public duty doctrine in Rhode Island

2021“The primary purpose of the public duty doctrine is to encourage the effective -7- administration of governmental operations by removing the threat of potential litigation.” Catone v. Medberry, 555 A.2d 328, 333 (R.I. 1989).

2021In 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 .

2011“The 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.” DeFusco v. Todesca Forte, Inc., 683 A.2d 363, 365 (R.I.1996) (quoting Haley v. Town of Lincoln, 611 A.2d 845, 849 (R.I.1992)).

2006Therefore, it is "only after a determination that the activity at issue `could not ordinarily be performed by a private person' does the public-duty doctrine and its two exceptions — the special-duty exception and the egregious-conduct exception — become considerations." Martinelli v. Hopkins, 787 A.2d at 1167 (quoting Haley v. Town of Lincoln, 611 A.2d 845 , 849 (R.I. 1992)).

2009Under "the public-duty doctrine, Rhode Island government entities enjoy immunity from tort liability arising out of their discretionary governmental actions that by their nature are not ordinarily performed by private persons." Quality Court Condominium Association v. Quality Hill Development Corporation , 641 A.2d 746 , 750 (R.I. 1994).

2009Our Supreme Court has held that "the activities and the inspections that are required to ensure compliance with the state building code cannot be *Page 18 engaged in by private enterprise" and thus such action "falls within the ambit of conduct covered by the public duty doctrine." Id.

2003Additionally, the public duty doctrine principles established in Ryan v. State Department of Transportation, 420 A.2d 841, 843 (R.I.1980), and Knudsen v. Hall, 490 A.2d 976, 977-78 (R.I.1985), impose upon the plaintiff the burden of establishing a breach of a special duty, owed to the plaintiff as a specific, identifiable individual and not merely a breach of some obligation owed the general public, Knudsen, supra, or negligence by the city amounting to egregious conduct, Martinelly supra. Here, as in Knudsen , “[t]here is not a shred of evidence on the record before us that would indicate tha

2003Additionally, the public duty doctrine principles established in Ryan v. State Department of Transportation, 420 A.2d 841, 843 (R.I.1980), and Knudsen v. Hall, 490 A.2d 976, 977-78 (R.I.1985), impose upon the plaintiff the burden of establishing a breach of a special duty, owed to the plaintiff as a specific, identifiable individual and not merely a breach of some obligation owed the general public, Knudsen, supra, or negligence by the city amounting to egregious conduct, Martinelly supra. Here, as in Knudsen , “[t]here is not a shred of evidence on the record before us that would indicate tha

2003Additionally, the public duty doctrine principles established in Ryan v. State Department of Transportation, 420 A.2d 841, 843 (R.I.1980), and Knudsen v. Hall, 490 A.2d 976, 977-78 (R.I.1985), impose upon the plaintiff the burden of establishing a breach of a special duty, owed to the plaintiff as a specific, identifiable individual and not merely a breach of some obligation owed the general public, Knudsen, supra, or negligence by the city amounting to egregious conduct, Martinelly supra. Here, as in Knudsen , “[t]here is not a shred of evidence on the record before us that would indicate tha

1990In O’Brien , this court outlined in detail the relevant case law concerned with the public-duty exception to § 9-31-1: “In a series of eases beginning with Ryan v. State Department of Transportation, 420 A.2d 841 (R.I.1980), we enunciated the special-duty doctrine in a variety of contexts.

2017For example, in Catone, 555 A.2d at 333 , we noted that, “[The] need to protect the government’s ability to perform certain functions is particularly relevant when the activity in question involves a high degree of discretion such as governmental planning or political decision making.” See also Toegemann v. City of Providence, 21 A.3d 384, 387 (R.I. 2011) (“[T]he city’s placement of traffic-control devices * * * is precisely the type of discretionary governmental activity that is shielded from tort liability under the public-duty doctrine.”); Houle v. Galloway School Lines, Inc., 643 A.2d 822,

2007Houle v. Galloway School Lines , 643 A.2d 822 , 825 (R.I. 1994) (holding that a private bus company may be protected by the public duty doctrine for the designing of school-bus routes and the transportation of students to and from public school, but remanding on the matter of egregious negligence); see also Catone v. Medberry , 555 A.2d 328 , 333 (R.I. 1989) ("In every case in which we have applied the public duty doctrine, the government or its agent . . .") (emphasis added).

2017Namely, the public-duty doctrine immunizes the state from “tort liability arising out of discretionary governmental actions that by their nature are not - 12 - 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)).

2017For example, in Catone, 555 A.2d at 333 , we noted that, “[The] need to protect the government’s ability to perform certain functions is particularly relevant when the activity in question involves a high degree of discretion such as governmental planning or political decision making.” See also Toegemann v. City of Providence, 21 A.3d 384, 387 (R.I. 2011) (“[T]he city’s placement of traffic-control devices * * * is precisely the type of discretionary governmental activity that is shielded from tort liability under the public-duty doctrine.”); Houle v. Galloway School Lines, 14 We note that, in

2022Id.; see Georges v. State, 249 A.3d 1261 , 1265, 1266 (R.I. 2021) (noting that “[t]his 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” and holding that “repairing potholes * * * is part and parcel of the state’s responsibility for roadway maintenance and falls squarely within the protections of the public duty doctrine”); see also Verity v. Danti, 585 A.2d 65 , 66- 67 (R.I. 1991) (determining that the public duty doctrine and the

2002The last exception to the public duty doctrine is the egregious conduct exception which was first recognized by the court in Verity v. Danti, 585 A.2d 65 (R.I. 1991), a case involving a thirteen year-old girl who suffered injuries when she was struck by an automobile after stepping off a sidewalk on to the road.

2022If the answer is affirmative, then liability will attach.’”7 Adams, 973 A.2d at 546 (alterations omitted) (quoting O’Brien v. State, 555 A.2d 334, 338 (R.I. 1989)). “[U]nder our analysis of the public-duty doctrine, we differentiate between ‘discretionary’ governmental activities and acts capable of performance by private citizens.” Roach, 157 A.3d at 1051 .

2017In O’Brien v. State, 555 A.2d 334, 336-37 (R.I. 1989), this Court shed further light on the public-duty doctrine: “[It] does not resurrect the concept of sovereign immunity but it does take into account the unquestionable fact that many activities performed by government could not and would not in the ordinary course of events be performed by a private person at all.

2005Although the Rhode Island Supreme Court has generally analyzed the public duty doctrine in the context of negligence cases, ( see e.g., Shookster, 590 A.2d at 404 ; Catone, 555 A.2d at 333 ; Haworth, 813 A.2d at 62 ), the Court has suggested that the doctrine may also be applicable to claims involving certain intentional torts.

2004See id. *1239 We previously have explained the rationale for the immunity provided to state and municipal authorities under the public duty doctrine.

2006The public duty doctrine is applicable to governmental functions, except: “(1) when the governmental entity owes a 'special duty’ to the plaintiff, (2) when the alleged act or omission on the part of the governmental entity was egregious, or (3) when the governmental entity engaged in activities normally undertaken by private individuals or corporations.” Schultz v. Foster-Glocester Regional School District, 755 A.2d 153, 155 (R.I.2000) (quoting Kuzniar v. Keach, 709 A.2d 1050, 1053 (R.I.1998)). 11 .

2004It is clear to this Court that only the special-duty exception to the public-duty doctrine is at issue here. 5 See also Kuzniar v. Keach, supra, at 1056. "[T]he existence of a special duty running from the city to [Plaintiff] depended upon plaintiffs establishing the existence of the following duty-triggering circumstances: (1) one or more city officials had some form of prior contact with or other knowledge about [Plaintiff] or [his] situation before the alleged negligent act occurred, (2) city officials thereafter took some action directed toward [Plaintiff] or [his] interests or failed to a

2020See Morales v. Town of Johnston, 895 A.2d 721, 730 (R.I. 2006) (“The 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.”) (internal quotation marks omitted).

2019Therefore, if we determine that the CBA provisions that provided health care benefits to plaintiffs were executed in furtherance of a governmental function and that they “extend[ed] beyond the unexpired terms of the governmental officials executing the contract[s,]” 16 Determining whether a governmental function exists also can be critical when examining the public duty doctrine, which “immunizes the state from ‘tort liability arising out of discretionary governmental actions that by their nature are not ordinarily performed by private persons.’” Roach v. State, 157 A.3d 1042, 1050 (R.I. 2017)

2021When 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 numerou

2021When 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 numerou

2021See, e.g., Toegemann v. City of Providence, 21 A.3d 384, 388 (R.I. 2011) (holding that placement and maintenance of traffic control -8- 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”).

1996As our opinion in Haley v. Town of Lincoln, 611 A.2d 845, 850 (R.I.1992), makes clear, the summary-judgment rapier can be used to parry suits that touch "upon the boundaries of the public duty doctrine." Accord Catri v. Hopkins, 609 A.2d 966, 968 (R.I.1992) (summary judgment appropriately granted when plaintiff's evidence failed to "pierce the protective shell the doctrine affords").

1998See Karczmarczyk v. Quinn, 98 R.I. 174 , 178, 200 A.2d 461 , 463 (R.I. 1964) ("The operation of a fire department is a governmental function, and a municipality is immune from liability for the negligent performance thereof.") There is no indication that plaintiff was specifically identifiable or that defendant had engaged in "egregious conduct." See DeFusco, 683 A.2d at 365 (quoting Boland v. Town of Tiverton, 670 A.2d 1245 , 1248 (R.I. 1996)) (citation omitted) ("`That exception [egregious conduct] provides that when the `state has knowledge that it has created a circumstance that forces an

1997An exception to the public-duty doctrine exists, however, when the state or its political subdivisions engage in “egregious conduct.” Boland v. Town of Tiverton, 670 A2d 1245, 1248 (R.I.1996); Houle v. Galloway School Lines, Inc., 643 A.2d 822, 825-26 (R.I.1994).

2022Therefore, “[w]hen the state engages in an activity that a private individual typically would not perform, such as the maintenance of state highways or the issuance of state drivers’ licenses, the public duty doctrine will shield the state from liability.” Martinelli v. Hopkins, 787 - 40 - A.2d 1158, 1167 (R.I. 2001) (quoting Longtin v. D’Ambra Construction Co., 588 A.2d 1044, 1046 (R.I. 1991)).

2021Furthermore, 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.”).

2021Thus, 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.

2021See, e.g., Toegemann v. City of Providence, 21 A.3d 384, 388 (R.I. 2011) (holding that placement and maintenance of traffic control -8- 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”).

2003This Court has held that “the public-duty doctrine will not shield a municipality that has engaged in ‘egregious conduct’ where it ‘has knowledge that it has created a circumstance that forces an individual into a position of peril and subsequently chooses not to remedy the situation.’ ” Martinelli v. Hopkins, 787 A.2d 1158, 1168 (R.I.2001) (quoting Kashmanian v. Rongione, 712 A.2d 865, 867 (R.I.1998)).

2003This Court has recognized an exception to the public duty doctrine for the egregious conduct of a municipality that “has knowledge that it has created a circumstance that forces an individual into a position of peril and subsequently chooses not to remedy the situation.” Martinelli v. Hopkins, 787 A.2d 1158, 1168 (R.I.2001) (quoting Kashmanian v. Rongione, 712 A.2d 865, 867 (R.I.1998) and Houle v. Galloway School Lines, Inc., 643 A.2d 822, 826 (R.I.1994)).

2020What is more, counsel for the Town defendants stated at the hearing on the motions for summary judgment that the Town defendants had opted not to argue the public duty doctrine in their motion for summary judgment. 7 We note that absolute immunity “defeats a suit at the outset * * *.” Imbler v. Pachtman, 424 U.S. 409 , 419 n.13 (1976). 8 The policy which forms the basis of absolute immunity for prosecutors was articulated with particular eloquence by Judge Learned Hand: “It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others,

2020What is more, counsel for the Town defendants stated at the hearing on the motions for summary judgment that the Town defendants had opted not to argue the public duty doctrine in their motion for summary judgment. 7 We note that absolute immunity “defeats a suit at the outset * * *.” Imbler v. Pachtman, 424 U.S. 409 , 419 n.13 (1976). 8 The policy which forms the basis of absolute immunity for prosecutors was articulated with particular eloquence by Judge Learned Hand: “It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others,

2003Even minimal insight reveals that this would lead to hesitation on the part of the state to undertake and perform duties necessary to the functioning of a free society.” Orzechowski v. State, 485 A.2d 545, 549-50 (R.I.1984).

1989After a review of the applications of the public duty doctrine, see, e.g., Orzechowski v. State, 485 A.2d 545 (R.I.1984); Saunders v. State, 446 A.2d 748 (R.I.1982); and Ryan v. State Department of Transportation, 420 A.2d 841 (R.I.1980), we concluded in Knudsen that the state did not have a specific identifiable duty to persons who were injured as a result of a missing stop sign and excessive overgrowth of brush at an intersection, in spite of the state’s obligation to keep its highways in good repair. 490 A.2d at 978 ; G.

2022“The underlying purpose of the public-duty doctrine is to encourage the effective administration of governmental operations by removing the threat of potential litigation.” Martinelli, 787 A.2d at 1167 (quoting Misurelli v. State, Department of Transportation, 590 A.2d 877, 878 (R.I. 1991)).

2001“The underlying purpose of the public-duty doctrine ‘is to encourage the effective administration of governmental operations by removing the threat of potential litigation.’ ” Misurelli v. State, Department of Transportation, 590 A.2d 877, 878 (R.I.1991) (quoting Catone v. Medberry, 555 A.2d 328, 333 (R.I.1989)).

2022If the answer is affirmative, then liability will attach.’”7 Adams, 973 A.2d at 546 (alterations omitted) (quoting O’Brien v. State, 555 A.2d 334, 338 (R.I. 1989)). “[U]nder our analysis of the public-duty doctrine, we differentiate between ‘discretionary’ governmental activities and acts capable of performance by private citizens.” Roach, 157 A.3d at 1051 .

2019Therefore, if we determine that the CBA provisions that provided health care benefits to plaintiffs were executed in furtherance of a governmental function and that they “extend[ed] beyond the unexpired terms of the governmental officials executing the contract[s,]” 16 Determining whether a governmental function exists also can be critical when examining the public duty doctrine, which “immunizes the state from ‘tort liability arising out of discretionary governmental actions that by their nature are not ordinarily performed by private persons.’” Roach v. State, 157 A.3d 1042, 1050 (R.I. 2017)

2021See, e.g., Toegemann v. City of Providence, 21 A.3d 384, 388 (R.I. 2011) (holding that placement and maintenance of traffic control -8- 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”).

2017For example, in Catone, 555 A.2d at 333 , we noted that, “[The] need to protect the government’s ability to perform certain functions is particularly relevant when the activity in question involves a high degree of discretion such as governmental planning or political decision making.” See also Toegemann v. City of Providence, 21 A.3d 384, 387 (R.I. 2011) (“[T]he city’s placement of traffic-control devices * * * is precisely the type of discretionary governmental activity that is shielded from tort liability under the public-duty doctrine.”); Houle v. Galloway School Lines, 14 We note that, in

2022I acknowledge that we have stated in Tedesco v. Connors, 871 A.2d 920 (R.I. 2005), that the egregious conduct exception to the public duty doctrine is a “fact- 2 The trial justice specifically stated that “viewing all of the evidence in the light most favorable to the plaintiff, this Court must start with the premise that the City only placed a wooden pallet on top of an otherwise exposed manhole, and without the additional safeguard of a traffic cone or barrel as required by City policy.” She also opined that she was “constrained to view the evidence as if there had been no barrel placed [on

2022I acknowledge that we have stated in Tedesco v. Connors, 871 A.2d 920 (R.I. 2005), that the egregious conduct exception to the public duty doctrine is a “fact- 2 The trial justice specifically stated that “viewing all of the evidence in the light most favorable to the plaintiff, this Court must start with the premise that the City only placed a wooden pallet on top of an otherwise exposed manhole, and without the additional safeguard of a traffic cone or barrel as required by City policy.” She also opined that she was “constrained to view the evidence as if there had been no barrel placed [on

2010In Kuhl , the Supreme Court relied on its statement in Chakuroff that "the operation and maintenance of a public school is a governmental function and not a proprietary one," Chakuroff 667 A.2d at 1258 , in holding that the lower court had appropriately "rejected the Plaintiffs' reliance on the `private counterpart exception'" to the public duty doctrine.

1998"According to the public-duty doctrine, Rhode Island government entities enjoy immunity from tort liability arising out of their discretionary governmental actions that by their nature are not ordinarily performed by private persons." Chakuroff v. Boyle , 667 A.2d 1256 , 1259 (R.I. 1995) (quoting Quality Court Condominium Association v. Quality Hill Development Corp. , 641 A.2d 746 , 750 (R.I. 1994)).

2022If the answer is affirmative, then liability will attach.’”7 Adams, 973 A.2d at 546 (alterations omitted) (quoting O’Brien v. State, 555 A.2d 334, 338 (R.I. 1989)). “[U]nder our analysis of the public-duty doctrine, we differentiate between ‘discretionary’ governmental activities and acts capable of performance by private citizens.” Roach, 157 A.3d at 1051 .

2017The trial justice considered whether the public-duty doctrine applies “solely due to the fact that the Veterans’ Home is a creature of statute and the duties of which patient population, funding, and administration are statutorily imposed.” In refusing to apply the public-duty doctrine, the trial justice first rejected the state’s assertion that the Veterans Home is distinct because its duties are statutorily imposed, noting that she could not “think of any of the [s]tate’s duties that are not statutorily imposed and regulated.” Further, she cited Adams v. State Department of Corrections, 973

2010See Kuhl v. Perri , 706 A.2d 1328 (R.I. 1998), Chakuroff v. Boyle , 667 A.2d 1256 (R.I. 1995); Custom Flight Sys. of New England, Inc. v. State , 641 A.2d 1324 (R.I. 1994); Saunders v. State , 446 A.2d 748 (R.I. 1982).

1989After a review of the applications of the public duty doctrine, see, e.g., Orzechowski v. State, 485 A.2d 545 (R.I.1984); Saunders v. State, 446 A.2d 748 (R.I.1982); and Ryan v. State Department of Transportation, 420 A.2d 841 (R.I.1980), we concluded in Knudsen that the state did not have a specific identifiable duty to persons who were injured as a result of a missing stop sign and excessive overgrowth of brush at an intersection, in spite of the state’s obligation to keep its highways in good repair. 490 A.2d at 978 ; G.

2022“However, the trial justice must deny the motion and submit the issues to the jury if there are factual issues on which reasonable people may draw different conclusions.” Id. (quoting Medeiros v. Sitrin, 984 A.2d 620, 625 (R.I. 2009)). -8- Discussion On appeal, plaintiff argues that the city waived the defense of the public duty doctrine because it failed to request a jury instruction on the doctrine, and no such instruction was given by the trial justice.

2017For example, in Catone, 555 A.2d at 333 , we noted that, “[The] need to protect the government’s ability to perform certain functions is particularly relevant when the activity in question involves a high degree of discretion such as governmental planning or political decision making.” See also Toegemann v. City of Providence, 21 A.3d 384, 387 (R.I. 2011) (“[T]he city’s placement of traffic-control devices * * * is precisely the type of discretionary governmental activity that is shielded from tort liability under the public-duty doctrine.”); Houle v. Galloway School Lines, 14 We note that, in

2014See Berman I, 991 A.2d at 1044 n. 7 (“[W]e are of the opinion that the public duty doctrine and its exceptions are not relevant to the case at bar.”); see id. at 1053 (“[T]he immunity provided by the RUS is not available to [the] City * * *.”).

2014See Berman I, 991 A.2d at 1044 n. 7 (“[W]e are of the opinion that the public duty doctrine and its exceptions are not relevant to the case at bar.”); see id. at 1053 (“[T]he immunity provided by the RUS is not available to [the] City * * *.”).