Name of Preparer: Michael J. Mazurczak and Meagan Bellamy
City and State of Firm: Providence, Rhode Island
Overview of State of Rhode Island Court System
A. Trial Courts
The RI Trial Court System consists of the District Court and the Superior Court.
The Rhode Island District Court has original jurisdiction over civil matters with less than $5,000 in controversy.
Rhode Island District Court and Rhode Island Superior Court have concurrent jurisdiction over civil matters in which the amount in controversy is between $5,000 and $10,000. However, in any such action if one or more of the defendants in the answer to the complaint demand removal of the action to the Superior Court, in which event the action shall proceed as if it had been filed originally in the Superior Court, removal will be granted. Given the limited amount recoverable, limited to $10,000, the vast majority of cases are filed in Superior Court.
Rhode Island Superior Court has original jurisdiction over all felony proceedings, as well as civil matters in which the amount in controversy is over $10,000.
Appeals from District Court trials result in trials de novo in Superior Court. RIGL §9-12-10 dictates that a party has only two (2) days to appeal a judgment from a district court. When computing the two-day appeal period, if the last day falls on a Saturday, Sunday, or legal holiday the appeal period continues to the next Court date. The court also hears agency, zoning board, and Probate Court appeals, among others.
B. Appellate Courts
Venue is determined under RIGL §8-2-27 which states that any civil cause or any question of law or fact therein may, by consent of the parties and with approval of the court, be tried and determined in any county.
For civil actions which concern realty or any right, easement, or interest therein, or the possession thereof, shall, if brought in the superior court, be brought in the court for the county, and if brought in the district court, in the division where the land lies. If the land lies partly in two (2) or more counties or divisions, such actions can be brought in the superior court for any county, or if in district court, in any division where the land or any portion thereof lies. RIGL §9-4-2.
Personal or transitory actions and suits brought by or against corporations, if brought in the superior court, shall be brought in the court for the county, and if brought in a district court, shall be brought in the division in which the other party or some one of the other parties dwell, or in the court for the county or in the district court for the division in which the defendant or some one of the defendants shall be found, or in which the corporation is located by its charter, or if not located by its charter, in which the annual meetings of the corporation are required to be, or if not required to be, are actually held. RIGL §9-4-4.
All other actions and suits, if brought in the superior court, shall be brought in the court for the county, or if brought in the district court, shall be brought in the division in which some one of the plaintiffs or defendants shall dwell, or in the superior court for the county or in the district court for the division in which the defendant or some one of the defendants shall be found; and if no one of the plaintiffs or defendants shall dwell in the state, the action, if brought in the superior court, may be brought in the court for any county, or if in a district court, in any division. RIGL §9-4-3.
If no one of the plaintiffs or defendants dwell within the state, and a corporation established out of the state be a party, personal or transitory actions or suits by or against it may, if brought in the superior court, be brought in the court for any county, or if in the district court, in any division. RIGL §9-4-5.
Actions and suits brought contrary to the provisions of RIGL §9-4-2 (for realty) shall be dismissed, and any action contrary to §§9-4-3 – 9-4-5, may be dismissed. In lieu of dismissal, any civil action brought in the wrong county, if brought in the superior court, or in the wrong division, if brought in the district court, may, in the discretion of the court, be transferred to a proper county or division. RIGL §9-4-6.
B. Statute of Limitations
An action is commenced for purposes of statute of limitations when the complaint is either filed with the court, deposited in the mail addressed to the clerk, or delivered to an officer for service. RIGL §9-1-12.
Defamation/Libel/Slander: 1 year. RIGL §9-1-14(a).
Contribution Claims: 1 year. RIGL §10-6-4 further defines that the time period expires 1 year after a tortfeasor made first payment which was in excess of its share.
Workers’ Compensation: 2 years after the occurrence or manifestation of the injury or incapacity, or in the case of the death of the employee, or in the event of his or her physical or mental incapacity, within 2 years after the death of the employee or the removal of the physical or mental incapacity. RIGL §28-35-57.
Personal injury claims: 3 years. RIGL §9-1-14
Asbestos Exposure: 3 years from the date of diagnosis or within 3 years from the date the illness should have been reasonably discovered. RIGL §9-1-12.
False Imprisonment: 3 years. RIGL §9-1-14(b)
Malpractice: 3 years from the time of the occurrence or date it is discovered. Exception: one who is under a disability by reason of age, mental incompetence or otherwise, and on whose behalf no action is brought within the 3 year period, shall bring the action within three (3) years from the removal of disability.
Legal Malpractice: 3 years from the date of the occurrence or date it is discovered. RIGL §9-1-14.3.
Home Inspector Malpractice: 3 years of delivery of the written home inspection report, or 3 years from the discovery of the alleged damages. RIGL §9-1-14.4.
Actions against State or Town: within 3 years of the accrual of any claim of tort.
Personal Injury Claims: 3 years. RIGL §9-1-14.
Wrongful Death: 3 years of the deceased person’s death. RIGL §10-7-2.
Breach of Warranty – arising out of an alleged design, inspection, testing or manufacturing defect, or any other alleged defect of whatsoever kind or nature in a product, must be commenced within 10 years after the date the product was first purchased for use or consumption. RIGL §6A-2-725.
RIGL §12-12-17(b): The statute of limitations for the following offenses shall be ten (10) years: larceny under § 11-41-2 (receiving stolen goods), § 11-41-3 (embezzlement and fraudulent conversion), § 11-41-4 (obtaining property by false pretenses or personation), § 11-41-11 (embezzlement by bank officer or employee), § 11-41-12 (fraudulent conversion by agent or factor), and § 11-41-13 (obtaining signature by false pretenses), or any larceny that is punishable as a felony; any violation of chapter 7 of title 11 (bribery); any violation of § 11-18-1 (giving false document to agent, employee, or public official); perjury; any violation of chapter 42 of title 11 (threats and extortion); any violation of chapter 15 of title 7 (racketeer influenced and corrupt organizations); any violation of chapter 57 of title 11 (racketeer violence); any violation of chapter 36 of title 6 (antitrust law); any violation of § 11-68-2 (exploitation of an elder); any violation of § 11-41-11.1 (unlawful appropriation); any violation of § 11-18-6 (false financial statement to obtain loan or credit); any violation of § 19-9-28 (false statement to obtain a loan); any violation of § 19-9-29 (bank fraud); or any violation of § 11-18-34 (residential mortgage fraud).
No statute of limitations for the following offenses: treason against the state, any homicide, arson, first-degree arson, second-degree arson, third-degree arson, burglary, counterfeiting, forgery, robbery, rape, first-degree sexual assault, first-degree child molestation sexual assault, second-degree child molestation sexual assault, bigamy; manufacturing, selling, distribution, or possession with intent to manufacture, sell, or distribute, a controlled substance under the Uniform Controlled Substance Act, chapter 28 of title 21; or any other offense for which the maximum penalty provided is life imprisonment. RIGL §12-12-17(a).
C. Time for Filing an Answer
Under Super.R. Civ.P 12, a defendant must respond to the complaint (file an answer) within 20 days of date of service, unless the court directs otherwise when service of process is made pursuant to an order of court. If no answer is filed within 20 days, the plaintiff may obtain a default judgment against the defendant for amount claimed in complaint.
If service of the summons has been waived, a defendant shall serve an answer within 60 days after the date when the request for waiver was sent, or within 90 days after that date if the defendant was addressed outside of the United States.
D. Dismissal Re-Filing of Suit
An action may be dismissed by a plaintiff voluntarily and without order of court by: 1) filing a notice of dismissal at any time before service by the adverse party of an answer or a motion for summary judgment; or 2) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice. Further, see Rule 41(a)(2) for voluntary dismissal of an action subject to a defendant’s counterclaim.
An action may also be dismissed involuntarily under Super.R Civ.P 41(b) where the court, in its discretion, dismisses an action for lack of prosecution where the action has been pending for more than 5 years or, at any time, for failure of the plaintiff to comply with these rules or to proceed when the action is reached for trial. If an action is dismissed under this Rule, it operates as an adjudication upon the merits (unless the court orders otherwise). The provisions of Rule 41 can also apply to the dismissal of any counterclaim, cross-claim, third party claim, or additional claim.
If a plaintiff who has once dismissed an action in any court commences an action based on or including the same claim against the same defendant, the court may take such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.
If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or if he or she dies and the claim survives, his or her executor or administrator, may commence a new action upon the same claim within one year after the termination.
It is elementary that a dismissal without prejudice “prevent[s] the decree of dismissal from operating as a bar to a subsequent suit.” Black's Law Dictionary 421 (5th ed. 1979). Moreover, this Court previously has acknowledged that a dismissal granted “without prejudice” because of insufficient service of process does not preclude a plaintiff from refiling upon the same claim. International Brotherhood of Police Officers, Local No. 302 v. Town of Portsmouth, 506 A.2d 540, 542 (R.I.1986). Furtado v. Laferriere, 839 A.2d 533, 538 (R.I. 2004).
RIGL § 9-1-22 (West) In certain limited circumstances, G.L.1956 § 9-1-22 (the savings statute) allows a party to recommence an action within one year after the dismissal of a prior lawsuit. The savings statute does not apply, however, when there has been a “voluntary discontinuance” of the first action or when the court has dismissed the first lawsuit for “neglect to prosecute the action.” Furtado v. Laferriere, 839 A.2d 533, 543 (R.I. 2004).
Plaintiff must be able to prove 5 elements in order to collect damages for injuries resulting from a defendant’s negligence. In order to prevail on a claim of 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.” Mills v. State Sales, Inc., 824 A.2d 461, 467-68 (R.I.2003) (quoting Jenard v. Halpin, 567 A.2d 368, 370 (R.I.1989)). Whether a defendant owes/d a plaintiff a legal duty is a question of law, if no such duty exists, then plaintiff’s claim will fail as a matter of law. If the evidence establishes that a duty did run from defendant to plaintiff, then plaintiff is entitled to a determination of the remaining factual questions-did defendant breach the duty of care, and if so, was that breach the proximate cause of plaintiff's harm? See Terry v. Central Auto Radiators, Inc., 732 A.2d 713, 718 (R.I.1999) (“Whether [defendant's] inaction amounted to a breach of the duty owed to [plaintiff] was a question of fact[,] which should have been put to the trial jury.”); Splendorio v. Bilray Demolition Co., 682 A.2d 461, 467 (R.I.1996) (“Ordinarily the determination of proximate cause ... is a question of fact that should not be decided by summary judgment.”). Rhode Island courts determine whether a duty exists on a “case-by-case basis,” considering “ ‘all relevant factors, including the relationship between the parties, the scope and burden of the obligation to be imposed upon the defendant, public policy considerations,’ ... and the ‘foreseeability of harm to the plaintiff.’” Martin, 871 A.2d at 915 (quoting Volpe, 821 A.2d at 705, and Banks v. Bowen's Landing Corp., 522 A.2d 1222, 1225 (R.I.1987)). The linchpin in the analysis of whether a duty flows from a defendant to a plaintiff is foreseeability. Splendorio, 682 A.2d at 466; see Volpe, 821 A.2d at 705. Selwyn v. Ward, 879 A.2d 882, 886-87 (R.I. 2005).
The Rhode Island Legislature abolished the affirmative defense of contributory negligence in 1971 and replaced it with comparative negligence. Kay v. Menard, 754 A.2d 760, 768 (R.I. 2000). Rhode Island recognizes comparative negligence, and not comparative fault.
Rhode Island has adopted pure comparative negligence. RIGL §9-20-4 states that in all actions brought for personal injuries, or where personal injuries have resulted in death, or for injury to property, the fact that the person injured, or the owner of the property or person having control over the property, may not have been in the exercise of due care shall not bar a recovery, but damages shall be diminished by the finder of fact in proportion to the amount of negligence attributable to the person injured, or the owner of the property or the person having control over the property. Therefore, in Rhode Island, a plaintiff may recover 1% of their claim even if s/he is 99% negligent.
Joint and Several Liability
In Rhode Island, a plaintiff may recover 100% of damages from joint tortfeasor who has contributed to injury in any degree and joint tortfeasor may then seek contribution pursuant to statute either by separate action or by impleading fellow joint tortfeasor under third-party practice. RIGL § 10-6-1 et seq.
Roberts-Robertson v. Lombardi, 598 A.2d 1380 (R.I. 1991) It is a well-settled doctrine that a plaintiff may recover 100 percent of his or her damages from a joint tortfeasor who has contributed to the injury in any degree. Sousa v. Casey, 111 R.I. 623, 637-38, 306 A.2d 186, 194 (1973). The joint tortfeasor may then seek contribution pursuant to statute either by a separate action or by impleading the fellow joint tortfeasor under third-party practice.
Roberts-Robertson v. Lombardi, 598 A.2d 1380, 1381 (R.I. 1991) One of primary purposes of passage of the Uniform Contribution Among Tortfeasors Act of Rhode Island was to create a right of contribution among joint tortfeasors which did not exist at common law. Gen.Laws R.I.1956, §§ 10-6-1 et seq., 10-6-2. New Amsterdam Cas. Co. v. Homans-Kohler, Inc., 1970, 310 F.Supp. 374, affirmed 435 F.2d 1232.).
Uniform Contribution Among Tortfeasors Act of Rhode Island applies only where there is a common liability in tort by joint tort-feasors for same injury to person or property; this common liability may be either joint or several, but there can be no contribution unless the injured person has a right of action in tort against both party who seeks contribution and the party from whom contribution is sought. Gen.Laws R.I.1956, §§ 10-6-1 et seq., 10-6-2. New Amsterdam Cas. Co. v. Homans-Kohler, Inc., 1970, 310 F.Supp. 374, affirmed 435 F.2d 1232.
Parties Subject to Joint and Several Liability:
RIGL § 9-1-3: Liability of parents for torts of minors: The parent or parents of any unemancipated minor or minors, which minor or minors willfully or maliciously cause damage to any property or injury to any person, shall be jointly and severally liable with the minor or minors for the damage or injury to an amount not exceeding fifteen hundred dollars ($1,500) if the minor or minors would have been liable for the damage or injury if they had been adults; provided, nothing herein shall be construed to relieve the minor or minors from personal liability for the damage or injury. The liability herein provided for shall be in addition to and not in lieu of any other liability which may exist at law.
RIGL § 31-34-4: Liability of owner for negligence of operator: (a) Any owner of a for hire motor vehicle or truck who has given proof of financial responsibility under this chapter or who in violation of this chapter has failed to give proof of financial responsibility, shall be jointly and severally liable with any person operating the vehicle for any damages caused by the negligence of any person operating the vehicle by or with the permission of the owner. Nothing in this section shall be construed to prevent an owner who has furnished proof of financial responsibility or any person operating the vehicle from making defense in an action upon the ground of contributory negligence to the extent to which the defense is allowed in other cases.
Reapportionment of Uncollected Damages:
“A joint tortfeasor may be compelled to pay more than his or her proportional liability if contribution cannot be collected fully from another joint tortfeasor and if the court reallocates the uncollectible portion of the damages to all the remaining joint tortfeasors.” Calise v. Hidden Valley Condominium Ass'n, Inc., 773 A.2d 834, 846, n.13 (2001).
In Rhode Island, tortfeasors are jointly and severally liable. Rhode Island has adopted the Uniform Contribution Among Tortfeasors Act, and RIGL Title 10, Chapter 6 is titled “Contribution Among Joint Tortfeasors” and outlines the applicable law. The right of contribution exists among joint tortfeasors; provided however, that when there is a disproportion of fault among joint tortfeasors, the relative degree of fault of the joint tortfeasors shall be considered in determining their pro rata shares.
RIGL §10-6-3. A joint tortfeasor is not entitled to a final money judgment for contribution until he or she has by payment discharged the common liability or has paid more than his or her pro rata share of the final money judgment. Actions for contribution shall be commenced not later than one year next after the first payment made by a joint tortfeasor which has discharged the common liability or is more than his or her pro rata share thereof. RIGL §10-6-4. A joint tortfeasor who enters into a settlement with the injured person is not entitled to recover contribution from another joint tortfeasor whose liability to the injured person is not extinguished by the settlement. RIGL §10-6-5. However, the recovery of a judgment by the injured person against one joint tortfeasor does not discharge the other tortfeasors. A release by the injured person of one joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides; but reduces the claim against the other tortfeasors in the amount of the consideration paid for the release, or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid.
However, in circumstances where there are twenty-five (25) or more deaths from a single occurrence, then a release by the injured person of one joint tortfeasor given as part of a judicially approved good-faith settlement, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides but reduces the claim against the other tortfeasors in the amount of the consideration paid for the release. RIGL §10-6-7. With regard to contribution, RIGL §10-6-8 provides that A release by the injured person of one joint tortfeasor does not relieve him or her from liability to make contribution to another joint tortfeasor unless the release is given before the right of the other tortfeasor to secure a money judgment for contribution has accrued, and provides for a reduction, to the extent of the pro rata share of the released tortfeasor, of the injured person's damages recoverable against all the other tortfeasors.
B. Negligence Defenses
Statute of Limitations: generally, the statute of limitations for commencing negligence actions which seek recovery for personal injuries is 3 years from the date on which the cause of action accrues. If the plaintiff misses the cutoff, the defendant can use the statute of limitations as a defense against the suit.
Lack of Legal Duty Owed: see above required elements for a negligence claim to prevail.
Sudden Emergency: Individuals confronted with sudden and unexpected events demanding immediate action cannot be held to the same standard of care required of one in no such predicament. This defense is unavailable to an actor whose own negligence created the emergency. Roth v. Hoxsie’s Arco Service, Inc. 399 A.2d 1226 (R.I. 1979).
It is unclear whether the last clear chance doctrine applies in Rhode Island with the current comparative negligence statute. The Rhode Island Supreme Court has yet to address the issue.
Rhode Island recognizes the following affirmative defenses:
Comparative Negligence: (see above) RIGL §9-20-4 was amended in 2019 and as amended, the “fact that the danger or defect was open and obvious” is no longer a complete bar to plaintiff’s recovery in a personal injury case. To succeed on a negligence claim, an injured plaintiff still is required to prove by a preponderance of the evidence (i.e. that it is more likely than not) that the defendant owed a legal duty of care to the plaintiff and, if so, that the defendant’s conduct was the proximate cause of that injury. What has changed, however, is that the open and obvious nature of the danger or defect can no longer absolve a defendant of liability altogether. In that regard, a defendant can no longer successfully argue that it did not owe a duty of care to protect or warn an injured plaintiff in a case where the condition at issue was “open and obvious” to the plaintiff. However, although the fact that an open and obvious condition does not outright extinguish a legal duty otherwise running to the injured plaintiff, a jury must still decide how much fault should be apportioned to the defendant (and, in turn, how much must be borne by the plaintiff for his or her own negligence) relating to the injury.
Assumption of Risk: A plaintiff is barred from recovering from a negligent defendant if plaintiff knew of the existence of the danger posed by defendant’s conduct, appreciated and understood its significance or unreasonable character, and then voluntarily exposed herself to that danger at the time of the incident. If the facts of a case justify the application of the doctrine, it operates to relieve or reduce a defendant of liability for creating a risk of harm to plaintiff. The burden is on defendant to prove by a preponderance of the evidence that plaintiff assumed the risk of her injuries. See Hennessey v. Pine, 694 A.2d 691, 699-701 (R.I. 1997); Drew v. Wall, 495 A.2d 229, 231 (R.I. 1985); Rickey v. Boden, 421 A.2d 539, 543 (R.I. 1980); Kennedy v. Providence Hockey Club, Inc., 376 A.2d 329, 332-33 (R.I. 1977); see also Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 3 (1st Cir. 1994). The assumption of risk standard is subjective and keyed to what the injured party in fact sees, knows, understands and appreciates.
-Premises Liability Claims
A victim may have a cause of action against a landowner for injuries that occur on the property within the ownership or control of the defendant when:
The victim had a right to be on the property: customers generally have a right to be on a business’s property, while visitors and tenants are protected when on residential property. In some limited cases, trespassers may be able to sue after a slip and fall.
The victim was hurt by a defect the landowner knew about: Both homeowners and businesses have a duty to make their properties safe for invited guests (such as clearing away snow and ice from steps and sidewalks). The victim may have grounds to sue if the owner knew about a hazard on the property but failed to correct it and failed to warn visitors about the dangers.
The victim was injured due to negligence of the landowner: Negligence can exist in many forms—from an owner’s inability to recognize a hazard (such as failing to install lights in stairwells and alleys) to allowing a defect to exist that is in violation of the local building code.
The victim suffered losses as a result of the accident: A victim may be owed compensation for the costs of medical treatment, lost wages, rehabilitation costs, out-of-pocket expenses, and permanent disability related to the incident.
Rhode Island has not established a cause of action for negligence based upon the “mode of operation” of the defendant’s business, as many jurisdictions have in premises liability matters.
C. Gross Negligence, Recklessness, Willful and Wanton Conduct
A finding of gross negligence, recklessness, willful and wanton conduct may afford a claimant the right to punitive damages. Rhode Island does not recognize an independent tort for willful and wanton conduct. See generally Zoubra v. N.Y., N.H. & H.R. Co., 150 A.2d 643 (R.I. 1959).
Willful and wanton conduct is committed with an intentional or reckless disregard for the safety of others, such as failing to exercise ordinary care to prevent a known danger or to discover a danger. BLACK’S LAW DICTIONARY 1020 (Deluxe 8th ed. 2004). Willful or wanton conduct is also described as” highly unreasonable conduct, or an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.” State v. McAssey, 432 A.2d 683 (R.I. 1981) (quoting PROSSER, TORTS § 34 at 185 (4th ed. 1971)).
D. Negligent Hiring and Retention
An action for negligent hiring provides a remedy to injured third parties who would otherwise be foreclosed from recovery under the master-servant doctrine. Welsh Mfg., Div. of Textron, Inc. v. Pinkerton's, Inc., 474 A.2d 436 (R.I. 1984).
Recognition of direct employer liability for its negligence in hiring is consistent with section 213 of the Restatement (Second) of Agency and comports with the general tort principles of negligence. Welsh Mfg., Div. of Textron, Inc. v. Pinkerton's, Inc., 474 A.2d 436 (R.I. 1984). The standard of reasonable care requires an employer to guard against selecting a person who it knows or should have known was unfit or incompetent for the employment, thereby exposing third parties to an unreasonable risk of harm. Welsh Mfg., Div. of Textron, Inc. v. Pinkerton's, Inc., 474 A.2d 436 (R.I. 1984).
Rhode Island case law recognizes the viability of a cause of action against an employer for the negligent retention and/or supervision of an employee when a third party is injured by the acts of unfit or incompetent employees. The court held that an employer has a duty “to exercise reasonable care in selecting [and retaining] an employee who, as far as could be reasonably known, [is] competent and fit for the [employment].” Welsh, 474 A.2d at 440. The amount of care deemed to be “reasonable,” depends on the risk of harm inherent in the employment “[t]he greater the risk of harm, the higher the degree of care necessary to constitute ordinary care.” Id. (citing Leonard v. Bartle, 48 R.I. 101, 104, 135 A. 853, 854 (1927)). Rivers v. Poisson, 761 A.2d 232, 235 (R.I. 2000).
Claims based on negligent hiring or training of the vehicle operator are common allegations of negligence that are included in complaints against trucking companies where the employer has failed to exercise reasonable care in the selection and/or training of the employee/operator. Examples supporting this claim exist when the employer hires an employee to drive a tractor trailer knowing that the employee has a record of careless driving and the employee negligently injures another. Walsh Manufacturing, Division of Textron v. Pinkerton’s, Inc., 474 A.2e 436 (R.I. 1984). See also Morrissey v. Capstone Fin. Servs., 706 A.2d 1338, 1998 R.I. LEXIS 92 (1998).
E. Negligent Entrustment
The Rhode Island Supreme Court has held that there is no cognizable action for negligent entrustment. However, the United States District Court for the District of Rhode Island has held that an owner of a vehicle is liable under Rhode Island law for entrusting a vehicle to an incompetent, inexperienced or reckless or unfit driver if the owner knew or should have known of the same.
Whenever any motor vehicle shall be used, operated, or caused to be operated upon any public highway of this state with the consent of the owner, lessee, or bailee, expressed or implied, the driver of it, if other than the owner, lessee, or bailee, shall in the case of an accident be deemed to be the agent of the owner, lessee, or bailee, of the motor vehicle unless the driver shall have furnished proof of financial responsibility in the amount set forth in chapter 32 of this title, prior to the accident. For the purposes of this section, the term “owner” shall include any person, firm, co-partnership, association, or corporation having the lawful possession or control of a motor vehicle under a written sale agreement. RIGL § 31-33-6.
F. Dram Shop
Dram Shop liability is a recognized cause of action in Rhode Island and is codified within the “Rhode Island Liquor Liability Act.” Under Rhode Island law, there is no common law cause of action for liquor liability. Rather, a plaintiff must proceed under the Rhode Island Liquor Liability Act. The Act provides that a defendant “who negligently serves liquor to a visibly intoxicated individual is liable for damages proximately caused by the individual’s consumption of the liquor.” RIGL § 3-14-6(b). Proof of service of alcoholic beverages to a person under twenty-one (21) years of age without request for identification forms a rebuttable presumption of negligence. RIGL §3-14-6.
Generally, liability for negligence may be based on one of two situations: A defendant, as described in RIGL § 3-14-5, who negligently serves liquor to a minor is liable for damages proximately caused by the minor's consumption of the liquor, or, a defendant who negligently serves liquor to a visibly intoxicated individual is liable for damages proximately caused by the individual's consumption of the liquor.
Further, RI law recognizes a cause of action for reckless serving of alcohol. Punitive damages can be recovered where the service is “reckless.” RIGL §3-14-7(b) provides that a defendant “who recklessly provides liquor to a visibly intoxicated individual is liable for damages proximately caused by that individual’s consumption of the liquor.” The statute provides that, “Service of liquor is reckless if a defendant intentionally serves liquor to an individual when the server knows that the individual being served is a minor or is visibly intoxicated, and the server consciously disregards an obvious and substantial risk that serving liquor to that individual will cause physical harm to the drinker or to others.” §3-14-7(c)(1). Moreover, “the disregard of the risk, when viewed in light of the nature and purpose of the server’s conduct and the circumstances known to him or her, must involve a gross deviation from the standard of conduct that a reasonable and prudent person would observe in the same situation.” §3-14-7(c)(2). The statute provides examples of “reckless conduct”: “Specific serving practices that are admissible as evidence of reckless conduct include, but are not limited to, the following: (1) Active encouragement of intoxicated individuals to consume substantial amounts of liquor; (2) Service of liquor to an individual who is under twenty-one (21) years old when the server has actual or constructive knowledge of the individual’s age; and (3) Service of liquor to an individual that is so continuous and excessive that it creates a substantial risk of death by alcohol poisoning.” §3-14-7(d).
Damages may be awarded for all injuries recognized under Rhode Island common or statutory law. RIGL §3-14-8(a). Further, punitive damages may be awarded in all actions based on reckless conduct. However, punitive damages may not be awarded for actions based on negligent conduct.
Rhode Island dramshop statute must be applied to accidents that occur outside state when injury is proximately caused by violation of dramshop statute within state. RIGL § 3-11-1. Pardey v. Boulevard Billiard Club, 518 A.2d 1349 (R.I. 1986).
Intoxication in many instances is a condition that may not be detected. It is unreasonable to hold the licensee liable for serving intoxicated persons unless the licensee or the licensee's agent knew or should have known that the consumer was inebriated. See Lawrence v. Anheuser-Busch, Inc., 523 A.2d 864, 871 (R.I. 1987). “The server cannot be expected to make a determination of sobriety unless the server is familiar with the drinker's previous level of alcohol consumption or unless the drinker manifests such telltale signs of intoxication as swaying or slurred speech.” Embry v. Ortiz, 538 A.2d 1002 (R.I. 1988).
G. Wrongful Death and/or Survival Action
In Rhode Island, wrongful death actions are of a purely statutory nature. RIGL § 10-7-1 – 10-7-4, Carrigan v. Cole, 35 R.I. 162, 85 A. 934 (1913). The Rhode Island Wrongful Death Act compensates a decedent’s survivors for the pecuniary losses sustained as a result of the decedent’s death, including the value of the services the victim would have rendered to his family if he had survived. By statute, such pecuniary losses considered as present value of gross prospective life expectancy income, less decedent’s prospective personal expenses. RIGL §10-7-1.1. Pain and suffering is also included in the loss. RIGL §10-7-7. A jury is entitled to consider pension and social security income as part of the pecuniary damages. Pray v. Narragansett, 434 A.2d 932 (R.I. 1981). Under Rhode Island law, the minimum recovery, subject to the plaintiff’s comparative negligence, from a defendant found liable in wrongful death is $250,000.00. RIGL §10-7-2.
H. Vicarious Liability
It is well settled in Rhode Island law that an employer is liable for torts committed by his employees while they are working within the scope of their employment. Plaintiff must establish that the employer had control/dominion over the employee and that the tortious conduct occurred while the employee was in the scope of his employment. Morraty v. Realy, 100 R.I. 689, 219 A.2d 404 (1966). An exception to this rule occurs when the employee was engaged in a frolic or detour. In that instance, the negligence of the employee will not be imputed to the employer. This occurs when the employee temporarily departs from the instructed duties and undertakes personal business. It should be noted that a slight deviation will not usually be sufficient to remove the employee from the duties that were encompassed by the scope of his employment. A substantial detour or departure from his duties is generally necessary to take the employee outside of the scope of employment. Colwell v. Aetna Bottle & Stopper Co., 33 R.I. 531, 82 A. 388 (1912). Typically, incidental, personal acts, slight delays or deflections from the most direct route are not considered to be frolics or detours. Aldcroft v. Prudential Ins. Co. of America, 104 R.I. 240, 243 A.2d 115 (1968).
In Rhode Island, the negligence of the lessee can be imputed to the lessor of a motor vehicle. Short term rental agencies, long term leasing companies and motor vehicle financing corporations are subject to potential liability as the owners of the motor vehicle. Long-term lessors and financing corporations of motor vehicles were “lessors” for purposes of the lessor-liability statute, and thus were vicariously liable to persons injured by the drivers of those motor vehicles, even though they were not engaged in the business of renting motor vehicles pursuant to a written rental agreement; “lessor” was not limited to entities in the business of renting motor vehicles, but rather included such entities, “rented” vehicles included “leased” vehicles, and the lessors had provided proof of financial responsibility in accordance with the statute in order to gain their licenses to lease vehicles. RIGL §§ 31-1-3(g), 31-34-4. Oliveira v. Lombardi, 794 A.2d 453 (R.I. 2002).
The Rhode Island Supreme Court has not addressed the effect of the presence of a lessor’s name, placard or logo on a commercial vehicle. Whenever any motor vehicle shall be used, operated, or caused to be operated upon any public highway of this state with the consent of the owner, lessee, or bailee, expressed or implied, the driver of it, if other than the owner, lessee, or bailee, shall in the case of an accident be deemed to be the agent of the owner, lessee, or bailee, of the motor vehicle unless the driver shall have furnished proof of financial responsibility in the amount set forth in chapter 32 of this title, prior to the accident. For the purposes of this section, the term “owner” shall include any person, firm, co-partnership, association, or corporation having the lawful possession or control of a motor vehicle under a written sale agreement. R.I. Gen. Laws Ann. § 31-33-6 (West).
I. Exclusivity of Workers’ Compensation
Workers’ Compensation benefits are an exclusive remedy in the State of Rhode Island and statutorily supersede any other rights or remedies at common law where the right to such benefits exists. RIGL §28-29-20.
Employer, or employer’s insurer, may assert a lien as against settlement or judgment against third-party tortfeasor. RIGL §28-35-58.
When employee receives workers' compensation benefits, such benefits are the exclusive remedy for any loss or harm allegedly caused by injured employee's employer or employer's directors, officers, agents, or employees; however, employee may seek further recovery from entity that has not been granted immunity. Sorenson v. Colibri Corp., 650 A.2d 125 (R.I. 1994)
The right to compensation for an injury under chapters 29--38 of this title, and the remedy for an injury granted by those chapters, shall be in lieu of all rights and remedies as to that injury now existing, either at common law or otherwise against an employer, or its directors, officers, agents, or employees; and those rights and remedies shall not accrue to employees entitled to compensation under those chapters while they are in effect, except as otherwise provided in §§ 28-36-10 and 28-36-15. RIGL § 28-29-20.
A co-employee is immune from suit by an injured employee just as an employer is pursuant to § 28-29-20. Boucher v. McGovern, 639 A.2d 1369, 1377 (R.I. 1994).
A. Statutory Caps on Damages
In any tort action against the state of Rhode Island or any political subdivision thereof, any damages recovered therein shall not exceed the sum of one hundred thousand dollars ($100,000); provided, however, that in all instances in which the state was engaged in a proprietary function in the commission of the tort, or in any situation whereby the state has agreed to indemnify the federal government or any agency thereof for any tort liability, the limitation on damages set forth in this section shall not apply. RIGL§ 9-31-2. The general assembly may, by special act, authorize tort actions against cities, towns and fire districts of Rhode Island in particular cases where the amount of damages to be recovered exceeds $100,000. RIGL § 9-31-4.
B. Compensatory Damages for Bodily Injury
Damages are defined as that amount of money that will compensate an injured party for the harm or loss she has sustained. The rationale behind compensatory damages is to restore a person to the position she was in prior to the harm or loss. Thus, compensatory damages means the amount of money which will replace, as near as possible, the loss or harm caused to a person. When assessing damages, the trier of fact may only assess damages that will fairly and reasonably compensate plaintiff insofar as the same may be computed in money. See Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975); see also Proffitt v. Ricci, 463 A.2d 514, 518-19 (R.I. 1983).
This is compared to the measure of damages for destruction of or injury to personal property, which is generally the difference between its fair market value just before destruction or injury and its fair market value immediately thereafter. DeSpirito v. Bristol Cnty. Water Co., 102 R.I. 50, 227 A.2d 782 (1967) In proving damages for injury to or loss of items of personal property, party generally is restricted to testimony evidencing difference between before and after fair market values. DeSpirito v. Bristol Cnty. Water Co., 102 R.I. 50, 227 A.2d 782 (1967).
C. Collateral Source
The collateral source rule means that a tortfeasor is not entitled to credit for amounts received by the injured party from any collateral sources, such as insurance, wage continuation plans, or any other payments made on his or her behalf. Golden v. Goldenberg, 101 R.I. 338, 273 A.2d 663 (1971).
Absent a statutory provision to the contrary, this common law rule prevents defendants in tort actions from reducing their liability with evidence of payments made to injured parties by independent sources. Votolato v. Merandi, 747 A.2d 455, 463 (R.I.2000). Although this rule may allow plaintiffs to recover damages in excess of their injuries, the rationale underlying the rule is that it is better for the windfall to go to the injured party rather than to the wrongdoer. Colvin v. Goldenberg, 108 R.I. 198, 202, 273 A.2d 663, 666 (1971); Oddo v. Cardi, 100 R.I. 578, 584–85, 218 A.2d 373, 377 (1966). Esposito v. O'Hair, 886 A.2d 1197, 1199 (R.I. 2005).
D. Pre-Judgment/Post-judgment Interest
RIGL §9-21-10 provides for 12% prejudgment interest per year (or, 1% per month). In Rhode Island, this interest begins to accrue when the claim accrues (i.e.: date of loss). For example, in a personal injury case where the statute of limitations is 3 years, a plaintiff may get injured on 1/5/2020 and file the lawsuit on 1/5/2023. Therefore, on the date of filing, the case would begin with 36% prejudgment interest already accrued. Rhode Island law is unique in that prejudgment interest runs from the date of loss, rather than from the date of filing suit.
Dual purpose of prejudgment interest is to encourage early settlement of claims and to compensate an injured plaintiff for delay in receiving compensation to which he or she may be entitled. Metro. Prop. & Cas. Ins. Co. v. Barry, 892 A.2d 915 (R.I. 2006)
The Rhode Island Supreme Court previously declared that prejudgment interest “is not an element of damages but is purely statutory, peremptorily added to the award by the clerk.” Barbato, 794 A.2d at 472 (citing DiMeo v. Philbin, 502 A.2d 825, 826 (R.I.1986)). Metro. Prop. & Cas. Ins. Co. v. Barry, 892 A.2d 915, 919 (R.I. 2006). With respect to mediation proceedings in Rhode Island, it should be noted that interest is an element that will be considered as an element of damages. As such, client’s should be prepared to acknowledge and address the issue of interest as part of their defense or settlement strategy.
E. Damages for Emotional Distress
Intentional Infliction of Emotional Distress
In order to prevail on a claim for emotional distress damages, a plaintiff is generally required to prove extreme and outrageous conduct that intentionally or recklessly resulted in causing her severe emotional distress. See Reilly v. United States, 547 A.2d 894 (R.I.1988). In Rhode Island, a plaintiff must prove physical symptomatology resulting from the alleged improper conduct. Id. at 898. Vallinoto v. DiSandro, 688 A.2d 830, 838 (R.I. 1997).
-Negligent Infliction of Emotional Distress
Rhode Island recognizes a cause of action for Negligent Infliction of Emotional Distress which is governed by the following standard: “To date, the Rhode Island Supreme Court has recognized the tort of negligent infliction only in limited circumstances: Only two groups of plaintiffs are able, however, to seek recovery under a theory of negligent infliction of emotional distress: "those within the `zone-of-danger' who are physically endangered by the acts of a negligent defendant, and bystanders related to a victim whom they witness being injured." Jalowy v. Friendly Home,Inc., 818 A.2d 698, 710 (R.I. 2003) (citing Marchetti v. Parsons, 638 A.2d 1047, 1049, 1051 (R.I. 1994)). Perrotti v. Gonicberg, 877 A.2d 631, 636 (R.I. 2005).
F. Wrongful Death and/or Survival Action Damages
The Wrongful Death Act governs the amount and nature of damages that may be recovered in these actions in Rhode Island. Whenever the death of a person shall be caused by the wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person who, or the corporation which, would have been liable if death had not ensued shall be liable to an action for damages. Simeone v. Charron, 762 A.2d 442, 445 (R.I. 2000) Although the original language of § 10–7–1 that established the right to bring a wrongful death action for damages has not been changed since 1896, the Legislature proceeded to define pecuniary damages and specify additional damages that may be claimed beyond the original baseline of compensatory damages.
RIGL §10-7-7 allows recovery for “pain and suffering.” In order to recover for the decedent’s pain and suffering, there must have been conscious pain and suffering. Therefore, a plaintiff must establish that the decedent did not die instantaneously but was momentarily conscious before dying. McAleer v. Smith, 791 F. Supp. 923 (D.R.I. 1992). As of 2010, Rhode Island General Law, Chapter 10-7-7-1 "Death by Wrongful Act" now includes the following: “Punitive Damages. In an action commenced under section 10-7-5, recovery may be had for punitive damages if such damages would have been recoverable had the decedent survived.” Punitive damages are damages in addition to compensatory damages (medical bills, lost wages, pain and suffering, etc.) that are intended to deter the defendant from acting in a certain way. Punitive damages are typically awarded in cases where the defendant's negligence was egregious or his behavior reckless. Under Rhode Island law, the minimum recovery, subject to the plaintiff’s comparative negligence, from a defendant found liable in wrongful death is $250,000.00.
G. Punitive Damages
A party seeking punitive damages in Rhode Island must produce “evidence of such willfulness, recklessness, or wickedness, on the part of the party at fault, as amounts to criminality that should be punished.” Fenwick v. Oberman, 847 A.2d 852, 854 (R.I. 2004). Standard for imposing punitive damages is satisfied only if defendant's conduct requires deterrence and punishment over and above that provided in award of compensatory damages. Palmisano v. Toth, 624 A.2d 314 (R.I. 1993). Although not insurmountable, this requirement sets the bar quite high for a plaintiff to recover punitive damages. If adequate facts are presented, the fact-finder must decide whether a plaintiff is entitled to such an award. Jenison, 485 A.2d at 1244. There is no monetary limitation on punitive damages in Rhode Island. Nevertheless, a trial justice may set aside a punitive damages award if the award is clearly excessive or shocks the conscience. The trier of fact may consider a defendant’s wealth in determining the appropriate amount of punitive damages. In addition, the amount of punitive damages awarded must reasonably relate to: (1) the character and degree of defendant’s wrongful conduct; (2) the amount of compensatory damages awarded; (3) the impact of the punitive damages on third parties; and (4) the severity of any civil penalties which the state government could impose on defendant for his wrongdoing. See Palmisano v. Toth, 624 A.2d 314, 31819 (R.I. 1993); see also BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996); Pac. Mut. Life Ins. Co. v. Haship, 499 U.S. 1 (1991); Emery-Waterhouse Co. v. R.I. Hosp. Trust Nat’l Bank, 757 F.2d 399 (1st Cir. 1985). Although a defendant's ability to pay may well play a role in the jury's estimation of the amount of damages to award, see Palmisano, 624 A.2d at 318, a punitive award is not per se void because such evidence is not present. Castellucci v. Battista, 847 A.2d 243, 248 (R.I. 2004).
Punitive damages may be awarded in torts involving malice, wantonness, willfulness, or bad faith, such as criminal conversion (Hargraves v. Ballou, 131 A. 643, 646 (R.I. 1926)), false imprisonment (Sherman v. McDermott, 329 A.2d 195, 197 (R.I. 1974)), assault (Id.), battery (Id.), libel and slander (Marley v. Providence Journal Co., 134 A.2d 180, 183 (R.I. 1957)), or when non-prevailing party’s claims were frivolous or were brought with an intent to harass the other party (Palazzo v. Alves, 944 A.2d 144, 151 (R.I. 2008)).
H. Diminution in Value of Damaged Vehicle
Loss of use and diminished value damages are recoverable in Rhode Island, subject to the general principle of mitigation of damages.
A. Preventability Determination
Preventability Determinations are discoverable in the State of Rhode Island. Berios v. Jevic Transportation, Inc., PC2004-2390 (R.I. Super. 6-29-2012). While there is no case law directly on point as to the admissibility of such evidence, it would likely be admissible under R.I. R. Evid. 407 which states that [w]hen, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is admissible.
B. Traffic Citation from Accident
Generally, Rhode Island law supports the giving of a jury instruction that the violation of a traffic or motor vehicle law is not in and of itself negligence. Crum v. Horowitz, 896 A.2d 736 (R.I. 2006).
C. Failure to Wear a Seat Belt
Rhode Island law does now require motorists to wear seat belts. RIGL §31-22-22. A motor vehicle operator in Rhode Island must be properly wearing a safety belt and/or shoulder harness system while the vehicle is in operation of any of the roadways, streets, or highways of the state. The law additionally requires that any operator of a motor vehicle transporting a child, who has attained the age of eight (8) years but is under eighteen (18) years of age, in any seating position within a motor vehicle operated on the roadways, streets, or highways of the state shall ensure that the passenger is properly wearing a safety belt and/or shoulder harness system.
However, the law states that in no event shall failure to be properly restrained by a child restraint system or safety belt be considered as negligence, nor the failure to be properly restrained by the child restraint system or safety belt be admissible as evidence in the trial of any civil action. In no event shall failure to wear a child restraint system or safety belt be considered as contributory or comparative negligence, nor the failure to wear the child restraint system, seat belt and/or shoulder harness be admissible as evidence in the trial of any civil action.
D. Failure of Motorcyclist to Wear a Helmet
Rhode Island has a partial helmet law: RIGL §31-10.1-4, which states that all motorcycle operators must wear a helmet until age 21. In addition, all new motorcycle operators, regardless of age, are required to wear a helmet for one year from the date they were issued a Rhode Island motorcycle license. As of 2018, RIGL §31-10.1-6 requires all motorcycle passengers to wear a helmet in the state of Rhode Island. Those found in violation of these Rhode Island helmet laws are subject to an $85 fine under R.I.G.L. § 31-41.1-4.
E. Evidence of Alcohol or Drug Intoxication
Admissible in a negligence action to recover damages but it is determined on a case-by-case basis. Subject to discretionary determination by the trial judge as to relevance and unfair prejudice. Kay v. Menard, 754 A.2d 760 (R.I. 2000) citing Peters v. Gagne, 98 R.I. 100, 199 A.2d 909. (1964).
F. Testimony of Investigating Police Officer
Admissible, but subject to hearsay limitations. A police officer who is trained and experienced in accident investigations may be qualified as an expert and permitted to give opinion testimony about the point of impact based on physical evidence observed, such as marks on the highway and location of debris. Cobe v. Hersey, 576 A.2d 1226 (R.I. 1990).
G. Expert Testimony
In DiPetrillo v. Dow Chemical Co. 729 A.2d 677, R.I.,1999, Rhode Island largely adopted the United States Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) ( Daubert I ). The adoption of the Daubert standard did away with the previously utilized “general acceptance” test of Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), under which expert opinion on a scientific method was admissible if the technique had been “generally accepted” by the relevant scientific community.
In such cases where the reliability of expert testimony is disputed, within discretion, the trial justice must control the gateway for expert scientific testimony by conducting pursuant to Rule 104 an early, preliminary assessment of the evidence. “Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a) whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine the fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether the reasoning or methodology properly can be applied to the facts in issue.” DiPetrillo at 687, quoting Daubert I, 509 U.S. at 592-93. At a DiPetrillo/Daubert hearing, the trial judge must examine these “four factors for consideration: (1) whether the proffered knowledge can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) whether the theory or technique has gained general acceptance in the relevant scientific field.” Daubert I, at 593-94.
Expert testimony, such as from an accident reconstruction expert, may be directly relevant to the issue of causation in negligence cases. See Allen v. State, 420 A.2d 70, 72 (R.I. 1980). A witness who is qualified as an expert by knowledge, skill, experience, training, or education regarding accident reconstruction may testify in the form of fact or opinion, if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue. R.I. R. EVID. 702; Allen v. State, 420 A.2d 70, 72 (R.I. 1980) (holding it was error to exclude expert testimony by accident reconstruction expert where issues were the cause of decedent’s fatal injuries).
H. Collateral Source
The collateral source rule, under common law, prevents defendants in tort actions from reducing their liability with evidence of payments made to injured parties by independent, third-party sources, such as insurance companies. Esposito v. O’Hair, 886 A.2d 1197 (R.I. 2005). The underlying rationale is that it is better for the windfall to go to the injured party rather than to the wrongdoer. Id. Collateral source doctrine mandates that evidence of payments made to injured plaintiff from sources independent of tortfeasor is inadmissible and shall not diminish tortfeasor's liability to plaintiff. Gelsomino v. Mendonca, 723 A.2d 300 (R.I. 1999).
I. Recorded Statements
There is no Rhode Island case law directly on point regarding the admissibility of recorded statements in the context of a civil / negligence action. However, hearsay evidence is generally inadmissible under R.I. R. Evid. 801 et seq. Recorded statements are only admissible, and only pursuant to the Court’s discretion, for the purposes of impeachment, to evidence a statement against interest, to evidence past inconsistent statements, evidence a party admission, or for a witness otherwise unavailable or deceased.
J. Prior Convictions
Generally, prior convictions are admissible to impeach a witness’ credibility. RIGL § 9-17-15; see also Mercurio v. Fascitelli, 116 R.I. 237 (1976), 352 A.2d 736.
Evidence of a final judgment, entered after a trial or upon a plea of guilty or of nolo contendere which constitutes a conviction by the terms of G.L.R.I. § 12-18-3, adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the state in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility. R.I. R. Evid. 803(22).
No person shall be deemed an incompetent witness because of his or her conviction of any crime, or sentence to imprisonment therefor; but shall be admitted to testify like any other witness, except that conviction or sentence for any crime or misdemeanor may be shown to affect his or her credibility.
Any witness who testifies put their credibility at issue. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record. "Convicted of a crime" includes (1) pleas of guilty, (2) pleas of nolo contendere followed by a sentence (i.e. fine or imprisonment), whether or not suspended and (3) adjudications of guilt. R.I. R. Evid. 609(a). However, there is a discretionary component to the rule: Evidence of a conviction under this rule is not admissible if the court determines that its prejudicial effect substantially outweighs the probative value of the conviction. If more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, or if the conviction is for a misdemeanor not involving dishonesty or false statement, the proponent of such evidence shall make an offer of proof out of the hearing of the jury so that the adverse party shall have a fair opportunity to contest the use of such evidence. Id. at (b).
K. Driving History
Admissible, subject to discretionary determination by the trial judge as to relevance and unfair prejudice. There is no specific legal authority on point as to evidence of a commercial driver’s driving history. Such evidence would be subject to the provisions of R.I. R. Evid. 401, et seq. regarding Relevancy and Its Limits. Evidence of prior accidents alone does not establish negligence. Quinn v. Stedman, 146 A. 618, 620 (R.I. 1929)
Admissible, subject to discretionary determination by the trial judge as to relevance and unfair prejudice. There is no specific legal authority on point as to evidence of a commercial driver’s fatigue. Such evidence would be subject to the provisions of R.I. R. Evid. 401, et seq. regarding Relevancy and Its Limits.
Spoliation is generally treated as an evidentiary issue and is proven by a showing of deliberate or negligent destruction of relevant evidence by a party to litigation, which may give rise to an adverse inference against that party. McGarry v. Pielech, 47 A.3d 271 (R.I. 2012) citing Mead v. Papa Razzi Restaurant, 840 A.2d 1103, 1108 (R.I.2004). Under the doctrine of spoliation, the destruction of relevant evidence by a litigating party may give rise to an inference that the destroyed evidence was unfavorable to that party. See Mead v. Papa Razzi Rest., 840 A.2d 1103, 1108 (R.I. 2004).
Essence of doctrine of spoliation is an inference that the missing evidence was in fact unfavorable to the defendant, and thus, a party is not required to establish that missing evidence would be admissible at trial, but rather must show that the evidence is relevant and that it is unavailable because of the conduct of the despoiler. Tancrelle v. Friendly Ice Cream Corp., 756 A.2d 744 (R.I. 2000).
Under the doctrine omnia praesumuntur contra spoliatorem, “[a]ll things are presumed against a despoiler or wrongdoer,” Black's Law Dictionary 1086 (6th ed.1990), the deliberate or negligent destruction of relevant evidence by a party to litigation may give rise to an inference that the destroyed evidence was unfavorable to that party. Rhode Island Hospital Trust National Bank v. Eastern General Contractors, Inc., 674 A.2d 1227, 1234 (R.I.1996). This Court has held that although a showing of bad faith may strengthen the inference of spoliation, such a showing is not essential. Farrell v. Connetti Trailer Sales, Inc., 727 A.2d 183, 186 (R.I.1999) (citing Rhode Island Hospital Trust National Bank at 1234). Tancrelle v. Friendly Ice Cream Corp., 756 A.2d 744, 748 (R.I. 2000).
“The doctrine of spoliation merely permits an inference that the destroyed evidence would have been unfavorable to the despoiler,” and is by no means conclusive. Tancrelle v. Friendly Ice Cream Corp., 756 A.2d 744, 749 (R.I. 2000).
A. Offer of Judgment
At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. R.I. Civ. P.68.
If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance and thereupon the clerk shall enter judgment. R.I. Civ. P.68.
A party defending against a claim may pay into court by depositing with the clerk a sum of money on account of what is claimed, or by way of compensation or amends, and plead that the defending party is not indebted to any greater amount to the party making the claim or that the party making the claim has not suffered greater damages. The party making the claim may (1) accept the tender and have judgment for the party's costs, (2) reject the tender, or (3) accept the tender as part payment only and proceed with the action on the sole issue of the amount of damages.
If not accepted, not disclosed to jury and evidence thereof is not admissible except in a proceeding to determine interest or costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted, or accepted only as part payment, does not preclude a subsequent offer.
If judgment obtained by offeree is not more favorable than the offer, the offeree must pay cash incurred after the making of the offer. Id.
Attorneys and medical care providers may assert a lien for professional services rendered. The Child Support Act requires that any insurance carrier licensed to do business in the state check with the Rhode Island Department of Human Services when issuing payment in excess of $10,000.00. RIGL §27-57-1.
Private insurance provider has a lien as against third-party tortfeasor and will ordinarily look to the entirety of the settlement proceeds for the purpose of enforcing its lien or right to reimbursement.
Plaintiff’s are entitled to complete recovery of full amount of medical bills without setoff. No evidence of liens or insurance payments are admissible at the time of trial.
C. Minor Settlement
In Rhode Island, when the plaintiff in a personal injury suit is a minor, and the amount of the settlement is over $10,000, the two parties to the suit must receive court approval before a check can be issued. Because a minor is deemed to not have the capacity to enter into a contract, all contracts entered into by minors are voidable at the child’s election. To make settlement contracts under $10,000 binding on a minor, RIGL §33-15.1(b) provides that:
A release given by both parents or by a parent or guardian who has the legal custody of a minor child or by a guardian or adult spouse of a minor spouse shall, where the amount of the release does not exceed ten thousand dollars ($10,000) in value, be valid and binding upon the minor.
A parent cannot compromise or release a minor child’s cause of action without statutory authority. Julian v. Zayre Corp., 388 A.2d 813, 815 (R.I. 1978). Rhode Island gives authority to a parent or guardian to release the claims of a minor child, where the amount of such release does not exceed $10,000 in value. RIGL § 33-15.1-1 (2012).
To enforce settlements for a minor over $10,000, a child (via of a parent) and the opposing party must get court approval before a settlement check can be issued. The two parties, after they have agreed on a settlement amount will then engage in what is called a “friendly lawsuit.” When this happens, the court will usually appoint a Guardian Ad Litem (a neutral third party lawyer) to review the case to ensure that the settlement amount and where the money is kept upon disbursement, is in the best interest of the child. After the Guardian Ad Litem has given the OK to the court that the settlement is in the child’s best interest, the court will then make the release of claim binding on the minor-child. At this point, a settlement check may be issued.
D. Negotiating Directly with Attorneys
There is no legal prohibition against a claims professional negotiating a claim directly with an attorney.
E. Confidentiality Agreements
Confidentiality agreements, in the context of settlement and/or discovery, are valid and enforceable, subject to general principles of contract law.
A release in a personal injury case is a contract. Persons of legal age and capacity must stand by any covenants they enter in effectuating a release. Insurance companies must pay on settled claims within thirty (30) days after executed release, or be subject to separate cause of action for punitive damages and interest. RIGL §9-1-59. Any release or settlement for personal injuries within thirty (30) days from the date of the tortious act is voidable at option of releaser upon return of consideration. RIGL § 9-12-12.1. The validity of release must be determined in light of three (3) facts: 1. existence of consideration for the release; 2. experience of the person executing the release; 3. whether the person executing the release was represented by counsel. Guglielmi v. R.I. Hospital Trust, 573 A.2d 687 (R.I. 1990).
Pre-accident waivers and releases between a commercial entity and a consumer/private citizen are generally unenforceable.
General release that provides for the release of “any and all other persons, firms and corporations,” discharges only those joint tortfeasors whom contracting parties actually intended to release.
Releases with respect to multiple tortfeasors, must address the RI joint tortfeasor statute.
G. Voidable Releases
See above; any release or settlement for personal injuries within thirty (30) days from the date of the tortious act is voidable at option of releaser upon return of consideration. RIGL § 9-12-12.1.
A. State DOT Regulatory Requirements
Rhode Island DOT regulations (47-1-16:30) adopt FMCSA. (See also G.L. 1956 (1982 Reenactment) § 31-23-1). The Commissioner of the Department of Transportation may adopt regulations which incorporate by reference the standards set forth in 49 CFR Part 390.
B. State Speed Limits
Rhode Island has a “prima facie” limits law which controls the speeds on the various roadways as follows: 1) 25 MPH in any business or residence district; 2) 50 MPH in other locations during the daytime; 3) 45 MPH in such other locations during the nighttime; 4) 20 MPH in the area within 300 feet of any school house grounds' entrances and exits during the daytime during the days when schools shall be open.
The speed limit on the 3 Interstates (95, 195, and 295) is 65 miles per hour (MPH) but reduces to 55 MPH closer to Providence.
These speeds may be altered as necessary due to weather conditions, hazards, etc. RIGL §31-14-2.
The maximum speed limit in the state is 65 MPH. There is a “minimum speed” law which prohibits a person from driving at such a slow speed as to impede the normal and reasonable flow of traffic. RIGL §31-14-9.
C. Overview of State CDL Requirements
The Rhode Island Department of Transportation follows the standards as set forth in 49 C.F.R. Part 383 for the issuance of a Commercial Driver’s License. RIGL §31-10.3-3.
You must be at least 21 years old. However, you can receive a license valid for intrastate (within state) travel at age 18. You must have had a regular Rhode Island driver's license for at least two years, with no suspensions or revocations. You must earn a medical examiner's certificate.
A. State Minimum Limits of Financial Responsibility
In Rhode Island, motorists must carry minimum limits of bodily injury liability - $25,000 per person and $50,000 per accident, meaning coverage up to $25,000 for damages incurred by any one person and up to $50,000 in any one accident should more than one person be involved.
B. Uninsured Motorist Coverage
Rhode Island motorists may decline to purchase uninsured/underinsured motorist coverage if you choose to buy only minimum limits of bodily injury and property damage liability as required by law.
-Uninsured motorist coverage (UM): cover losses when the at-fault party has no insurance whatsoever.
-Underinsured motorist coverage (UIM): kicks in when the at-fault party has insurance, but not enough to cover your losses.
Rhode Island General Laws Section 27-7-2.1 allows stacking to help victims of accidents caused by underinsured drivers. An injury victim can “collect up to the aggregate amount of coverage for all vehicles insured” if (1) the insured has paid 2 or more separate premiums for UIM coverage in a single insurance policy; OR (2) the insured has several different policies with the same insurance company.
Rhode Island law also allows stacking to help victims of accidents caused by uninsured drivers by allowing people who own a policy under which 2 or more vehicles are insured with UM/UIM coverage to collect the limits of that coverage under as many vehicles as necessary to receive full payment for their damages. Example: you have a 2-car policy with $50,000 worth of bodily injury UM/UIM coverage per person on each car. You are in an accident with an uninsured driver and your bodily injury claim totals $100,000. You can collect $50,000 from the coverage of one vehicle and $50,000 from the other to total $100,000.
A third way Rhode Island law allows stacking is for victims of accidents caused by uninsured drivers who have more than one auto insurance policy with UM/UIM coverage. To collect all damages, you may make a claim under the UM/UIM coverage of each of the policies: Example: you have a policy with $50,000 UM/UIM bodily injury overage per person and another with $25,000 – if necessary, you can collect up to $75,000 for bodily injuries suffered as a result of a collision with an uninsured or underinsured motorist.
Insurer is obliged to engage in settlement discussions with an insured in an effort to relieve the insured from the burden and expense of litigation against the insurer. Metro. Prop. & Cas. Ins. Co. v. Barry, 892 A.2d 915 (R.I. 2006) When faced with a claim for uninsured/underinsured motorist (UM) benefits, the insurance carrier is free to set its own course and may not seek a safe harbor against prejudgment interest by declining to settle a legitimate claim or requiring its insured to first proceed against the tortfeasor. Gen.Laws 1956, § 9-21-10(a). Metro. Prop. & Cas. Ins. Co. v. Barry, 892 A.2d 915 (R.I. 2006).
C. No Fault Insurance
Unlike our neighbor State, Massachusetts, Rhode Island is not a no-fault state and does not maintain PIP coverage. ... As a result, any person injured in an auto accident in Rhode Island, whether minor or severe, can immediately bring a claim or lawsuit against the at-fault driver.
D. Disclosure of Limits and Layers of Coverage
By statute, the insurance limits must be disclosed upon request. Rule 26(b)(2) of the Rhode Island Superior Court Rules of Civil Procedure provides, in pertinent part, that “[a] party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.”
E. Unfair Claims Practices
The Unfair Claims Settlement Practices Act regulates the investigation or disposition of claims arising under insurance policies in the State of Rhode Island. “Unfair Claims Practices” are defined to encompass several categories, namely misrepresentations to insureds/claimants as to relevant facts or limits of coverage, failing to act with reasonable promptness, and bad faith settlement efforts. RIGL§ 27-9.1-1, et seq.
In Asermely v. Allstate Insurance Company, 728 A.2d 461 (R.I. 1999), the Court “promulgated a new rule,” which in Rhode Island has resulted in what is commonly referred to as an “Asermely Demand.” This new rule holds that if an insurer receives a reasonable written offer to settle a matter within the policy limits, and if the insurer declines to settle, then the insurer does so at its peril in the event that a trial results in a judgment that exceeds the policy limits. The obligation owed by the insurer runs to the insured and therefore, also to any party to whom the insured assigned their rights.
More recently, in Summit Insurance Company v. Eric Stricklett et al., No. 2017-185-A (R.I. 2019) the Court made abundantly clear that it has “never allowed a third party to bring a claim under Asermely without an assignment from the insured.” At issue in Summit was whether the obligation owed by the insurer also ran to third party claimants who had not had the insured’s rights assigned to them. Moreover, the duty to act reasonably and in good faith in considering settlement offers only runs to the insured, which is why the assignment would be necessary if the third party wished to pursue such a claim.
§ 9-1-33(a) provides for the recovery of attorneys’ fees. Courts have also allowed consequential damages, and damages for emotional distress. Punitive damages are provided by statute with no heightened pleading necessary. See § 9-1- 33(a); Skaling v. Aetna Ins. Co., 799 A.2d 997 (R.I. 2002) (“Because punitive damages are available as a matter of right in bad faith cases, it is unnecessary to plead or prove willful or wanton conduct by the insurer.”).
F. Bad Faith Claims
Rhode Island allows actions for first party bad faith, but does not permit claims for third party bad faith.
Rhode Island General Laws § 9-1- 33 provides that “an insured . . . may bring an action against the insurer . . . when it is alleged the insurer wrongfully and in bad faith refused to pay or settle a claim made pursuant to the provisions of the policy, or otherwise wrongfully and in bad faith refused to timely perform its obligations under the contract of insurance.” Claims under ERISA, however, are preempted. Desrosiers v. Hartford Life & Accident Ins. Co., 354 F. Supp. 2d 119 (D.R.I. 2005) (citing Ky. Ass’n of Health Plans, Inc. v. Miller, 538 U.S. 329 (2003)); Morris v. Highmark Life Ins. Co., 255 F. Supp. 2d 16 (D.R.I. 2003).
G. Coverage – Duty of Insurer and Insured
The Supreme Court of Rhode Island has held that an insured has a duty to cooperate with the insurer in the investigation of a claim. Labonte v. National Grange Mut. Ins. Co., 810 A.2d 250 (R.I. 2002). In Rhode Island, the insurer's duty to defend a suit brought against one of its policyholders is determined by the allegations contained in the complaint. Thomas v. American Universal Ins. Co., 93 A.2d 309. As a general rule, where the particular policy requires insurer to defend even if the suit is groundless, false or fraudulent, the insurer's duty to defend is ascertained by laying the tort complaint alongside the policy; if the allegations in the complaint fall within the risk insured against in the policy, the insurer is said to be duty-bound to provide a defense for the insured, regardless of the actual details of the injury or the ultimate grounds on which the insured's liability to the injured party may be predicated. Employers' Fire Ins. Co. v. Beals, 240 A.2d 397 (R.I.,1968). In other words, when a complaint contains a statement of facts which bring the case within or potentially within the risk coverage of the policy, the insurer has an unequivocal duty to defend. Id.
The mere fact that conflict might arise at some later point did not lessen duty of insured to cooperate with insurer's investigation. Labonte v. National Grange Mut. Ins. Co. 810 A.2d 250, R.I.,2002.
H. Fellow Employee Exclusions
The Fellow Employee Exclusion is an exclusion in liability policies that eliminates insured status for an employee of the named insured organization with respect to injury that employee causes to another employee.
In Rhode Island, the Workers’ Compensation Court has exclusive jurisdiction over an injury caused by a fellow employee or an employer. RIGL §28-29-20, see also Norton v. Boyle, 767 A.2d 668 (R.I. 2001). It is not a defense under the RI Workers’ Compensation Act that the injury was caused by the negligence of a fellow employee. RIGL §28-29-3.