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Tavares v. Barbour2/15/2002
are owed by the defendant to the plaintiff." Volpe v. Fleet National Bank, 710 A.2d 661, 663 (R.I. 1998) (citing Ferreira v. Strack, 636 A.2d 682, 685 (R.I. 1994)). "A defendant cannot be liable under a theory of negligence unless it owes a duty of care to the plaintiff." Id. "Whether a duty of care runs from a defendant to a plaintiff is a question of law for the court to decide." Id. (citing Hennessey v. Pyne, 694 A.2d 691, 697 (R.I. 1997)). "If [the court determines that] no such duty exists, then the trier of fact has nothing to consider and a motion for summary judgment must be granted." Id. (quoting Ferreira, 636 A.2d at 685).
In this case, plaintiff asks us what duty a driver owes to passengers alighting from his or her vehicle.
In Rhode Island, "a driver owes his guest the same duty of ordinary care that he owes to any other person." Labree v. Major, 111 R.I. 657, 670, 306 A.2d 808, 816 (1973). "When a driver deviates from the standard of careful operation of his vehicle, the law of this state reflects a policy that any victims of such improper operation recover for their injuries." Id. at 670-71, 306 A.2d at 816.
In this case, plaintiff has alleged no facts indicating that defendant did anything but operate her vehicle carefully. The defendant pulled over to the shoulder in a legal parking area to discharge plaintiff and her children. When plaintiff opened the doors to the minivan, she assumed the care of her children. The fact that Jessica darted from behind the vehicle is an unfortunate and tragic accident that defendant could not have foreseen or prevented.
Had plaintiff alleged that there was something else in the manner of defendant's discharge demonstrating that she failed to exercise ordinary care, perhaps plaintiff could have survived a summary judgment motion. However, " n opposing a motion for summary judgment, the nonmoving party may not rest upon the mere allegations, conclusions, or denials in her pleadings, but rather she has 'an affirmative duty to set forth specific facts that show that a genuine issue of fact exists to be resolved at trial.'" General Motors Acceptance Corp. v. Johnson, 746 A.2d 122, 123 (R.I. 2000) (quoting Volpe, 710 A.2d at 665).
Finally, the defendant, relying on Malinowski, argues that a special, "higher" duty should be imposed because of Jessica's status as a minor. In Malinowski, we discussed the standard of care that drivers owe to children who are in or near a roadway found in G.L. 1956 § 31-14-3 and G.L. 1956§ 31-18-8. Malinowski, 727 A.2d at 197. Section 31-14-3 states that " he driver of every vehicle shall * * * drive at an appropriate reduced speed * * * when special hazard exists." In this case, the defendant had come to a complete stop to discharge Jessica, and thus, this section has no application to the defendant. Section 31-18-8 requires "every driver * * * exercise proper precaution upon observing any child" in the roadway. This section is applicable to those drivers who encounter a child in the path of the vehicle they are driving, which is not the case before us. Therefore, the plaintiff's reliance on Malinowski is misplaced.
Accordingly, the plaintiff's appeal is denied and dismissed. The judgment of the Superior Court is affirmed. The papers in the case are returned to the Superior Court.
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