Yvon Georges v. State of Rhode Island

May 11, 2021
Supreme Court
No. 2019-219-Appeal.
(KC 14-355)
Yvon Georges :
v. :
State of Rhode Island et al. :
NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
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typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2019-219-Appeal.
(KC 14-355)
Yvon Georges :
v. :
State of Rhode Island et al. :
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Justice Goldberg, for the Court. In this negligence action for personal
injuries sustained when his vehicle struck a pothole, the plaintiff, Yvon Georges,
appeals from the grant of summary judgment in favor of the defendants, the City of
Warwick (the city)1 and the State of Rhode Island (the state). The plaintiff
challenges only the judgment in favor of the state.2 On appeal, we consider
whether the plaintiff’s claim against the state is barred by the public duty doctrine.
1
The amended complaint names Ernest Zmyslinski, in his capacity as Director of
Finance for the City of Warwick.
2
The city’s motion for summary judgment was granted in 2014, on the basis that
the city did not own the road on which the pothole was located. The plaintiff did
not file a notice of appeal and does not argue against judgment in favor of the city
before this Court.
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This appeal came before the Supreme Court on March 9, 2021, pursuant to
an order directing the parties to appear and show cause why the issues raised in this
appeal should not summarily be decided. After hearing the arguments of counsel
and having reviewed the memoranda filed by the parties, we are satisfied that
cause has not been shown, and we proceed to decide this appeal. For the reasons
set forth in this opinion, we affirm the judgment of the Superior Court.
Facts and Travel
On or about May 13, 2011, plaintiff was operating his motor vehicle in the
area of 2046 West Shore Road and Judith Avenue in Warwick, Rhode Island, when
he struck a pothole in the roadway with the front end of his vehicle, causing one of
the wheels to dislodge. The pothole was approximately eighteen inches in width.
At the time of the incident, the weather was sunny, with no precipitation. As a
result of the incident, plaintiff suffered injuries and was unable to work from
May 13, 2011, through approximately June 30, 2011.
In May 2014, plaintiff filed an amended complaint against defendants,
alleging that the state was liable for maintaining West Shore Road in “such a
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negligent and careless manner, so as to allow a pothole to exist in said roadway[,]”
and that plaintiff suffered personal injuries as a result of this alleged negligence.3
On November 20, 2018, the state filed a motion for summary judgment
under Rule 56(b) of the Superior Court Rules of Civil Procedure,4 arguing that
plaintiff’s claims were barred by the public duty doctrine, which shields the state
from tort liability for the performance of discretionary governmental functions.
The state relied on cases in which the public duty doctrine was applied to
governmental decisions regarding road design, road maintenance, placement of
traffic controls, the decision to open an exit ramp, and intersection design.
3
The amended complaint also alleged that plaintiff sustained property damages to
his motor vehicle as a result of the accident. The state then moved to dismiss
plaintiff’s action. Before the state’s motion was heard, plaintiff, by stipulation,
voluntarily dismissed his property damage claim with prejudice, and the state
withdrew its motion to dismiss.
4
Rule 56(b) of the Superior Court Rules of Civil Procedure provides: “A party
against whom a claim, counterclaim, or cross-claim is asserted or a declaratory
judgment is sought may, at any time, move with or without supporting affidavits
for summary judgment in the party’s favor as to all or any part thereof.”
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The plaintiff objected, noting that government liability for failure to repair
potholes had not been addressed by this Court. The plaintiff argued that G.L. 1956
§ 24-8-35 created a limited exception to the public duty doctrine for property
damage caused by the state’s failure to repair potholes.5 The plaintiff contended
that extending § 24-8-35 to a claim for personal injuries placed his claim outside of
the protection of the public duty doctrine. Alternatively, plaintiff argued that, if
the state’s failure to repair the pothole fell within the protections of the public duty
doctrine, then one of this Court’s recognized exceptions to the doctrine applied,
because road maintenance is an activity capable of being performed by private
citizens in situations where the road is privately owned.
After a hearing, the trial justice issued a bench decision granting summary
judgment in favor of the state based on the public duty doctrine and his conclusion
that none of the exceptions applied. The trial justice also held that § 24-8-35 did
not apply because plaintiff was seeking damages for personal injuries, and the
statute was limited to damages to motor vehicles, up to a maximum of $300 in
reimbursement. On March 5, 2019, the trial justice entered an order granting the
5
General Laws 1956 § 24-8-35 provides, in pertinent part,
“If any person shall incur damage to his or her motor
vehicle by reason of a pothole on any state highway * * *
which damage would not have occurred without the
existence of the pothole, he or she may recover from the
state the amount of damages sustained up to and not
more than the sum of three hundred dollars ($300).”
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state’s motion for summary judgment, as well as a final judgment in favor of
defendants. The plaintiff filed a timely notice of appeal on March 8, 2019.
Standard of Review
“This Court reviews a grant of summary judgment de novo.” Yanku v.
Walgreen Co., 224 A.3d 1130, 1132 (R.I. 2020) (brackets omitted) (quoting
Ballard v. SVF Foundation, 181 A.3d 27, 34 (R.I. 2018)). Examining the case as
the trial justice would, “we view the evidence in the light most favorable to the
nonmoving party, and if we conclude that there are no genuine issues of material
fact and that the moving party is entitled to judgment as a matter of law, we will
affirm the judgment.” Id. at 1132-33 (quoting Ballard, 181 A.3d at 34). “Although
summary judgment is recognized as an extreme remedy, to avoid summary
judgment the burden is on the nonmoving party to produce competent evidence
that proves the existence of a disputed issue of material fact.” Id. (quoting Ballard,
181 A.3d at 34). “In the absence of a credible showing of the existence of material
facts, summary judgment is warranted.” Id. (quoting Ballard, 181 A.3d at 34).
Analysis
The issue presented in this case is narrow: whether plaintiff’s negligence
action against the state for personal injuries sustained when his vehicle struck a
pothole on a state road is barred by the public duty doctrine.
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G.L. 1956 § 24-8-35
We begin by addressing plaintiff’s contention that, because there is no
caselaw applying the public duty doctrine to the state’s failure to repair potholes,
the authority to determine the state’s liability for potholes is limited to § 24-8-35.
The plaintiff maintains that § 24-8-35 creates a limited exception to the public duty
doctrine that should be applied here. We disagree.
This Court reviews questions of statutory interpretation on a de novo basis.
Iselin v. Retirement Board of Employees’ Retirement System of Rhode Island, 943
A.2d 1045, 1049 (R.I. 2008). “It is well settled that when the language of a statute
is clear and unambiguous, this Court must interpret the statute literally and must
give the words of the statute their plain and ordinary meanings.” Id. (quoting
Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I.
1996)).
As noted supra, § 24-8-35, entitled “Damage caused by potholes—Claims
against the state[,]” provides, in pertinent part:
“If any person shall incur damage to his or her motor
vehicle by reason of a pothole on any state highway,
causeway, or bridge which damage would not have
occurred without the existence of the pothole, he or she
may recover from the state the amount of damages
sustained up to and not more than the sum of three
hundred dollars ($300).”
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This enactment constitutes a limited waiver of sovereign immunity and a limited
abrogation of the protections of the common law public duty doctrine. The state’s
liability pursuant to the statute is restricted to “damage to * * * [a] motor
vehicle[.]” Section 24-8-35. Surely, if the General Assembly intended for this
provision to include liability for personal injuries, it would have included that
language in the enactment. Because we conclude that this provision is clear and
unambiguous, as the trial justice properly found, plaintiff’s reliance on § 24-8-35
to establish liability is without merit.
The Public Duty Doctrine
The plaintiff next argues that, when maintaining a roadway, the state
performs an identical function that a private individual might perform for
condominiums, shopping plazas, and the like, such that the public duty doctrine
should not bar his claims. We reject this contention.
The judicially created public duty doctrine “shields the state and its political
subdivisions from tort liability arising out of discretionary governmental actions
that by their nature are not ordinarily performed by private persons.” Morales v.
Town of Johnston, 895 A.2d 721, 730 (R.I. 2006) (quoting Schultz v.
Foster-Glocester Regional School District, 755 A.2d 153, 155 (R.I. 2000)). “The
primary purpose of the public duty doctrine is to encourage the effective
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administration of governmental operations by removing the threat of potential
litigation.” Catone v. Medberry, 555 A.2d 328, 333 (R.I. 1989).
This Court has carved out three exceptions to the public duty doctrine which,
if present, may lead to state liability. Two of these exceptions are situations in
which (1) the state owes a special duty to the plaintiff and (2) the state participates
in what can be categorized as “egregious conduct.” DeFusco v. Todesca Forte,
Inc., 683 A.2d 363, 365 (R.I. 1996). The plaintiff concedes that the “special duty”
exception and “egregious conduct” exception do not apply to plaintiff’s claims.
Thus, the only issue before this Court is whether the third exception to the public
duty doctrine applies; that is, whether “the allegedly negligent activit[y] [is]
normally performed by private citizens.” Id. If the conduct in question constitutes
a discretionary governmental function and is not normally performed by private
citizens, the public duty doctrine bars state liability.
We first consider whether the specific activity that resulted in plaintiff’s
injuries—i.e., the state’s failure to repair a pothole on a public roadway—
constitutes a discretionary governmental action. This Court previously has held
that government decisions about roadway design, construction, and maintenance
constitute discretionary governmental action and therefore fall within the domain
of the public duty doctrine. See, e.g., Toegemann v. City of Providence, 21 A.3d
384, 388 (R.I. 2011) (holding that placement and maintenance of traffic control
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devices fall within the public duty doctrine and “are purely governmental
functions”); DeFusco, 683 A.2d at 364, 365 (holding that opening of an exit ramp
that was still under construction was a discretionary government function); Catri v.
Hopkins, 609 A.2d 966, 968 (R.I. 1992) (holding that “decision making involved in
the maintenance of an intersection, and in particular the placement of a
traffic-control mechanism, is a discretionary activity”).
We pause to note that, at the summary-judgment hearing, plaintiff seemingly
conceded that repairing potholes falls into the category of road maintenance.
When the trial justice asked plaintiff to address Martinelli v. Hopkins, 787 A.2d
1158 (R.I. 2001), which stated that “the maintenance of state highways” is “an
activity that a private individual typically would not perform,” id. at 1167, plaintiff
responded that the Court had not spoken “specifically on the issue of potholes[.]”
The trial justice pressed, “But if the pothole requires maintenance of a state
highway, the pothole is maintenance.” The plaintiff responded, “That is correct,
but potholes are very, very numerous.”
We are of the opinion that repairing potholes, no matter how numerous they
may be, is part and parcel of the state’s responsibility for roadway maintenance
and falls squarely within the protections of the public duty doctrine. The state’s
reasonable decisions about repairing potholes, like many other aspects of road
maintenance and construction, are subject to time and resources, as well as
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consideration of engineering standards and the effect on traffic volume. See Catri,
609 A.2d at 968 (noting that the state requires “sufficient time necessary to
implement” its discretionary decisions). Accordingly, the state’s failure to repair a
pothole in this case is precisely the type of discretionary governmental activity that
is shielded from tort liability under the public duty doctrine.
We next consider whether pothole repair on a state roadway is an activity
normally performed by private citizens. In reliance on O’Brien v. State, 555 A.2d
334 (R.I. 1989), plaintiff asserts that the state acts as a private landowner when it
repairs potholes on public roadways (or fails to do so), because private individuals
maintain private roadways. This analogy is unavailing. In O’Brien, the plaintiff
tripped over a horseshoe stake embedded in the grass at a state park and
commenced a negligence action against the state. O’Brien, 555 A.2d at 335.6 The
Court reasoned that operating a public park is an activity in which a private person
or corporation might well engage, and, therefore, the state was acting as a private
person and had a duty to maintain the property in a reasonably safe condition. Id.
6
The case of O’Brien v. State, 555 A.2d 334 (R.I. 1989), arose before the General
Assembly amended Rhode Island’s Recreational Use Statute, G.L. 1956 chapter 6
of title 32, to shield the state from negligently maintaining its public parks. See
§ 32-6-2(3), as amended by P.L. 1996, ch. 234, § 1 (“‘Owner’ means the
private-owner possessor of a fee interest, or tenant, lessee, occupant, or person in
control of the premises, including the state and municipalities[.]” (emphasis
added)).
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at 338. However, we noted that liability hinged on whether the conduct in question
“is an activity that a private person or corporation would be likely to carry out.” Id.
In cases where the public duty doctrine arises, “the government or its agent
was engaged in an activity inherently incapable of being performed by private
individuals.” Catone, 555 A.2d at 333. Here, although private individuals may be
charged with repairing roadways on private property, private individuals do not
build, repair, or maintain public roads. In fact, the Rhode Island Department of
Transportation is statutorily charged with an affirmative duty to maintain roads.
See, e.g., G.L. 1956 § 37-5-2(a) (“The department shall maintain and construct
highways, roads[.]”). Furthermore, we have declared that the “construction and
maintenance of public highways are typically not performed by private
individuals.” DeFusco, 683 A.2d at 365; see also Longtin v. D’Ambra
Construction Company, Inc., 588 A.2d 1044, 1046 (R.I. 1991) (“When the state
engages in an activity that a private individual typically would not perform, such as
the maintenance of state highways[,] * * * the public duty doctrine will shield the
state from liability.”). Accordingly, pothole repair on a state roadway is not an
activity capable of being performed by a private individual.
We therefore continue to immunize the state for harm resulting from the
non-egregious failure to perform governmental activities, because “[t]he state
would be unable to function if liability was imposed each time an individual was
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deleteriously affected by such activities.” Catone, 555 A.2d at 333. We affirm the
trial justice’s grant of summary judgment in favor of the state.
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the
Superior Court. The papers in this case may be returned to the Superior Court.
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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
Title of Case Yvon Georges v. State of Rhode Island et al.
No. 2019-219-Appeal.
Case Number
(KC 14-355)
Date Opinion Filed May 11, 2021
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.
Written By Associate Justice Maureen McKenna Goldberg
Source of Appeal Kent County Superior Court
Judicial Officer from Lower Court Associate Justice Richard A. Licht
For Plaintiff:
Michael S. Pezzullo, Esq.
For State:
Michael W. Field
Attorney(s) on Appeal Department of Attorney General
Sean P. Malloy
Department of Attorney General
Sean Lyness
Department of Attorney General
SU-CMS-02A (revised June 2020)