Johnston Equities Associates, LP v. Town of Johnston

• Court: Supreme Court of Rhode Island
• Decided: July 1, 2022
• Docket: 20-150, 224
• Status: Published

Opinion

July 1, 2022

Supreme Court

No. 2020-150-Appeal. No. 2020-224-Appeal. (PC 11-3983)

(Concurrence begins on Page 62)

Johnston Equities Associates, LP, et al. :

v. :

Town of Johnston et al. :

NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone (401) 222-3258 or Email opinionanalyst@courts.ri.gov, of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court

Present: Suttell, C.J., Goldberg, Robinson, JJ.

OPINION

Chief Justice Suttell, for the Court. These appeals concern a sewer line

serving a federally subsidized affordable-housing apartment complex known as the

“Park Plaza Apartments” in Johnston, Rhode Island. In Superior Court, the

plaintiffs, Johnston Equities Associates, LP (JEA) and Stay Away From The Cans,

LLC (SAC) (collectively plaintiffs),1 obtained a $1.2 million jury verdict in their

favor for a trespass claim against the defendants, the Town of Johnston; Joseph

Chiodo, in his capacity as Finance Director of the Town of Johnston; and Robert

1 In November 2017, SAC purchased the Park Plaza Apartments, which are located at 20 Park Street in Johnston, Rhode Island, from JEA; JEA thereafter added SAC as a party plaintiff in its second-amended complaint filed on March 23, 2018. -1- Parker,2 in his capacity as the Director of Public Works for the Town of Johnston

(collectively the town or defendants), for allowing sewage from the town’s sewer

pipelines to be discharged into JEA’s private sewer pipeline. Following the jury

verdict, the trial justice ruled that the $100,000 statutory cap under G.L. 1956

§ 9-31-3 was applicable because the plaintiffs’ claim focused on the design of the

town sewer system and thus constituted a governmental function. Before this Court

are both an appeal by the plaintiffs and a cross-appeal by the town from the resulting

judgment.

The crux of plaintiffs’ argument on appeal is that the trial justice erred when

he determined that the town was engaged in a governmental function, rather than a

proprietary function. The plaintiffs therefore submit that the trial justice erred in (1)

applying the statutory cap on liability to the jury’s verdict; (2) determining that

plaintiffs are precluded from collecting prejudgment interest; and (3) sua sponte

finding that, even if plaintiffs were entitled to collect prejudgment interest, the

interest should be calculated from the date of the jury’s verdict.

On cross-appeal, the town submits that the trial justice erred in denying its

requests for judgment as a matter of law. The town additionally contends that it is

immunized from liability under the public duty doctrine. Further, the town argues

2 Pursuant to Rule 25(d)(1) of the Superior Court Rules of Civil Procedure, Robert Parker was automatically substituted for his predecessor after becoming the Director of Public Works for the Town of Johnston. -2- that the trial justice erred in denying the town’s motion for a new trial, because, the

town maintains, the jury did not follow instructions in awarding damages;

alternatively, the town asserts that the request for a remittitur should have been

granted.

Subsequent to oral argument, we determined that these appeals should be

consolidated for opinion. After thoroughly reviewing the record and considering the

parties’ written and oral arguments, we affirm in part and vacate in part the judgment

of the Superior Court.

In particular, we uphold the trial justice’s denial of the town’s motions for

judgment as a matter of law. We further hold that the trial justice did not err in not

applying the public duty doctrine; however, we also hold that the trial justice erred

in applying the statutory cap on damages and in denying prejudgment interest.

Finally, we uphold the trial justice’s denial of the town’s motion for a new trial

and/or remittitur.

I

Facts and Travel

JEA filed its initial complaint in Providence County Superior Court on July

13, 2011, alleging that the town allowed the connection of an illegal sewer line to

JEA’s private sewer line; according to JEA, this resulted in a continuing trespass of

sewage discharging into JEA’s private sewer system. As noted supra, JEA filed a

-3- second-amended complaint on March 23, 2018, which added SAC as a party

plaintiff. A five-day jury trial was held in Superior Court in February 2019. After

dismissing three counts of plaintiffs’ second-amended complaint, only plaintiffs’

claims for continuing trespass (count three), negligence (count five), and unjust

enrichment (count six) remained.

The plaintiffs’ first witness was H. Charles Tapalian, who was a general

partner of JEA as well as a civil engineer with a special focus on soils and structures.

Tapalian testified that, with respect to the construction of the Park Plaza Apartments

at 20 Park Street in Johnston, Rhode Island, he “was brought in to be the guy that

put the project together[.]” According to Tapalian, construction was completed at

the end of 1973 or in early 1974. He testified that the sixty-two-unit building was a

low-income apartment housing complex and that the mortgage was guaranteed by

the United States Department of Housing and Urban Development (HUD).

According to Tapalian, JEA owned a pneumatic pump station near the Park

Plaza Apartments (the Park Plaza pump station), which pumped sewage up a private

line on Park Street (the Park Street line) to the public sewer system on Atwood

Avenue. He testified that problems with the Park Plaza pump station started in the

1980s. According to Tapalian, the pneumatic pump started breaking down, requiring

excessive maintenance and having motor burnouts; such issues, he indicated, were

occurring “once or twice a week.” He testified that between twelve and fifteen

-4- motors were replaced for the pneumatic pump. Tapalian stated that JEA switched

to a grinder pump for the Park Plaza pump station, which initially helped but

ultimately began experiencing the same problems as the pneumatic pump.

Tapalian testified that JEA eventually discovered that nearby town pump

stations from across the Pocasset River were pumping sewage into the Park Street

line; he also noted that the River Drive area—where those nearby town pump

stations were located—had expanded development in the 1980s. He indicated that

the town’s sewer line from the River Drive area was tied into the Park Street line

sometime in the early 1980s; however, the town never paid JEA for use of the Park

Street line.

Tapalian also testified that he was aware of the town’s claim that it owned the

Park Street line based on a contract executed on May 10, 1973, between the town

and Donatelli Building Co., Inc. (Donatelli Building), the general contractor for all

work on the Park Plaza Apartments (the agreement). The agreement was entered as

a full exhibit at trial. According to the agreement, which was signed by “Robert

Donatelli” on behalf of Donatelli Building, the town sewer district was to take over

all sewer lines at the Park Plaza Apartments. However, Tapalian testified, Donatelli

Building had no authority to transfer JEA property to the town because Donatelli

Building was only a 1 percent limited partner, and only general partners were

authorized to transfer any of JEA’s property. He further testified that the general

-5- partners did not agree to transfer the Park Street line to the town, nor did they tell

the town that Donatelli Building had the authority to transfer the line. Tapalian

additionally indicated that the town did not maintain or repair the Park Street line

and that the town never ordered JEA to stop working on the line when the town

became aware of the problems prior to the lawsuit filed by JEA.

According to Tapalian, JEA incurred damages in maintaining and replacing

equipment for the Park Plaza pump station and the Park Street line (collectively the

Park Plaza sewer system) because the system was burdened by the additional sewage

from the River Drive area. To that end, he identified invoices for work done on the

Park Plaza sewer system and a summary of those invoices, dating from 1993 to 2017.

Tapalian testified that JEA was claiming damages of 80 percent of the excess work

JEA had performed on the Park Plaza sewer system; he stated that 80 percent of the

invoices from University Industries for excess sewer work amounted to

approximately $170,000.3 Tapalian further testified that 40 percent of David

Iascone’s work was on the sewer system, and he estimated that Iascone was paid an

average of $25,000 per year for the excess sewer work over a period of

approximately twenty-three years.

3 Tapalian testified that he owns University Industries and that it does “the billing for all the maintenance work, maintenance contracts, [and] any extraordinary repair work” for Park Plaza. -6- The plaintiffs then called Iascone, whose business, DICON Corporation

(DICON), performed sewer maintenance and repair work. Iascone indicated that he

worked on the pneumatic pump at Park Plaza in the early 1990s and that it “always”

had problems because the system failed to work; such failure caused “severe

backups” and, at times, flooding with respect to eight or nine apartments. He

testified that, when JEA switched from the pneumatic pump to the grinder pump in

the early 1990s, he and his company performed the work for the changeover and

replaced the check valves for the Park Plaza pump station; while he did not have

records for his work dating back to 1990, he remembered performing the work.

Iascone recalled that he billed JEA between $40,000 and $45,000 for his work, and

he estimated that 40 to 45 percent of that was for sewer work.

Iascone further testified that the grinder pump did not solve the problems with

the Park Plaza sewer system; major backups continued to occur, and apartments

were flooded with sewage. According to Iascone, DICON and JEA finally

discovered the problem with the system in 2010 when DICON shut down the system

and drained it of fluid. Iascone testified that, once the system was shut down,

workers heard running water, which, according to Iascone, should have been

impossible with a closed private system; nevertheless, water rushed into the tank.

According to Iascone, he began knocking on doors until he talked to one

neighbor who “mentioned that there was another lift station across the Pocasset

-7- River on * * * River Drive.” Iascone testified that he then drove to the town’s River

Drive pump station and tried to contact the emergency number provided—“the

Town of Johnston’s DPW number”—to no avail. He stated that he then shut off the

River Drive pump station, which resulted in stopping the water flow into the Park

Plaza pump station tank; he indicated that this was a “surefire thing that told [him]

that the Town of Johnston had their line tied into [JEA’s] private sewer force main.”

Iascone stated that he performed the same exercise with the town-owned LaFazia

Drive pump station and determined that it was also “contributing to [the] problem.”

Iascone testified that he contacted Lorri Caruso, the engineer for the Town of

Johnston, who, after being informed of the problem, met Iascone at the River Drive

pump station. Iascone stated that, after Caruso indicated that it would be

“impossible” for the Town of Johnston to be tied to a private line, he sent her over

to Park Street and he demonstrated what he had previously discovered, “so she could

see firsthand[.]” Iascone testified that Caruso said she was “baffled” and that the

sewage “was supposed to go up River Drive hill and tie into Plainfield Street.”

Iascone then testified as to the ownership of the Park Plaza pump station. He

testified that JEA owned the Park Street line from about 1973 until the property was

sold in 2017. He testified that he was only paid by JEA, and further that the town

did not maintain or repair the Park Plaza pump station or the Park Street line, nor

-8- was he contacted by or paid by the town to perform maintenance or repair work on

either.

The plaintiffs called their third witness, Dennis D’Ambra, who worked on the

Park Plaza pump station through his company D’Ambra Construction, assisting the

full-time maintenance superintendent at the Park Plaza Apartments as needed.

D’Ambra testified that there were many breakdowns and backups in the Park Plaza

sewer system in the 1980s. He stated that major functional issues arose with the

pneumatic pump seven or eight times per year and that small issues occurred about

every six weeks. He further confirmed Iascone’s testimony that the grinder pump

installed later had experienced the same problems as the pneumatic pump. D’Ambra

additionally verified Iascone’s testimony that the origin of the problems with the

Park Plaza pump station was determined in 2010, when the town’s connection to the

sewer system was discovered.

D’Ambra testified that approximately 35 to 40 percent of the payments he

received from Park Plaza were for his work on the sewer system. He observed

“grease”—a heavy, thick consistency in a sewer system that includes cooking oils,

shampoos, hair oils, and other substances—in the Park Street line when he worked

on it several times. D’Ambra further stated that he power-washed the Park Street

line about every ten to twelve months. He noted that the power-washing helped the

line until it clogged again and that there was too much sewage flowing through the

-9- four-inch line. He additionally indicated that he installed the wrong check valves on

an emergency basis until the correct ones came in because he needed to keep the

system running for a few days; he testified that he “had no choice” and that “it was

either [install the wrong check valves] or shut the building down and vacate it.”

D’Ambra testified that JEA owned the Park Plaza pump station and the Park

Street line. He further stated that the mayor of Johnston and a Johnston Town

Council member showed up to observe repairs to the Park Street line on one

occasion; however, the town did not assist in the repair work on any occasion.

The plaintiffs then called Stephen Macchioni, who testified that he served as

an advisor to former Johnston Mayor William Macera before he was elected to serve

as a member of the Johnston Town Council from 2000 to 2004. Macchioni indicated

that he was also friendly with Tapalian. He testified that he first became familiar

with the Park Plaza Apartments in the spring of 1999, when Mayor Macera asked

him to meet at the site because a number of people were “raising concerns about the

condition of the sewers” there. Macchioni stated that, when he arrived at the site,

there was a large hole that extended into the street. He confirmed that

Councilwoman Mary Cerra, who was also onsite, told Mayor Macera that Tapalian

needed to fix the sewer problem, and that Mayor Macera responded that Tapalian

and his men were doing their best to fix the problem. He further confirmed that

- 10 - neither Mayor Macera nor Councilwoman Cerra indicated that the sewer was the

town’s issue or that the town would fix the sewer.

Next, Joseph Federico testified as an expert witness on behalf of plaintiffs,

having been qualified as an expert in the field of civil engineering, specializing in

wastewater. Federico testified that he was asked to determine whether the town’s

sewer line was a significant contributing factor to the failures and problems of the

Park Plaza pump station. He stated that he inspected both the Park Plaza pump

station and the town’s River Drive and LaFazia Drive pump stations. He indicated

that, in preparing his opinion, he reviewed and relied upon an engineering report by

Joe Casali Engineering, Inc. (the Casali report), which included an Inland Waters

report, as well as reports from Pare Engineering. Federico indicated that an Existing

Conditions Plan, attached to a September 9, 2011 Pare Wastewater Facility Update

report, did not depict a sewer line tie-in from the River Drive pump station to the

Park Street line. He indicated that, as of September 13, 2011, the town thought the

sewage from the River Drive area was going away from Park Street and toward

Plainfield Street.

Federico testified that he also reviewed the Community Development Block

Grant application by the town to obtain grant money to relocate the River Drive

pump station and the LaFazia Drive pump station out of a 100-year flood plain area

and into a 500-year flood plain (the grant). He indicated that those pump stations

- 11 - were relocated, and that the line connected to the Park Street line was

decommissioned in July 2017.

The plaintiffs’ counsel then questioned Federico as to whether there was any

correspondence in the grant study documents between the town engineer and the

town council regarding the grant studies, to which defense counsel objected. At

sidebar, defense counsel argued that Federico had not referenced such

correspondence in answers to interrogatories or in his opinion; plaintiffs’ counsel

countered that Federico reviewed the correspondence in forming his opinion. The

trial justice overruled defense counsel’s objection.

A letter dated June 8, 2012, from town engineer Lorri Caruso to the town

council was then admitted as a full exhibit, plaintiffs’ Exhibit 26, without objection.

The letter outlined proposed design alternatives for removing the pump stations from

the River Drive area. A letter from Mayor Joseph Polisena discussing the grant was

also admitted as a full exhibit, plaintiffs’ Exhibit 27, without objection. In that letter,

Mayor Polisena indicated that the relocation of the River Drive and LaFazia Drive

pump stations “ha[d] the potential to improve operation of a privately-owned pump

station on Park Street east of the Pocasset River.”

Federico further testified that the Casali report contained information that the

sewage from the town’s River Drive pump station was pumped into the Park Street

line. To determine the amount of sewage flowing into the Park Street line, Federico

- 12 - used the rule that one bedroom produces 100 gallons of sewage per day. Federico

estimated that 9,300 gallons of sewage were produced by Park Plaza based on its

ninety-three bedrooms. He testified that, based on the Casali report, 21,300 gallons

of sewage flowed from the River Drive pump station to the Park Street line. Taking

into account wastewater that would infiltrate into the system from leaks, Federico

testified that the River Drive pump station would send an additional 3,190 gallons

of sewage to the Park Street line, for a total of 24,490 gallons. He also testified that

groundwater infiltrated the pipes from the Pocasset River flood plain, which

increased the flow of sewage to 46,820 gallons per day from the River Drive area to

the Park Street line. Federico testified that 83 percent of the sewage flow into the

Park Street line was from the River Drive pump station, and 17 percent of the sewage

was from the Park Plaza pump station.

Federico further testified that, in addition to the amount of sewage flowing

from the River Drive pump station, the grease buildup in the Park Street line

contributed to the problems with the Park Plaza sewer system. He indicated that the

Inland Waters report accompanying the Casali report described heavy grease in all

the River Drive area lines that would flow into the Park Street line from the River

Drive pump station. He opined that grease was also collecting in the Park Street

line, noting that Iascone had reported grease in the Park Street line. He further

opined that the grease deposits and heavy flow of sewage from the River Drive pump

- 13 - station caused the Park Plaza pump station to work harder to push sewage through

the Park Street four-inch line and to ultimately wear out. He also testified that, when

the Park Plaza pump was not working, the grease solids continued to build up in the

Park Street line; in that case, the grease solids coming from the River Drive pump

station would also flow down toward the Park Plaza pump station. He testified that

grease solids could build up at the check valve and hold the check valve open.

On cross-examination, Federico testified that the Park Street line is a four-inch

line. He stated that he was not able to personally see inside the Park Street line to

check it for rags and debris. He agreed that there would be no buildup of debris if

the Park Street line was jet-power-washed every ten months. He further testified

that, if the line was being power-washed every ten months, it must have been

accumulating sludge very rapidly.

On redirect examination, Federico identified another letter from Mayor

Polisena, which Federico indicated was in the grant package that he had reviewed.

The plaintiffs’ counsel moved to have the letter admitted as a full exhibit, to which

defense counsel objected based on relevance; the trial justice overruled that

objection and the letter was admitted and marked as plaintiffs’ Exhibit 29. Federico

then identified an environmental assessment from the same package, which was

prepared by Johnston’s town planner and certified by Mayor Polisena. The

plaintiffs’ counsel moved to admit the environmental assessment as a full exhibit, to

- 14 - which defense counsel objected on the basis of relevance. The trial justice

“overruled the relevance and the 403 exception” and admitted the environmental

assessment as a full exhibit, marked as plaintiffs’ Exhibit 30.

At the conclusion of Federico’s testimony, plaintiffs rested their case. The

town thereafter moved for judgment as a matter of law pursuant to Rule 50 of the

Superior Court Rules of Civil Procedure, noting that only plaintiffs’ claims for

continuing trespass (count three), negligence (count five), and unjust enrichment

(count six) remained.

On the claim for continuing trespass, the town argued that there could be no

continuing trespass after January or February 2017, when the town disconnected the

line connecting the River Drive area to the Park Street line. The town also argued

that Donatelli Building had actual and apparent authority to enter into an agreement

conveying the Park Street line from JEA to the town, and that Donatelli Building did

so in the agreement; accordingly, the town submitted that the town was in fact the

owner of the Park Street line. The town alternatively asserted that it owned the Park

Street line through a prescriptive easement. And, the town further contended that

plaintiffs had failed to demonstrate any damages from the alleged trespass.

- 15 - The trial justice ultimately denied the town’s motion for judgment as a matter

of law on plaintiffs’ claims for trespass and unjust enrichment.4 He noted that there

was evidence produced at trial that wastewater had flowed from a town line into the

Park Street line. He also indicated that there was a jury question as to who owned

the Park Street line and whether sewage from a town line trespassed into the Park

Street line and the Park Plaza pump station. He therefore determined that there was

competing evidence for the jury to decide on the issue of ownership of the Park

The defendants then called James Geremia, a civil engineer specializing in

wastewater, wastewater treatment, and “anything mechanical to do with the

wastewater industry[,]” who testified as an expert witness. Geremia testified that he

examined both the River Drive pump station and the Park Plaza pump station. He

indicated that there were two pumps in each pump station that would do alternate

work, and that if both pumps came on at the same time there might be a problem in

the system. Geremia indicated that the Casali report was not clear on the size of the

Park Street line, with one section saying it was a four-inch line and another saying

it was a six-inch line; however, he testified that a plumbing report provided by

plaintiffs stated that there was a six-inch flange, which confirmed for him that the

4 The trial justice granted judgment as a matter of law on plaintiffs’ claim of negligence on the basis that the cause of action did not relate back to the original complaint and was thus barred by the statute of limitations. - 16 - Park Street line was a six-inch line. Geremia acknowledged that several times the

Casali report stated that the Park Street line was a four-inch line and a DiPrete

Engineering report also stated it was a four-inch line.

Geremia noted that the DiPrete report stated that the River Drive pump station

caused the Park Plaza pump station to run longer. However, according to Geremia’s

calculations, the Park Plaza pump station would run only an additional nine hours in

a given year as a result of the connection to the River Drive pump station, and he

testified that this amount of extra running time could not have caused a pump station

to burn out. He also opined that rags or grease from the River Drive pump station

did not contribute to the buildup of rags in the Park Street line. He indicated that the

River Drive pump station would have had problems if this was occurring and the

line connecting with the Park Street line would have been plugged up. Geremia also

testified that he saw no evidence of a check-valve failure causing sewage to flow

back into the Park Plaza pump station. According to Geremia, the size of the Park

Street line could have caused the Park Plaza pump station to work too hard. He also

testified that replacing three pumps in forty-five years was not unreasonable.

After the conclusion of Geremia’s testimony, the town rested its case. The

town then renewed its motion for judgment as a matter of law on the same grounds

it had raised earlier. The trial justice again denied the town’s motion with respect to

plaintiffs’ claims of trespass and unjust enrichment.

- 17 - In their closing argument, plaintiffs requested that the jury award them almost

$1.4 million in damages. Ultimately, the jury returned a verdict in favor of plaintiffs

in the amount of $1.2 million. The jury specifically found that JEA owned the Park

Street line and that the town did not have a prescriptive easement over the line. The

jury further found that the town committed a continuing trespass on the Park Street

line and the Park Plaza pump station and that the town’s trespass proximately caused

damages to plaintiffs above and beyond normal maintenance and repair costs.

The town thereafter renewed its motion for judgment as a matter of law and

filed a motion for a new trial and/or remittitur. The trial justice heard the motions

on April 15, 2019. As regards plaintiffs’ trespass claim, the town reiterated its

argument that, under the agreement, it owned the Park Street line. The town asserted

that JEA did not have standing to contest the agreement and that, even if JEA had

standing, the agreement was merely voidable, not void. The town further argued

that Donatelli Building had apparent authority to enter into the agreement as a matter

of law.

The plaintiffs argued that the agreement was void because Donatelli Building

had no authority to transfer JEA’s property. The plaintiffs asserted that Donatelli

Building would have needed approval from the general partners to convey the Park

Street line to the town. The plaintiffs also argued that they had standing to contest

the agreement because Donatelli Building was purporting to act on JEA’s behalf.

- 18 - They also suggested that the issue of lack of standing based on the agreement should

have been included in the jury instructions instead of being raised posttrial. The

plaintiffs also noted that the jury did not reach their claim for unjust enrichment

because it ruled in favor of plaintiffs on the trespass claim.

The trial justice granted the town’s motion for judgment as a matter of law on

plaintiffs’ unjust-enrichment claim. He denied the motion for judgment as a matter

of law on plaintiffs’ trespass claim, stating that there was evidence on both sides of

the issue as to who owned the Park Street line; therefore, the trial justice was not

able to decide as a matter of law who owned the line.

The town additionally argued that it was entitled to a new trial; however, the

trial justice determined that reasonable minds could differ on the evidence presented

at trial, and therefore he ultimately denied the town’s motion for a new trial. The

town then asked, in the alternative, for a remittitur, which the trial justice denied

based on the determination that the jury award did not shock the conscience.

The town thereafter raised the issues of public duty doctrine, the statutory cap

on damages pursuant to § 9-31-3, and prejudgment interest. The trial justice found

that the public duty doctrine did not apply because the town was liable for the tort

of trespass just as a private individual would be liable for that tort. With regard to

the statutory cap on damages, the trial justice determined that this case concerned

the design of the sewer system and was therefore governmental in nature; thus, he

- 19 - ultimately applied the $100,000 statutory cap and ruled that no prejudgment interest

would apply. The trial justice, however, noted that, in the event that he was incorrect

and the function was deemed to be proprietary, prejudgment interest should run from

the date of the jury verdict.

Final judgment entered on June 10, 2019, in favor of plaintiffs in the statutory

cap amount of $100,000, plus costs of $1,561.69. The plaintiffs filed a timely notice

of appeal on June 13, 2019. The town filed a timely cross-appeal on June 19, 2019.

II

Discussion

A

Judgment as a Matter of Law

Standard of Review

“Our review of a trial justice’s decision on a motion for judgment as a matter

of law is de novo.” McGarry v. Pielech, 47 A.3d 271, 279 (R.I. 2012) (quoting

Medeiros v. Sitrin, 984 A.2d 620, 625 (R.I. 2009)). “In reviewing a trial justice’s

decision on a motion for judgment as a matter of law, this Court is bound to follow

the same rules and legal standards as govern the trial justice.” Roy v. State, 139 A.3d

480, 488 (R.I. 2016) (quoting Hough v. McKiernan, 108 A.3d 1030, 1035 (R.I.

2015)). “The trial justice, and consequently this Court, must examine ‘the evidence

- 20 - in the light most favorable to the nonmoving party, without weighing the evidence

or evaluating the credibility of witnesses, and draw from the record all reasonable

inferences that support the position of the nonmoving party.’” Hough, 108 A.3d at

1035 (brackets omitted) (quoting Perry v. Alessi, 890 A.2d 463, 467 (R.I. 2006)).

Judgment as a matter of law should be entered “when the evidence permits

only one legitimate conclusion in regard to the outcome.” Hough, 108 A.3d at 1035

(quoting Long v. Atlantic PBS, Inc., 681 A.2d 249, 252 (R.I. 1996)). “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.” Medeiros, 984

A.2d at 625. We have previously held “that we will overturn a trial justice’s decision

granting a motion for judgment as a matter of law when the trial justice has ‘invaded

the province of the jury by impermissibly finding facts.’” Franco v. Latina, 916 A.2d

1251, 1263 (R.I. 2007) (quoting Martino v. Leary, 739 A.2d 1181, 1183 (R.I. 1999)).

Standing and Voidability

The town first claims that JEA lacks standing to challenge the agreement

because it was not a party to the agreement—indeed, the agreement was between the

town and Donatelli Building. The town further avers that its argument with respect

to standing is not waived on appeal, despite the issue not having been raised in its

answer to plaintiffs’ second-amended complaint, because, the town argues, standing

- 21 - is not one of the affirmative defenses identified in Rule 8(c) of the Superior Court

Rules of Civil Procedure that must be presented in an answer. The town further

indicates that it is not suggesting that JEA lacks standing to bring a trespass claim;

rather, it is arguing “that the [s]ewer [a]greement defeats any claim of trespass.”

Moreover, the town notes that JEA’s second-amended complaint does not cite the

agreement in support of its trespass claim, nor has JEA brought suit under the

agreement. The town avers that JEA’s alternative argument that it has standing as

the owner of the Park Plaza Apartments “misses the point” because, according to the

town, there was no construction contract with Donatelli Building that “establishes

ownership of the sewer line itself.”

The town alternatively contends that, if JEA demonstrates that the agreement

should be voided as a result of Donatelli Building’s lack of authority, the town “was

entitled to act pursuant to [the agreement] until [JEA] exercised its right to void the

contract.” Simply put, the town contends that the contract was voidable, not void,

and that JEA never voided the contract.

JEA, for its part, contends that the town has waived the right to raise the issues

of standing and voidability because it failed to plead them as affirmative defenses in

its answer to plaintiffs’ second-amended complaint. JEA also argues that, even if

the defenses are not waived, the fact remains that JEA has standing to challenge the

agreement because (1) JEA had a personal stake in the outcome of the controversy

- 22 - surrounding the ownership of the Park Street line, and (2) the town’s actions caused

JEA injury in fact. JEA highlights that Donatelli Building was JEA’s general

contractor and was acting only as JEA’s agent in procuring permits and performing

the construction of the apartment complex. Thus, JEA argues, the contract was void,

as opposed to voidable. Additionally, JEA argues that the sole purpose of the

agreement was for JEA’s benefit to “enable the discharge sewage produced by Park

Plaza into the [t]own’s municipal sewer system in Atwood Avenue[,] and that [s]uch

circumstances render JEA, as owner/developer, an intended third-party beneficiary

of the [agreement],” thus giving JEA the ability to challenge the contract.

We begin by recognizing that standing and voidability are not waived if a

party fails to properly raise the defenses in its answer. See Christy’s Auto Rentals,

Inc. v. Massachusetts Homeland Insurance Company, 204 A.3d 1071, 1075 (R.I.

2019) (“It is patently clear that standing is not specifically listed in Rule 8(c) as an

affirmative defense that is considered to be waived if not presented in a motion,

answer, or reply in accordance with Rule 12(h).”). We have held, however, that

“standing can be waived by a party’s failure to raise the issue before the trial

justice[.]” Costa v. Silva, 996 A.2d 607, 611 n.4 (R.I. 2010). Voidability, likewise,

is not listed in the relevant rule as an affirmative defense. See Super. R. Civ. P. 8(c).

In the case at bar, the town asserted the issue of voidability and maintained that JEA

lacked standing to contest the agreement at the hearing on the town’s renewed

- 23 - motion for judgment as a matter of law. Accordingly, the town has not waived the

issues of standing and voidability.

“Standing is a threshold inquiry into whether the party seeking relief is entitled

to bring suit.” Cruz v. Mortgage Electronic Registration Systems, Inc., 108 A.3d

992, 996 (R.I. 2015) (quoting Narragansett Indian Tribe v. State, 81 A.3d 1106,

1110 (R.I. 2014)). When dealing with the issue of standing, “the court must focus

‘on the party who is advancing the claim rather than on the issue the party seeks to

have adjudicated.’” N & M Properties, LLC v. Town of West Warwick ex rel. Moore,

964 A.2d 1141, 1145 (R.I. 2009) (quoting Bowen v. Mollis, 945 A.2d 314, 317 (R.I.

2008)). The inquiry of whether a party has standing “begins with the pivotal

question of whether the party alleges that the challenged action has caused him or

her injury in fact.” Cruz, 108 A.3d at 996 (quoting Narragansett Indian Tribe, 81

A.3d at 1110). An injury in fact must be “an invasion of a legally protected interest

which is (a) concrete and particularized and (b) actual or imminent, not conjectural

or hypothetical.” Pontbriand v. Sundlun, 699 A.2d 856, 862 (R.I. 1997) (deletion

omitted) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).

We have previously rejected the notion that “an individual who is not a party

to a contract may assert the rights of one of the contracting parties in order to void a

contract or have it declared unenforceable.” Cruz, 108 A.3d at 996 (quoting Sousa

v. Town of Coventry, 774 A.2d 812, 815 n.4 (R.I. 2001)). We have also long

- 24 - recognized “that a void contract is a nullity, but that a voidable contract affects only

one party and ‘may be either ratified or rescinded at that party’s election.’” Id. at 997

(quoting Moura v. Mortgage Electronic Registration Systems, Inc., 90 A.3d 852, 857

(R.I. 2014)). Thus, as a general rule, a person who is not a party to a contract may

have standing to challenge the contract as void, but lacks standing to claim that the

contract is merely voidable. Id.

In Cruz, we adopted the First Circuit’s reasoning that “[a] void contract is one

that cannot be enforced,” and that “a challenge to a mortgage assignment on the

ground that the assignor ‘never possessed a legally transferrable interest’ alleges a

void, as opposed to voidable, assignment.” Cruz, 108 A.3d at 997 (quoting Wilson

v. HSBC Mortgage Services, Inc., 774 F.3d 1, 10 (1st Cir. 2014)).

Although the trial justice did not directly address the issues of standing and

voidability when rendering his decision on the town’s renewed motion for judgment

as a matter of law, he did note that both parties had introduced testimony as to who

owned the Park Street line, thus indicating that the issue of ownership was not

appropriate for judgment as a matter of law. We find no evidence produced by the

town in the record suggesting that Donatelli Building held either title to the property

or an interest in the Park Street sewer line that it purported to convey to the town,

which would have resulted in Donatelli Building possessing a legally transferrable

interest.

- 25 - Although Tapalian acknowledged on cross-examination that, with respect to

the Park Plaza construction project, Donatelli “did everything” as a result of

Tapalian working on other projects, he also further asserted that this did not mean

that, as the contractor, Donatelli “ha[d] the authority to sign [over] assets of

[Tapalian] or [the] limited partners to anybody.” Tapalian testified that he had no

knowledge of the agreement until the initiation of the lawsuit. The town has

presented no evidence that suggests that the town ever acted as the owner of the Park

Street line pursuant to the agreement; and, despite Tapalian acknowledging that the

sewer line was put in underneath town-owned Park Street, Tapalian also testified

that the town did not maintain or repair the Park Street line and never ordered JEA

to stop working on the line when the town became aware of the problems prior to

the lawsuit filed by JEA.

Viewing the evidence in the light most advantageous to JEA and drawing all

reasonable inferences in its favor, as we must, we are satisfied that JEA had standing

to challenge the agreement.

Apparent Authority

The town argues that, even if JEA had standing to challenge the validity of

the agreement, Donatelli Building had apparent authority to enter into the agreement.

Although the partnership agreements in evidence do address Donatelli Building’s

- 26 - lack of actual authority to act on behalf of JEA, the town asserts that Donatelli

Building had apparent authority under Rhode Island law. The town emphasizes that

Donatelli Building possessed an indicia of authority “in working with the [t]own to

complete the [c]omplex.”

The plaintiffs assert that the jury properly concluded that Donatelli Building

did not have apparent authority to transfer ownership of the Park Street line to the

town. The plaintiffs emphasize the evidence presented at trial that (1) Donatelli

Building was hired only as a general contractor; (2) Tapalian was JEA’s only general

partner; and (3) Donatelli Building was only a 1 percent limited partner, and was

only made so “for the limited purpose of having an ‘identity of ownership’ with the

owner as required by the FHA to procure the requisite financing.” The plaintiffs

underscore that, according to Tapalian’s testimony at trial, Donatelli Building was

never given authority to transfer the Park Street line and JEA never represented to

the town that Donatelli Building had such authority. The plaintiffs note that the town

never claimed ownership of the Park Street line until this lawsuit, and JEA’s

ownership of the line was never questioned by the town prior to, during, or in the

years after the construction of the Park Plaza Apartments. In addition, plaintiffs state

that it was undisputed that, for over thirty years, JEA provided the exclusive

maintenance and care of the Park Street line, and consequently, the town provided

“no such care or support.”

- 27 - “Apparent authority to contract on behalf of a principal ‘arises from the

principal’s manifestation of such authority to the third party.’” 731 Airport

Associates, LP v. H & M Realty Associates, LLC ex rel. Leef, 799 A.2d 279, 283

(R.I. 2002) (brackets omitted) (quoting Menard & Co. Masonry Building

Contractors v. Marshall Building Systems, Inc., 539 A.2d 523, 526 (R.I. 1988)).

“[A]pparent authority can come from ‘indicia of authority given by the principal to

the agent’ and does not have to be direct communication to the third person.” Id.

(quoting Menard & Co., 539 A.2d at 526). The third party “must ‘believe that the

agent has the authority to bind its principal to the contract.’” Id. (quoting Menard &

Co., 539 A.2d at 526).

In denying the town’s motion for judgment as a matter of law, the trial justice

stated, “There is some very, very competing evidence on [the issues of ownership

and apparent authority] in * * * an agreement purported[ly] signed by Donatelli, his

limited partnership, [and] the public documents with relation to that particular

business entity.” The trial justice elaborated on this reasoning when denying the

town’s renewed motion for judgment as a matter of law. The trial justice explained:

“[T]here are two partnership agreements. One of them— the latter one being the amended partnership agreement. Mr. Tapalian testified there is no authority to give [the force main] to the [t]own. Donatelli did not have the authority. It has been argued that there is apparent authority, and there was testimony from Mr. Tapalian that he was tied up with other projects, and he left this to Mr. Donatelli with regard to the construction of the force main - 28 - on Park Street. But it was clear that [JEA] would maintain this particular line for years and years and years.

“* * *

“* * * Mr. Tapalian testified, and he was subject to cross-examination, that notwithstanding Donatelli’s status, he had no authority to bind the partnership agreement or the partnership, Johnston Equities, to the [t]own with that particular agreement.”

Overall, the trial justice observed that “[t]here was evidence on both sides of

this particular equation” regarding the issue of apparent authority. He stated: “The

[c]ourt simply as a matter of law is unable to rule that the [t]own is entitled to a

judgment as a matter of law notwithstanding the [jury] instructions, testimony, and

the particular exhibits that exist in the totality of what transpired * * * in the Superior

Court during this trial.”

Without weighing the evidence or evaluating the credibility of witnesses, we

expand on what the trial justice stated and further highlight the competing evidence

presented by plaintiffs. We conduct this exercise only to underscore our view that

the trial justice did not err in denying the town’s motions for judgment as a matter

of law. At trial, Tapalian testified that Donatelli was never a general partner to the

original or amended partnership agreements. This is of particular importance

because Tapalian confirmed that only the general partners of JEA, not the limited

partners, were authorized to convey property under the partnership agreements, and

only if there was notice given to and approval received from the limited partners and - 29 - the Federal Housing Administration. Tapalian’s testimony was corroborated by the

language and terms of the partnership agreements themselves.

Tapalian further testified that Donatelli Building was a 1 percent limited

partner and contributed $50 to the capital of the partnership. Tapalian stated that

Donatelli Building was hired as the general contractor to build the apartment

complex and that it obtained the permits necessary to construct the complex. He

indicated that the general partners never (1) agreed to transfer ownership of the Park

Street line; (2) provided Donatelli Building with permission to do so; or (3) told the

town or took any other action that “even remotely * * * advise[d] the [t]own” that

Donatelli Building had authorization or permission to transfer the line.

When viewing this in the light most favorable to plaintiffs, and drawing all

reasonable inferences in plaintiffs’ favor, it is clear that a reasonable jury could

determine that Donatelli Building did not have the requisite apparent authority to

transfer ownership of the Park Street line to the town. Thus, we are satisfied that the

trial justice did not err when he denied the motion for judgment as a matter of law

as well as the renewed motions for judgment as a matter of law as to the issue of

apparent authority.

- 30 - 4

Prescriptive Easement

Next, the town contends that, even if the agreement was void, the evidence

shows that the town possessed a prescriptive easement over the Park Street line. The

town asserts that all three elements of a prescriptive easement were satisfied, in that

(1) the ten-year requirement “was demonstrated by the undisputed evidence that the

River Drive line was connected [to the] Park Street line over thirty * * * years ago,

sometime in the 1980s”; (2) the open and notorious elements were “demonstrated

through the LaFazia Manor Plan and D’Ercole Easement documents”;5 and (3) the

hostile requirement was demonstrated “through [JEA’s] own claim that it never

granted the [t]own the authority to connect any additional lines to the Park Street

force main but yet the connection was made and the sewerage flowed through the

Park Street force main.” To the contrary, plaintiffs argue that the town “failed to

prove by clear and convincing evidence the ‘open and notorious’ elements of its

prescriptive easement defense.”

5 The “LaFazia Manor Plan” is a plan of LaFazia Manor dated June 1979 and is a public record filed with the Johnston Planning Department. The “D’Ercole Easement” is an agreement, bearing a date of May 1970, that, according to Tapalian, purports to grant an easement for a sewer line running across the river to tie into the Park Street sewer main. It is recorded in the Land Evidence Records for the Town of Johnston. - 31 - Similar to the issue of apparent authority, we are of the opinion that the town

was not entitled to judgment as a matter of law on its assertion that the town had

acquired a prescriptive easement over the Park Street line. “It is well established

that ‘a claimant of an easement by prescription must show actual, open, notorious,

hostile, and continuous use under a claim of right for at least ten years.’”

Gianfrancesco v. A.R. Bilodeau, Inc., 112 A.3d 703, 710 (R.I. 2015) (brackets

omitted) (quoting Butterfly Realty v. James Romanella & Sons, Inc., 93 A.3d 1022,

1030 (R.I. 2014)). “[A] claim of right may be proven through evidence of open,

visible acts or declarations, accompanied by use of the property in an objectively

observable manner that is inconsistent with the rights of the record owner.” Tavares

v. Beck, 814 A.2d 346, 351 (R.I. 2003).

At trial, when deciding the motion for judgment as a matter of law, the trial

justice merely stated that “[o]wnership * * * is up in the air[,]” and that there was

competing evidence from plaintiffs. Although the trial justice did not provide great

detail as to his reasoning for denying the motions on the issue of whether the town

possessed a prescriptive easement to utilize the Park Street line, we are of the opinion

that the trial justice did not err in denying the motions as they pertained to the issue.

Assuming, without deciding, that the town had satisfied all the other elements

of a prescriptive easement claim, we are unconvinced that the town proved by “clear

and convincing evidence,” Gianfrancesco, 112 A.3d at 710, the open and notorious

- 32 - elements of its prescriptive easement defense. The town contends that the open and

notorious requirement was demonstrated through the LaFazia Manor Plan and

D’Ercole Easement documents. The plaintiffs counter this by arguing that the

LaFazia Manor Plan does not reflect the River Drive line’s connection to the Park

While the town points to Tapalian’s testimony that the easement agreement

seems to grant an easement to Park Street and tie into JEA’s Park Street line, we do

not view the easement agreement as openly depicting the prescriptive easement. The

easement agreement appears to make no mention of Park Street. Moreover, the

easement agreement states only that the grantor conveyed “an easement to lay a

sewer line to Centre Street across the northerly five * * * feet in width by the entire

depth[,]” and then goes on to describe the parcel of land upon which the easement

exists. Again, however, no reference to Park Street can be found in the agreement.

The plaintiffs also highlight the other evidence presented at trial. Namely,

plaintiffs emphasize that there was evidence that the town was not even aware that

the illicit sewer line connecting River Drive to the Park Street line existed. Iascone

testified that the town’s engineer, Lorri Caruso, was “baffled” when she learned of

the sewer line connection because the River Drive line was supposed to “go up River

Drive hill and tie into Plainfield Street.” There is also a 2012 memorandum from

the town’s engineer to the town council, Exhibit 26 at trial, that stated that there had

- 33 - been a request for proposals to commission a study of “the sanitary sewer system

serving the River Drive and South Bennett/La[F]azia sewer pump stations[.]” The

memorandum explained that the town needed “accurate records of the sanitary sewer

in that area that [they did] not have[.]” The plaintiffs argue that this coincides with

the town’s “Sewer Facilities Plan” on file with the Department of Environmental

Management, which depicts the same plan as the plan that Caruso described when

she learned of the town’s sewer line connection to the private Park Street line.

Upon consideration of the evidence presented by plaintiffs and viewing such

evidence in the light most favorable to plaintiffs, while drawing all reasonable

inferences in their favor, we are unpersuaded that the town presented sufficient

evidence that it used the Park Street line in an objectively observable manner such

that its use was open and notorious.

Accordingly, the trial justice did not err in denying both the town’s motion for

judgment as a matter of law and the town’s renewed motions for judgment as a

matter of law.6

6 Because we affirm the trial justice’s denial of the town’s renewed motion for judgment as a matter of law, we need not reach plaintiffs’ argument that the trial justice erred in granting the town’s motion for judgment as a matter of law as to plaintiff’s negligence claim. - 34 - B

Statutory Tort Cap, Public Duty Doctrine, and Prejudgment Interest

“This Court reviews pure questions of law under a de novo standard.” Roach

v. State, 157 A.3d 1042, 1048 (R.I. 2017).

Statutory Tort Cap

This Court has previously observed that “Rhode Island operates under a

general statutory-damage limitation applicable in tort cases asserted against the

state.” Roach, 157 A.3d at 1052. The relevant statute provides:

“In any tort action against any city or town or any fire district, 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 city or town or fire district was engaged in a proprietary function in the commission of the tort, the limitation of damages set forth in this section shall not apply.” Section 9-31-3.

Thus, this Court recognizes that damages above $100,000 are permitted when the

tort action stems from a city or town’s engagement in a proprietary function. See

Roach, 157 A.3d at 1052. “‘Proprietary’ functions are those ‘actions normally

performed by private individuals.’” Id. (quoting Graff v. Motta, 695 A.2d 486, 489 - 35 - (R.I. 1997)). “Alternatively, this Court has defined a ‘proprietary function’ as ‘one

which is not so intertwined with governing that the government is obligated to

perform it only by its own agents or employees.’” Id. (quoting Lepore v. Rhode

Island Public Transit Authority, 524 A.2d 574, 575 (R.I. 1987)).

On appeal, plaintiffs submit that the trial justice erred in applying the

$100,000 statutory cap because, they contend, the operation of a municipal sewer

system is a proprietary function and, therefore, the town should not have been

shielded from liability. Specifically, plaintiffs argue that the trial justice

mischaracterized the issue as one of design, which is a governmental function, rather

than one of operation, a proprietary function. In support of their argument, plaintiffs

indicate that this Court in Rotella v. McGovern, 109 R.I. 529, 288 A.2d 258 (1972),

“acknowledged that the operation of a municipal sewer system constitutes a

proprietary function[.]” The plaintiffs additionally contend that the statutory cap

does not apply because plaintiffs’ claims relate to the town’s operation of its

municipal sewer system, not its design. They further assert that the town cannot

claim that it did not know about the sewer line connection to Park Street while at the

same time asserting that the connection was part of the town’s design.

This Court has indicated that a municipality cannot be held liable for the

design of a sewer system. See King v. Granger, 21 R.I. 93, 98, 41 A. 1012, 1014

(1898). In Granger, this Court said:

- 36 - “For any error in judgment on the part of the city authorities in devising and adopting a plan for taking care of the surface water and sewage of a given district, or of the city as a whole, many, and perhaps a majority, of the courts, hold that no responsibility exists, as, in so doing, the city is exercising a legislative or quasi judicial power, and not discharging a merely ministerial duty. But having once adopted a given plan, and constructed the sewers in accordance therewith, the judicial discretion ends, and the ministerial duty begins; and, like an individual, it then ordinarily becomes liable for damages to others resulting from the negligent discharge of, or the negligent omission to discharge, such duty.” Id. at 98, 41 A. at 1014 (emphasis added).

Under Granger, the design and construction of a municipal sewer system is a

governmental function; in contrast, the actions and maintenance that come after the

sewer is completed appear to be proprietary. See id.; see also Rotella, 109 R.I. at

532-33, 288 A.2d at 260 (observing that the city did not contest the trial justice’s

determination that operation of a sewer system constitutes a proprietary function

likely because of past holdings by the Court); Prete v. Cray, 49 R.I. 209, 211, 141

A. 609, 611 (1928) (holding that a municipality acts in a corporate, not

governmental, capacity in maintaining a sewer system). We are therefore of the

opinion that the operation of a sewer system is a proprietary function.

After reviewing the entire record, we conclude that the town’s function in this

case is not one of design or plan, as the town submits in support of its opposition to

plaintiffs’ appeal from the trial court’s imposition of the statutory cap on damages.

Although the trial justice found that the town intended to connect the Park Street line - 37 - with the town sewer system, the testimony and exhibits submitted at trial show that

the town in fact was unaware of the connection until 2010. The record is additionally

devoid of any evidence identifying who connected the River Drive line to the Park

Street line. Furthermore, plans submitted by plaintiffs indicate that the River Drive

line was connected to the Park Street line in contravention of the plan for the River

Drive line to run easterly towards the town’s existing gravity sewer lines. Indeed,

the maps and testimony establish that there was never a plan for the town to tie into

the Park Street line. It is therefore clear that the town did not engage in the design

or plan of that segment of the sewer system, because the town submitted no evidence

that it planned to connect, or actually performed the action of connecting, the River

Drive line to the Park Street line.

Furthermore, plaintiffs’ trespass claim is based on the unauthorized use of

JEA’s Park Street line, namely the additional discharge of sewage by the town into

the Park Street line for over thirty years, and the resulting damage. The town, by

allowing its sewage to flow into plaintiffs’ private line, wrongfully operated the

town’s sewage system. Having determined that the operation of a sewer is a

proprietary function, the statutory cap is not applicable. See Rotella, 109 R.I. at

532-33, 288 A.2d at 260; see also § 9-31-3.

- 38 - Accordingly, because the trial justice erred in classifying the function at issue

as one of design rather than of operation, we conclude that the trial justice erred in

applying the statutory cap on damages to the jury verdict in this case.

Public Duty Doctrine

The town argues on cross-appeal that it is entitled to immunity under the

public duty doctrine. The plaintiffs argued before the Superior Court that the public

duty doctrine does not apply because the town was engaged in the “proprietary

function” of operating its municipal sewer system. The town, however, asserts that

the standard for applying the public duty doctrine is not based on the distinction

between proprietary and governmental functions. Rather, the town contends that the

question turns on whether the state and its political subdivisions performed

discretionary actions that are not ordinarily performed by private persons.

Specifically, the town asserts that “organizing the town-wide plan for the sewer

system and coordinating the sewer lines from various developments is not a function

normally performed by a private individual.” The town claims that “it is a

discretionary function that the [t]own provides to coordinate the entire system rather

than service a single development.”

We begin by noting that “[t]he General Assembly has mandated, by virtue of

G.L. 1956 § 9-31-1, that the state should be liable in all actions of tort in the same

- 39 - manner as a private individual or corporation, subject to certain monetary

limitations. Through its enactment of § 9-31-1, the General Assembly effectively

abolished the prior common law rule of sovereign immunity.” Adams v. Rhode

Island Department of Corrections, 973 A.2d 542, 545 (R.I. 2009). The public duty

doctrine is a narrow exception carved out by this Court to the general rule of state

liability. See id.

“[T]he public-duty doctrine immunizes the state from ‘tort liability arising out

of discretionary governmental actions that by their nature are not ordinarily

performed by private persons.’” Roach, 157 A.3d at 1050 (brackets omitted)

(quoting Morales v. Town of Johnston, 895 A.2d 721, 730 (R.I. 2006)). “[I]mmunity

enjoyed by state and municipal governments is applicable to governmental

functions, except in three situations: ‘(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)). Therefore, “[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)).

“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)). The town, therefore,

correctly articulates that our analysis under the public duty doctrine turns on whether

the town was engaged in “discretionary” governmental activities or an act capable

of performance and ordinarily performed by private citizens. See Roach, 157 A.3d

at 1051.

Notably, in making a decision regarding the public duty doctrine in the case

at bar, the trial justice indicated that he was persuaded by the town’s “design

argument” and that “[t]he case is enough to make a finding [that] there is a

governmental function here.” However, he ultimately found that the public duty

doctrine did not apply, observing that the doctrine is “nuanced.”

We commend the trial justice for the genteel manner in which he described

our public duty jurisprudence. We recognize the somewhat murky nature of

deciphering the applicability of the public duty doctrine. In Adams, cited supra, we

clarified that our inquiry turns on the “actual government function at issue in the

- 41 - case” and whether it “is an activity that business entities and private persons can and

do perform regularly.” Adams, 973 A.2d at 546.

“Put most simply, ‘when we analyze whether an activity would be performed

by a private person so as to bring it within the provisions of § 9-31-1 we inquire

whether this is an activity that a private person or corporation would be likely to

carry out. If 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.

Because we have already determined that the function at issue in this case is

not governmental in nature, namely the design or plan of the town’s sewer system,

but rather it was the town’s unauthorized use of JEA’s Park Street line—specifically

the town’s wrongful operation in allowing town sewage to flow into the privately

owned Park Street line—we need go no further. The operation of a sewer system is

an activity that can be performed by private individuals. Indeed, JEA had operated,

maintained, and repaired its own private sewer system for over forty years.

7 General Laws 1956 § 9-31-1(a) states, in relevant part: “The state of Rhode Island and any political subdivision thereof, including all cities and towns, shall * * * hereby be liable in all actions of tort in the same manner as a private individual or corporation[.]”

- 42 - Accordingly, we conclude that the trial justice did not err in finding that the public

duty doctrine was inapplicable.

Prejudgment Interest

Having determined that the town was engaged in a proprietary function and,

additionally, that the public duty doctrine does not apply to the case at bar, we turn

next to the issue of prejudgment interest. On appeal, plaintiffs contend that

prejudgment interest should have been added to the damages award because the town

was performing a proprietary function.

Section 9-31-3 “does not place a limit on the amount of damages recoverable

in the instant action because the government is performing a proprietary function.”

Roach, 157 A.3d at 1055 (quoting Lepore, 524 A.2d at 575). As a result,

prejudgment interest would be appropriate to award in this case because, as we have

determined, the town was performing a proprietary function. See id. (“As the

statutory tort cap is inapplicable, the state, like any private person, is subject to

prejudgment interest.”). “Whenever a verdict is rendered or decision made for

pecuniary damages, the interest is payable ‘from the date the cause of action

accrued.’” Grady v. Grady, 504 A.2d 444, 448 (R.I. 1986) (quoting G.L. 1956

§ 9-21-10). However, if it is impossible to determine the date of accrual of the cause

of action, prejudgment interest may be denied. Id.

- 43 - In their brief, plaintiffs submit three alternate dates from which they contend

prejudgment interest should run: (1) sometime in 1981, when JEA claims the town

first began to discharge municipal sewage into the Park Street line; (2) the beginning

of 1983, when JEA first began suffering damages; or (3) at the very latest, May 12,

2011, when JEA submitted its presentment letter to the town council for damages

based on the town’s trespass upon the Park Street line.

In the event that this Court should find that the town’s function was

proprietary, the trial justice determined that prejudgment interest would run from the

date of the jury verdict in this case, noting that the amount of damages was not a set

amount as of January 1, 1983.

It strikes us as just that, because the time the town began trespassing is unclear

from the record, interest should run from May 12, 2011, when JEA submitted its

presentment letter to the town council. At that point, the town was explicitly made

aware of the town’s improper connection to the Park Street line and was presented

with a monetary demand for damages sustained by JEA due to the connection.

Accordingly, we hold that the trial justice erred in denying prejudgment interest; we

conclude that prejudgment interest should be awarded as of May 12, 2011. Thus,

prejudgment interest should be calculated in accordance with § 9-21-10 as of that

date.8

8 General Laws 1956 § 9-21-10(a) provides that - 44 - C

Motion for a New Trial and/or Remittitur

“It is well settled that our review of a trial justice’s decision on a motion for a

new trial is deferential.” Heneault v. Lantini, 213 A.3d 410, 415 (R.I. 2019) (quoting

Letizio v. Ritacco, 204 A.3d 597, 602 (R.I. 2019)). This Court has often stated that,

“when ruling on a motion for a new trial in a civil case tried to a jury, the trial justice

acts as a superjuror and should review the evidence and exercise [the trial justice’s]

independent judgment in passing upon the weight of the evidence and the credibility

of the witnesses.” Hough v. McKiernan, 101 A.3d 853, 856 (R.I. 2014) (brackets

omitted) (quoting Connor v. Schlemmer, 996 A.2d 98, 114 (R.I. 2010)). Although

the trial justice undertakes an “independent appraisal of the evidence in light of [the

trial justice’s] charge to the jury[,]” Heneault, 213 A.3d at 415 (quoting Letizio, 204

A.3d at 602), the trial justice “need not engage in an exhaustive review and analysis

of the evidence and testimony presented at trial but need only make reference to such

“[i]n any civil action in which a verdict is rendered or a decision made for pecuniary damages, there shall be added by the clerk of the court to the amount of damages interest at the rate of twelve percent (12%) per annum thereon from the date the cause of action accrued, which shall be included in the judgment entered therein.” - 45 - facts disclosed by the testimony as have motivated [the trial justice’s] conclusion.”

Hough, 101 A.3d at 856 (alterations omitted) (quoting Bourdon’s, Inc. v. Ecin

Industries, Inc., 704 A.2d 747, 758 (R.I. 1997)).

“If, after conducting this analysis, the trial justice concludes that

the evidence is evenly balanced or that reasonable minds could differ on the verdict,

[the trial justice] should not disturb the jury’s decision.” Heneault, 213 A.3d at 415

(quoting Letizio, 204 A.3d at 602). “If the trial justice has performed this task, then

[the trial justice’s] decision will not be disturbed unless the [party] can show that the

trial justice overlooked or misconceived material and relevant evidence or was

otherwise clearly wrong.” Id. (quoting Letizio, 204 A.3d at 602). “However, with

respect to a motion for a new trial on questions concerning an alleged error of law,

our review is de novo.” Id. (quoting Berman v. Sitrin, 101 A.3d 1251, 1260 (R.I.

2014)).

“Generally, the admissibility of evidence is within the sound discretion of the

trial justice[.]” Cappuccilli v. Carcieri, 174 A.3d 722, 729 (R.I. 2017) (quoting

Martin v. Lawrence, 79 A.3d 1275, 1281 (R.I. 2013)). “This Court will not interfere

with the trial justice’s decision unless a clear abuse of that discretion is apparent.”

Id. (brackets omitted) (quoting Berman, 101 A.3d at 1259).

“[A] remittitur may be accomplished if the trial justice concludes, after

passing upon the evidence, that the plaintiff is not entitled to such an award or that

- 46 - the award is unreasonable in light of the evidence presented at trial.” Hough, 101

A.3d at 856 (quoting Reccko v. Criss Cadillac Co., 610 A.2d 542, 546 (R.I. 1992)).

“The trial justice may reject the award or order a remittitur of the award if it shocks

the conscience or it clearly appears to be excessive, or to represent the passion and

prejudice of the jury rather than their unbiased judgment.” Id. (quoting Reccko, 610

A.2d at 546).

Damages Assessment

The town first argues that the trial justice erred in denying its motion for a

new trial because, the town contends, the jury did not base its verdict on the evidence

presented at trial. Rather, the town claims that the jury based the damage award on

plaintiffs’ counsel’s closing argument. Specifically, the town asserts that “although

the damage award mimicked [p]laintiffs’ [c]ounsel’s closing argument, there was no

evidentiary support for [c]ounsel’s figures.” The town suggests that the figures

proffered by plaintiffs’ counsel during its closing were inflated by “over 40

[percent].”

The town extensively discusses the various examples of plaintiffs’ alleged

mathematical errors and misrepresentations, including plaintiffs’ counsel’s

argument that (1) the University Industries invoices totaled approximately $313,000,

when the summary of the invoices showed only $212,000; and (2) “other

- 47 - documents” and “other invoices” amounted to roughly $200,000, but calculations of

the charges listed by plaintiffs totaled only $103,135.75. Moreover, the town takes

issue with plaintiffs’ counsel’s representation that Iascone “testified [that, since

1984,] he was paid on average of about $80,000 a year for the work performed at

Park Plaza[,]” because, the town asserts, there was no evidentiary support for this

statement. The plaintiffs counter that “the [j]ury was provided with reliable,

probative[,] and credible documentary evidence on damages[,]” which was then

explained through witness testimony.

“Damages do not have to be calculated with mathematical exactitude; all that

is required is that they are based on reasonable and probable estimates.” Butera v.

Boucher, 798 A.2d 340, 350 (R.I. 2002). “Damages will not be denied merely

because they are difficult to ascertain.” Morabit v. Hoag, 80 A.3d 1, 15 (R.I. 2013)

(brackets omitted) (quoting Marketing Design Source, Inc. v. Pranda North

America, Inc., 799 A.2d 267, 273 (R.I. 2002)).

Based on the evidence and testimony presented at trial, the trial justice

determined that reasonable minds could have reached different conclusions on the

issue of damages. The trial justice stated that he was “aware * * * that there was a

search for records” dating back to the late 1970s, and he was “aware of the state of

the records that came out during the trial.” However, the trial justice also recognized

that there was an “exceptional cross-examination with regard to the lack of

- 48 - specificity within [the] particular bills.” The trial justice further mentioned that, in

addition to the testimony by Tapalian, Iascone, and D’Ambra, Federico’s testimony

demonstrated that 83 percent of the flow of sewage was attributable to the town, and

therefore 83 percent of plaintiffs’ claims are attributable to the town.

Although he admits that he may have decided the matter differently, i.e.,

“adjusted [the] verdict downward as the super juror” by giving more weight to the

town’s cross-examination of plaintiffs’ witnesses, the trial justice stressed that he

did not believe that the verdict failed to do justice or to truly respond to the merits

of the case. He further noted that he had told the jury that counsel statements were

not evidence, and that they should determine whether there was evidence in the case

and on the record to support an award of damages. Finally, the trial justice

highlighted that the jury verdict of $1.2 million was approximately $200,000 short

of what plaintiffs had requested.

We are satisfied that the trial justice conducted the correct analysis in denying

the motion for a new trial on this issue. Our review of the record shows that the trial

justice sufficiently discussed the evidence for this Court to determine that he did not

“overlook or misconceive material evidence, and [was] not otherwise clearly wrong”

in deciding the issue. Bitgood v. Greene, 108 A.3d 1023, 1028 (R.I. 2015) (quoting

Connor, 996 A.2d at 115).

- 49 - 3

Causation

The town also argues that a new trial should have been granted because “the

evidence at trial was grossly insufficient to support a causal link between the

perceived trespass and [p]laintiffs’ damages.” The plaintiffs counter this argument

by asserting that the jury had “more than sufficient information” to find that the

town’s trespass proximately caused the damages to plaintiffs.

The town asserts that Federico’s opinion that the town damaged the Park Plaza

sewer system was not based on inspection of the pumps; rather, the town contends,

Federico based his opinion on the “fact that the lines that fed into the River Drive

station had significant debris and grease.” The town argues that Federico (1)

admitted that he was unaware that D’Ambra “had jetted the Park Street line on a

yearly basis since 1996”; (2) testified that he never inspected the pumps that were

burned out; (3) admitted that he did not know the reason why the pumps burned out;

and (4) did not know how many of the Park Street pumps had burned out or needed

to be replaced over the past forty years. Further, the town notes that Iascone testified

that he never noticed any rags in the pump station and that the debris was minimal.

The town also emphasizes that Federico admitted to not reviewing the town’s

maintenance records for the River Drive pump station. Federico further conceded

that functional issues, such as the ones claimed by plaintiffs, “happen all the time in

- 50 - pump stations[,]” and that the Park Plaza pump station did not meet the velocity flow

rate required under a TR16 standard.9

“To prove proximate cause, a plaintiff must establish the required causal

relationship by competent evidence.” Almonte v. Kurl, 46 A.3d 1, 18 (R.I. 2012).

“In most cases, proximate cause is established by showing that but for the negligence

of the tortfeasor, injury to the plaintiff would not have occurred.” Skaling v. Aetna

Insurance Co., 742 A.2d 282, 288 (R.I. 1999). While a causal connection cannot be

based on conjecture or speculation, we have emphasized that “proximate cause can

be established by circumstantial evidence,” with specific direct evidence not always

being necessary. Martinelli, 787 A.2d at 1169 (quoting Kurczy v. St. Joseph Veterans

Association, Inc., 713 A.2d 766, 771 (R.I. 1998)). “‘[C]ausation is proved by

inference’ and, although ‘proof by inference need not exclude every other possible

cause, it must be based on reasonable inferences drawn from the facts in evidence.’”

McLaughlin v. Moura, 754 A.2d 95, 98 (R.I. 2000) (alterations omitted) (quoting

Skaling, 742 A.2d at 288).

9 Federico explained that the TR16 standard provides “guidance [and] general design criteria * * * to design a pump station.” Specifically, it “tell[s] you what is the minimum velocity you should attain” and “suggest[s] to you the peaking factor that is necessary.” Federico further stated that “[t]he standard in TR16 is if you were to have a two-foot per second velocity coming from your pump station so as to move the solids along the pipe.” - 51 - Based on our review of the trial record, we are satisfied that plaintiffs

presented competent evidence for the jury to infer that their purported damages were

caused by the town’s sewer line being connected to the Park Street line. The

plaintiffs contend that the Park Plaza sewer system operated “routinely and without

major incident until 1983,” at which time functional problems began, coinciding

“with the development of the River Drive Area by Mario aRussillo.” Evidence to

substantiate this position was presented at trial through Tapalian’s testimony and the

introduction of the LaFazia Manor plat and easement agreement, which suggested

that the origin of the sewer problems can be traced back to the construction of the

homes and sewer infrastructure in the River Drive area in the early 1980s.

The record also reveals that plaintiffs’ witnesses testified that it would not be

possible to see the check valves clogged because they are typically submerged in

water. The record further reflects that testimony from Tapalian, D’Ambra, and

Iascone established that, over more than a thirty-year period, they could not

determine the cause of the Park Plaza sewer system’s functional issues and need for

frequent repairs, or how to repair the system. Federico’s testimony indicated that he

utilized compelling data and photographs from the Casali report, “which include[d]

the Inland Waters TV inspection report,” to corroborate plaintiffs’ position that the

buildup of grease and solids from River Drive significantly aggravated the Park

Street line issues. Specifically, based upon a reasonable degree of engineering

- 52 - certainty, Federico determined that the amount of flow coming from the River Drive

area was 83 percent, while Park Plaza contributed 17 percent. The plaintiffs further

note that evidence presented to the jury from the town’s engineer and mayor

substantiated Federico’s conclusions.

We conclude that the trial justice did not err in finding that reasonable minds

could differ on whether the town’s discharge of municipal sewage into the River

Drive pump station and subsequently into the Park Street line resulted in functional

issues, thus causing plaintiffs’ damages. Consequently, he did not err in denying the

town’s motion for a new trial on the issue of causation.

Bills, General Ledgers, and Invoices

Next, the town argues that the trial justice “erroneously admitted JEA’s bills,

general ledgers and invoices into evidence despite the fact that the documents simply

showed general expenditures of the corporation without any further support.” The

town contends that the bills and invoices lack sufficient detail because they are not

itemized in any way to “reflect the work actually performed or to demonstrate any

relationship to the damages allegedly caused by the [t]own[,]” and plaintiffs did not

present any testimony to specifically identify the work that was performed or

testimony to establish that the expenditures were “necessary and reasonable to

correct the actions of [the town].” The town maintains that plaintiffs only presented

- 53 - evidence of Tapalian’s general claim that the costs were associated with taking care

of the pump station and Park Street line, and the witnesses that testified as to the

expenditures were not experts and spoke only generally about “undocumented,

undated and unsupported back-ups.”

The plaintiffs counter that the town is erroneously arguing that expert

testimony is a prerequisite to the admission of bills and invoices. They argue “that

witnesses may testify as to the value of services rendered by themselves in a field of

work in which they had some experience[.]” (Emphasis omitted.) The plaintiffs

contend that in the present case, the bills, invoices, checks, and ledgers were

generated by those who performed the work, and those persons testified as witnesses

at trial. Moreover, plaintiffs advance the argument that Tapalian is independently

“qualified to testify regarding the means, methods[,] and appropriate costs of

repairing and maintaining JEA’s [s]ewer [i]nfrastructure” because he had firsthand

and specialized knowledge of the sewer problems, and he “is a professional engineer

who holds a bachelor[’]s and master’s degree in civil engineering with over [fifty]

years of experience in that field.” Additionally, D’Ambra and Iascone, who each

have over thirty years of construction experience, “particularly pertaining to sewer

infrastructure[,]” provided testimony regarding the maintenance and repair work

performed by them on the sewer infrastructure over the years.

- 54 - It is well settled that “a bill for repairs unsupported by testimony cannot prove

itself and is therefore inadmissible to prove the existence of the alleged defects or

the cost of repairing them.” DeChristofaro v. Machala, 685 A.2d 258, 268 (R.I.

1996) (quoting Alterio v. Biltmore Constructions Corp., 119 R.I. 307, 311, 377 A.2d

237, 239 (1977)). The town focuses on the holding in DeChristofaro to support its

contention that a party must present expert testimony demonstrating that the “repairs

were necessary and the costs reasonable” in order for bills or invoices evidencing

damages to be admissible. Id. The town further suggests that DeChristofaro stands

for the proposition that, even with the foundational support by an expert, “bills must

be itemized in detail.”

In DeChristofaro, we held that “bills may be admissible * * * in circumstances

in which an expert testifies that the repairs were necessary and the costs reasonable.”

DeChristofaro, 685 A.2d at 268. We highlighted that “we have upheld the admission

of a repair bill that was supported by expert testimony and ‘itemized in detail the

repairs to plaintiff’s car and the cost of each item.’” Id. (quoting Krasnoff v. Flynn,

97 R.I. 129, 131, 196 A.2d 158, 159 (1963)).

We do not read DeChristofaro to impose a requirement that expert testimony

and the itemization of expenditures are required for the admission of bills. Rather,

DeChristofaro stands for the notion that bills may not be admitted into evidence

unless they are supported by reliable testimony. DeChristofaro, 685 A.2d at 268.

- 55 - We agree that a bill alone does not prove itself nor prove that the costs were

reasonable. However, “witnesses [are] permitted to testify as to the value of services

rendered by themselves in a field of work in which they ha[ve] some experience.”

Rossilli v. Iacovelli, 88 R.I. 456, 459, 149 A.2d 709, 711 (1959).

Unlike in DeChristofaro, where expert testimony was offered to support the

reasonableness of bills issued by third parties not testifying at trial, the invoices,

bills, and general ledgers offered in the instant case were created by those who

performed the work and who in turn testified at trial. Tapalian, who is a professional

engineer, testified regarding maintenance and repair issues as well as to the fact that

he generated the University Industries bills and hired and made the payments to all

contractors and those who performed the repairs at Park Plaza.

Similarly, D’Ambra and Iascone testified regarding their decades-long

experience in the maintenance of sewer infrastructures and the functional issues

directly associated with the Park Street sewer system. Iascone estimated that, of the

payments he received, approximately 40 percent was related to the repair work he

performed. Moreover, he testified extensively as to the work he performed on the

repairs to both the Park Plaza pump station and the Park Street line. He further stated

that he billed JEA for the work he performed and was paid directly from JEA.

D’Ambra’s testimony resembles Iascone’s in that D’Ambra testified at length

regarding the sewer maintenance and repair work he performed, which is reflected

- 56 - in the University Industries bills. Of note, Tapalian, D’Ambra, and Iascone’s

respective testimony suggested that JEA’s payments for the maintenance and repair

of the Park Plaza sewer system were required to keep the system running properly.

Accordingly, the trial justice did not abuse his discretion in allowing the admission

of the bills, invoices, and general ledgers, and, consequently, he did not err in

denying the town’s motion for a new trial on that issue.

FEMA Documents

The town argues that the trial justice “erroneously admitted documents related

to the relocation of the LaFazia Drive and River Drive pump stations out of the

100-year floodplains.” The town underscores that it objected when plaintiffs’

counsel started to ask Federico about plaintiffs’ Exhibits 26 and 27, “which were

part of the [t]own’s documents related to the FEMA community block grant

application to move the LaFazia Drive and River Drive pump stations out of the

floodplain.” At trial, the town questioned the relevancy of these documents and

pointed out that Federico failed to include any reference to the River Drive relocation

as part of his opinion testimony.

With the representation from plaintiffs’ counsel that Federico was not going

to use the documents to give an opinion on why the pumps in the floodplain were

moved, the town did not object to the documents being introduced. The town avers

- 57 - that plaintiffs ultimately did exactly what they claimed they would not do—plaintiffs

argued that the relocation of the pumps was to rectify the problems with the Park

Plaza pump station. The town contends that, on redirect examination of Federico,

plaintiffs “sought to introduce additional documents related to the River Drive

pump’s relocation including the Environmental Assessment.” The town objected to

the introduction of the documents on the basis of relevancy, which the trial justice

overruled “[b]ased on the cross.” With that, the town asserts that, on

cross-examination of Federico, the only time the relocation of the River Drive station

out of the floodplain came up was when he was asked “if his 2013 affidavit contained

his opinion in this case.”

The plaintiffs counter that the trial justice properly admitted the FEMA

documents into evidence because, they contend, the documents were relevant in that

they were utilized by Federico in preparing for trial and in forming his expert

opinions. The plaintiffs additionally contend that the town sought to impeach

Federico’s credibility on the basis “that he had not seen documents regarding sewage

backup, high water and/or Town Pump Station failure events in the River Drive

Area[,]” which allowed plaintiffs to seek “rehabilitative” testimony from Federico.

For the arguments pertaining to plaintiffs’ Exhibits 26 and 27, the town did

not properly preserve this issue on appeal. “According to our well-settled raise or

waive rule, issues that present themselves at trial and that are not preserved by a

- 58 - specific objection at trial, sufficiently focused so as to call the trial justice’s attention

to the basis for said objection, may not be considered on appeal.” ADP Marshall,

Inc. v. Brown University, 784 A.2d 309, 312 (R.I. 2001) (quoting Cronan ex rel.

State v. Cronan, 774 A.2d 866, 879 (R.I. 2001)). The trial transcript reveals that,

when plaintiffs moved for both Exhibits 26 and 27 to be admitted as full exhibits,

the town responded that it had “[n]o objection.” Although the town argues that it

did not object to the admission of the exhibits based on plaintiffs’ representation that

Federico would not use the documents to give an opinion on why the pumps were

moved, the town did not subsequently raise any objection when it believed Federico

did just that. The town’s failure to object has therefore resulted in a waiver of the

issue.

We are additionally satisfied that the trial justice did not abuse his discretion

in admitting plaintiffs’ Exhibits 29 and 30. The trial justice, when considering the

evidentiary issue at the hearing on the posttrial motions, made specific reference to

the fact that Federico had asserted that these documents did not change his opinion.

He explicitly noted that these documents, in fact, substantiated Federico’s opinion.

Moreover, we view the town’s argument that Federico’s reliance on the

documents to develop his opinion was not identified in plaintiffs’ interrogatory

responses to be unavailing. Rule 703 of the Rhode Island Rules of Evidence clearly

states: “An expert’s opinion may be based on a hypothetical question, facts or data

- 59 - perceived by the expert at or before the hearing, or facts or data in evidence.” That

rule goes on to provide that, “[i]f of a type reasonably and customarily relied upon

by experts in the particular field in forming opinions upon the subject, the underlying

facts or data shall be admissible without testimony from the primary source.” R.I. R.

Evid. 703. In addition, we have held that a party is not entitled to the disclosure of

“data or other information considered by the witness in forming the [witness’s]

opinions.” Cashman Equipment Corporation, Inc. v. Cardi Corporation, Inc., 139

A.3d 379, 385 (R.I. 2016) (citation omitted). Federico’s own testimony indicates

that these were documents he reviewed in preparation for presenting his expert

testimony at trial.

We further note that the town, during its cross-examination of Federico,

inquired whether he had viewed documents regarding any failure problems with the

River Drive pump station, which opened the door for Federico on redirect

examination to use the FEMA documents to provide clarifying testimony. The trial

justice confirmed this when, at trial, he overruled the town’s objection on relevance

and Rule 403 grounds, stating that, “[b]ased on the cross[,]” he was going to admit

Exhibit 30 as a full exhibit.

The trial justice, sitting as the “superjuror,” was well within his discretion to

find that the introduction of these documents did not sway the court that the “jury’s

finding on liability and causation did not truly respond to the merits of the case[,]”

- 60 - or that it failed to do justice, as “there was certainly enough evidence along with the

competing inferences in the case where reasonable minds could differ.”

Accordingly, we view no error in denying the motion for a new trial on this

evidentiary issue.

Remittitur

Because we have determined that the statutory cap does not apply, we now

address whether a remittitur should have been granted. The town does not set out

specific arguments as to why the trial justice should have remitted the verdict; rather,

the town seems to incorporate its arguments as to why the motion for a new trial

should not have been denied. The plaintiffs maintain that, for all the same reasons

why the trial justice did not err in denying the motion for a new trial, the motion for

a remittitur was properly denied by the trial justice.

In denying the remittitur, the trial justice stated that, although the jury’s award

may have been higher than he would have personally awarded, he did not find the

amount to shock the conscience. He further noted that there was enough evidence

for reasonable minds to differ as to the amount of plaintiffs’ damages. While the

trial justice did not engage in an expansive analysis of the town’s motion for a

remittitur, we do not view this as fatal, given his findings on the motion for a new

trial.

- 61 - Based on the parties’ arguments and the trial justice’s finding, we incorporate

our reasoning detailed supra and hold that the trial justice did not err in finding that

the award of $1.2 million did not appear to be excessive or to be representative of

prejudice of the jury, or that it was unreasonable based on the evidence presented at

trial. We therefore uphold the trial justice’s denial of the motion for a remittitur.

III

Conclusion

For the reasons stated herein, we affirm in part and vacate in part the judgment

of the Superior Court. The record in this case may be remanded to the Superior

Court with instruction to reinstate the jury’s verdict, and for further proceedings to

determine the amount of prejudgment interest.

Justice Lynch Prata and Justice Long did not participate.

Justice Robinson, concurring. On the facts of this case, as they were

presented at trial, I am able to concur, albeit dubitante.

- 62 - STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903

OPINION COVER SHEET

Johnston Equities Associates, LP, et al. v. Town of Title of Case Johnston et al. No. 2020-150-Appeal. Case Number No. 2020-224-Appeal. (PC 11-3983)

Date Opinion Filed July 1, 2022

Justices Suttell, C.J., Goldberg, Robinson, JJ.

Written By Chief Justice Paul A. Suttell

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice William E. Carnes, Jr.

For Plaintiffs:

Eric S. Brainsky, Esq. Attorney(s) on Appeal For Defendants:

Kathleen M. Daniels, Esq.

SU-CMS-02A (revised June 2020)