. Proximate Causation

Defendant claims that plaintiff cannot prove that any allegednegligence was the proximate cause of plaintiff's injury in theabsence of expert witness testimony. Specifically, defendantclaims that it is beyond the common knowledge of a jury oflaypeople to infer that the alleged "spider crack" at the bottomof the door was the proximate cause of the injury, and that in theabsence of expert testimony the jury would be required to rely onmere conjecture and speculation.

Since defendant's motion for summary judgment was filed,plaintiff has named two expert witnesses in the Materials Scienceand Human Factors areas to testify that the "spider crack" was theproximate cause of the injury. Therefore, this ground fordefendant's motion for summary judgment appears moot. However, itis this Court's opinion that Rhode Island case law supports theview that, even in the absence of expert witness testimony, a juryof laypeople exercising their common knowledge could arrive at theconclusion that the proximate cause requirement is satisfied.

The Rhode Island Supreme Court has articulated that"`[Defendant's] negligence may be established by indirect andcircumstantial evidence, and by sufficient proof of other factsand circumstances from which such negligence may be fairly andreasonably inferred.'" Kurczy v. St. Joseph Veterans Assoc.,Inc., 713 A.2d 766, 771(R.I. 1998) (citing Vrooman v. The Shepard Co., 190 A. 452,454 (1937)). Accord Hernandez v. Fernandez, 697 A.2d 1101,1103 (R.I. 1997). Further, "causation is proved by inference"and need not exclude every other possible cause, but must be basedon reasonable inferences drawn from facts in evidence. Skalingv. Aetna Ins. Co., 742 A.2d 282, 288 (R.I. 1999) (quotingCartier v. State, 420 A.2d 843, 848 (R.I. 1980)).

The Rhode Island Supreme Court has consistently held thatonly where the subject matter is particularly complex or peculiaris expert witness testimony necessary to assist the jury. SeeMorgan v. Washington Trust Co., 249 A.2d 48, 51 (R.I.1969) (expert testimony of architect allowed despite general ruleexcluding expert opinions to explain complex engineeringprinciples of improper door installation and resultant dangerousvacuum condition in vestibule).

The use of expert testimony arises from a need which comes in turn from the fact that the subject matter of the inquiry is one involving special skills and training beyond the ken of the average layman. If all the facts and circumstances can be accurately described to a jury and if the jury is as capable of comprehending and understanding such facts and drawing correct conclusions from them as is the expert, there is no necessity for the expert testimony.

Barenbaum v. Richardson, 328 A.2d 731, 733 (R.I. 1974).

Plaintiff has offered evidence by way of witness depositionthat a "spider crack" existed in the glass door for over twoweeks, and that the glass in the door broke when plaintiff pushedon it causing plaintiff's injury. This is not an esoteric orexceedingly complex notion. It is difficult to imagine that ajury of laypeople, exercising their common knowledge, would nothave the ability to reasonably infer that cracked glass in a glassdoor breaks when pressure is applied to it.

In support of its argument, defendant mistakenly relies on aline of cases where the Court had no evidence as to the cause ofthe accident, and affirmed summary judgment for the defendant.See Hernandez, 697 A.2d at 1103-1104 (no evidence to determinefrom which tree a branch fell and damaged plaintiff's car duringhurricane); Grande v. Almac's Inc., 623 A.2d 971, 972 (R.I.1993) (no evidence that defendant supermarket caused defect insidewalk which allegedly resulted in plaintiff's fall); Russian,608 A.2d at 1147 (no evidence as to how plaintiff fell in garage).Hence, these cases are distinguishable from the case at bar.

This Court concludes that a jury, by examining circumstantialevidence and drawing inferences therefrom, can conclude that thespider crack in the glass door in this case was the proximatecause of plaintiff's injuries without the assistance of expertwitness testimony.

IV. Conclusion

For the preceding reasons, defendant's motion for summaryjudgment is denied.

It is so ordered.

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