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DRAFT FOR ATTORNEY REVIEW — NOT FINAL

Section 34-18-2

Citation
Section 34-18-2
Parent Document
Errico v. LaMountain, 713 A.2d 791 (1998)
Jurisdiction
Rhode Island (state)
Effective Date
1998-06-19

Full Text

1,710 chars
To buttress their position that the railing had not been defective and that in any event they made reasonable inspections thereof, defendants rely in part upon the trial testimony of Mrs. LaMountain. She testified that “every year” she inspected the balcony, making a visual and tactile check of the railing (“I would just give it a good shake and test it”). She further testified that as a result of her inspection she believed the railing to be “perfectly safe.” However, we note that the trial justice concluded that Mrs. LaMountain “was not a credible witness” and that “[h]er testimony in particular about her inspections and testing of the porch rail were not credible.” The defendants also point to the testimony of Mr. LaMountain, whom the trial justice acknowledged was a “somewhat more credible” witness than his wife. He had inspected the railing during the course of painting it. Indeed he said he had given it a “good hard brush.” But Mr. LaMountain, who knew the house was sixty years old when he purchased it, only painted the railing twice while he owned the structure, never leaned against it to test a person’s weight, and never had the toe rail checked by a carpenter before the accident. We conclude that the observable evidence of the railing’s physical deterioration, in conjunction with defendants’ admission that they had inspected the railing at various times before the accident occurred, supports the conclusion of the jury and the trial justice that the railing was structurally unsound when Errico fell and that defendants either knew of this condition or failed to inspect the railing properly to detect this structural problem, thereby breaching their statutory duty to Errico. 4