has recognized exception in Rhode Island

2004However, to qualify for this exception, a party also must satisfy the three-part test enunciated in State v. Burke, 522 A.2d 725, 731 (R.I.1987).

1994For the exception to apply, the error asserted must go beyond the level of harmless error, the record must be “sufficient to permit a determination of the issue,” and counsel’s failure to raise the issue must be premised upon a “novel rule of law that counsel could not reasonably have known during the trial.” Donato, 592 A.2d at 142 (quoting Estrada, 537 A.2d at 987 and citing Burke, 522 A.2d at 731 ).

2005In Peerless Insurance Co. v. Viegas, 667 A.2d 785, 788 (R.I.1995), we adopted the inferred intent doctrine, which states that “because injury always ensues [from the sexual molestation of children], the offender is deemed to intend any injury resulting from the act as a matter of law.” Therefore, we held that “[i]n civil actions for damages that result from an act of child molestation, an insurer will be relieved from its duty to defend and to indemnify its insured if the perpetrator is insured under a policy in which there is contained an intentional act exclusion provision.” Id. at 789 .

2005In Peerless Insurance Co. v. Viegas, 667 A.2d 785, 788 (R.I.1995), we adopted the inferred intent doctrine, which states that “because injury always ensues [from the sexual molestation of children], the offender is deemed to intend any injury resulting from the act as a matter of law.” Therefore, we held that “[i]n civil actions for damages that result from an act of child molestation, an insurer will be relieved from its duty to defend and to indemnify its insured if the perpetrator is insured under a policy in which there is contained an intentional act exclusion provision.” Id. at 789 .

2004The defendant is correct in saying that this Court has recognized an exception to the raise or waive rule, which “applies only when the defendant’s basic constitutional rights are at issue.” State v. Estrada, 537 A.2d 983, 987 (R.I.1988).

1994For the exception to apply, the error asserted must go beyond the level of harmless error, the record must be “sufficient to permit a determination of the issue,” and counsel’s failure to raise the issue must be premised upon a “novel rule of law that counsel could not reasonably have known during the trial.” Donato, 592 A.2d at 142 (quoting Estrada, 537 A.2d at 987 and citing Burke, 522 A.2d at 731 ).

2011It is true that this Court has recognized an exception to the raise-or-waive rule when “basic constitutional rights are concerned.” State v. Donato, 592 A.2d 140, 141 (R.I.1991); see also State v. DeOliveira, 972 A.2d 653 , 660 n. 6 (R.I.2009); State v. Gomez, 848 A.2d 221, 237 (R.I.2004).

1994For the exception to apply, the error asserted must go beyond the level of harmless error, the record must be “sufficient to permit a determination of the issue,” and counsel’s failure to raise the issue must be premised upon a “novel rule of law that counsel could not reasonably have known during the trial.” Donato, 592 A.2d at 142 (quoting Estrada, 537 A.2d at 987 and citing Burke, 522 A.2d at 731 ).

2011However, for that exception to apply, "the alleged error must be more than harmless, and the exception must implicate an issue of constitutional dimension derived from a novel rule of law that could not reasonably have been known to counsel at the time of trial.” State v. Breen, 767 A.2d 50, 57 (R.I.2001).

2011It is true that this Court has recognized an exception to the raise-or-waive rule when “basic constitutional rights are concerned.” State v. Donato, 592 A.2d 140, 141 (R.I.1991); see also State v. DeOliveira, 972 A.2d 653 , 660 n. 6 (R.I.2009); State v. Gomez, 848 A.2d 221, 237 (R.I.2004).

2011It is true that this Court has recognized an exception to the raise-or-waive rule when “basic constitutional rights are concerned.” State v. Donato, 592 A.2d 140, 141 (R.I.1991); see also State v. DeOliveira, 972 A.2d 653 , 660 n. 6 (R.I.2009); State v. Gomez, 848 A.2d 221, 237 (R.I.2004).

2005Had the distinction between the allegations and Shettys own “professional services” been less distinct, our holding nonetheless would be the same, because “this Court has recognized an exception to [the pleadings test] in cases involving civil actions for damages flowing from an alleged sexual molestation.” American Commerce Insurance Co. v. Porto, 811 A.2d 1185, 1190 (R.I.2002) (holding that an insurer had no duty to defend or indemnify defendant Boy Scout leader for claims arising out of co-troop-leaders sexual abuse of troop member when defendants homeowners policy had specific exclusion fo

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)).

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)).

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)).

2002If Porto had been the perpetrator of the alleged molestation, ACIC argues, there would clearly be no coverage for Porto under the holdings in Peerless Insurance Co. v. Viegas, 667 A.2d 785, 789 (R.I.1995) and Craven v. Metropolitan Property and Casualty Insurance Co., 693 A.2d 1022, 1022-23 (R.I.1997) (mem.).

1999An examination of the transcript reveals that defense counsel objected only to the failure to give a lesser included instruction concerning the sexual assault charge. 1 *715 This Court has recognized an exception to the raise-or-waive rule in cases in which counsel’s failure to raise an issue of basic constitutional rights at trial was “due to the fact that the issue is based upon a novel rule of law of which counsel could not reasonably have known at the time of trial.” State v. Figueroa, 673 A.2d 1084, 1092 (R.I.1996).