Background
On March 25, 2010, Julie DeOliveira was driving southbound on Interstate 95 in Cranston, Rhode Island when her vehicle collided with a tractor-trailer operated by Greg Trecaso. Julie and her then-minor daughter Maxine were allegedly injured. Julie filed suit against Trecaso and his business entity for negligence, then amended the complaint to add Star Insurance Company as a defendant. Trecaso and his business were eventually dismissed from the case after plaintiffs failed to effectuate service, leaving Star — which had admitted insuring Trecaso — as the sole defendant. Star also asserted a counterclaim for indemnification against Julie.
The parties’ accounts of the accident differed sharply. Julie testified that Trecaso’s truck entered her lane from an on-ramp, while Trecaso’s videotaped deposition described Julie’s car drifting into his lane. Rhode Island State Police Trooper Lisa Hanley, who investigated the scene, found Julie’s car approximately 200 feet north of the Jefferson Boulevard on-ramp and concluded from evidence at the scene that Trecaso was not merging onto the highway at the time of the collision. After a four-day jury trial in September 2023, the jury found that neither plaintiff had proven by a fair preponderance of the evidence that Star’s insured was negligent.
Plaintiffs moved for a new trial asserting eleven separate errors. The trial justice denied the motion. Both sides appealed: plaintiffs challenging the denial of their new-trial motion, and Star cross-appealing the denial of its motions for judgment as a matter of law on the threshold ground that plaintiffs had not exhausted direct litigation against Trecaso before suing the insurer under G.L. 1956 § 27-7-2.
The Court’s Holding
The Rhode Island Supreme Court affirmed the judgment in its entirety, finding no abuse of discretion or legal error in any of the eleven grounds raised by plaintiffs. Because the court affirmed on all plaintiffs’ claims, it declined to reach the merits of Star’s cross-appeal. The court held that the trial justice acted within his broad evidentiary discretion in admitting portions of Trecaso’s videotaped deposition, including his statement that Julie drove into his truck, noting that the challenged answers had been elicited by plaintiffs’ own counsel. The court applied the raise-or-waive rule to bar several arguments — including challenges to the police report, Trooper Hanley’s credibility testimony, and the deposition’s admissibility for lack of a showing of unavailability — because they were either abandoned at trial or raised for the first time on appeal.
On the authentication of Google Earth aerial photographs of the I-95 interchange, the court reaffirmed that Rhode Island’s authentication burden is “slight,” requiring only reasonable probability that the evidence is what its proponent claims. Trooper Hanley’s personal familiarity with the highway from driving it and observing it from the air was sufficient foundation, and the unedited nature of the photographs distinguished them from the more complex computer-generated exhibits at issue in the out-of-state cases plaintiffs cited. The court also rejected plaintiffs’ challenges to defense counsel’s opening and closing statements describing plaintiffs’ version of events as “physically impossible,” finding those remarks were fair comment tethered to the specific evidence about the car’s resting location, and noting that the trial justice’s instructions telling jurors that counsel statements are not evidence cured any possible prejudice.
Key Takeaways
- Parties who elicit deposition testimony through their own questions face an uphill battle seeking its exclusion at trial; a trial justice has wide discretion to admit evidence it finds relevant and material, particularly where the objecting party created the record.
- Rhode Island’s raise-or-waive rule is strictly enforced: arguments not presented to the trial court — including affirmatively withdrawn objections and wholly new theories first advanced on appeal — are forfeited.
- Authentication of unedited Google Earth photographs requires only slight foundation; a witness with personal familiarity with the depicted location can authenticate such images without expert or forensic credentials, distinguishing them from GPS-derived or edited analytical maps.
- Defense counsel retains considerable latitude in opening statements and closing arguments to characterize the opposing party’s evidence as physically impossible, provided those characterizations are tied to admitted evidence and reasonable inferences therefrom.
- Where a cross-appellant seeks review of a threshold jurisdictional or statutory exhaustion defense, the Supreme Court may decline to address the cross-appeal when affirmance on all other grounds renders it moot.
Why It Matters
For plaintiffs’ attorneys, this decision is a pointed reminder that aggressive deposition tactics can backfire at trial: when counsel provokes combative witness responses and then seeks to exclude those responses, courts may reject the effort precisely because counsel created the record. The opinion also underscores that strategic decisions made at the trial level — such as withdrawing an evidentiary objection — will be held against a party on appeal, even when the party later claims to have “reserved” the issue.
For insurers and defense practitioners in Rhode Island, the case confirms the breadth of the abuse-of-discretion shield on evidentiary rulings and clarifies that lay witnesses with route familiarity can authenticate standard, unedited aerial photographs of a roadway without expert support. The court’s willingness to leave Star’s statutory cross-appeal unaddressed also signals that defendants who prevail on the merits need not fear an advisory ruling on threshold coverage or exhaustion grounds.