John Wells v. R. Suzanne Smith

Supreme Court
No. 2013-273-Appeal.
(KC 11-718)
John Wells :
v. :
R. Suzanne Smith et al. :
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Supreme Court
No. 2013-273-Appeal.
(KC 11-718)
John Wells :
v. :
R. Suzanne Smith et al. :
Present: Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.
OPINION
Justice Goldberg, for the Court. This case arises out of claims of negligence brought
by the plaintiff, John Wells (plaintiff), alleging that R. Suzanne Smith (Smith) and Michael Ead
(Ead) (collectively, defendants), negligently caused the plaintiff’s injuries. The Supreme Court
heard oral argument on October 30, 2014, pursuant to an order directing the parties to appear and
show cause why the issues raised in this appeal should not summarily be decided. Following the
grant of summary judgment by a justice of the Superior Court, the plaintiff timely appealed.
After hearing the arguments of counsel and having reviewed the memoranda of 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
In 2007, defendant Smith hired defendant Ead, a contractor, to construct an addition onto
her home. During construction, the Department of Environmental Management (DEM) notified
Smith that the construction was in violation of the local zoning ordinance and, further, that the
addition must be removed. Shortly after receiving notification from DEM that removal was
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necessary, Smith instructed Ead to cease construction. She also decided to sell the property.
Raymond Wells (Raymond 1) and his wife offered to purchase the property, agreeing to remove
the addition in connection with the purchase. Raymond enlisted plaintiff, his brother, to help
with the demolition. While working at the site, plaintiff fell from the roof and sustained
injuries. 2 On June 13, 2011, plaintiff filed suit against defendants alleging negligence, premises
liability, negligent hiring, strict liability, res ipsa loquitur, and negligent design, construction, and
inspection for his resulting injuries.
On March 5, 2013, Smith filed a motion for summary judgment, contending that, as the
owner, she was not liable for any potential negligence of Ead, an independent contractor and that
none of the exceptions to the “independent contractor rule” applied in this case. Specifically,
Smith argued “that one who employs an independent contractor is not liable for the negligent
acts of the independent contractor.” Smith also asserted that she had no duty to maintain or
repair the addition and that she was not aware of any defect in its construction. Further, she
argued that there was no evidence of an abnormally dangerous condition. Lastly, she averred
that plaintiff’s res ipsa loquitur argument was without merit. Ead joined in Smith’s motion for
summary judgment, arguing that plaintiff assumed the risk of his injuries when he elected to
1
For ease of reference, first names may be used throughout this opinion. No disrespect is
intended.
2
In plaintiff’s complaint, he alleges injuries to his “back, right shoulder, ribs, and various other
parts of his body.” The plaintiff also alleges he “has suffered and will continue to suffer pain
and mental anguish.”
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climb on the roof and demolish the addition and that a contractor is not liable to third parties for
negligence after the contractor’s work is accepted. 3
The plaintiff filed an objection to defendants’ motion for summary judgment; and, on
June 10, 2013, a hearing on the motion was held in Superior Court. The plaintiff conceded that
he did not have any facts to rebut the version of the facts set forth by defendants. However,
plaintiff argued that count two—the negligent-hiring count—was still viable against Smith,
because Smith knew that Ead was not an experienced contractor, that she observed Ead construct
the roof, and that she “knew or should have known that * * * Ead was unqualified to put up the
addition.” According to plaintiff, because Smith had hired Ead, she was liable to third parties
injured by his negligence. The plaintiff also contended that count seven—the negligent design,
construction, and inspection count—was still viable against Ead.
The trial justice granted defendants’ motion for summary judgment as to all counts in the
complaint. The trial justice noted that plaintiff had conceded all counts except for count two, the
negligent-hiring claim, and seven, the negligent design, construction, and inspection claim. The
trial justice held, as a matter of law, that Smith could not be found negligent in hiring Ead,
because she did not owe a legal duty of care to plaintiff. The trial justice also ruled that Ead
owed no duty of care to plaintiff because he “couldn’t have known or anticipated that the roof
was to be dismantled and that he had to make the addition safe for dismantling.” The plaintiff’s
appeal to this Court relates to the judgment entered on those counts.
3
When Ead joined Smith’s summary judgment motion, he also filed a limited objection.
However, as the limited objection is immaterial to our analysis and decision, we will not address
it.
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Standard of Review
“This Court reviews a trial justice’s grant of a motion for summary judgment by
undertaking a de novo review.” Phelps v. Hebert, 93 A.3d 942, 946 (R.I. 2014) (citing Willis v.
Omar, 954 A.2d 126, 129 (R.I. 2008)). Accordingly, we “review[] the evidence in the light most
favorable to, and draw[] all reasonable inferences in favor of, the nonmoving party.” Id. (citing
Martin v. Marciano, 871 A.2d 911, 914-15 (R.I. 2005)). This Court “affirm[s] a grant of
summary judgment only when ‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as [a] matter of law.’” Id.(quoting Martin, 871 A.2d at 915).
Discussion
Negligent Hiring
Before this Court, plaintiff argues that the trial justice erred in granting defendants’
motion for summary judgment as to count two—negligent hiring—against Smith. The plaintiff
contends that, as Rhode Island recognizes direct liability of an employer to third parties injured
by acts of unfit or incompetent employees, Smith is liable for not knowing about or inquiring
into Ead’s knowledge, qualifications, or ability. The plaintiff further argues that a genuine issue
of material fact exists as to whether Ead was an employee or independent contractor. After
carefully reviewing the record, we reject this argument.
“To properly set forth ‘a claim for negligence, 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.’” Brown v. Stanley,
84 A.3d 1157, 1161-62 (R.I. 2014) (quoting Willis, 954 A.2d at 129). “It is axiomatic, however,
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that ‘[a] defendant cannot be liable under a negligence theory unless the defendant owes a duty
to the plaintiff.’” Id. at 1162 (quoting Ferreira v. Strack, 636 A.2d 682, 685 (R.I. 1994)).
“Whether a defendant is under a legal duty in a given case is a question of law.” Willis,
954 A.2d at 129 (citing Martin, 871 A.2d at 915). However, “[b]ecause there is no set formula
for finding [a] legal duty, such a determination must be made on a case-by-case basis.” Id. at 130
(citing Martin, 871 A.2d at 915). Accordingly, we conduct this analysis by examining “all
relevant factors, including the relationship of the parties, the scope and burden of the obligation
to be imposed upon the defendant, public policy considerations, and notions of fairness.”
Gushlaw v. Milner, 42 A.3d 1245, 1252 (R.I. 2012) (quoting Volpe v. Gallagher, 821 A.2d 699,
705 (R.I. 2003)). If the court determines that no duty exists, “then the trier of fact has nothing to
consider and a motion for summary judgment must be granted.” Soave v. National Velour Corp.,
863 A.2d 186, 188 (R.I. 2004) (quoting Ferreira, 636 A.2d at 685).
In granting summary judgment, the trial justice reasoned that Smith “could not have
known [and] would not have * * * predict[ed] that the city [and DEM] would have required her
to take down the structure that * * * Ead had created * * *.” Accordingly, the trial justice
determined that Smith, a landowner, did not owe a legal duty to plaintiff, a subsequent
demolition contractor.
We agree with the trial justice and hold that Smith had no duty to ensure that what Ead
built would be safe for a demolition which was not anticipated at the time of hiring and
construction. 4 Therefore, “as it is well settled that in the absence of a legal duty, * * * plaintiff’s
4
Although plaintiff’s argument that Smith was Ead’s employer and was negligent in hiring him
is an issue in this case, we are of the opinion that the issue of whether a duty was owed to
plaintiff is determinative and we need not address the issue of Ead’s relationship with Smith.
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claims must fail as a matter of law[,]” summary judgment was properly granted as to count two.
See Brown, 84 A.3d at 1164.
Negligent Design, Construction, and Inspection
The plaintiff also assigns error to the grant of summary judgment as to count seven—
negligent design, construction, and inspection—against Ead. The plaintiff asserts that defendant
Ead owed plaintiff a legal duty, citing Soave, for the proposition that “a builder or contractor is
liable for injury or damage to a third person as a result of the condition of the work, even after
completion of the work and acceptance by the owner, where it [is] reasonably foreseeable that a
third party would be injured by such work due to the contractor’s negligence * * *.” Soave, 863
A.2d at 189 (quoting Peters v. Forster, 804 N.E.2d 736, 742 (Ind. 2004)). In support of
plaintiff’s contention that Ead had a duty of care to him, plaintiff argues: (1) that as a contractor,
Ead knew or should have known that proceeding without a building permit would result in an
order to dismantle the structure; and (2) that he was “within a class of foreseeable plaintiffs who
would be on Smith’s roof” and therefore it was foreseeable that injury could result from Ead’s
negligence. The issue before us is whether the trial justice erred in finding, as a matter of law,
that Ead did not owe a legal duty to plaintiff. See Brown, 84 A.3d at 1162.
After careful review of the record, we agree with the trial justice that Ead did not have a
legal duty to make the roof safe for dismantling. The record discloses that Ead had been forced
to stop construction, based on factors beyond his control, including zoning and DEM regulations.
Over a year later, when the plaintiff was dismantling the roof, Ead had no control over the
structure and no ability to control the work or maintain the site. Thus, the trial justice properly
granted the defendants’ motion for summary judgment as to count seven. We affirm.
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Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court
granting the defendants’ motion for summary judgment. The record shall be remanded to the
Superior Court.
Justice Flaherty did not participate.
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: John Wells v. R. Suzanne Smith et al.
CASE NO: No. 2013-273-Appeal.
(KC 11-718)
COURT: Supreme Court
DATE OPINION FILED: November 24, 2014
JUSTICES: Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.
WRITTEN BY: Associate Justice Maureen McKenna Goldberg
SOURCE OF APPEAL: Kent County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Allen P. Rubine
ATTORNEYS ON APPEAL:
For Plaintiff: Russell Bramley, Esq.
For Defendants: Elizabeth A. Bourke, Esq.
Donna M. Lamontagne, Esq.