recent developments in rhode island law 2014 - state courts and civil procedure

689103.v1

RECENT DEVELOPMENTS IN RHODE ISLAND LAW:

CIVIL

Nicole J. Benjamin1

Adler Pollock & Sheehan P.C.One Citizens Plaza, 8th Floor

Providence, RI 02903401-427-6212

[email protected]

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.

mailto:[email protected]

http://www.riappeals.com/

689103.v1

TABLE OF CONTENTSPage

RECENT DECISIONS

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

1. Transcripts.................................................................................................... 152. Sanctions ...................................................................................................... 17

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

Recent Developments in the Law 2014 - Civil

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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

C. Contracts ............................................................................................................ 35D. Declaratory Judgment Act ................................................................................. 35E. Deceptive Trade Practices Act........................................................................... 37F. Employment Law............................................................................................... 37

1. Employment Discrimination........................................................................ 372. Independent Contractors .............................................................................. 393. Whistleblowers’ Protection Act................................................................... 40

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. Tax Matters .................................................................................................. 64F. Prejudgment Interest .......................................................................................... 64G. Punitive Damages .............................................................................................. 65H. Res Judicata ....................................................................................................... 66I. Scope of Remand ............................................................................................... 67J. Standing ............................................................................................................. 68K. Stare Decisis....................................................................................................... 69L. Summary Judgment ........................................................................................... 70

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


“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


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.”


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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


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


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


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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


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.


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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

statute.

II. Appeal and Error

A. Amicus Curiae

Bucci v. Hurd Buick Pontiac GMC Truck, LLC, 85 A.3d 1160 (R.I. 2014).

In Bucci, the Supreme Court refused to consider an argument made only by amicus

curiae. In doing so, the Supreme Court made clear that it “will not consider arguments that have

made by an amicus curiae but that were not advanced by a party.” (citing Lane v. First Nat’l

Bank of Boston, 871 F.2d 166, 175 (1st Cir. 1989) (“We know of no authority which allows an

amicus to interject into a case issues which the litigants, whatever their reasons, might be, have

chosen to ignore.”).

B. Bonds

Rose v. Cariello, 85 A.3d 618 (R.I. 2014).

In Rose, after the Superior Court granted the plaintiff’s motion for additur or,

alternatively, a new trial on damages in a personal injury case, the defendant filed a motion in the


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Supreme Court to stay the judgment. The Supreme Court granted the stay but conditioned it upon

the filing of a supersedeas bond in the Superior Court.

Banville v. Brennan, 84 A.3d 421 (R.I. 2014).

In Banville, the Rhode Island Supreme Court granted the defendants’ motion to stay an

injunction requiring them to remove a building from the plaintiff’s land during the pendency of

the defendants’ appeal on the condition that the defendants post a $50,000 bond.

C. Briefs

1. Default for Failure to File

National Refrigeration, Inc. v. Capital Properties, Inc., 88 A.3d 1150 (R.I. 2014).

In National Refrigeration, Inc., a defendant/appellee was defaulted for failure to file a

brief on appeal.

2. Failure to Adequately Brief


In Bucci, the Supreme Court declined to review a claim made by the appellant on appeal

because, apart from identifying the issue, the appellant did not develop the argument. The

Supreme Court reminded practitioners that it “will consider an issue to be waived when a party

‘[s]imply stat[es] an issue for appellate review, without a meaningful discussion thereof or legal

briefing of the issues.’” (quoting State v. Chase, 9 A.3d 1248, 1256 (R.I. 2010)).

3. Writing

See Writing and Citations.


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D. Certiorari

1. Grant of Certiorari

Woodruff v. Gitlow, 91 A.3d 805 (R.I. 2014).

In a rare case, the Rhode Island Supreme Court granted a petition for writ of certiorari to

review the trial justice’s denial of a defendant’s motion for summary judgment. The Court did

not provide any rationale for its decision to grant the defendant’s petition for writ of certiorari,

however, the case presented two discrete issues of first impression, which likely factored into the

Court’s decision to grant the petition for writ of certiorari.

2. Standard of Review

See Standards of Review, Certiorari

E. Cross-Appeals

Miller v. Metropolitan Property and Casualty Ins. Co., 88 A.3d 1157 (R.I. 2014).

A party that has prevailed in the trial court must file a cross-appeal if he or she intends to

ask the Supreme Court to overturn one of the trial court’s rulings. (citing David A. Wollin,

Rhode Island Appellate Procedure § 4:5, 4-11 (West 2004)). However, “‘[a] cross appeal is not

necessary when the [party that has prevailed in the trial court] simply wants to defend the

judgment obtained below, even if it was on grounds different from those on which the judgment

was based.’” (quoting Wollin § 4:5, 4-11).

F. Final Judgment Rule

1. Appeal from Grant of Summary Judgment in Favor of One DefendantWithout Rule 54(b) Judgment

Maciel v. Davey, 76 A.3d 149 (R.I. 2014).

In Maciel, the Rhode Island Supreme Court made clear that an appeal from a grant of

summary judgment in favor of only one of multiple defendants is interlocutory in nature unless


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judgment has entered in favor of that defendant pursuant to Superior Court Rule of Civil

Procedure 54(b). In Maciel, the Superior Court granted one defendant’s motion for summary

judgment but denied that defendant’s motion for entry of judgment pursuant to Rule 54(b).

Although final judgment never entered, the plaintiff filed an appeal.

After a Rule 12A conference, the Supreme Court dismissed plaintiff’s appeal. In doing

so, the Court noted that “[a]n appeal from an order that grants a motion for summary judgment is

considered interlocutory and not final for purposes of appeal.” (citing Furtado, 839 A.2d at

536).

While the Court “may hear an appeal from an interlocutory order if public policy

considerations warrant or if immediate action is necessary in order to avoid imminent and

irreparable harm,” none of those exceptions were implicated in Maciel. Consequently, the Court

dismissed the plaintiff’s appeal.

2. Appeal from Interlocutory Order

Baker v. Mitchell, 79 A.3d 844 (R.I. 2013).

In Baker, the Supreme Court denied and dismissed the defendant’s appeal and remanded

the record to the Superior Court after concluding that the final judgment rule was not satisfied.

In the underlying partition action, the Superior Court entered an order continuing a hearing on a

motion to sell the property at issue and, in doing so, stated that no further continuances would be

allowed without the potential for sanctions. One of the defendants appealed from that order,

maintaining that the conditions set forth in the Superior Court’s order were unwarranted and

prejudicial.

On appeal, the Supreme Court held that the defendant’s appeal was interlocutory and,

therefore, not reviewable at this time. In doing so, the Court emphasized that it “has steadfastly


10

maintained that, with very few exceptions, ‘it will entertain a direct appeal only from a final

judgment,’” that completely terminates the litigation between the parties. (quoting Martino v.

Ronci, 667 A.2d 287, 288 (R.I. 1995)).

While there is an exception for orders of the sale of real or personal property, such

exception was inapplicable because the Superior Court’s order merely continued the date for the

sale of real property and, consequently, an order directing that the property be sold had not

entered. Therefore, defendant’s interlocutory appeal was improper.

3. Appeal from Denial of Summary Judgment


In National Refrigeration, the Supreme Court held that the plaintiff’s appeal from the

denial of its motion for summary judgment was not properly before the Court. In so holding, the

Supreme Court reminded that “[b]ecause an order denying a motion for summary judgment is an

interlocutory determination and is not entitled to an appeal of right, [the Court does] not

generally review such a denial.” (quoting McKinnon v. Rhode Island Hospital Trust Nat’l Bank,

713 A.2d 245, 247 (R.I. 1998)). The plaintiff argued that because the denial of the motion for

summary judgment was coupled with a cross-appeal, the appeal of the denial was properly

before the Court. The Court disagreed, concluding that the denial of the plaintiff’s motion for

summary judgment was not a final judgment and, therefore, it was not properly before the Court.

4. Appeal from Denial of Motion for Leave to Amend

Cayer v. Cox Rhode Island Telecom, LLC, 85 A.3d 1140 (R.I. 2014).

In Cayer, after the trial court granted summary judgment in favor of one of the

defendants, it granted that defendant’s motion for a Rule 54(b) judgment. The plaintiff, in turn,


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plaintiff moved for leave to amend her complaint to include a claim against another party. The

trial court denied that motion and the plaintiff appealed.

On appeal, the Supreme Court held that the plaintiff’s appeal was interlocutory and,

therefore, not properly before the Court. In so holding, the Court recognized that generally,

interlocutory orders are not subject to review unless (1) “the order or decree falls within one of

the exceptions set forth in G.L. 1956 § 9-24-7” or (2) the “order [falls] within the ambit of [the

McAuslan Doctrine, a] judicially created rule that permits review of an interlocutory order that

has such an element of finality as to require immediate review by [the Supreme Court] to avoid

possible injurious consequences.” For purposes of the McAuslan Doctrine, consequences are

injurious “when their occurrence is imminent and the damage they will work irreparable.”

Against this backdrop, the Supreme Court concluded that the denial of the plaintiff’s

motion for leave to amend did not fall within either exception and, accordingly, the Court

declined to entertain it.

5. The McAuslan Doctrine

Coit v. Tillinghast, 91 A.3d 838 (R.I. 2014).

Interlocutory orders “‘are those that are provisional or temporary, or that decide some

immediate point or matter but are not a final decision on the whole matter.’” (quoting Simpson

v. Vose, 702 A.2d 1176, 1177 (R.I. 1997)). It has long been settled that interlocutory orders,

generally are not subject to immediate appellate review unless the order or decree falls within

one of the statutory exceptions to the final judgment rule. (citing R.I. Gen. Laws § 9-24-7)).

In Coit, the Rhode Island Supreme Court addressed a second, long established judicial

exception to the general rule that interlocutory orders are not subject to appellate review. First

recognized by the Supreme Court in McAuslan v. McAuslan, 83 A. 837, 841 (R.I. 1912), the


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McAuslan Doctrine provides that an interlocutory order may be reviewed before a case has

concluded when the order “‘has such an element of finality as to require immediate review by

[the Supreme] Court to avoid possible injurious consequences.’” (quoting Chiaradio v. Falck,

794 A.2d 494, 496 (R.I. 2002)). Such a judicially crafted exception is designed to prevent

clearly imminent and irreparable harm that would otherwise result if judicial review was not

available. Town of Lincoln v. Cournoyer, 375 A.2d 410, 412-13 (R.I. 1977).

6. The McAuslan Doctrine – Doctrine Applied

DePina v. State, 79 A.3d 1284 (R.I. 2013).

In DePina, the Supreme Court concluded that an order denying a motion to quash a

subpoena, although interlocutory in nature, fell within the judicially crafted exception known as

the McAuslan Doctrine. Although recognizing its long-standing practice of declining to address

on appeal an interlocutory order that lacks finality, the Supreme Court held that application of

the McAuslan Doctrine was not only proper but necessary in the context of that case.

In that case, in connection with his application for postconviction relief, the plaintiff had

filed a subpoena seeking discovery of the mental health records of an eyewitness in his 1998

murder trial. The eyewitness moved to quash the subpoena and after the motion was denied,

appealed to the Supreme Court. On appeal, the eyewitness argued that the consequences of the

trial court’s order were imminent and irreparable because once her medical records are released,

the confidential nature of those documents would be irremediably breached.

Agreeing with the eyewitness, the Supreme Court concluded that the trial court’s order

“possesse[d] the requisite element of finality and potential for irreparable harm to warrant . . .

immediate review.”


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Weeks v. 735 Putnam Pike Operations, LLC, 85 A.3d 1147 (R.I. 2014).

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


14

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


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


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.


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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


16

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


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


18

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.

2011); Otero v. State, 996 A.2d 667, 670 n.3 (R.I. 2010).

L. Raise or Waive Rule

Johnson v. QBAR Associates, 78 A.3d 48 (R.I. 2014).

The raise or waive rule, arguably one of the most important rules of appellate practice, is

strictly adhered to by the Rhode Island Supreme Court. Pursuant to the raise or waive rule,

which is applicable in both civil and criminal cases, an issue that has not been raised or

articulated previously at trial is not properly preserved for appellate review. The purpose behind

the rule is to prevent appellate review of issues that were not presented to the trial court in such a

posture as to alert the trial justice to the question being raised. In Johnson, the Supreme Court

declined to address arguments raised by the plaintiff because they had not been first argued in the

Superior Court.


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1. Jury Instructions


Pursuant to Rule 51(b) of the Rhode Island Superior Court Rule of Civil Procedure, “[n]o

party may assign as error the giving or the failure to give an instruction unless the party objects

thereto before the jury retires to consider its verdict, stating distinctly the matter to which the

party objects and the grounds for the party’s objection.” As the Rhode Island Supreme Court has

from time to time explained, “[t]he rationale underlying this rule is that it is necessary to ‘allow

the trial justice an opportunity to make any necessary corrections to his or her instructions before

the jury begins its deliberations.’” (quoting DiFranco v. Klein, 657 A.2d 145, 147 (R.I. 1995)).

The Supreme Court has been “‘especially rigorous in the application of the raise-or-waive rule

when considering objections to jury instructions.’” (quoting Botelho v. Caster’s Inc., 970 A.2d

541, 548 (R.I. 2009)). Nevertheless, it “‘will not apply Rule 51(b) in an overly stringent

manner.’” (quoting DiFranco, 657 A.2d at 147). At a minimum, “the objection must be

‘specific enough to alert the trial justice as to the nature of [the trial justice’s alleged error.’”

(quoting Botehlo, 970 A.2d at 548).

2. Motions in Limine

Martin v. Lawrence, 79 A.3d 1275 (R.I. 2013).

The Rhode Island Supreme Court strictly adheres to the raise or waive rule, pursuant to

which “an issue that has not been raised or articulated previously at trial is not properly

preserved for appellate review.” (citing State v. Gomez, 848 A.2d 221, 237 (R.I. 2004)); State v.

Figuereo, 31 A.3d 1283, 1289 (R.I. 2011)).

In Martin, the Supreme Court cautioned litigants that a preliminary ruling on a motion in

limine generally is insufficient to preserve an issue for appellate review. In Martin, the


20

defendant moved in limine to exclude a document from evidence. After considering the

defendant’s motion, the trial justice stated that he was “rul[ing] preliminarily that the objection

of the defendant is sustained on the grounds that the statement sought to be presented by the

plaintiff . . . is hearsary [ ] that does not fall within any exception to the hearsay rule.”

In addressing whether the trial court’s preliminary ruling was sufficient to preserve the issue for

appellate review, the Supreme Court noted that “‘a ruling on a motion in limine, unless

unequivocally definitive, will not alone suffice to preserve an evidentiary issue for appellate

review; a proper objection on the record at the trial itself is necessary.’” (quoting State v.

Andujar, 899 A.2d 1209, 1222 (R.I. 2006)). Nevertheless, the Supreme Court concluded that

under the circumstances, where the trial justice’s decision on the motion in limine was made on

the same day that trial was to commence, defendant may have been reluctant to attempt to

introduce the evidence. Thus, the Supreme Court proceeded to address the appropriateness of

the trial justice’s ruling.

M. Show Cause Calendar

Ho-Rath v. Rhode Island Hospital, 89 A.3d 806 (R.I. 2014).

Cases that come before the Rhode Island Supreme Court typically are assigned to either

the Court’s full argument or show cause calendar. In full cases, each side is permitted 30

minutes for oral argument and the appellant may reserve 10 minutes for rebuttal. Unless

otherwise specified by the Court, parties in full cases may submit briefs 50 pages in length and

reply briefs 25 pages in length. See R.I. R. App. P. 16(f). In show cause cases, each side is

permitted 10 minutes for oral argument and the appellant may reserve two minutes for rebuttal.

Unless otherwise specified by the Court, parties in show cause cases by submit supplemental

papers no longer than 10 pages in length. See R.I. R. App. P. 12A(4).


21

Most often, when cases are assigned to the show cause calendar, the Supreme Court

concludes that cause has not been shown and decides the case on the basis of the papers and

arguments before it. Occasionally, however, the Court will conclude that cause has been show

and will order that the case be assigned to the Court’s full argument calendar and that the parties

be permitted full briefing and argument.

That was the case this term in Ho-Rath, a decision in which the Supreme Court concluded

that two issues of first impression warranted full briefing and argument. Accordingly, the Court

assigned the following two questions to the Court’s full argument calendar: (1) whether, in

accordance with R.I. Gen. Laws § 9-1-14.1(1), medical malpractice claims may be brought 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 and (2) whether parents may bring

their derivative claims at whatever time the minor’s medical negligence claims are pursued. It is

anticipated that these important and novel issues will be the subject of a decision next term.

N. Standards of Review

1. Arbitration

Berkshire Wilton Partners, LLC v. Bilray Demolition Co., Inc., 91 A.3d 830 (R.I. 2014).

“Rhode Island has a strong public policy in favor of the finality of arbitration awards. See

North Providence School Committee v. North Providence Federation of Teachers, Local 920,

American Federation of Teachers, 945 A.2d 339, 344 (R.I. 2008). ‘Parties voluntarily contract to

use arbitration as an expeditious and informal means of private dispute resolution, thereby

avoiding litigation in the courts.’ Aetna Casualty & Surety Co. v. Grabbert, 590 A.2d 88, 92 (R.I.

1991). To preserve the integrity and efficacy of arbitration proceedings, judicial review of

arbitration awards is extremely limited. Aponik v. Lauricella, 844 A.2d 698, 704 (R.I. 2004).


22

‘[P]arties who have contractually agreed to accept arbitration as binding are not allowed to

circumvent an award by coming to the courts and arguing that the arbitrators misconstrued the

contract or misapplied the law.’ Prudential Property and Casualty Insurance Co. v. Flynn, 687

A.2d 440, 441 (R.I. 1996).”

“The ‘policy of finality is reflected in the limited grounds that the Legislature has

delineated for vacating an arbitration award.’ Prudential Property and Casualty Insurance Co.,

687 A.2d at 441. In reviewing an arbitrator’s award, this Court, like the Superior Court, follows

§ 10-3-12. See City of Cranston v. Rhode Island Laborers’ District Council Local 1033, 960

A.2d 529, 532 (R.I. 2008). That statute provides in pertinent part, ‘the court must make an order

vacating the award upon the application of any party to the arbitration * * * [w]here the

arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and

definite award upon the subject matter submitted was not made.’ Section 10-3-12(4). An

arbitrator may exceed his or her authority by giving an interpretation that fails to draw its essence

from the parties’ agreement, is not passably plausible, reaches an irrational result, or manifestly

disregards a provision of the agreement. See, e.g., City of Newport v. Lama, 797 A.2d 470, 472

(R.I. 2002); Woonsocket Teachers’ Guild, Local 951, AFT v. Woonsocket School Committee, 770

A.2d 834, 837 (R.I. 2001); Department of Children, Youth and Families v. Rhode Island Council

94, AFSME, 713 A.2d 1250, 1253 (R.I. 1998). A court may also vacate an arbitrator’s award

when the arbitrator has manifestly disregarded the law. Prudential Property and Casualty

Insurance Co., 687 A.2d at 442. ‘[E]very reasonable presumption in favor of the award will be

made.’ Feibelman v. F.O., Inc., 604 A.2d 344, 345 (R.I. 1992) (quoting Coventry Teachers’

Alliance v. Coventry School Committee, 417 A.2d 886, 888 (R.I. 1980)). A party claiming that an


23

arbitrator exceeded his or her authority bears the burden of proving that contention. See Coventry

Teachers’ Alliance, 417 A.2d at 888.”

2. Certiorari

State v. Simmons, 87 A.3d 412 (R.I. 2014).

“‘Our review of a case on certiorari is limited to an examination of the record to

determine if an error of law has been committed.’” State v. Poulin, 66 A.3d 419, 423 (R.I. 2013)

(quoting State v. Greenberg, 951 A.2d 481, 489 (R.I. 2008)). ‘In addition to examining the

record for judicial error, we inspect the record to discern if there is any legally competent

evidence to support the findings of the hearing justice below.’ Id. (quoting Brown v. State, 841

A.2d 1116, 1121 (R.I. 2004)). The Court does ‘not weigh the evidence on certiorari, but only

conduct[s a] review to examine questions of law raised in the petition.’ WMS Gaming, Inc. v.

Sullivan, 6 A.3d 1104, 1111 (R.I. 2010) (quoting Greenberg, 951 A.2d at 489). We review

questions of law de novo. Id. (citing Lynch v. Rhode Island Department of Environmental

Management, 994 A.2d 64, 70 (R.I. 2010)).”

3. Interlocutory Orders

Weeks v. 735 Putnam Pike Operations, LLC, 85 A.3d 1147 (R.I. 2014).

The Rhode Island Supreme Court’s review of interlocutory orders “is controlled by the

subject matter of the order [that is subject of review] and not by its interlocutory nature.”

4. Motion to Strike

Long v. Dell, 93 A.3d 988 (R.I. 2014).

Addressing an issue of first impression, the Rhode Island Supreme Court held this term

that a trial justice’s decision on a motion to strike brought pursuant to Rule 12(f) of the Rhode

Island Superior Court Rules of Civil Procedure is reviewed for abuse of discretion. In so holding,


24

the Court reviewed case law interpreting the substantially similar Rule 12(f) of the Federal Rules

of Civil Procedure and concluded that because a the trial court enjoys liberal discretion when

ruling on a motion to strike, the trial justice’s decision should be reviewed only for an abuse of

discretion. Id.

5. Motion for New Trial


“Our standard for reviewing a trial justice’s decision in a motion for a new trial is well

settled. ‘A trial justice’s role in considering a motion for a new trial is that of a superjuror, who

must weigh the evidence and assess the credibility of the witnesses.’ Gomes v. Rosario, 79 A.3d

1262, 1265 (R.I. 2013) (quoting McGarry v. Pielech, 47 A.3d 271, 280 (R.I. 2012)). He or she

must exercise his or her independent judgment in considering all the material evidence in the

case, pass on the weight of the evidence and the credibility of the witnesses, and decide whether

the jury verdict responds to the evidence presented and does justice between the parties. See id.

‘If the trial justice is persuaded that the verdict is wrong because it fails to respond truly to the

merits and to administer substantial justice between the parties or is against the fair

preponderance of the evidence, he [or she] should set aside the verdict and order a new trial.’

McGarry, 47 A.3d at 280. ‘If the trial justice has carried out the duties required by Rule 59 of the

Superior Court Rules of Civil Procedure and our decided cases, his or her decision is accorded

great weight by this Court and will not be disturbed unless the plaintiff can show that the trial

justice overlooked or misconceived material and relevant evidence or was otherwise clearly

wrong.’ Gomes, 79 A.3d at 1265.”


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6. Motion for New Trial - Damages


“‘Although the fixing of damages is normally a function of the jury, it may be rejected by

a trial justice on a motion for a new trial.’ Bonn v. Pepin, 11 A.3d 76, 78 (R.I. 2011) (quoting

Reccko v. Criss Cadillac Co., 610 A.2d 542, 545-46 (R.I. 1992)). ‘A trial justice may disregard

an award of damages * * * only if the award shocks the conscience or indicates that the jury was

influenced by passion or prejudice or if the award demonstrates that the jury proceeded from a

clearly erroneous basis in assessing the fair amount of compensation to which a party is entitled.’

Murray v. Bromley, 945 A.2d 330, 333-34 (R.I. 2008).”

7. Motion for New Trial – The Appellate Rule


When reviewing a trial justice’s ruling on a motion for a new trial, “[i]f a trial justice fails

to make a specific appraisal of the evidence, then [the Supreme Court] will apply the appellate

rule, in which case the evidence is examined in the light most favorable to the prevailing party to

determine if there is any competent evidence that, if believed, would support the jury’s verdict.”

(quoting Hefner v. Distel, 813 A.2d 66, 70 (R.I. 2003)).

8. Sanctions

Burns v. Moorland Farm Condominium Association, 86 A.3d 392 (R.I. 2014).

“We review a trial justice’s awarding of sanctions under an abuse-of-discretion standard.

In re Briggs, 62 A.3d 1090, 1097 (R.I. 2013) (citing Pleasant Management, LLC v. Carrasco,

918 A.2d 213, 217 (R.I. 2007)). Therefore, we will reverse a sanction ‘only if the trial court

based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the

evidence.’ Michalopoulos v. C & D Restaurant, Inc., 847 A.2d 294, 300 (R.I. 2004).”


26

O. Timeliness of Appeal


In addition to the initial 20 day period for filing an appeal, Rule 4(a) of the Rhode Island

Supreme Court Rules of Appellate Procedure provides in relevant part: “If a timely notice of

appeal is filed by a party, any other party may file a notice of appeal within twenty (20) days of

the date on which the first notice of appeal was filed, or within the time otherwise prescribed by

this subdivision, whichever period last expires.” R.I. Sup. Ct. R. App. P. 4(a).

In Miller, the Supreme Court held that pursuant to Rule 4(a), when a party files a notice

of appeal, any party adverse to that appeal may file a notice of appeal within 20 days of the filing

of that notice of appeal. This is true even if the party seeking to invoke the rule has already filed

a notice of appeal in the case.

In Miller, judgment had entered in favor of the plaintiff, David Miller (“Miller”), and

against Defendants Metropolitan Property and Casualty Insurance Co. (“Metropolitan”) and

Amica Mutual Insurance Co. (“Amica”) on May 31, 2012. Thereafter, Metropolitan and Amica

filed renewed motions for judgment as a matter of law and motions for a new trial. The trial

justice denied Metropolitan’s motions but granted Amica’s motion for judgment as a matter of

law. The trial justice also conditionally granted Amica’s motion for a new trial. An order

reflecting the decision as to Metropolitan’s motions and a separate order reflecting the decision

as to Amica’s motions entered on August 20, 2012.

On August 27, 2012, Miller filed a timely notice of appeal, listing Amica as the only

defendant and citing the August 20, 2012 order in favor of Amica as the subject of his appeal.

On August 31, 2012, Metropolitan filed a timely notice of appeal from the May 31, 2012

judgment and the August 20, 2012 order denying its motions. Metropolitan identified itself,


27

Amica and a third defendant, Allstate Insurance Company, on its notice of appeal. Thereafter,

on September 18, 2012, Miller filed a cross-appeal from the May 31, 2012 judgment.

Metropolitan moved to dismiss Miller’s cross-appeal as untimely on the basis that it was not

filed within the initial 20-day appeal period that began to run after entry of the August 20, 2012

orders. However, the trial justice denied Metropolitan’s motion, reasoning that Miller’s cross-

appeal was timely because it was filed within 20 days of Metropolitan’s August 31, 2012 notice

of appeal. Metropolitan appealed that ruling to the Supreme Court.

On appeal, Metropolitan argued that Miller could not invoke Rule 4(a) to file an appeal

within 20 days of another party’s filing of an appeal because Miller had already filed his own

appeal. The Supreme Court disagreed.

Instead, the Supreme Court held that Rule 4(a) “should be interpreted to provide a

twenty-day appeal period after the first timely notice of appeal from an adverse party.”

According to the Court, Rule 4 was designed to “‘allow all parties an opportunity to see and

respond to the actions of their adversaries.’” (quoting Lee v. Coahoma County Mississippi, 937

F.2d 220, 223 (5th Cir. 1991)).

At the time Miller filed his initial appeal, he did not know that Metropolitan would file an

appeal. It was not until Metropolitan filed its appeal on August 31, 2012 that Miller had notice

of an appeal from an adverse party. Thus, Miller could invoke Rule 4(a) and file his cross-

appeal within 20 days of Metropolitan’s notice of appeal. Miller’s cross-appeal was therefore

timely.


28

In re Kyla C., 79 A.3d 846 (R.I. 2013).

In In re Kyla C. the Rhode Island Supreme Court held that the Family Court exceeded its

authority when it vacated and reissued an order for the sole purpose of permitting a party

sufficient time to file an appeal.

Over a year after the Family Court had issued a decree terminating the respondent’s

parental rights to his daughter, Kyla C., and after the respondent missed the deadline for filing an

appeal, the Family Court vacated the termination of parental rights decree and issued a new

termination decree to afford the respondent an opportunity to file a timely appeal. When the case

came before the Supreme Court, the Court issued an order declining to entertain the appeal on

the grounds that it was not properly before it. In doing so, the Court recognized that “‘courts of

this state lack jurisdiction to vacate and then to re-enter a judgment as a means of extending the

time allowed under the applicable statutory limitation for the claiming of an appeal.’” (quoting

Ferranti v. M.A. Gammino Construction Co., 289 A.2d 56, 57 (R.I. 1972)).

In the Court’s opinion, to hold otherwise and “permit a lower court justice to vacate and

reenter an order to render an untimely appeal timely ‘would have the effect of enabling a . . .

judge to modify and enlarge the applicable statute by judicial fiat. That is clearly beyond his

power.’” (quoting Ferranti, 289 A.2d at 57).

Brown v. Stanley, 86 A.3d 387 (R.I. 2014).

In Brown, after the Superior Court entered a separate and final judgment in favor of one

defendant in accordance with Rule 54(b) of the Superior Court Rules of Civil Procedure, the

defendant filed a timely notice of appeal. However, while that case was pending on appeal, the

defendant requested that the Supreme Court stay the appeal pending resolution of the remaining


29

claims. Accordingly, the Supreme Court granted the stay and remanded the case to the Superior

Court.

P. Writing and Citations


In a rare passage, the Rhode Island Supreme Court provided valuable advice to appellate

practitioners on drafting appellate briefs. In Process Engineers, the Court noted that it “greatly

appreciates clear and concise writing. However, it is also essential that the parties support their

factual representations to this Court with citation to the record.”

It is sometimes difficult, and especially so in complex matters with multiple grounds for

appeal, to fully brief an argument within the page limits set by the Court. Nevertheless, the

Process Engineers & Constructors, Inc. decision reminds practitioners that citations to the record

are just as important as the substance of the arguments made.

III. Arbitration

A. Standard of Review

See Standards of Review, Arbitration.

IV. Attorneys

A. Character and Fitness

In re Application of Carlton Vose, 93 A.3d 33 (R.I. 2014).

In Vose, the Supreme Court addressed a petition in opposition to the recommendation of

the Supreme Court’s Committee on Character and Fitness (the “Committee”) that the petitioner

be denied admission to the Rhode Island bar. After numerous meetings with the Committee –

during some of which petitioner was represented by counsel – the Committee submitted a

Recommendation of Denial of Admission to the Rhode Island Bar supported by ten specific


30

findings of fact. Among those many findings was reference the Florida Board of Bar Examiners’

denial of the petitioner’s application for admission to that state’s bar. In his petition in

opposition to that recommendation, the petitioner claimed that the Committee failed to meet its

burden of inquiring into the findings concerning his previous denial of admission to the Florida

bar.

The Supreme Court disagreed, noting that the petitioner “appears to fundamentally

misunderstand the nature of the application process laid out in Rule 3 [of the Supreme Court

Rules of Admission of Attorneys and Others to Practice Law],” which makes clear that “the onus

was on [the petitioner], not the committee, to present clear and convincing evidence of his good

moral character.”

Additionally, in passing on an issue of first impression, the Supreme Court concluded

that it was proper for the Committee to consider the findings of the Florida board in determining

whether the petitioner possessed the requisite character and fitness to be admitted to the Rhode

Island bar. The Supreme Court’s conclusion is consistent with that of other jurisdictions that

recognize “the propriety of considering an applicant’s denial from the bar of another state.”

(citing Hawai’I Board of Bar Examiners Rules of Procedure Pt. 2, § 2.6(c)(10); Minnesota Rules

for Admission to the Bar 5(B)(3)(1); New Mexico Rules Governing Admission to the Bar 15-

103(C)(3)(k); In re Bar Admission of Vanderperren, 661 N.W.2d 27, 41 (Wisc. 2003)).

B. Sanctions


“Rule 11 requires attorneys to ‘make [a] reasonable inquiry to assure that all pleadings,

motions and papers filed with the court are factually well-grounded, legally tenable and not

interposed for any improper purpose.’ Pleasant Management, LLC v. Carrasco, 918 A.2d 123, 218

(R.I. 2007) (quoting Mariani v. Doctors Associates, Inc., 983 F.2d 5, 7 (1st Cir. 1993)). According to


31

Rule 11, such improper purposes may include efforts ‘to harass or to cause unnecessary delay or

needless increase in the cost of litigation.’ The rule allows a trial justice ‘to formulate what he or she

considers to be an appropriate sanction, but he or she must do so in accordance with the articulated

purpose of the rule: “to deter repetition of the harm, and to remedy the harm caused.’” In re Briggs,

62 A.3d at 1098 (quoting Pleasant Management, LLC, 918 A.2d at 217).”

V. Causes of Action/Defenses

A. Class Actions

1. Class Certification

Long v. Dell, 93 A.3d 988 (R.I. 2014).

Rule 23(c)(1) of the Rhode Island Superior Court Rules of Civil Procedure governs the

timeliness of a motion for class certification in a class action case. The rule provides that “[a]s

soon as practicable after the commencement of an action brought as a class action, the court shall

determine by order whether it is to be so maintained.” R.I. Super. Ct. R. 23(c)(1). Looking to

federal cases on the issue of timeliness of requests for class certification, the Rhode Island

Supreme Court has long recognized that each motion for certification must be reviewed on the

facts and circumstances of the particular case and there is no set deadline by which the court

must act. Zarrella v. Minnesota Mutual Life Insurance, Co., 824 A.2d 1249, 1263 n.16 (R.I.

2003).

In Long, the Rhode Island Supreme Court reminded litigants that it has not adopted the

2003 amendments to Federal Rule 23 or its more liberal timeliness requirement. Compare R.I.

Super. R. Civ. P. 23(c)(1) (“As soon as practicable after the commencement of an action brought

as a class action, the court shall determine by order whether it is to be so maintained.”) with Fed.

R. Civ. P. 23(c)(1)(A) (“At an early practicable time after a person sues or is sued as a class


32

representative, the court must determine by order whether to certify the action as a class

action.”).

2. Pre-Certification Motion for Summary Judgment

Long v. Dell, 93 A.3d 988 (R.I. 2014).

The Rhode Island Supreme Court held that when a defendant files a motion for summary

judgment before the plaintiff class is certified, the court must treat the case as though it were

certified as a class action. Such a rule is consistent with the Court’s summary judgment

jurisprudence, which requires the court to view the evidence in the light most favorable to the

non-moving party. By treating a case as a certified class action at the motion for summary

judgment stage, the court may consider the injury or damages sustained by the class, and is not

restricted to considering only the injury or damages of the named plaintiff. “[I]f the class is

treated as certified, for purposes of viewing the evidence in the light most favorable to the

nonmoving party on summary judgment, an inference of class-wide injury should be drawn when

competent evidence permits.”

B. Commercial Law

1. Usury

NV One, LLC v. Potomac Realty Capital, LLC, 84 A.3d 800 (R.I. 2014).

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


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).


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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


35

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

331, 335 (R.I. 1992)).

D. Declaratory Judgment Act


In Burns, the Rhode Island Supreme Court reaffirmed its prior holdings and held that the

failure to join indispensable parties pursuant to the Declaratory Judgment Act rendered the

Superior Court’s judgment “null and void.”


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Under Rhode Island’s Declaratory Judgment Act, “all persons shall be made parties who

have or claim any interest which would be affected by the declaration, and no declaration shall

prejudice the rights of persons not parties to the proceeding.” R.I. Gen. Laws § 9-30-11.

Persons who have or claim any interest that would be affected by the declaration are

indispensable parties. This provision is mandatory. Abbatematteo v. State, 694 A.2d 738, 740

(R.I. 1997). Thus, “the Superior Court should not assert jurisdiction” unless all persons who

have a direct interest in the dispute are made parties. Id.; see also Sullivan v. Chafee, 703 A.2d

748, 751 (R.I. 1997) (“A court may not assume subject-matter jurisdiction over a declaratory-

judgment action when a plaintiff fails to join all those necessary and indispensable parties who

have an actual and essential interest that would be affected by the declaration.”). “‘Failure to

join all persons who have an interest that would be affected by the declaration’ is fatal.” Id.

(quoting Thompson v. Town Council of Westerly, 487 A.2d 498, 499 (R.I. 1985)).

In accordance with this case law, in Burns the Supreme Court held that condominium

unit owners who must share in the cost of a judgment should have been joined in the action

because they were parties whose interests could be affected by the judgment. Consequently, the

plaintiffs’ failure to join the condominium owners was fatal and made the judgment null and

void.

Rosano v. Mortgage Electronic Registration Systems, 91 A.3d 336 (R.I. 2014).

Relying on its decision in Burns v. Moorland Farm Condominium Association, 87 A.3d

392 (R.I. 2014), the Supreme Court again emphasized in Rosano that ordinarily, in an action

brought under Rhode Island’s Declaratory Judgment Act, “failure to join all persons who have an

interest that would be affected by the declaration is fatal.” Consistent with that authority, the

Court held that in a foreclosure action, the plaintiff’s failure to name the current title holder of


37

the property was fatal to the plaintiff’s action. The plaintiff argued that the current title holder of

the property was sufficiently on notice of the action because it had an “incestuous relationship”

with one of the defendants named in the action. The Supreme Court disagreed, concluding that

such notice was insufficient under the Declaratory Judgment Act, which requires that all parties

who have an interest that would be affected by the declaration be joined in the action.

E. Deceptive Trade Practices Act

Long v. Dell, 93 A.3d 988 (R.I. 2014).

To prove that a trade practice is deceptive under the Deceptive Trade Practices Act, R.I.

Gen. Laws § 6-13.1-1 et seq., a plaintiff must demonstrate three elements “[1] a representation,

omission, or practice, that [2] is likely to mislead consumers acting reasonably under the

circumstances, and [3], the representation, omission, or practice is material.” (adopting the

FTC’s interpretation of § 5(a) of the Federal Trade Commission Act). To be actionable,

deceptive act does not need to be made with intent to deceive, “it is enough that the

representations or practices were likely to mislead consumers acting reasonably.”

F. Employment Law

1. Employment Discrimination


“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.


38

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


39

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


40

(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:


41

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,


42

2001 R.I. Super. LEXIS 37 (R.I. Super. Ct. Apr. 2, 2001) (concluding that “absent

controlling case law establishing that a request for injunctive relief constitutes an independent

cause of action, injunctive relief is a remedy and, can not, in itself, be recognized as a substantive

claim.”).

H. Insurance

Nunez v. Merrimack Mutual Fire Ins. Co., 88 A.3d 1146 (R.I. 2014).

In Nunez, an insurance coverage decision, the Rhode Island Supreme Court held that the

property damage at issue, which was caused by corrosion, was not covered by the plaintiffs’

insurance policy.

In that case, the homeowner plaintiffs initiated a claim under their homeowners’

insurance policy when the oil heating system in their basement began to leak. The insurance

company’s investigator concluded that the leak may have occurred over time and noted that the

feed line was severely corroded in several areas. He further indicated that the feed line had a

very slow, weeping, corrosion leak. After receiving a report of the investigator’s conclusions,

the insurance company denied the plaintiffs’ claim, relying on a provision in the insurance policy

that excluded coverage for losses caused by “[s]mog, rust or other corrosion.”

The plaintiffs, however, maintained that the loss was covered, relying on a provision that

provided coverage for “[s]udden and accidental tearing apart, cracking, burning or bulging of a

steam or hot water heating system, an air conditioning or automatic fire protective sprinkler

system, or an appliance for heating water.” The plaintiffs argued that the release of oil from the

feed line was unexpected or unforeseen from their standpoint and, therefore, a “sudden” loss

under the policy.


43

On appeal, the Supreme Court rejected the plaintiffs’ argument, concluding that the

exclusion was unambiguous and made it clear that the policy did not cover losses caused by

corrosion. In doing so, the Court refused to “wedge the loss resulting from the gradually

corroded oil feed line into the category of ‘sudden and accidental tearing apart, cracking, burning

or bulging of a steam or hot water heating system.’”

Quest Diagnostics, LLC v. Pinnacle Consortium of Higher Education,93 A.3d 949 (R.I. 2014)

In a fact-intensive analysis premised on the specific language in a general liability

insurance policy, the Rhode Island Supreme Court affirmed the Superior Court’s grant of

summary judgment in favor of the defendant insurer, concluding that the plaintiff was not

covered as an insured under the policy. Given the fact-intensive nature of the Court’s analysis,

the decision itself should be consulted on this issue.

I. Intentional Interference

Siemens Financial Services, Inc. v. Stonebridge Equipment Leasing, LLC,91 A.3d 817 (R.I. 2014).

Under Massachusetts law, “[a] party claiming intentional misrepresentation must show

that the other party ‘made a false representation of a material fact with knowledge of its falsity

for the purpose of inducing the [claimant] to act thereon, and that the [claimant] reasonably

relied upon the representation as true and acted upon it to his damage.’ Russell v. Cooley

Dickinson Hospital, Inc., 772 N.E.2d 1054, 1066 (Mass. 2002) (quoting Danca v. Taunton

Savings Bank, 429 N.E.2d 1129, 1133 (Mass. 1982)). ‘The speaker need not know that the

statement is false if the truth is reasonably susceptible of actual knowledge, or otherwise

expressed, if, through a modicum of diligence, accurate facts are available to the speaker.’

Zimmerman v. Kent, 575 N.E.2d 70, 74 (Mass. App. Ct. 1991) (quoting Acushnet Federal Credit


44

Union v. Roderick, 530 N.E.2d 1243, 1244 (Mass. App. Ct. 1988)). Additionally, the statement

must be ‘susceptible of actual knowledge.’ Russell, 772 N.E.2d at 1066. Thus, ‘matter[s] of

opinion, estimate, or judgment’ may not be the subject of misrepresentation claims. Id. (quoting

Powell v. Rasmussen, 243 N.E.2d 167, 168 (Mass. 1969)).”

J. Massachusetts Chapter 93A

Siemens Financial Services, Inc. v. Stonebridge Equipment Leasing, LLC,91 A.3d 817 (R.I. 2014).

“One seeking relief under Mass. Gen. Laws ch. 93A must prove that the opposing party’s

conduct is ‘(1) within “at least the penumbra of some common-law, statutory, or other

established concept of unfairness; or (2) * * * is immoral, unethical, oppressive, or

unscrupulous.’” Eastern Motor Inns, Inc. v. Ricci, 565 A.2d 1265, 1274 (R.I. 1989) (quoting

Levings v. Forbes & Wallace, Inc., 396 N.E.2d 149, 153 (Mass. App. Ct. 1979)). Furthermore,

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


45

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.


46

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


47

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


48

“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


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.


49

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.


50

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

http://www.theladdschool.com/


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gallon-sized glass bottles, each of which was filled with a clear liquid. To examine the bottles’

contents, one of Burton’s friends poured a small amount of the liquid onto a table. When they

did so Burton and his friends realized the liquid was not water and had a syrup-like consistency.

The group took three of the bottles, made their way to the first floor of the hospital and

searched for an exit. When they were unable to find a passable exit, the group kicked out a

portion of the plywood that covered the exterior door and, one by one, exited the building

through the opening. As they slipped through the opening Burton’s friend dropped one of the

three bottles. When the bottle broke, the liquid, which was later determined to be sulfuric acid,

splattered on Burton and his friend. Seconds later, Burton felt a burning sensation on his legs.

He tore off his clothes and ran screaming for his friend’s truck.

Nearly a year later, Burton filed suit against the State of Rhode Island, among others,

alleging that it “negligently failed to inspect, repair and/or maintain its premises free from defect

and/or dangerous condition.” After a bench trial, the Superior Court entered judgment in favor

of the State, finding that Burton was a trespasser to whom the State owed no duty of care.

Additionally, the trial justice ruled that the attractive-nuisance doctrine did not apply to the facts

of Burton’s case.

On appeal, Burton conceded his status as a trespasser but argued that the trial justice

erred in finding that the attractive-nuisance doctrine did not apply. Burton argued that he “did

not fully realize the risk in taking the bottles of sulfuric acid.”

It has long been the law in Rhode Island that a landowner owes no duty of care to a

trespasser except to refrain from injuring him wantonly or willfully after discovering his peril.

Tantimonico v. Allendale Mutual Insurance Co., 637 A.2d 1056, 1057 (R.I. 1994) (citing Previte

v. Wanskuck Co., 90 A.2d 769, 770 (R.I. 1952)); see also Hill v. National Grid, 11 A.3d 110, 113


53

(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


54

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.


55

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


57

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


58

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)


“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


60

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


61

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


62

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).”


64

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


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.


65

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


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


66

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

Jersey, 635 A.2d 1181, 1186 (R.I. 1994) (citing Gaudreau v. Blasbalg, 618 A.2d 1272, 1275

(R.I. 1993); Providence Teachers Union, Local 958, American Federation of Teachers, AFL-

CIO v. McGovern, 113 R.I. 169, 172, 319 A.2d 358, 361 (1974)).”

“Determining whether there is ‘identity of parties’ requires resolving ‘whether the parties

to this second action are identical to or in privity with the parties involved in the [prior action].’

E.W. Audet & Sons, Inc., 635 A.2d at 1186 (citing Gaudreau, 618 A.2d at 1275; Providence

Teachers Union, 113 R.I. at 172, 319 A.2d at 361). ‘A party to an action has been defined as “[a]

person who is named as a party to an action and subjected to the jurisdiction of the court * * * .’”

Id. at 1186-87 (quoting 1 Restatement (Second) Judgments § 34(1) at 345 (1982)). Relying on

the Restatement, we further explained in E.W. Audet & Sons, Inc., that ‘parties may subject

themselves to the court’s jurisdiction by making an appearance or participating in the action in a

manner that has the effect of an appearance.’ Id. at 1187 (quoting Restatement (Second)

Judgments § 34(1), cmt. a). Further, ‘[p]arties are in privity when “there is a commonality of

interest between the two entities” and when they “sufficiently represent” each other’s interests.’


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Lennon v. Dacomed Corp., 901 A.2d 582, 591 (R.I. 2006) (quoting Duffy v. Milder, 896 A.2d 27,

36 (R.I. 2006)).”

“The second requirement necessary to apply the doctrine of res judicata is ‘identity of

issues.’ Lennon, 901 A.2d at 592. ‘In determining the scope of the issues to be precluded in the

second action, we have adopted the broad “transactional” rule.’ Id. (quoting Waters v. Magee,

877 A.2d 658, 666 (R.I. 2005)). In accordance with that rule, res judicata ‘precludes the re-

litigation of all or any part of the transaction, or series of connected transactions, out of which

the [first] action arose.’ Id.”

“Finally, the application of res judicata requires that there be ‘finality of judgment in the

earlier action.’ Huntley, 63 A.3d at 531 (quoting Bossian, 991 A.2d at 1027). ‘The burden is

upon the party asserting res judicata to “prove that the prior judgment on which it is relying was

final.’” Id. at 532 (quoting 47 Am. Jur. 2d Judgments § 648 at 222 (2006)).”

I. Scope of Remand

Butterfly Realty v. James Romanella & Sons, Inc., 93 A.3d 1022 (R.I. 2014).

In Butterfly, the Supreme Court reminded trial justices in this state that “lower courts . . .

that receive . . . remand orders may not exceed the scope of the remand or open up the

proceeding to legal issues beyond the remand.” (quoting Pleasant Management, LLC v.

Carrasco, 960 A.2d 216, 222 (R.I. 2008)). Thus, “[w]hen a case has been once decided by [the

Supreme Court] on appeal, and remanded to the [Superior Court], . . . [the Superior Court] . . .

cannot . . . intermeddle with it, further than to settle so much as has been remanded.”


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J. Standing

Narragansett Indian Tribe v. State, 81 A.3d 1106 (R.I. 2014).

“Standing is a threshold inquiry into whether the party seeking relief is entitled to bring

suit. See Blackstone Valley Chamber of Commerce v. Public Utilities Commission, 452 A.2d

931, 932, 933 (R.I. 1982). When standing is challenged, ‘the focal point shifts to the claimant,

not the claim, and a court must determine if the plaintiff “whose standing is challenged is a

proper party to request an adjudication of a particular issue and not whether the issue itself is

justiciable . . . .’ McKenna v. Williams, 874 A.2d 217, 226 (R.I. 2005) (quoting Flast v. Cohen,

392 U.S. 83, 99-100 (1968)). As this Court has stated, ‘[t]he essence of the question of standing

is whether the party seeking relief has alleged such a personal stake in the outcome of the

controversy as to ensure concrete adverseness that sharpens the presentation of the issues upon

which the court depends for an illumination of the questions presented.’ Blackstone Valley

Chamber of Commerce, 452 A.2d at 933.”

“In determining whether a party has standing, a court begins with the pivotal question of

whether the party alleges that the challenged action has caused him or her injury in fact. See

Pontbriand v. Sundlun, 699 A.2d 856, 862 (R.I. 1997). This Court has required that the alleged

injury in fact must be ‘an invasion of a legally protected interest which is (a) concrete and

particularized . . . and (b) actual or imminent, not “conjectural” or “hypothetical.”’ Id. (quoting

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). In Rhode Island, ‘generalized claims

alleging purely public harm are an insufficient basis for sustaining a private lawsuit.’ Watson v.

Fox, 44 A.3d 130, 136 (R.I. 2012). Moreover, this Court has repeatedly emphasized that ‘[t]he

line is not between a substantial injury and an insubstantial injury. The line is between injury and

no injury.’ Pontbriand, 699 A.2d at 862 (quoting Matunuck Beach Hotel, Inc. v. Sheldon, 121


69

R.I. 386, 396, 399 A.2d 489, 494 (1979)). On rare occasions, however, this Court will overlook

the standing requirement by invoking the so-called ‘substantial public interest’ exception in order

to decide the merits of a case of substantial public importance. See, e.g., Burns v. Sundlun, 617

A.2d 114, 116 (R.I. 1992).”

Joseph P. Notarianni Revocable Trust of January, 2007 v. Notarianni,91 A.3d 771 (R.I. 2014).

In Notarianni, the Rhode Island Supreme Court was unable to review the trial court’s

decision that the plaintiff lacked standing because the motion justice did not hold hearing and

made no findings of fact before reaching its decision. Consequently, the Court remanded the

case to the Superior Court for an evidentiary hearing and instructed the motion justice to make

findings of fact with respect to the issue of standing.

K. Stare Decisis

Woonsocket School Committee v. Chafee, 89 A.3d 778 (R.I. 2014).

Addressing the age-old doctrine of stare decisis, the Rhode Island Supreme Court noted

in Woonsocket School Committee that “‘courts should adopt the reasoning of earlier judicial

decisions if the same points arise again in litigation.’” (quoting State v. Werner, 865 A.2d 1049,

1056 (R.I. 2005)). Courts in Rhode Island always make “‘a concerted effort to adhere to existing

legal precedent.’” (quoting Pastore v. Samson, 900 A.2d 1067, 1077 (R.I. 2006)). Nevertheless,

the Rhode Island Supreme Court also recognizes that “‘stare decisis is a principle of policy and

not a mechanical formula of adherence to the latest decision, however recent and questionable,

when such adherence involves collision with a prior doctrine more embracing in its scope,

intrinsically sounder, and verified by experience.’” (quoting State v. Musumeci, 717 A.2d 56,

64-65 (R.I. 1998)).


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L. Summary Judgment

1. Opposition Must Be Supported By Competent Evidence

McGovern v. Bank of America, N.A., 91 A.3d 853 (R.I. 2014).

The Rhode Island Supreme Court’s decision in McGovern serves as a useful reminder

that a party who opposes a motion for summary judgment has an obligation to come forward

with competent evidence to establish a genuine issue of material fact.

In McGovern, a foreclosure case, the defendant moved for summary judgment and

supported its motion with competent evidence, in the form of an affidavit and an authenticated

copy of the plaintiff’s payment history to demonstrate that the plaintiff was in arrears on his loan

and had failed to cure the default prior to foreclosure. In opposing the defendant’s motion, the

plaintiff provided two affidavits, neither of which indicated he was current on his loan payments.

Instead, plaintiff attempted to rely on the assertion in his complaint that his mortgage was not in

arrears.

The Supreme Court concluded that the plaintiff’s assertion was insufficient to withstand

summary judgment. Indeed, it is well settled that a non-moving party “cannot rest on

allegations, denials in the pleadings, conclusions, or legal opinions.” (citing Plainfield Pike Gas

& Convenience, LLC v. 1889 Plainfield Pike Realty Corp., 994 A.2d 54, 57 (R.I. 2010)). Rather,

the non-moving party “must present evidence of a substantial nature predicated on more than

mere conclusory statements.” (citing Riel v. Harleysville Worcester Ins. Co., 45 A.3d 561, 570

(R.I. 2012)).

Faced with such evidence, plaintiff was required to come forward with competent

evidence of his own to establish a genuine issue of fact. See Plainfield Pike Gas & Convenience,


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LLC, 994 A.2d at 57 (The “party opposing a motion for summary judgment has the burden of

proving by competent evidence the existence of a disputed issue of material fact.”).

Ingram v. Mortgage Electronic Registration Systems, Inc.

A non-moving party cannot rest on allegations, denials in the pleadings, conclusions, or

legal opinions in opposing a motion for summary judgment.

2. Unauthenticated Documents


In McGovern, the Rhode Island Supreme Court reminded litigants that it had previously

cautioned that unauthenticated documents are “not usually competent evidence worthy of

consideration by the court in ruling on a motion for summary judgment.” (quoting Superior

Boiler Works, Inc. v. R.J. Sanders, Inc., 711 A.2d 628, 632 n.3 (R.I. 1998)).

The Supreme Court has taken a “flexible and pragmatic approach” to Rule 901 of the

Rhode Island Rules of Evidence’s requirement that evidence be authenticated. Under that

approach, “a document’s authenticity [may] be established in any number of different ways.” Id.

(quoting Rhode Island Managed Eye Care, Inc. v. Blue Cross & Blue Shield of Rhode Island,

996 A.2d 684, 691 (R.I. 2010)).

When submitting evidence in connection with a motion or opposition to summary

judgment, authentication can be accomplished “‘by submitting an affidavit of a person with

personal knowledge of the documents who can attest to their authenticity and qualify them as

admissible evidence.’” Id. at 10-11 (quoting Superior Boiler Works, Inc., 711 A.2d at 632 n.3)).


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3. Reply Letter Doctrine


In McGovern the Rhode Island Supreme Court recognized for the first time the “Reply

Letter Doctrine,” one of the means by which evidence may be authenticated under the Rhode

Island Rules of Evidence. (citing Advisory Committee Notes to R.I. R. Evid. 901(b)(4)).

The Reply Letter Doctrine allows “‘a letter [to] be authenticated by content and

circumstances indicating it was in reply to a duly authenticated one.’” (quoting Advisory

Committee Notes to Rule 901(b)(4) of the Federal Rules of Evidence)). For the rule to apply, the

proponent of the evidence must “‘prove that the first letter was dated, was duly mailed at a given

time and place, and was addressed to [the sender of the reply-letter].’” (quoting 2 McCormick

on Evidence § 224 at 95 (7th ed. 2013)).

4. Duty of Care May Be Resolved on Summary Judgment


While negligence cases are usually inappropriate for summary judgment, “a court may

resolve the duty element without a trier of fact because ‘the existence of a duty is nonetheless a

question of law.’” (citing Wyso v. Full Moon Tide, LLC, 78 A.3d 747, 750 (R.I. 2013)).

M. Writ of Mandamus

Chariho Regional School District v. Gist, 91 A.3d 783 (R.I. 2014).

“We have described the issuance of a writ of mandamus as both an ‘extreme’ and an

‘extraordinary’ remedy. City of Providence v. Estate of Tarro, 973 A.2d 597, 604 (R.I. 2009)

(more especially if it be in a matter of public concern, or attended with profit) (internal quotation

marks omitted); Muschiano v. Travers, 973 A.2d 515, 520 (R.I. 2009); see also School

Committee of Cranston v. Bergin-Andrews, 984 A.2d 629, 648 (R.I. 2009); Krivitsky v. Town of


73

Westerly, 849 A.2d 359, 362 (R.I. 2004). The United States Supreme Court has characterized a

writ as ‘one of the most potent weapons in the judicial arsenal.’ Cheney v. United States District

Court for the District of Columbia, 542 U.S. 367, 380 (2004) (internal quotation marks omitted).

Consequently, we have ‘clearly and repeatedly’ held that a writ of mandamus is properly issued

only when: ‘(1) the petitioner has a clear legal right to the relief sought[;] (2) the respondent has

a ministerial duty to perform the requested act without discretion to refuse[;] and (3) the

petitioner has no adequate remedy at law.’ Muschiano, 973 A.2d at 520 (internal quotation marks

omitted); see also Bergin-Andrews, 984 A.2d at 648; Providence Teachers Union Local 958,

AFT/RIFT, AFL-CIO v. Providence School Board, 748 A.2d 270, 272 (R.I. 2000); International

Packaging Corp. v. Mayer, 715 A.2d 636, 638 (R.I. 1998). If those three ‘prerequisites have

been shown, [then] it is within the sound discretion of the Superior Court justice to ultimately

issue the writ.’ Martone v. Johnston School Committee, 824 A.2d 426, 429 (R.I. 2003); see also

Muschiano, 973 A.2d at 521.”

“This Court has repeatedly defined a ministerial function as’one that is to be performed

by an official in a prescribed manner based on a particular set of facts without regard to or the

exercise of his own judgment upon the propriety of the act being done.’ Estate of Tarro, 973

A.2d at 604 (internal quotation marks omitted); see Muschiano, 973 A.2d at 520-21; Union

Station Associates v. Rossi, 862 A.2d 185, 193 (R.I. 2004); see also P.J.C. Realty, Inc. v. Barry,

811 A.2d 1202, 1205 (R.I. 2002) (‘Under Rhode Island law, it is well settled that a writ of

mandamus is appropriate when the duty to be enforced demands no special discretion, judgment

or skill.’). Additionally, if there are ‘unexhausted administrative remedies,’ that fact ‘may serve

to prevent the issuance of a writ of mandamus.’ Muschiano, 973 A.2d at 521 (internal quotation


74

marks omitted); see also New England Development, LLC v. Berg, 913 A.2d 363, 369 (R.I.

2007).”

VII. Constitutional Law

Johnson v. QBAR, 78 A.3d 48 (R.I. 2014).

When a constitutional challenge is made with respect to a Rhode Island statute, the

Attorney General must be served with notice. See R.I. Super. Ct. R. Civ. P. 24(d) (“When the

constitutionality of an act of the legislature is drawn in question in any action to which the state

or an officer, agency, or employee thereof is not a party, the party asserting the

unconstitutionality of the act shall serve the attorney general with a copy of the proceeding

within such time to afford the attorney general an opportunity to intervene.”).

VIII. Real Estate

A. Boundary Disputes

1. The Doctrine of Acquiescence

Banville v. Brennan, 84 A.3d 421 (R.I. 2014).

“The doctrine of acquiescence permits a claimant to ‘gain title to a defendant’s property . . .

despite the fact that [the] defendant had record title.’ DelSesto v. Lewis, 754 A.2d 91, 95 (R.I. 2000)

(quoting Locke v. O’Brien, 610 A.2d 552, 555 (R.I. 1992)). Under the doctrine of acquiescence,

‘adjoining landowners are “precluded from denying a boundary line recognized by both owners for a

length of time equal to that prescribed by the statute of limitations barring a right of reentry.’”

Acampora v. Pearson, 899 A.2d 459, 464 (R.I. 2006) (quoting Locke, 610 A.2d at 556). ‘The party

claiming ownership by acquiescence must show “that a boundary marker existed and that the parties

recognized that boundary for a period . . . [of] ten years.’” DeCosta v. DeCosta, 819 A.2d 1261, 1264

(R.I. 2003) (quoting Pucino v. Uttley, 785 A.2d 183, 187 (R.I. 2001)). ‘[T]he element of recognition

may be inferred from the silence of one party (or that party’s predecessors in title), . . . as well as by


75

affirmative acts.’ Pucino, 785 A.2d at 187. ‘Generally, “the [boundary] line must be marked in a

manner that customarily marks a division of ownership” and the marker must have been used for

boundary purposes.’ Acampora, 899 A.2d at 465.”

B. Easements

Caluori v. Dexter Credit Union

1. Prescriptive Easements


“A few years ago, this Court observed that the ‘ancient roots and arcane rationale’ of

prescriptive land rights have become increasingly difficult to ‘square[] with modern ideals in a

sophisticated, congested, peaceful society.’ Cahill, 11 A.3d at 88, 87 (quoting Finley v. Yuba

County Water District, 160 Cal.Rptr. 423, 427 (Cal. Ct. App. 1979)). Although claims for

adverse possession and prescriptive servitudes have continuing vitality in this jurisdiction, our

jurisprudence on prescriptive rights in recent years has charted a consistent path by showing

solicitude for the rights of record owners, and, correspondingly, guarding against the potential

for uncompensated loss by holding claimants to a high burden of proof. See Drescher v.

Johannessen, 45 A.3d 1218, 1227 (R.I. 2012); Cahill, 11 A.3d at 88; see also Pelletier v.

Laureanno, 46 A.3d 28, 35-36 (R.I. 2012) (rejecting claim for easement appurtenant). A

claimant of an easement by prescription “must show actual, open, notorious, hostile, and

continuous use under a claim of right for at least ten years.” Drescher, 45 A.3d at 1227 (quoting

Hilley v. Lawrence, 972 A.2d 643, 651-52 (R.I. 2009)). A plaintiff claiming an easement is held

to a higher standard of proof than a plaintiff in an ordinary civil case. Pelletier, 46 A.3d at 35.

He or she bears the heavy burden of proving ‘each element by a preponderance of clear and

convincing evidence.’ Carpenter v. Hanslin, 900 A.2d 1136, 1146 (R.I. 2006); see also Hilley,

972 A.2d at 652 (each element for a prescriptive easement must be proven by ‘clear and


76

satisfactory evidence’).”

“Any analysis of a claim for a prescriptive right must take for its point of origin the

principle that such rights ‘are not favored in the law, . . . since they necessarily work

corresponding losses or forfeitures on the rights of other persons[.]’ Drescher, 45 A.3d at 1227

(quoting 25 Am.Jur.2d Easements and Licenses § 39 at 536 (2004)); Butterfly I, 45 A.3d at 592

n.8 (stating same). ‘The burdens of prescription . . . fall onto the shoulders of the subservient

estate.’ William G. Ackerman & Shane T. Johnson, Outlaws of the Past: A Western Perspective

on Prescription and Adverse Possession, 31 Land & Water L. Rev. 79, 92 (1996). Those burdens

include the ‘infringement of a landowner’s rights, a decrease in value of the servient estate, . . .

the generation of animosity between neighbors, a source of damages to land . . . and the creation

of uncertainty for the landowner.” Cahill, 11 A.3d at 87-88 (quoting Ackerman, 31 Land &

Water L. Rev. at 92).”

“These foundational principles are equally applicable when the holder of an express

easement seeks to expand that easement by prescription. An attempt by the holder of an express

easement to unilaterally ‘expand the physical size, purpose or use of the easement beyond the

terms as contained in the original grant . . . unduly interferes with the reserved rights of the

owner of the servient tenement.’ 28A C.J.S. Easements § 231 at 449 (2008). In cases such as this

one where the easement holder seeks to change not only the frequency or type of use, but also

the dimensions of an express easement, the enlargement ‘does more than merely increase the

burden upon the servient estate; it has the effect of enveloping additional land,”—land which the

owner has purposely reserved for him or herself. Northwest Pipeline Corp. v. Luna, 241 P.3d

945, 948 (Idaho 2010).”


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2. Enlargement of Express Easements by Prescription


“An enlargement of an express easement by prescription must satisfy all the traditional

requirements for acquiring a prescriptive right. See Jon W. Bruce & James W. Ely, Jr., The Law

of Easements and Licenses in Land, § 8:16 (2014).”

3. Hostility


“The claimant of an easement by prescription bears the burden of proving by clear and

satisfactory evidence that his or her use was adverse to that of the record owner. To demonstrate

hostile use, the claimant must show use ‘without permission asked or given . . . such as would

entitle the owner to a cause of action against the intruder [for trespass].’ Drescher, 45 A.3d at

1228 (quoting Tavares v. Beck, 814 A.2d 346, 351 (R.I. 2003)). On the issue of permission, this

Court long ago articulated the relevant rule as follows: ‘It is the well settled rule that use by

expressed or implied permission or license, no matter how long continued, cannot ripen into an

easement by prescription, since one of the elements essential to the acquisition of the easement,

namely, user as of right, as distinguished from permissive use, is lacking.’ Tefft v. Reynolds, 43

R.I. 538, 542-43, 113 A. 787, 789 (1921). Since this pronouncement in Tefft, this Court has

continuously acknowledged that express or implied permission defeats a claim for a prescriptive

right. See Burke-Tarr Co. v. Ferland Corp., 724 A.2d 1014, 1019 (R.I. 1999) (distinguishing

landowner’s ‘express or implied permission,’ which will defeat a claimed easement, from

landowner’s mere awareness, which will not); cf. Reitsma v. Pascoag Reservoir & Dam, LLC,

774 A.2d 826, 834 (R.I. 2001) (concluding that ‘permission, express or implied, was never

given’ for claimant’s use of landowner’s property). For a landowner who wishes to be an


78

accommodating neighbor without creating a permanent burden on his or her land, ‘[t]he easiest

remedy . . . is to give [the adverse user] permission to continue the use . . . . This effectively

eliminates the adverse individual’s claim immediately.” Ackerman, 31 Land & Water L. Rev. at

95. One of the most well-recognized dangers of prescriptive easements is their tendency to

‘discourage[] neighborly conduct and accommodation. Landowners are required either to

formalize permissive arrangements, or to prevent use by others to avoid the risk that rights will

be established by prescription.’ Restatement (Third) Servitudes, § 2.17 cmt. c at 265-66 (2000).

The more formal a reviewing court requires that permission to be, the greater the uncertainty for

the landowner. See Ackerman, 31 Land & Water L. Rev. at 95. While this Court has required

something more than silent acquiescence to show that a use was permissive, see Burke-Tarr Co.,

724 A.2d at 1019, a landowner need not formally or expressly grant a user permission since

“[p]ermission sufficient to preclude a claim for a prescriptive easement . . . may be inferred from

surrounding circumstances.” 28A C.J.S. Easements § 45 at 245 (2008); see Burke-Tarr Co., 724

A.2d at 1019 (acknowledging that ‘an inference of permissive use . . . would defeat the element

of hostile use’). . . . Even where the issue of permission is raised, the burden is never on the

landowner to demonstrate that the use was permissive. See Altieri v. Dolan, 423 A.2d 482, 483

(R.I. 1980). The burden at all times remains on the claimant to establish adverse use by strict

proof. See id. ‘The determination of whether the claimant [of a prescriptive right] sustained this

burden of proof involves an exercise by the trial justice of his factfinding power.’ Jerry Brown

Farm Association, Inc. v. Kenyon, 119 R.I. 43, 52, 375 A.2d 964, 968-69 (1977); see Hazard v.

East Hills, Inc., 45 A.3d 1262, 1271 (R.I. 2012) (claims for prescriptive rights are “fact-intensive

inquir[ies]”).”


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C. Trespass

Rose Nulman Park Foundation v. Four Twenty Corp., 93 A.3d 25 (R.I. 2014).

In a high profile case this term, the Rhode Island Supreme Court held that a $1.8 million

home that erroneously encroached by 13,000 square feet on neighboring property constituted a

trespass for which the only appropriate remedy was an injunction requiring the removal of the

home.

In reaching its decision, the Supreme Court noted that it was “not unsympathetic to the

defendant’s plight” and that it agreed with the trial court’s characterization of the case as

presenting an “unfortunate situation.” Nevertheless, the Court embarked on a recitation of its

law concerning the remedy for a continuing trespass.

The Supreme Court has “generally held that the appropriate remedy for a continuing

trespass is injunctive relief.” (citing Raposa v. Guay, 125 A.2d 113, 117 (R.I. 2956); Bentley v.

Root, 32 A. 918, 919 (R.I. 1895)). However, the general rule is not absolute. In exceptional

cases the “court may, in its discretion, decline to follow it where the injunctive relief would

operate oppressively and inequitably.” (citing Adams v. Toro, 508 A.2d 399, 401 n.1 (R.I.

1986); Santilli v. Morelli, 230 A.2d 860, 863 (R.I. 1967)). Typically, such exceptional cases are

those that involve acquiescence, laches or a de minimus trespass. In addition, “courts may

withhold injunctive relief after balancing the equities or . . . considering the relative hardships to

the parties.” Importantly, however, “a trial court is [not] required to balance the equities before

granting injunctive relief in a continuing trespass case.”

A departure from the general rule that a continuing trespass should be remedied by

injunctive relief is justified only in exceptional circumstances. Upon review of the record, the

Court concluded that the Nulman case did not “involve such exceptional circumstances ‘which


80

would render such coercive relief inequitable or oppressive.’” (quoting Adams, 508 A.2d at

401). Thus, an injunction was the appropriate remedy for the defendant’s continuing trespass.

IX. Statutes/Statutory Construction

A. Construction of Rules of Civil Procedure


In Miller, the Supreme Court made two important pronouncements about the construction

of the Rhode Island Rules of Civil Procedure. First, the Court noted that it will look to the

federal courts for guidance when interpreting a state rule of procedure that is substantially similar

to a federal rule of procedure. Second, the Court emphasized that “procedural rules, like statutes

and ordinances, should not be understood in a manner that can only be described as ‘myopic

literalism.’” (quoting Peloquin v. Haven Health Center of Greenville, LLC, 61 A.3d 419, 425

(R.I. 2013)). Therefore, the rules must be “read in [their] proper context, not viewed in

isolation.”

ELECTRONIC FILING

I. Electronic Filing in Civil Cases in Superior Court

On September 19, 2014, the Rhode Island Supreme Court announced that electronic

filing would commence in civil cases in the Superior Court, effective November 5, 2014. All

civil cases filed on or after November 5, 2014 must be filed electronically. Existing civil case

files will be scanned into the electronic portal when a matter is scheduled in the case. Closed

files will remain in paper form.

To view electronic information in cases after November 5, 2014, attorneys must become

registered users in the Public Access Portal system. To become registered users, attorneys must


81

complete a Request for Access to Case Information application form and agree to the terms of a

Data Subscription Agreement, both of which may be accessed here:

http://www.courts.ri.gov/efiling/PDF/Data_Subscription_Agreement.pdf.

A separate registration is required to obtain authorization to file documents electronically.

Registration for electronic filing can be accomplished here:

https://rhodeisland.tylerhost.net/.

In conjunction with its rollout of the electronic filing portal, the Rhode Island Supreme

Court has implemented Provisional Article X, which sets forth the Rules Governing Electronic

Filing. Provisional Article X can be accessed here:

http://www.courts.ri.gov/efiling/PDF/ProvisionalX.pdf.

Attorneys handling civil matters in the Superior Court should familiarize themselves with

Provisional Article X. Some of the more significant rules set forth in Provisional Article X are

as follows:

Rule 3, which provides that misuse of the electronic filing system may constitute a

violation of the Rules of Professional Conduct and may result in suspension or loss of an

attorneys’ electronic filing registration.

Rule 4, which permits attorneys to file materials such as videotapes, xrays, etc. manually

upon filing a Notice of Manual Filing.

Rule 5, which specifies that the electronic filing system will be available 24 hours a day,

7 days a week and that a document will be deemed to be timely filed so long as it is submitted on

or before 11:59 p.m. on the filing deadline day.

http://r20.rs6.net/tn.jsp?f=001RoCi5Zy42F1dPMGDnF1x4QdsAs7WuYKBmpvoq75UrpsH_rI5hfVHmjLDkyM5B3tUr1e1FlfXK3oyd9cBzfJoMukWPmpNc_gt3tm4oKnB0G6Di3xkE2y3TZIeOnRtxrj8XHezpMeYf2LJK0qddVDefetUpfS0Lj17WCAid3PS-XDSpzKGXowk68NV_7sj1gsVL36pBheiF9jGWdtvZa21xkrMZuk_6EtivVfsI4p9wso=&c=_iXr4onySNRgteas3CPcbWjag0Tj_0KlodQI-mHGskFdv93P7ty5pg==&ch=5XypWdp3Js_hOfznHvXNCt7Vxeot5MYZDEoYvQUhmmKh74BNhfNQww==

https://rhodeisland.tylerhost.net/

http://www.courts.ri.gov/efiling/PDF/ProvisionalX.pdf


82

Rule 6, which provides examples of acceptable certificates of service to accompany

documents that are filed electronically (i.e. pleadings) or that are served conventionally (i.e.

discovery requests and responses).

Rule 7, which specifies that when a document requires the signature of an opposing party,

the party filing the document must first obtain the signatures of all parties on the hard copy form

of the document. The scanned version of that hard copy document shall be filed with the Court.

Note: This rule is considerably different than the practice in the Federal Courts, which permits

parties to affix the e-signature of an opposing attorney so long as they obtain consent to do so.

recent developments in rhode island law 2014 - state courts and civil procedure

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