689103.v1 RECENT DEVELOPMENTS IN RHODE ISLAND LAW: CIVIL Nicole J. Benjamin 1 Adler Pollock & Sheehan P.C. One Citizens Plaza, 8 th Floor Providence, RI 02903 401-427-6212 [email protected]www.RIAppeals.com Coverage includes opinions and reported memorandum orders of significance issued by the Rhode Island Supreme Court during the 2013-2014 term and published in the Atlantic Third Reporter from 79 A.3d 846 through 94 A.3d 467. 1 A substantial number of the annotations that follow are derived, in whole or in part, from entries on my blog, The Fast Five on Rhode Island Appellate Practice (www.RIAppeals.com ). Some of the annotations that follow quote directly from relevant passages of the Court’s decision. Pinpoint citations have not been provided. As with any annotations, the Court’s opinions should be consulted, quoted and cited, not these materials. A special thanks is extended to Lauren Jones, Esq. whose materials from past years provided the framework within which these annotations are written.
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Recent Developments in Rhode Island Law 2014 - State Courts and Civil Procedure
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Coverage includes opinions and reported memorandum orders of significance issued by theRhode Island Supreme Court during the 2013-2014 term and published in the
Atlantic Third Reporter from 79 A.3d 846 through 94 A.3d 467.
1 A substantial number of the annotations that follow are derived, in whole or in part, fromentries on my blog, The Fast Five on Rhode Island Appellate Practice (www.RIAppeals.com).Some of the annotations that follow quote directly from relevant passages of the Court’sdecision. Pinpoint citations have not been provided. As with any annotations, the Court’sopinions should be consulted, quoted and cited, not these materials. A special thanks is extendedto Lauren Jones, Esq. whose materials from past years provided the framework within whichthese annotations are written.
I. Admiralty ................................................................................................................. 1A. Jurisdiction......................................................................................................... 2B. Maintenance and Cure ....................................................................................... 2C. The Jones Act..................................................................................................... 4D. Warranty of Seaworthiness ................................................................................ 4E. Federal Maritime Prejudgment Interest ............................................................. 5
II. Appeal and Error...................................................................................................... 6A. Amicus Curiae ................................................................................................... 6B. Bonds ................................................................................................................. 6C. Briefs.................................................................................................................. 7
1. Default for Failure to File ............................................................................ 72. Failure to Adequately Brief ......................................................................... 73. Writing ......................................................................................................... 7
D. Certiorari ............................................................................................................ 81. Grant of Certiorari........................................................................................ 82. Standard of Review...................................................................................... 8
E. Cross-Appeals .................................................................................................... 8F. Final Judgment Rule .......................................................................................... 8
1. Appeal from Grant of Summary Judgment in Favor of One DefendantWithout Rule 54(b) Judgment...................................................................... 8
2. Appeal from Interlocutory Order ................................................................. 93. Appeal from Denial of Summary Judgment ................................................ 104. Appeal from Denial of Motion for Leave to Amend ................................... 105. The McAuslan Doctrine............................................................................... 116. The McAuslan Doctrine – Doctrine Applied............................................... 127. Issues Concerning Finality Raised at Prebriefing Conference .................... 138. Standard of Review for Interlocutory Orders .............................................. 14
G. Motion to Dismiss Appeal ................................................................................. 14H. Notice of Appeal ................................................................................................ 14I. Perfecting Appeal............................................................................................... 15
J. Pre-Briefing Conference .................................................................................... 171. Issues Raised During Pre-briefing Conference............................................ 172. Waiver.......................................................................................................... 17
K. Premature Appeal............................................................................................... 18L. Raise or Waive Rule .......................................................................................... 18
1. Jury Instructions........................................................................................... 192. Motions in Limine........................................................................................ 19
M. Show Cause Calendar ........................................................................................ 20
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N. Standards of Review .......................................................................................... 211. Arbitration.................................................................................................... 212. Certiorari ...................................................................................................... 233. Interlocutory Orders..................................................................................... 234. Motion to Strike ........................................................................................... 235. Motion for New Trial................................................................................... 246. Motion for New Trial – Damages ............................................................... 257. Motion for New trial – The Appellate Rule................................................. 258. Sanctions ...................................................................................................... 25
O. Timeliness of Appeal ......................................................................................... 26P. Writing and Citations......................................................................................... 29
III. Arbitration................................................................................................................ 29A. Standard of Review............................................................................................ 29
IV. Attorneys.................................................................................................................. 29A. Character and Fitness......................................................................................... 29B. Sanctions ............................................................................................................ 30
V. Causes of Action/Defenses ...................................................................................... 31A. Class Actions ..................................................................................................... 31
1. Class Certification........................................................................................ 312. Pre-Certification Motion for Summary Judgment ....................................... 32
B. Commercial Law................................................................................................ 321. Usury............................................................................................................ 32
G. Injunctions.......................................................................................................... 41H. Insurance ............................................................................................................ 42I. Intentional Interference...................................................................................... 43J. Massachusetts Chapter 93A............................................................................... 44K. Medical Malpractice .......................................................................................... 44
1. Statute of Limitations................................................................................... 44L. Negligence ......................................................................................................... 45
1. Automobile Accidents ................................................................................. 45a. Public-Safety Officer’s Rule.................................................................. 45b. Motorist Who Crosses Into Oncoming Lane of Traffic......................... 46c. Rental Cars............................................................................................. 46
2. Dog Bites ..................................................................................................... 473. Independent Medical Records Review ........................................................ 484. Premises Liability ....................................................................................... 51
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a. Attractive Nuisance Doctrine................................................................. 51b. Dangerous Conditions Outside the Property.......................................... 54
i. Sidewalks ......................................................................................... 56c. The Storm Rule ...................................................................................... 57
M. Quasi Contract (Quantum Meruit and Unjust Enrichment) ............................... 59
VI. Civil Procedure ........................................................................................................ 61A. Experts ............................................................................................................... 61B. Judgment on the Pleadings................................................................................. 62
1. Conversion to Motion for Summary Judgment ........................................... 62C. Judicial Estoppel ................................................................................................ 63D. Judicial Restraint................................................................................................ 64E. Jurisdiction......................................................................................................... 64
1. Opposition Must Be Supported by Competent Evidence ............................ 702. Unauthenticated Documents ........................................................................ 713. Reply Letter Doctrine .................................................................................. 724. Duty to Care May Be Resolved on Summary Judgment ............................. 72
M. Writ of Mandamus ............................................................................................. 72
VII. Constitutional Law................................................................................................... 74
VIII. Real Estate ............................................................................................................... 74A. Boundary Disputes............................................................................................. 74
1. The Doctrine of Acquiescence..................................................................... 74B. Easements .......................................................................................................... 75
1. Prescriptive Easements ................................................................................ 752. Enlargement of Express Easements by Prescription.................................... 773. Hostility........................................................................................................ 77
C. Trespass.............................................................................................................. 79
XI. Statutes/Statutory Construction ........................................................................................... 80A. Construction of Rules of Civil Procedure.................................................... 80
ELECTRONIC FILING
I. Electronic filing in civil cases in the Superior Court ........................................................... 80
689103.v1
RECENT DECISIONS
I. Admiralty
King v. Huntress, 94 A.3d 467 (R.I. 2014).
It comes as a surprise that the Ocean State with its 384 miles of tidal shoreline has a
dearth of admiralty jurisprudence. Nevertheless, a federal maritime action that came before the
Rhode Island Supreme Court this term left the high court wading through salty waters as it
analyzed claims for maintenance and cure, negligence under the federal Jones Act and breach of
the warranty of seaworthiness. The decision, which marks the rare occasion when the Supreme
Court is called upon to address maritime claims, is noteworthy not only for its holdings but also
its extensive articulation and interpretation of three bodies of maritime law.
In its wake, the following points are clear:
(1) Rhode Island state courts have jurisdiction over federal maritime actions pursuant to
the “savings to suitors” clause set forth in 28 U.S.C. § 1331(1);
(2) unearned wages are available on a maintenance claim only from the time seaman
becomes unfit for his or her duties until the balance of the voyage, unless the seaman
has a employment contract providing him or her with the right to employment for a
fixed period of time;
(3) The Jones Act creates a statutory negligence cause of action which enables a seaman
injured during the course of his or her employment to elect to bring a civil action at
law, with the right of trial by jury, against the employer;
(4) Proof of negligence is not necessary to prevail on a claim for breach of the warranty
of seaworthiness but the breach must be the proximate cause of the injuries sustained;
and
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(5) in a federal maritime action pending in state court, prejudgment interest must be
applied in accordance with federal maritime law.
In King, the plaintiff, a deckhand on a commercial fishing vessel, fell from a ladder while
painting an area on the ceiling of the ship’s fish hold deck. As a result of the fall, the plaintiff
sustained a large rotator cuff tear. The plaintiff brought suit against the vessel’s owner and
asserted claims for maintenance and cure, negligence under the federal Jones Act and breach of
the warranty of seaworthiness. After a seven day trial, the jury returned a verdict in favor of the
plaintiff for $257,500 on plaintiff’s maintenance and cure claim and found in favor of the
defendant on plaintiff’s Jones Act and breach of the warranty of seaworthiness claims. After the
trial court denied the defendant’s motion for a new trial on the maintenance and cure claim and
granted the plaintiff’s motion for a new trial on plaintiff’s Jones Act and breach of the warranty
of seaworthiness claims, both parties appealed.
A. Jurisdiction
King v. Huntress, 94 A.3d 467 (R.I. 2014).
“Although the law of the sea is essential federal in nature, the Rhode Island state courts
have jurisdiction over . . . federal maritime action[s] pursuant to the ‘savings to suitors’ clause
set forth in 28 U.S.C. § 1331(1).”
B. Maintenance and Cure
King v. Huntress, 94 A.3d 467 (R.I. 2014).
As the United States Court of Appeals for the First Circuit has recognized, “‘[f]rom time
immemorial, the law of the sea has required shipowners to ensure the maintenance and cure of
seamen who fall ill or become injured while in service of the ship.’” (quoting Ferrara v. A. & V.
Fishing, Inc., 99 F.3d 449, 454 (1st Cir. 1996)). Maintenance and cure, which are akin to
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workers’ compensation benefits, are provided to a seaman, without regard to the negligence of
the employer or the unseaworthiness of the ship.
Maintenance and cure are curative remedies. Maintenance is the “provision of, or
payment for, food and lodging,” while cure is the payment of “any necessary health-care
expenses . . . incurred during the period of recovery from an injury or malady.” Unearned wages
may also be recovered on a maintenance and cure claim.2
A seaman will only forfeit his entitlement to maintenance and cure if he engages in gross
misconduct. Seamen have a right to receive maintenance and cure until such time as he reaches
“maximum medical recovery.” “[M]aximum medical recover occurs when the seaman is ‘so far
cured as possible’ – meaning that the seaman is either fit to work or his or her ‘condition has
stabilized and further progress ended short of a full recovery.’”
In King, the trial justice instructed the jury that if the jury awarded the plaintiff
maintenance and cure, it should also award the plaintiff unearned wages when the plaintiff was
serving the ship. The defendant claimed the instruction was in error because the trial justice did
not explain that the plaintiff was serving the ship only if he was on a voyage or had an
employment contract for a specified duration. On appeal, the Supreme Court agreed.
After a review of federal case law, the Supreme Court held that unearned wages are
available on a maintenance claim only from the time seaman becomes unfit for his or her duties
until the balance of the voyage, unless the seaman has a employment contract providing him or
her with the right to employment for a fixed period of time.
2 Unearned wages recoverable on a maintenance and cure claim are markedly different from lostwages that are recoverable under a Jones Act or breach of the duty of seaworthiness claim.Indeed, “[w]hile unearned wages are awardable only to the end of the voyage on which theseaman is injured or for the duration of his or her employment contract (if there is one), futurelost wages could conceivably be recovered under a negligence or breach of the duty ofseaworthiness claim for the duration of a seaman’s work life expectancy.”
Recent Developments in the Law 2014 - Civil
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The trial justice’s jury instructions, which did not make that limitation clear, where
therefore erroneous. Consequently, the Supreme Court remanded the case to the trial court for a
new trial on the plaintiff’s claim for maintenance and cure.
C. The Jones Act
King v. Huntress, 94 A.3d 467 (R.I. 2014).
The Jones Act creates a statutory negligence cause of action which enables a seaman
injured during the course of his or her employment to “elect to bring a civil action at law, with
the right of trial by jury, against the employer.” (quoting 46 U.S.C. § 30104(a)). To prevail on a
negligence claim under the Jones Act, the injured seaman must demonstrate that the employer
failed to exercise reasonable care, which contributed even in the slightest way to his or her
injury. Under the Jones Act, the employer’s negligence does not need to render the ship
unseaworthy.
D. Warranty of Seaworthiness
King v. Huntress, 94 A.3d 467 (R.I. 2014).
The United States Supreme Court has “‘undeviatingly reflected an understanding that
the owner’s duty to furnish a seaworthy ship is absolute and completely independent of his duty
under the Jones Act to exercise reasonable care.’” (quoting Mitchell v. Trawler Racer, Inc., 362
U.S. 539, 549 (1960)). Unlike a claim under the Jones Act, claims for breach of the warranty of
seaworthiness do not involve an analysis of negligence. See Mitchell, 362 U.S. at 549
(recognizing that the question of seaworthiness of a vessel has been “complete[ly] divorce[d] . . .
from the concepts of negligence.”). Nevertheless, as the United States Supreme Court has
recognized:
[I]t is a duty only to furnish a vessel and appurtenances reasonablyfit for their intended use. The standard is not perfection, but
Recent Developments in the Law 2014 - Civil
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reasonable fitness; not a ship that will weather every conceivablestorm or withstand every imaginable peril of the sea, but a vesselreasonably suitable for her intended service.
Id. at 550. Thus, a seaman must prove that the unseaworthy condition is the proximate cause of
his or her injuries.
E. Federal Maritime Prejudgment Interest
King v. Huntress, 94 A.3d 467 (R.I. 2014).
In King, the trial justice applied Rhode Island’s prejudgment interest statute, R.I. Gen.
Laws § 9-21-10(a), which requires that the clerk of the court add to the damages interest at the
rate of 12 percent per year from the date the cause of action accrued. The defendant argued that
the trial court erred in doing so because prejudgment interest is substantive in nature, therefore, it
must be awarded in accordance with federal maritime law. The Supreme Court agreed.
Unlike Rhode Island’s prejudgment interest statute, under federal maritime law, the
decision to award prejudgment interest is left to the discretion of the jury. Thus, the law
applicable to an award of such interest can have a significant impact on the defendant’s liability.
In treading these new waters, the Supreme Court began by recognizing that the “‘savings
to suitors clause,’ which gives state court jurisdiction (albeit not exclusive jurisdiction) over a
federal maritime claim, ‘allows state courts to entertain in personam maritime causes of action,
but in such cases the extent to which state law may be used to remedy maritime injuries is
constrained by a so-called reverse-Erie doctrine which requires that the substantive remedies
afforded by the States conform to governing federal maritime standards.’” (quoting Offshore
Logistics, Inc. v. Tallentire, 477 U.S. 207, 222-23 (1986)). Thus, issues that are substantive in
nature will be governed by federal maritime law.
Recent Developments in the Law 2014 - Civil
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In evaluating whether prejudgment interest is substantive in nature, the Court looked to
non-maritime decisions, including its decision in L.A. Ray Realty v. Town Council of
Cumberland, 698 A.2d 202, 213-14 (R.I. 1997), in which it recognized that when application of
the state’s law would result in a different outcome, the issue is likely substantive in nature.
Having already observed that Rhode Island’s prejudgment interest statute differed dramatically
from federal maritime law, which leaves the decision to award prejudgment interest to the
discretion of the jury, the Court concluded that prejudgment interest is necessarily substantive in
nature. Consequently, the trial justice erred in applying Rhode Island’s prejudgment interest
There has long been confusion over whether the McAuslan Doctrine should be invoked
in the context of a direct appeal or a petition for writ of certiorari. While the Rhode Island
Supreme Court did not directly address that issue in Weeks, its decision strongly suggests that the
doctrine may be invoked in the context of a direct appeal.
In Weeks, the defendant argued that the plaintiff’s appeal was interlocutory in nature and
should be dismissed because the plaintiff chose to file a direct appeal instead of filing a petition
for writ of certiorari. Although recognizing that as a general rule, appeals from interlocutory
orders are not permitted, the Supreme Court noted that interlocutory appeals are permitted if they
all within the McAuslan Doctrine. Under the McAuslan Doctrine, the Court will permit
appellate review of “an order or decree which, although in a strict sense interlocutory, does
possess such an element of finality that action is called for before the case is finally terminated in
order to prevent clearly imminent and irreparable harm.” (quoting Town of Lincoln v.
Cournoyer, 375 A.2d 410, 412-13 (R.I. 1977). If the Court deems the appeal appropriate under
McAuslan, it will treat it as a final order.
Applying the McAuslan Doctrine, the Court held that although the trial justice’s order
directing the parties to resolve their dispute through binding arbitration was interlocutory in
nature, the plaintiff’s appeal was proper under McAuslan.
7. Issues Concerning Finality Raised at Prebriefing Conference
Coit v. Tillinghast, 91 A.3d 838 (R.I. 2014).
The Rhode Island Supreme Court often will raise issues related to the permissibility of an
appeal during the required prebriefing conference. In Coit, the Court raised issue concerning the
interlocutory nature of the appeal during the prebriefing conference and directed the parties to
Recent Developments in the Law 2014 - Civil
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file supplemental memoranda addressing whether the order from which the appeal was taken was
interlocutory.
8. Standard of Review for Interlocutory Orders
See Standards of Review, Interlocutory Orders
G. Motion to Dismiss Appeal
Miller v. Metropolitan Property and Casualty Ins. Co., 88 A.3d 1157 (R.I. 2014).
When a party maintains that a notice of appeal is untimely and the Supreme Court has not
yet docketed the appeal, the trial court has jurisdiction to dismiss the appeal for failure to comply
with the Supreme Court’s Rules of Appellate Procedure. See R.I. Sup. Ct. R. App. P. 11. In
Miller, Metropolitan filed its motion to dismiss Miller’s cross-appeal as untimely with the
Superior Court. When the Superior Court denied Metropolitan’s motion to dismiss, Metropolitan
filed an appeal to the Supreme Court from that order.
H. Notice of Appeal
Miller v. Metropolitan Property and Casualty Ins. Co., 88 A.3d 1157 (R.I. 2014).
As a general matter, a notice of appeal must be filed within 20 days of “the date of the
entry of the judgment, order, or decree appealed from.” R.I. Sup. Ct. R. App. P. 4(a). The notice
must be filed with the trial court’s clerk’s office, not the Supreme Court’s clerk’s office. Id. The
form for filing a notice of appeal may be found in the trial court’s clerk’s office. If there is
information that does not fit within the allocated space on the form, it is common practice to
attach an addendum to the notice form. In Miller, the appellant attached an exhibit to its notice
of appeal identifying additional parties.
Recent Developments in the Law 2014 - Civil
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National Refrigeration, Inc. v. Capital Properties, Inc., 88 A.3d 1150 (R.I. 2014).
In National Refrigeration, after judgment had entered and after the plaintiff had filed its
notice of appeal, the plaintiff filed a motion to increase the amount of a bond. On appeal, the
plaintiff argued that the Superior Court erred in denying its motion to increase the bond. On
appeal, the Supreme Court concluded that the issue of the amount of the bond was not properly
before it. In so holding, the Supreme Court noted that while “a notice of appeal that designates
the final judgment encompasses not only the judgment, but also all earlier interlocutory orders
that merge in the judgment,” there is no basis for the Court to review an order entered subsequent
to the judgment on appeal.
I. Perfecting Appeal
1. Transcripts
In re Kyla C., 79 A.3d 846 (R.I. 2013).
In In re Kyla C., although the Court held that the appeal was not properly before it, it
proceeded to address the propriety of the Family Court’s dismissal of the respondent’s appeal. In
that case, after the Family Court had vacated and re-entered its decree to allow the respondent to
file a timely appeal, the respondent failed to timely transmit the record and had not requested an
extension of time to do so. Accordingly, the guardian ad litem moved the Family Court to
dismiss the respondent’s appeal. An order entered dismissing the respondent’s appeal.
On appeal, the Supreme Court recognized that the Family Court’s dismissal of the
respondent’s appeal was proper. “‘Article I, Rule 3(a) of the Supreme Court Rules of Appellate
Procedure empowers [a] trial justice to dismiss an appeal for failure to comply with [Rules
10(b)(1) and 11].’” (quoting Pelosi v. Pelosi, 50 A.3d 795, 798 (R.I. 2012)). To determine
whether a trial justice has abused his or her discretion in dismissing an appeal, the Supreme
Recent Developments in the Law 2014 - Civil
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Court applies the same standard used when considering extensions of time for transmission of
the record as set forth in Supreme Court Rule of Appellate Procedure 11(c). (citing Daniel v.
Cross, 749 A.2d 6, 9 (R.I. 2000)).
Pursuant to Rule 11(c), an extension of time may be granted when “the inability of the
appellate to cause timely transmission of the record is due to causes beyond his or her control or
to circumstances which may be deemed excusable neglect.” R.I. R. App. P. 11(c). The Supreme
Court has consistently defined “excusable neglect” as:
neglect occasioned by some extenuating circumstances ofsufficient significance to render it excusable, . . . as a failure totake the proper steps at the proper time, not in consequence of theparty’s own carelessness, inattention, or willful disregard of theprocess of the court, but in consequence of some unexpected orunavoidable hindrance or accident, or reliance on the care andvigilance of his counsel or on promises made by the adverse party,. . . and as that course of conduct that a reasonably prudent personwould take under similar circumstances[.]
Id. (quoting Business Loan Fund Corp v. Gallant., 795 A.2d 531, 533 (R.I. 2002)). In In re Kyla
C., the respondent had not offered any reason for his neglect other than that he did not
understand he was required to order the transcript. Such neglect is not excusable, even for a pro
se litigant. Consequently, the Family Court properly exercised its discretion in dismissing the
respondent’s appeal.
Process Engineers & Constructors, Inc. v. DiGregorio, Inc., 93 A.3d 1047 (R.I. 2014).
In Process Engineers, the Rhode Island Supreme Court again reminded litigants that it is
the responsibility of the parties to ensure that all proper transcripts are ultimately filed with the
Court. To that end, “Article I, Rule 10(b)(1) of the Supreme Court Rules of Appellate Procedure
leaves it to the appellant to ‘order from the reporter a transcript of such parts of the proceedings
Recent Developments in the Law 2014 - Civil
17
not already on file as the appellant deems necessary for inclusion in the record.’” Thereafter,
“[t]he appellee may . . . request additional transcripts if he or she thinks they are necessary.”
2. Sanctions
Fiorenzano v. Lima, 84 A.3d 811 (R.I. 2014).
Although it is well settled that an appeal may be dismissed when it has not been
perfected, the Rhode Island Supreme Court has made clear that sanctions should not be imposed
for mere failure to perfect an appeal.
In Fiorenzano, when the plaintiff failed to perfect his appeal, the trial justice granted the
defendant’s motion to dismiss plaintiff’s appeal and, in addition, ordered that plaintiff pay
defendant $1,500 as compensation for defendant’s attorney obtaining dismissal of the appeal.
On appeal, the Supreme Court held that the imposition of a sanction for the plaintiff’s
failure to perfect his appeal was in error. According to the Court, “[n]o statute or rule calls for
any further sanctions for the failure to perfect an appeal.”
J. Pre-briefing Conference
1. Issues Raised During Pre-briefing Conference
See Final Judgment Rule, Issues Concerning Finality Raised at Pre-briefing Conference.
2. Waiver
Carrozza v. Voccola, 90 A.3d 142 (R.I. 2014).
Arguments raised in a pre-briefing statement but not reiterated in the full brief are
waived. (citing State v. Rolon, 45 A.3d 518, 519 n.1 (R.I. 2012); Bowen Court Associates v.
Ernst & Young LLP, 818 A.2d 721, 728-29 (R.I. 2003)). However, the failure to raise an issue in
a pre-briefing statement does not waive that issue for full briefing. Id. Moreover, a concession
Recent Developments in the Law 2014 - Civil
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of a point by a party in his or her pre-briefing statement does not preclude that party from raising
the issue at the time of full briefing.
K. Premature Appeal
Miller v. Saunders, 80 A.3d 44 (R.I. 2013).
Under Rule 4 of the Rhode Island Rules of Appellate Procedure, an appeal to the Rhode
Island Supreme Court is timely if it is filed within 20 days of the date of the entry of the
judgment, order, or decree appealed from. In Miller, the plaintiff filed a notice of appeal
prematurely, before the entry of final judgment, however, the Rhode Island Supreme Court
treated the appeal as timely. The Supreme Court’s treatment of the premature appeal as timely
was consistent with the result reached in prior decisions. See The Law Firm of Thomas A. Tarro,
III v. Checrallah, 60 A.3d 598, 601 (R.I. 2013); State v. Cipriano, 21 A.3d 408, 419 n.10 (R.I.
In a case of first impression that has important implications for lenders in Rhode Island,
in NV One, LLC the Rhode Island Supreme Court held that a usury savings clause in a
commercial loan document does not validate an otherwise usurious contract.
As a result of the Court’s decision, loan documents that impose an interest rate in excess
of 21 percent per annum and do not fall within a statutory exception are usurious and void as a
matter of law, regardless of whether they contain a usury savings clause. When a usurious loan
Recent Developments in the Law 2014 - Civil
33
document is declared void, the borrower is entitled to recover all amounts paid on the loan.3 A
lender has no right to collect either principal or interest on a usurious loan. See Colonial Plan
Co. v. Tartaglione, 50 R.I. 342, 147 A. 880, 881 (1929).
Pursuant to Rhode Island statutory law, the maximum allowable interest rate for most
loans is 21 percent per annum. (citing R.I. Gen. Laws § 6-26-2(a)).4 Contracts that purport to
impose an interest rate in excess of 21 percent per annum are usurious and void. Id. (citing R.I.
Gen. Laws § 6-26-4). The lender’s subjective intent to comply with the usury laws is irrelevant.
Id. However, if the lender willfully and knowingly violates § 6-26-2, it can be found guilty of
criminal usury, punishable by up to five years’ imprisonment. R.I. Gen. Laws § 6-26-3.
Through the passage of such statutes, the Rhode Island General Assembly has manifested
an intention to protect borrowers by ensuring that lenders do not charge interest in excess of the
maximum rate. As the Supreme Court recognized, “the Legislature intended an inflexible,
hardline approach to usury that is tantamount to strict liability.”
Since their enactment, Rhode Island has strictly enforced its usury laws, but until the
Supreme Court’s decision in NV One, LLC, it had not addressed whether a usury savings clause
could save an otherwise usurious loan.
In concluding that usury savings clauses violate public policy, the Supreme Court
reasoned that “enforcement of usury savings clauses would entirely obviate any responsibility on
3 By statute, the remedy available when a regulated financial institution knowingly contracts orcharges a usurious interest rate is different. In that scenario, the regulated financial institutionmust forfeit the entire interest on the debt. R.I. Gen. Laws § 6-26-4(d). If the debtor has alreadypaid the usurious interest rate, he or she may recover from the regulated financial institutiontwice the amount of the interest paid. Id. There is a two year statute of limitations for suchactions, which runs from the date of the usurious transaction. Id.4 There are some exceptions, such as for a loan in excess of $1,000,000 to a commercial entitywhen the loan is not secured by a mortgage against the principal residence of any borrower andthe commercial entity obtained a pro forma methods analysis performed by a licensed certifiedpublic accountant. R.I. Gen. Laws § 6-26-2(e).
Recent Developments in the Law 2014 - Civil
34
the part of the lender to abide by the usury statute, and would, in essence, swallow the rule.” The
Court expressed concern that “the inclusion of usury savings clauses in loan contracts would lead
to results that are injurious to the money-borrowing public, as well as potentially unconscionable
or tending towards injustice or oppression.” Indeed, “[i]f lenders could circumvent the
maximum interest rate by including a boilerplate usury savings clause, lenders could charge
excessive rates without recourse.”
In the wake of the Supreme Court’s decision, lenders should carefully scrutinize their
loan documents to ensure full compliance with Rhode Island’s usury laws, bearing in mind that a
usury savings clause will not save an otherwise usurious loan agreement.
Labonte v. New England Development R.I., LLC, 93 A.3d 537 (R.I. 2014).
Months after the Supreme Court decided NV One, LLC, it held in LaBonte that a
commercial loan commitment fee could be included in the calculation of interest. The loan at
issue was for $275,000. Pursuant to its terms, the borrower was required to repay the loan in the
amount of $325,000, plus interest within 30 days. The $325,000 repayment amount included a
$50,000 loan commitment fee.
The parties did not dispute that if the loan commitment fee was considered interest, it
would render the loan usurious. However, the lender argued that under Rhode Island law, a
commercial loan commitment fee shall not constitute interest. See R.I. Gen. Laws § 6-26-2.
In considering the lender’s argument, the Supreme Court recognized that the statute
defines a commercial loan commitment fee as a charge imposed by lenders “to assure the
availability of a specified amount of credit for a specified period of time or, at the borrower’s
option, compensating balances in lieu of the fees.” Id. However, because the $50,000 fee did
not provide any assurance as to the availability of the $275,000 principal loan, the Court
Recent Developments in the Law 2014 - Civil
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concluded that the loan commitment fee did not fall within the statutory exemption and,
therefore, must be treated as interest.
Based on that conclusion, the Supreme Court held that the loan was usurious and void
pursuant to R.I. Gen. Laws § 6-26-2(a).
C. Contracts
JPL Livery Services v. R.I. Dep’t of Admin., 88 A.3d 1134 (R.I. 2014).
As the Rhode Island Supreme Court recognized this term, “it is a fundamental principle
of contract law that a bilateral contract requires mutuality of obligation.” JPL Livery Services v.
R.I. Dep’t of Admin., 88 A.3d 1134, 1143-44 (R.I. 2014) (citing Centerville Builders, Inc. v.
Wynne, 683 A.2d 1340, 1341 (R.I. 1996)). A mutuality of obligation exists when “both parties
are ‘legally bound through the making of reciprocal promises.’” Id. (quoting Centerville
Builders, Inc., 683 A.2d at 1341). Conversely, “[t]he words of a promise ‘are illusory if they are
conditional on some fact or event that is wholly under the promisor’s control and bringing it
about is left wholly to the promisor’s own will and discretion,’ such that ‘the words used do not
in fact purport to limit future action in any way.’” Id. (quoting 2 Corbin on Contracts, § 5.32 at
175, 176 (1995)). If a termination clause allows a party to terminate at any time at will without
more, the promise is illusory. Id. (citing Holliston Mills, Inc. v. Citizens Trust Co., 604 A.2d
“The Fair Employment Practices Act prohibits an employer from discharging an employee on
the basis of age and disability. See § 28-5-7(1)(i). ‘This Court has adopted the federal legal
framework to provide structure to our state employment discrimination statutes.’ Neri v. Ross-
Simons, Inc., 897 A.2d 42, 48 (R.I. 2006) (citing Newport Shipyard, Inc. v. Rhode Island Commission
for Human Rights, 484 A.2d 893, 898 (R.I. 1984)). Because plaintiff claims employment
discrimination, we will employ the now familiar three-part burden shifting framework as outlined by
the United States Supreme Court in McDonnell-Douglas Corp., 411 U.S. at 802-04. See McGarry v.
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Pielech, 47 A.3d 271, 280 (R.I. 2012) (citing Center For Behavioral Health, Rhode Island, Inc. v.
Barros, 710 A.2d 680, 685 (R.I. 1998)).
“In the first step of the McDonnell-Douglas paradigm, plaintiff must make out a prima facie
case of age discrimination. Neri, 897 A.2d at 48-49. To meet this burden in cases of age
discrimination, plaintiff must demonstrate that
‘(1) she was at least forty years of age; (2) her job performance metthe employer’s legitimate expectations; (3) the employer subjectedher to an adverse employment action (e.g., an actual or constructivedischarge); and (4) the employer had a continuing need for theservices provided by the position from which the claimant wasdischarged.’ Id. at 49 (quoting Ramírez Rodríguez v. BoehringerIngelheim Pharmac[eu]ticals, Inc., 425 F.3d 67, 78 n.11 (1st Cir.2005)).
If a plaintiff is able to establish these elements, a presumption arises that the employer engaged in
unlawful discrimination. Barros, 710 A.2d at 685 (citing Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 254 (1981)).”
“Under the McDonnell-Douglas framework, after plaintiff establishes her prima facie case,
the burden shifts to defendant to come forward with legitimate nondiscriminatory reasons for the
employee’s termination. Neri, 897 A.2d at 49 (citing Barros, 710 A.2d at 685). The defendant’s
burden is one of production, not persuasion. Id. (citing Casey v. Town of Portsmouth, 861 A.2d 1032,
1037 (R.I. 2004)). When a defendant offers such a reason, it “eliminates the presumption of
discrimination created by the prima facie case.” Id. (citing Wellborn v. Spurwink/Rhode Island, 873
A.2d 884, 889 (R.I. 2005)). To satisfy this burden of production, a defendant need only offer
affidavits supporting the nondiscriminatory reason. Id. at 50.”
“The final step articulated in McDonnell-Douglas Corp. shifts the burden back to the plaintiff
to focus on “the ultimate question of ‘discrimination vel non.’” Neri, 897 A.2d at 50 (quoting Casey,
861 A.2d at 1037). To prove discrimination, a plaintiff need not provide a “smoking gun,” but rather
must prove that “[the] defendants’ legitimate, nondiscriminatory reason for not hiring [her] was
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merely pretext (which would mean that the real reason for not hiring [the] plaintiff was unlawful
animus).” Casey, 861 A.2d at 1038 (citing Barros, 710 A.2d at 685). The plaintiff may demonstrate
pretext “either directly by persuading the court that a discriminatory reason more likely motivated the
employer or indirectly by showing that the employer’s proffered explanation is unworthy of
credence.” Barros, 710 A.2d at 685 (quoting Burdine, 450 U.S. at 256). Further, “a plaintiff’s prima
facie case, combined with sufficient evidence to find that the employer’s asserted justification is
false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Casey,
861 A.2d at 1038 (quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000)).
The inference of discrimination is stronger if there is a “suspicion of mendacity” surrounding the
reason for terminating the employee. Neri, 897 A.2d at 50 (quoting Barros, 710 A.2d at 685).
However, the plaintiff has the burden of demonstrating not only that the offered reasons are false, but
“that discrimination was the real reason.” McGarry, 47 A.3d at 281.”
2. Independent Contractors
Cayer v. Cox Rhode Island Telecom, LLC, 85 A.3d 1140 (R.I. 2014).
The Supreme Court’s decision in Cayer serves as an important reminder for businesses
operating in Rhode Island of the demarcation between those who are employees and those who
are independent contractors.
As a general matter, “‘one who employs an independent contractor is not liable for the
negligent acts of that contractor.’” (quoting Bromaghim v. Furney, 808 A.2d 615, 617 (R.I.
2002)). For this rule to apply, the independent contractor truly must be independent. “‘The test
[as to] whether a person is an independent contractor is based on the employer’s right or power
to exercise control over the method and means of performing the work and not merely the
exercise of actual control.’” (quoting Absi v. State Dep’t of Administration, 785 A.2d 554, 556
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(R.I. 2001)). The power or the actual exercise of too much control over an independent
contractor may transform the contractor into an employee.
In Cayer, the relationship between the company and the contractor was governed by an
agreement that specified that (1) the company was interested only in the results obtained as a
result of the work performed and (2) the manner and means of conducting the work was within
the contractor’s control. Consistent with the agreement, the company did not oversee the work
of the contractor as it was being performed. The company’s only oversight of the contractor’s
work consisted of spot inspections, conducted one to three days after the work had been
performed.
A variety of other factors also confirmed that the contractor was properly classified as an
independent contractor, including that the company paid the contractor by the job and did not
supply the contractor with a vehicle, uniform, boots, tools, rain gear or snow gear. All of these
factors contributed to the Supreme Court’s conclusion that the company did not have the
requisite power to control the contractor’s work and, therefore, the contractor was properly
classified as an independent contractor. Consequently, the company could not be held
vicariously liable for the independent contractor’s negligence.
3. Whistleblowers’ Protection Act
Russo v. State, 87 A.3d 399 (R.I. 2014).
In Russo, the Rhode Island Supreme Court addressed an issue of first impression
concerning the interpretation of Rhode Island’s Whistleblowers’ Protection Act (the “WPA”).
The WPA provides, in relevant part:
An employer shall not discharge, threaten, or otherwisediscriminate against an employee regarding the employees’compensation, terms, conditions, location, or privileges ofemployment:
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a. Because the employee, or person acting on behalf of theemployee, reports or is about to report to a public body,verbally or in writing, a violation which the employee knowsor reasonably believes has occurred or is about to occur, of alaw or regulation or rule promulgated under the law of thisstate, a political subdivision of this state, or the United States,unless the employee knows or has reason to know that thereport is false . . . .”
R.I. Gen. Laws § 28-50-3(1).
In Russo, the Supreme Court held that an employer’s placement of an employee on paid
administrative leave does not constitute an adverse employment decision akin to discharging,
threatening or otherwise discriminating against the employee. Indeed, administrative leave with
pay is not considered a suspension and it has been deemed to be “a reasonable means of coping
with a problematic workplace situation while only ‘minimally affecting’ the employee.”
Consequently, an employee placed on paid administrative leave cannot claim a violation of the
WPA.
G. Injunctions
Long v. Dell, 93 A.3d 988 (R.I. 2014).
In Long, the Rhode Island Supreme Court for the first time made clear that “[a]n
injunction is a remedy, not a cause of action” and held that the trial justice properly dismissed the
plaintiff’s request for injunctive relief. In so holding, the Court recognized authority from other
jurisdictions holding that injunctive relief is not a cause of action. See Thompson v. JPMorgan
Chase Bank, N.A., No. 13-2230, 2014 WL 1586992, at *1 n.1 (6th Cir. Apr. 22, 2014); Koufos v.
U.S. Bank, N.A., 939 F. Supp. 2d 40, 46 (D. Mass. 2013)). The Supreme Court’s ruling is
consistent with the Superior Court’s recognition in State v. Lead Ind. Assn., Inc. that injunctive
relief is not a standalone cause of action. See State v. Lead Ind. Assn., Inc., C.A. No. 99-5226,
the action must ‘at the very least, “attain a level of rascality that would raise an eyebrow of
someone inured to the rough and tumble world of commerce.’” Id. (quoting Levings, 396 N.E.2d
at 153).”
K. Medical Malpractice
1. Statute of Limitations
Ho-Rath v. Rhode Island Hospital, 89 A.3d 806 (R.I. 2014).
Ho-Rath presented the following issues of first impression:
1. “Whether, in accordance with § 9-1-14.1(1), medical malpractice claims may bebrought on a child’s behalf at any time before the minor reaches the age of majority,and thereafter by the child within three years after attaining the age of majority, ormedical malpractice claims must be brought on behalf of a minor child within threeyears of the incident giving rise to the cause of action, or within three years afterattaining the age of majority – but at no time in between.”
2. “Whether parents may bring their derivative claims at whatever time the minor’smedical negligence claims are pursued, or whether parents must file all derivative
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claims within three years of the incident giving rise to the cause of action, even if thechild’s claims are not brought until sometime thereafter.”
The Supreme Court concluded that on the basis of these two issues of first impression, full
briefing and argument was required. Thus, while these issues of first impression were not
resolved we can anticipate that they will be resolved after they come before the Court for full
argument next term.
L. Negligence
1. Automobile Accidents
a. Public-Safety Officer’s Rule
Ellinwood v. Cohen, 87 A.3d 1054 (R.I. 2014).
In Ellinwood, an automobile negligence case, the Rhode Island Supreme Court addressed
the application of the public-safety officer’s rule. The public-safety officer’s rule – also known
as the firefighter’s rule or the fireman’s rule – “bars an injured public-safety official from
maintaining a negligence action against a tortfeasor whose alleged malfeasance is responsible for
bringing the officer to the scene of a fire, crime, or other emergency where the officer is injured.”
(citing Higgins v. Rhode Island Hospital, 35 A.3d 919, 922-23 (R.I. 2012)). For an alleged
tortfeasor to successful advance this rule, he or she must establish the following three elements:
(1) that the tortfeasor injured the police officer . . . in the course of[the officer’s] employment,
(2) that the risk the tortfeasor created was the type of risk that onecould reasonably anticipate would arise in the dangeroussituation which [the police officer’s] employment requires [himor her] to encounter, and
(3) that the tortfeasor is the individual who created the dangeroussituation which brought the police officer . . . to the . . .accident scene . . . .”
Id.
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b. Motorist Who Crosses Into Oncoming Lane of Traffic
O’Connell v. Walmsley, 93 A.3d 60 (R.I. 2014).
O’Connell, a wrongful death action, concerned a tragic automobile accident that claimed
the lives of two young men, one of whom was the plaintiff co-administrators’ decedent. The
evidence before the Court was that the decedent was a passenger in a vehicle that while traveling
at a high rate of speed, crossed over the center line and into the opposite lane of traffic where it
collided with a vehicle driven by the defendant. The evidence was that the defendant was
driving in excess of the speed limit, was under the influence of alcohol and did not see the
vehicle in which the decedent was a passenger before the collision. Notwithstanding this
evidence, after a jury verdict in favor of the plaintiff, the defendant moved for judgment as a
matter of law on the grounds that the plaintiff had failed to prove that, but for his negligence, the
accident would not have occurred. The trial court agreed and granted judgment as a matter of
law in favor of the defendant. On appeal, the Supreme Court reversed, concluding that there was
sufficient evidence presented establishing intoxication, speed, and an inference of inattention or
diminished reaction time on the part of the defendant from which the jury could infer negligence
and conclude that the defendant’s failure to react was a contributing factor in the decedent’s
death.
c. Rental Cars
Marble v. Faelle, 89 A.3d 830 (R.I. 2014).
Marble concerned a motor vehicle accident involving a rental car. Under Rhode Island
law, “when the operator of a motor vehicle of a rental car causes an accident, the liability of the
owner of a rental car – absent some independent negligence – is predicated upon the operator
having the consent of the owner.” See R.I. Gen. Laws § 31-34-4(a); see also LaFratta v. Rhode
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Island Public Transit Authority, 751 A.2d 1281, 1285 (R.I. 2000). By statute, “evidence that at
the time of the accident or collision the motor vehicle was registered in the name of the
defendant, shall be prima facie evidence that it was being operated with the consent of the
defendant.” R.I. Gen. Laws § 31-33-7.
In Marble, the defendant rental car company argued that the Graves Amendment
preempts Rhode Island law on these issues. Pursuant to the Graves Amendment:
An owner of a motor vehicle that rents or leases the vehicle to aperson (or an affiliate of the owner) shall not be liable under thelaw of any State or political subdivision thereof, by reason of beingthe owner of the vehicle (or an affiliate of the owner), for harm topersons or property that results or arises out of the use, operation,or possession of the vehicle during the period of rental or lease, if –
b. the owner (or an affiliate of the owner) is engaged in thetrade or business of renting or leasing motor vehicles; and
c. there is no negligence or criminal wrongdoing on the partof the owner (or an affiliate of the owner).
49 U.S.C. § 30106(a). In Marble, the Supreme Court never reached the issue of whether the
Graves Amendment preempts Rhode Island law because there were issues of fact that required
reversal of the trial court’s grant of summary judgment but its provides an opportunity for rental
car companies to argue the issue of preemption in future cases.
2. Dog Bites
Coogan v. Nelson, 92 A.3d 213 (R.I. 2014).
In Coogan, the Rhode Island Supreme Court revisited what it described as the “well-
traveled legal terrain of dog bite cases.” R.I. Gen. Laws § 4-13-16 imposes strict liability on dog
owners if a dog “assaults, bites, or otherwise injures any person while traveling the highway or
out of the enclosure of the owner or keeper of that dog.” Under common law, a dog owner may
be held liable for a dog bite occurring within the dog owner’s enclosure if the plaintiff can
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“prove that the defendant knew about the dog’s vicious propensities.” The common law rule is
commonly referred to as the “one-bite rule,” however, in Coogan the Supreme Court made clear
that a bite is not the only type of prior incident that would suffice to indicate a dog’s vicious
propensities. The Court noted that the “[t]he so-called ‘one-bite rule’ is only a convenient
shorthand expression which courts have adopted to describe the knowledge requirement of a
prior incident involving a dog to indicate a vicious propensity.”
3. Independent Medical Records Review
Woodruff v. Gitlow, 91 A.3d 805 (R.I. 2014).
In Woodruff, a case of first impression, the Rhode Island Supreme Court held that a
doctor who has been hired by a third party to provide an opinion about a patient based solely on
the review of the patient’s records does not owe a duty of care to the patient. Consequently, the
doctor cannot be held liable in a suit by the patient for any negligence occurring in connection
with the doctor’s medical records review.
In Woodruff, the plaintiff, a commercial pilot, surrendered his medical certificate at the
request of the Federal Aviation Administration (“FAA”) after he had been involved in a motor
vehicle accident. After recovering from the accident, the plaintiff sought to have his medical
certificate reinstated. The FAA retained a psychiatrist as a medical consultant to review the
plaintiff’s medical records and to make a recommendation about the plaintiff’s fitness to have his
medical certificate reinstated. The FAA provided the psychiatrist with portions of the plaintiff’s
hospital, medical and driving records, as well as forms that the plaintiff had completed. The
psychiatrist reviewed the documents that had been provided to him and made his conclusions
based solely on those documents. Importantly, he never physically examined the plaintiff.
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After the psychiatrist completed his review, the FAA denied the plaintiff’s application to
renew his medical certificate. Consequently, the plaintiff filed suit against the psychiatrist
alleging that his evaluation had been negligently performed.
In considering the plaintiff’s claim, the Court first considered whether a traditional
physician-patient relationship existed between the psychiatrist and the plaintiff. Having
concluded that there was no such relationship, the Court proceeded to examine whether the
psychiatrist owed the plaintiff any duty of care.
To prevail on a negligence claim, “‘a plaintiff must establish a legally cognizable duty
owed by a defendant to a plaintiff, a breach of that duty, proximate causation between the
conduct and the resulting injury, and the actual loss or damage.’” (quoting Wyso v. Full Moon
Tide, LLC, 78 A.3d 747, 750 (R.I. 2013)). Thus, the plaintiff could not pursue his negligence
claim unless he could establish that the psychiatrist owed him a legally cognizable duty of care.
Presented with this issue of first impression, the Rhode Island Supreme Court looked to
case law from other jurisdictions for guidance. In doing so, the Court noted that the majority of
courts, in the context of medical malpractice cases, have held that doctors who have been
engaged to perform an independent medical examination do not owe a duty of care to the patient
because there is no physician-patient relationship. Some courts have, however, held that a health
care provider engaged to perform an independent medical examination owes a limited duty to the
patient under common law negligence principles. For example, some courts have held that a
doctor performing an independent medical examination owes a duty to avoid causing harm to the
patient. Other courts have held that a health care provider engaged to perform an independent
medical examination has a duty of care to diagnose serious or life threatening medical condition
or to disclose those conditions to the examinee.
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Viewing the facts of the case against this backdrop and against its own prior case law
concerning the determination of a duty of care, the Supreme Court concluded it was important
that the psychiatrist never conducted a physical examination of the plaintiff. Thus, the case was
distinguishable from the cases in which an independent medical examiner had failed to diagnose
a serious or life threatening medical condition or caused some harm to the examinee during the
course of the examination.
Additionally, the Supreme Court was persuaded by the fact that imposing a duty of care
on the psychiatrist would do little to prevent future harm to the plaintiff because the harm from
which the plaintiff suffered was his medical condition itself, not any action or inaction on the
part of the psychiatrist. The Court also noted that there are numerous safeguards, including
administrative review processes that help safeguard the process of obtaining independent
medical records reviews. Finally, the Court concluded that exposing health care professionals
who perform independent medical records reviews to liability would result in a chilling effect on
their willingness to serve in that capacity. Even worse, health care professionals concerned
about liability resulting from their medical records reviews may be more included to produce a
report more favorable to the party whose records are being reviewed. Both consequences
militated against finding that the psychiatrist owed a duty of care to the plaintiff.
In holding that the psychiatrist did not owe a duty of care to the plaintiff, the Supreme
Court was cautious to limit its holding to the facts of the case before it. Nevertheless, the
decision is clear that the Court views medical records reviews and independent medical
examinations differently and that its decision in the context of a medical records review case is
not determinative of the result it may reach in a case involving an independent medical
examination.
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4. Premises Liability
a. Attractive Nuisance Doctrine
Burton v. Rhode Island, 80 A.3d 856 (R.I. 2014).
In Burton, the Rhode Island Supreme Court held that a 17-year-old trespasser could not
invoke the attractive-nuisance doctrine because he could not establish that he did not realize the
risk of coming in contact with sulfuric acid.
While the Court stopped short of holding that the attractive-nuisance doctrine can never
be invoked by a 17-year-old, it devoted a significant portion of its decision to discussion of the
origins of the doctrine and its application to “young children.” In the wake of Burton, it will be
difficult for a 17-year-old trespasser to establish that he or she is “too young to appreciate the
risk” that caused his or her injury and thereby invoke the attractive-nuisance doctrine.
In 1908, the Rhode Island School for the Feeble-Minded was founded as a small farm
colony in rural Exeter, Rhode Island. See http://www.theladdschool.com. The school, which
was later renamed the Ladd School, occupied nearly one square mile known as the Ladd Center
consisting of 30 buildings, including dormitories, hospitals, a power plant and a fire station.
Since its closure in 1994, the Ladd Center has developed a reputation as being haunted.
In November 2005, after consuming several beers, 17-year-old Steven Burton and his
four friends set out to explore the Ladd Center property. Burton and his friends entered onto the
property notwithstanding the posted “No Trespassing” signs and approached an abandoned
hospital building secured by plywood over the first and second floor windows, chains on the
doors and metal grates that had been welded shut. Burton and his friends shimmied up a pipe
and entered the building through a third-story window. While inside exploring the building, the
group discovered a Styrofoam box inside an unlocked locker. Inside the box were four clear
v. Wanskuck Co., 90 A.2d 769, 770 (R.I. 1952)); see also Hill v. National Grid, 11 A.3d 110, 113
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(R.I. 2011); Cain v. Johnson, 755 A.2d 156, 160 (R.I. 2000); Bennett v. Napolitano, 746 A.2d
138 (R.I. 2000); Wolf v. Nat’l R.R. Passenger Corp., 697 A.2d 1082, 1085 (R.I. 1997).
Consistent with Rhode Island law, other courts have made it clear that a trespasser
“cannot hold the owner to liability based upon negligence in failing to make the premises safe.”
Firfer v. United States, 208 F.2d 524, 528 (D.C. Cir. 1953); see also Bonney v. Canadian N.R.
Co., 800 F.2d 274, 276 (1st Cir. 1986); Young v. Burton, 567 F. Supp. 2d 121, 133 n.7 (D.D.C.
2008). Rather, a trespasser takes the premises as he or she finds it and assumes all risks inherent
therein. Bonney, 800 F.2d at 277. This rule is consistent with the common law’s recognition
that “[p]roperty owners have a basic right to be free from liability to those who engage in self-
destructive activity on their premises without permission.” Tantimonico, 637 A.2d at 1062.
Although as a general matter a landowner owes no duty of care to a trespasser, Rhode Island
recognizes one exception to that general rule. In Haddad v. First National Stores, 280 A.2d 93
(R.I. 1971), the Rhode Island Supreme Court adopted the doctrine of attractive nuisance as set
forth in Restatement (Second) Torts § 339 (1965), which recognizes that in certain instances a
landowner will owe a duty of care to trespassing children. In adopting the doctrine, the Court
reasoned that “[t]here must and should be an accommodation between the landowner’s
unrestricted right to use of his land and society’s interest in the protection of the life and limb of
its young.” Id. at 96. The Rhode Island Supreme Court later reaffirmed its holding in Kurczy v.
Saint Joseph Veterans Ass’n, 820 A.2d 929, 945 (R.I. 2003).
To establish a duty of care on the part of a landowner, a trespassing child must prove,
inter alia, that “because of [his] youth” he “[did] not discover the condition or realize the risk
involved in intermeddling with it or in coming within the area made dangerous by it.” (citing
Restatement (Second) Torts, § 339(c) at 197). Both the trial justice and the Supreme Court
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concluded that Burton “was old enough to appreciate the risk of breaking into an abandoned
building and of transporting a substance he had reason to believe was hazardous.” Therefore, the
State owed no duty of care to Burton when he trespassed on the Ladd Center property.
While the Supreme Court did not hold that the attractive-nuisance doctrine could never
be invoked by a 17-year-old, it noted in its decision that “in no case have we applied the
attractive-nuisance doctrine to a child older than twelve years old.” Burton’s age was plainly
significant to the Court’s holding that Burton “failed to establish that he was too young to
appreciate the risk.” (emphasis added).
Following Burton, it will be difficult for a 17-year-old trespasser to demonstrate that he
or she was “too young to appreciate the risk” of a dangerous condition and, without such a
demonstration, the 17-year-old will be treated as a trespasser to whom a landowner owes no duty
of care.
b. Dangerous Conditions Outside the Property
Brown v. Stanley, 86 A.3d 387 (R.I. 2014).
In Brown, the Rhode Island Supreme Court was called upon to decide whether two
charitable organizations owed a duty of care to an individual who was injured when she was
struck by a truck while crossing a public roadway to join participants in a fundraising walk
sponsored by the organizations. The plaintiff argued that the organizations assumed a duty to
provide for the safety of participants in the walk by taking affirmative steps to control traffic in
the roadway. However, in view of the facts of the case, including that the plaintiff had rejected
any offers of assistance in crossing the roadway, the Court concluded that the charitable
organizations owed no duty of care to the plaintiff.
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Phelps v. Hebert, 93 A.3d 942 (R.I. 2014).
In Phelps, a case involving a tragic all-terrain vehicle (“ATV”) accident that took the life
of Ashley Phelps, the Rhode Island Supreme Court held that a landowner cannot be held liable
for an injury occurring outside the premises, even if the landowner has allowed the dangerous
condition to exist on his or her land, when the landowner had no ability to control the dangerous
condition.
Rhode Island courts have also recognized that “a landowner may . . . be liable for injures
occurring outside the premises when he or she allows a dangerous condition or activity to exist
on their land.” To be liable under this theory, a landowner must “(1) know or have reason to
know that they have the ability to control the person(s) using their land, and (2) know or should
know of the necessity and opportunity for exercising such control.”
In Phelps, the landowners hosted a graduation party for their son when a guest brought an
ATV onto their property. Phelps, a guest at the party, asked the driver of the ATV for a ride and
together, they left the landowners’ property and traveled down the street before the ATV flipped
over. Phelps died nine days later.
In considering whether the landowners owed a duty of care to Phelps, a guest at their
home who voluntarily left the party in the ATV and was injured off outside their premises, the
Supreme Court recognized that there was no indication that the landowners had the ability to
control the ATV driver’s actions to prevent injury. Accordingly, the Court declined to impose a
duty of care on the landowners.
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i. Sidewalks
Wyso v. Full Moon Tide, 78 A.3d 747 (R.I. 2014).
In Wyso, the Rhode Island Supreme Court confirmed in that neither property owners nor
lessees of real property owe a duty of care to those who are injured on an abutting sidewalk.
In Wyso, the plaintiff, who was vacationing on Block Island, tripped and fell on a cracked and
uneven section of a public sidewalk. The sidewalk abutted property owned by Frederick and
Deborah Howarth (the “Property Owners”) and leased to Full Moon Tide, LLC and Strings &
Things, Inc. (“Lessees”). The plaintiff filed suit against the Property Owners and the Lessees,
alleging that they negligently (1) failed to inspect, repair and/or maintain the sidewalk, which
caused the plaintiff to fall and suffer injuries and (2) failed to warn the plaintiff of the sidewalk’s
dangerous condition. The Property Owners and the Lessees filed separate motions for summary
judgment, which were both granted by the trial court.
On appeal, the Supreme Court affirmed the decision of the trial court. In so holding, in
reliance on its 2010 decision in Berman v. Sitrin, 991 A.2d 1038, 1047 (R.I. 2010) (more
commonly known as the Cliff Walk case) and its earlier decision in Saunders v. Howard Realty
Co., 371 A.2d 274 (R.I. 1977), the Court noted that there is “a significant amount of our
jurisprudence providing that a property owner owes no duty to individuals for the condition of
public sidewalks when the property owner has taken no action to create a dangerous condition.”
In Berman, the Court had held that “[i]t is a well-established legal principle in this jurisdiction,
as well as others, that a landowner whose property abuts a public way has no duty to repair or
maintain it.” (citing Berman, 991 A.2d at 1047).
Although it is ordinarily difficult to obtain summary judgment in a negligence case, the
existence of a duty of care is a question of law to be determined by the court. “In the absence of
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such a duty, ‘the trier of fact has nothing to consider and a motion for summary judgment must
be granted.’” (quoting Holley v. Argonaut Holdings, Inc., 698 A.2d 271, 274 (R.I. 2009)). Thus,
because a property owner owes no duty of care to an individual who is injured on an abutting
sidewalk, the Court concluded that summary judgment was proper on plaintiff’s failure to
maintain and failure to warn claims.
The Court also rejected the plaintiff’s argument that a duty of care arises from a
municipal ordinance that requires landowners to maintain and repair abutting sidewalks. In
doing so, the Court concluded that the municipal ordinance was only intended to benefit the
municipality and not individuals.
The Supreme Court’s decision in Wyso did not break new ground but it clearly confirmed
that property owners will not be held liable for injuries sustained by individuals traversing
abutting sidewalks absent evidence that the property owner caused the defective condition,
regardless of any municipal ordinance that requires a landowner to keep abutting sidewalks in
good order and repair.
c. Storm Rule
Sullo v. Greenberg, 68 A.3d 404 (R.I. 2013).
In Sullo, the Rhode Island Supreme Court confirmed that Rhode Island landlords and
businesses must clear snow accumulation and treat surface areas within a reasonable time after a
snow, ice or freezing rain storm has ended.
In deciding the duty of a landlord or business invitor to treat surfaces during and after a
snowstorm, Rhode Island has adopted its sister state’s approach, which it aptly refers to as the
“Connecticut Rule.” Under the Connecticut Rule, Rhode Island landlords and businesses have a
duty to their tenants and invitees to clear snow accumulation and treat surfaces impacted by a
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storm, however, that duty does not arise until a reasonable time after the storm has ended. (citing
Benaski v. Weinberg, 899 A.2d 499, 502-03 (R.I. 2006)). The rule is designed to permit
landlords and businesses a reasonable time to clear a natural accumulation of snow and ice after
a winter storm. (citing Berardis v. Louangxay, 969 A.2d 1288, 1292 (R.I. 2009)). The rule
recognizes that in areas like New England, it is appropriate “to allow a reasonable time to treat
surfaces rather than ineffectually fight a continuing storm.”
The rule applies regardless of whether customers or patrons are expected to be on the
premises during the storm. See Berardis, 969 A.2d at 1292-93. A duty to remove snow
accumulation before the end of a storm will arise only in exceptional circumstances. For
example, if a property owner exacerbates or increases the risk of a customer falling during a
storm, the property owner will have a duty to remove the snow accumulation or otherwise treat
the premises. Thus, when an automobile repair shop relocated a customer’s vehicle to an
untreated parking lot, the Supreme Court held that the repair shop could be liable for
exacerbating and increasing the risk of the plaintiff falling. Terry v. Central Auto Radiators,
Inc., 732 A.2d 713, 717-18 (R.I. 1999). However, in ordinary circumstances, a property owner
will not have a duty to remove snow and ice accumulation even when it anticipates that
customers will be on their property during the storm.
When the next winter storm strikes, Rhode Island landlords and business owners do not
need to be at their properties “shovel in hand, catching the flakes before they hit the ground,” but
they must promptly treat surfaces upon the conclusion of a snow, ice or freezing rain storm.
Benaski, 899 A.2d at 503.
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M. Quasi Contract (Quantum Meruit and Unjust Enrichment)
Process Engineers & Constructors, Inc. v. DiGregorio, Inc., 93 A.3d 1047 (R.I. 2014).
“Quantum meruit, a Latin term for ‘as much as he has deserved,’ is ‘[a] claim or right of
action for the reasonable value of services rendered.’ Black’s Law Dictionary 1361, 1362 (9th
ed. 2009). Such an action permits recovery of damages ‘in an amount considered reasonable to
compensate a person who has rendered services in a quasi-contractual relationship.’ Id. at 1361-
62. This Court has stated that ‘[t]o recover on an action in quantum meruit, it must be shown that
the owner derived some benefit from the services and would be unjustly enriched without
making compensation therefor.’ National Chain Co. v. Campbell, 487 A.2d 132, 135 (R.I. 1985).
Although the term ‘unjustly enriched’ appears as a requirement for recovery under a quantum
meruit theory, we note the nuanced distinction between unjust enrichment and quantum meruit:
‘While unjust enrichment focuses on the propriety of a payee or beneficiary retaining funds or a
benefit, quantum meruit’s primary focus is on the value of services rendered.’ Parnoff v. Yuille,
57 A.3d 349, 355 n.7 (Conn. App. Ct. 2012). Quantum meruit generally applies ‘in a situation in
which the plaintiff has provided services to the defendant for which the defendant has refused to
pay.’ Id.”
“Although we note the distinction between unjust enrichment and quantum meruit, both
doctrines are quasi-contractual theories. See Multi-State Restoration, Inc. v. DWS Properties,
LLC, 61 A.3d 414, 418 (R.I. 2013) (noting that ‘actions brought upon theories of unjust
enrichment and quasi-contract are essentially the same’) (quoting Bouchard v. Price, 694 A.2d
670, 673 (R.I. 1997)); Black’s Law Dictionary 1361-62 (noting that quantum meruit
compensates ‘a person who has rendered services in a quasi-contractual relationship’). To
recover in quasi-contract, a plaintiff must prove that ‘(1) the plaintiff conferred a benefit on the
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defendant, (2) the defendant appreciated the benefit, and (3) under the circumstances it would be
inequitable for the defendant to retain such benefit without payment of the value thereof.’
Fondedile, S.A. v. C.E. Maguire, Inc., 610 A.2d 87, 97 (R.I. 1992) (quoting Hurdis Realty, Inc. v.
Town of North Providence, 121 R.I. 275, 278, 397 A.2d 896, 897 (1979)).”
“Our cases have addressed the requirement that, in a quantum meruit action, the value
claimed must be fair and reasonable. See Salo Landscape & Construction Co. v. Liberty Electric
Co., 119 R.I. 269, 274-75, 376 A.2d 1379, 1382 (1977) (‘[A]n owner or prime contractor who
fails to pay an installment due on a construction contract is guilty of a breach that goes to the
essence of the contract and that entitles the injured party to bring an action based on a quantum
meruit theory for the fair and reasonable value of the work done.’); see also National Chain Co.,
487 A.2d at 135 n.1 (‘A representative of State Office Supply, from whom the wallcovering was
purchased, testified at trial to the fair and reasonable value of the wallpaper.’). However, we
have not defined at what point the fairness and reasonableness aspect of quantum meruit enters
the case. According to a prominent construction law treatise, ‘When a prima facie case is
properly proven, the burden of going forward—of proving that a recovery of incurred costs is
unreasonable and excessive under the circumstances—shifts to the other party.’ 6 Philip L.
Bruner and Patrick J. O’Connor, Jr., Bruner & O’Connor on Construction Law § 19:39 at 157-58
(2002); accord 3 Steven G.M. Stein, Construction Law § 11.03[2][e][i] at 11-89 (2013) (‘The
contractor may recover all costs of performance which he incurred unless the owner proves those
costs to be unreasonable.’). For purposes of the prima facie case, a plaintiff need only submit
evidence of the value of the services; the factfinder is permitted to infer that the charges are fair
and reasonable. A plaintiff is not required to put forth expert testimony on the reasonableness of
the value of the services during his or her prima facie case. If a defendant wishes to contest the
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fairness or reasonableness of the value asserted by a plaintiff, the burden shifts to the defendant
to prove that the charges are unreasonable.”
VI. Civil Procedure
A. Experts
Morabit v. Hoag, 80 A.3d 1 (R.I. 2014).
In Morabit, the Supreme Court was called upon to determine whether the trial justice
abused her discretion in precluding a professor of geology from the University of Connecticut
from testifying as an expert witness with respect to the field of stone wall science.
In precluding the expert from testifying, the trial justice had characterized the study of
historical stone walls as a “new body of science.” Accordingly, the trial justice concluded that
she was obligated to assess the reliability of the expert’s methodology by examining its
acceptability in the scientific community and its prior testing by peers. The trial justice
ultimately concluded that she was unable to determine whether the study of stone walls had
acquired sufficient acceptance in the scientific community or been subject to peer review.
On appeal, the Supreme Court disagreed with the trial justice’s conclusion that the study
of historical stone walls was a new body of science. The Court explained that stone walls have
appeared in the laws and jurisprudence of New England since colonial times. In addition, it
found, based on the record below, that the proposed expert’s theories were grounded in well-
established principles of sedimentology, geology, hydrology and geochemistry.
The Court also noted that even if it were to accept that the study of stone walls is a novel
science, the trial justice applied an overly rigid standard for the admission of expert opinions. It
was clear to the Court that although the proposed expert’s books on stone walls did not undergo
a formal peer review, his peers had provided positive commentary and feedback on his work. In
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addition, his books have received endorsements from scientific professionals, scholars and
historians and his theories have been tested anecdotally. Finally, the Court recognized that the
proposed expert’s credentials, as a professor at the University of Connecticut, gave additional
assurances as to the reliability of his underlying methods. Thus, for all of these reasons, the
Supreme Court concluded that the trial justice abused her discretion in precluding the proposed
expert’s testimony on the subject of historic stone walls, which was grounded in valid and
reliable science.
B. Judgment on the Pleadings
1. Conversion to Motion for Summary Judgment
Ingram v. Mortgage Electronic Registration Systems, Inc.
A Rule 12(c) motion for judgment on the pleadings “‘provides the trial court with the
means of disposing of a case early in the litigation process when the material facts are not in
dispute after the pleadings have been closed and only questions of law remain to be decided.’”
(quoting Haley v. Town of Lincoln, 611 A.2d 845, 847 (R.I. 1992)).
While a Rule 12(c) motion must be decided on the basis of the pleadings,
[i]f, on a motion for judgment on the pleadings, matters outside thepleadings are presented to and not excluded by the court, themotion shall be treated as one for summary judgment and disposedof as provided in Rule 56, and all parties shall be given reasonableopportunity to present all material made pertinent to such a motionby Rule 56.
R.I. Super. Ct. R. 12(c). If a party introduces materials that serve as the basis for the court’s
conversion of a motion for judgment on the pleadings into a motion for summary judgment, that
party cannot complain that they lacked notice that the motion would be converted. (citing
Ouimette v. Moran, 541 A.2d 855, 856 (R.I. 1988)).
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C. Judicial Estoppel
Iadevaia v. Town of Scituate Zoning Board of Review, 80 A.3d 864 (R.I. 2014).
“This Court has often recognized the judicial estoppel doctrine. See, e.g., Gaumond v.
Trinity Repertory Co., 909 A.2d 512, 519 (R.I. 2006); D & H Therapy Associates v. Murray, 821
A.2d 691, 693-94 (R.I. 2003). . . . ‘The invocation of judicial estoppel is “driven by the
important motive of promoting truthfulness and fair dealing in court proceedings.’” Lead
Industries Association, Inc., 69 A.3d at 1310 (quoting D & H Therapy Associates, 821 A.2d at
693). ‘Unlike equitable estoppel, which focuses on the relationship between the parties, judicial
estoppel focuses on the relationship between the litigant and the judicial system as a whole.’ Id.
(quoting D & H Therapy Associates, 821 A.2d at 693). ‘Because the rule is intended to prevent
improper use of judicial machinery, . . . judicial estoppel is an equitable doctrine invoked by a
court at its discretion.’ Gaumond, 909 A.2d at 519 (quoting New Hampshire v. Maine, 532 U.S.
742, 750 (2001)). ‘One of the primary factors courts typically look to in determining whether to
invoke the doctrine in a particular case is whether the party seeking to assert an inconsistent
position would derive an unfair advantage . . . if not estopped.’ Lead Industries Association, Inc.,
69 A.3d at 1310 (quoting D & H Therapy Associates, 821 A.2d at 694). We have further stated
that: ‘Courts often inquire whether the party who has taken an inconsistent position had
succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance
of an inconsistent position in a later proceeding would create the perception that either the first or
the second court was misled.’ Id. (quoting D & H Therapy Associates, 821 A.2d at 694).”
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D. Judicial Restraint
Chariho Regional School District v. Gist, 91 A.3d 783 (R.I. 2014).
The Rhode Island Supreme Court adheres to the doctrine of judicial restraint in issuing its
decisions. (citing PDK Laboratories Inc. v. United States Drug Enforcement Administration,
362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J. concurring) (stating that “the cardinal principle
of judicial restraint” is that “if it is not necessary to decide more, it is necessary not to decide
more.”).
E. Jurisdiction
1. Tax Matters
Barone v. State, 93 A.3d 938 (R.I. 2014).
In Barone, a case brought in Superior Court seeking declaratory, injunctive and equitable
relief and reimbursement of sales taxes imposed and collected by the State on motor vehicle
property taxes collected from citizens who lease, rather than own, their motor vehicles, the
Supreme Court held that the Superior Court lacked jurisdiction to consider the plaintiff’s claims.
In so holding, the Supreme Court recognized that the General Assembly has conferred upon the
District Court exclusive jurisdiction over tax matters. Thus, the plaintiff’s complaint should
have been brought in District Court.
F. Prejudgment Interest
Carrozza v. Voccola, 90 A.3d 142 (R.I. 2014).
Rhode Island’s prejudgment interest statute provides as follows:
In any civil action in which a verdict is rendered or a decisionmade for pecuniary damages, there shall be added by the clerk ofthe court to the amount of damages interest at the rate of twelvepercent (12%) per annum thereon from the date the cause of actionaccrued, which shall be included in the judgment entered therein.
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R.I. Gen. Laws § 9-21-10(a). The statute expressly requires prejudgment interest to accrue
“from the date the cause of action accrued.” Under Rhode Island law, “prejudgment interest is
‘not an element of damages,’ but rather ‘it is purely statutory and is peremptorily added to the
jury verdict by the clerk of the court.’” (quoting DiMeo v. Philbin, 502 A.2d 825, 826 (R.I.
1986)). The statute “speaks imperatively and directly not to the court but to the clerk. . . . It is a
purely ministerial act; it contemplates no judicial intervention.” Id.
G. Punitive Damages
Carrozza v. Voccola, 90 A.3d 142 (R.I. 2014).
Punitive damages, also known as exemplary damages, have been recognized in Rhode Island
since “‘as far back as 1890 [in] Kenyon v. Cameron, 17 R.I. 122, 20 A. 233 (1890) . . . .’ Greater
Providence Deposit Corp. v. Jenison, 485 A.2d 1242, 1244 (R.I. 1984). Punitive damages are
awarded, not to compensate a plaintiff for his or her injuries, but rather to ‘punish the offender and to
deter future misconduct.’ Id.; see also Palmisano v. Toth, 624 A.2d 314, 318 (R.I. 1993); DeLeo v.
Anthony A. Nunes, 546 A.2d 1344, 1348 (R.I. 1988); Exemplary Damages in the Law of Torts, 70
Harv. L. Rev. 517, 522 (1957) (‘As a purpose of exemplary damages, punishing the defendant is
closely related to the purpose of deterring him and others from further offenses.’) (internal quotation
marks omitted). We have consistently held that ‘punitive damages are proper only in situations in
which the defendant’s actions are so willful, reckless, or wicked that they amount to criminality’ and
that the question of whether adequate facts exist to meet that standard and support an award of
punitive damages is a question of law, which this Court reviews de novo. Jenison, 485 A.2d at 1244;
see Sherman v. McDermott, 114 R.I. 107, 108, 329 A.2d 195, 196 (1974); Pharmacy Services, Inc. v.
Swarovski North America Ltd., No. 04-72-T, 2006 WL 753055, at * 6 (D.R.I. Mar. 21, 2006); see
also Palmisano, 624 A.2d at 318 (‘An award of punitive damages is considered an extraordinary
sanction and is disfavored in the law, but it will be permitted if awarded with great caution and
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within narrow limits.’).” A defendant seeking to reduce a punitive damages award must present
evidence of his financial condition and demonstrate his inability to satisfy such an award.
H. Res Judicata
Reynolds v. First NLC Financial Services, LLC, 84 A.3d 1111 (R.I. 2014).
“Res judicata, or claim preclusion, ‘bars the relitigation of all issues that were tried or
might have been tried in an earlier action.’ Huntley v. State, 63 A.3d 526, 531 (R.I. 2013).
‘Usually asserted in a subsequent action based upon the same claim or demand, the doctrine
precludes the relitigation of all the issues that were tried or might have been tried in the original
suit,’ as long as there is ‘(1) identity of parties, (2) identity of issues, and (3) finality of judgment
in an earlier action.’ E.W. Audet & Sons, Inc. v. Fireman’s Fund Insurance Co. of Newark, New