Konar v. PFL Life Insurance

840 A.2d 1115, 2004 R.I. LEXIS 6, 2004 WL 42579

• Court: Supreme Court of Rhode Island
• Decided: January 9, 2004
• Docket: 2002-291-Appeal
• Status: Published

Opinions

OPINION

PER CURIAM.

The plaintiff, Bryan D. Konar (plaintiff), appeals from a Superior Court summary judgment in favor of the defendant, PFL Life Insurance Company (PFL or defendant). This ease came before the Supreme Court for oral argument on September 24, 2003, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After hearing the arguments of counsel and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown and proceed to decide the appeal at this time. We affirm the judgment of the Superior Court.

I

Facts and Travel

In June 1995, plaintiff was attacked just outside the Newport Mall, which defendant owned. As he was leaving the mall, Dennis DePalma (DePalma) attacked and injured plaintiff. According to plaintiff, defendant’s failure to provide adequate security caused his injuries.

The defendant contracted with National Development Asset Management of New England (National Development) to be its on-site manager. In turn, National Development contracted with the Rhode Island Bureau of Investigation and Protection, Ltd. (RIBI) to provide security services at the mall.

The plaintiff brought suit against PFL for “negligent failure to provide security.” The defendant filed a third-party complaint against National Development, which in turn asserted a fourth-party complaint for contribution and indemnification against DePalma and against RIBI. RIBI asserted a cross-claim against DePalma for contribution and indemnification. The motion justice granted defendant’s motion for summary judgment because RIBI was responsible for patrolling the mall when defendant was attacked. As such, and pursuant to the independent contractor rule, any liability on the part of RIBI could not be imputed to defendant. The plaintiff timely appealed.

II

Summary Judgment

It is well settled that this Court “reviews the grant of summary judgment on a de novo basis, applying the same standards as the trial court.” Sobanski v. Donahue, 792 A.2d 57, 59 (R.I.2002). “[A] party who opposes a motion for summary judgment carries the burden of proving by competent evidence the existence of a disputed material issue of fact and cannot rest on allegations or denials in the pleadings or on conclusions or legal opinions.” Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1225 (R.I.1996). Rather, the opposing party has an affirmative duty to set forth, by affidavits or otherwise, specific facts that demonstrate the existence of a genuine issue of material fact. Bourg v. Bristol Boat Co., 705 A.2d 969, 971 (R.I.1998). Summary judgment is appropriate if, viewing the evidence in the light most favorable to the nonmoving party, no material questions of fact exist and the moving party is entitled to judgment as a matter of law. Woodland Manor III Associates v. Keeney, 713 A.2d 806, 810 (R.I.1998) (citing Rotelli v. Catanzaro, 686 A.2d 91, 93 (R.I.1996)).

Because RIBI provided the security services, alleged to be negligent, we consider whether that negligence, if any, may be imputed to defendant. Pursuant to the independent contractor rule, a party who employs an independent contractor generally will not be liable for the negligence of that contractor. Bromaghim v. Furney, 808 A.2d 615, 617 (R.I.2002) (per curiam) (citing East Coast Collision & Restoration, Inc. v. Allyn, 742 A.2d 273, 275 (R.I.1999) (per curiam)). It is undisputed that RIBI is an independent contractor. Thus, under that general rule, even if RIBI were negligent, defendant would not be hable for plaintiffs injuries.

The independent contractor rule, however, is not without exceptions. For example, a party may be vicariously liable for the negligent acts of its independent contractor if the party retained an independent contractor to carry out a duty to the public that is set out in a statute or ordinance. See Webbier v. Thoroughbred Racing Protective Bureau, Inc., 105 R.I. 605, 611-12, 254 A.2d 285, 289 (1969). The plaintiff, however, does not cite any statute or ordinance that imposes a duty on defendant to provide security at the mall. Additional exceptions are similarly inapplicable to this case. Bee East Coast Collision & Restoration, Inc., 742 A.2d at 276 (recognizing an exception for contractors performing inherently dangerous work); Ballet Fabrics, Inc. v. Four Dee Realty Co., 112 R.I. 612, 621-22, 314 A.2d 1, 6-7 (1974) (recognizing additional exceptions to the independent contractor rule when: (1) an independent contractor performs work that by its inherent nature is “likely to cause harm unless proper precautions are taken,” and (2) “where the owner of a structure without formally accepting the contractor’s work assumes practical control by appropriating it to the use for which it is built.”).

Presumably aware that no recognized exceptions to the independent contractor rule apply, plaintiff asks this Court to adopt § 425 of the Restatement (Second) Torts (1965). Section 425 provides that:

“One who employs an independent contractor to maintain in safe condition land which he holds open to the entry of the public as his place of business * * * is subject to the same liability for physical harm caused by the contractors negligent failure to maintain the land * * * in reasonably safe condition, as though he had retained its maintenance in his own hands.”

Section 425 is a policy-based rule of vicarious liability. When business owners invite members of the “public onto their premises for business purposes, [public] policy concerns counsel against allowing them to shield themselves from liability by hiring independent contractors.” Valenti v. Net Properties Management, Inc., 142 N.H. 633, 710 A.2d 399, 401 (1998).

Based on the text of § 425 of the Restatement, it is clear that this section applies only to premises liability claims. Under Rhode Island premises liability law, landowners must “exercise reasonable care for the safety of persons reasonably expected to be on the premises * * * includ[ing] an obligation to protect against the risks of a dangerous condition existing on the premises, provided the landowner knows of, or by the exercise of reasonable care would have discovered, the dangerous condition.” Kurczy v. St. Joseph Veterans Association, Inc., 820 A.2d 929, 935 (R.I.2003) (quoting Tancrelle v. Friendly Ice Cream Corp., 756 A.2d 744, 752 (R.I.2000)). Although a landowner may delegate the duty of performance to an independent contractor, pursuant to § 425 of the Restatement, “he cannot thereby avoid [liability for] * * * non-performance of the duty.” Rowley v. Mayor and City Council of Baltimore, 305 Md. 456, 505 A.2d 494, 499 (1986).

The plaintiffs complaint, however, does not include a claim for premises liability. Pursuant to Rule 8(a)(1) of the Superior Court Rules of Civil Procedure, a claim for relief must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Although a plaintiffs complaint need not “set out the precise legal theory upon which his or her claim is based,” the complaint must give “the opposing party fair and adequate notice of the type of claim being asserted.” Hendrick v. Hendrick, 755 A.2d 784, 791 (R.I.2000) (quoting Bresnick v. Baskin, 650 A.2d 915, 916 (R.I.1994) and Haley v. Town of Lincoln, 611 A.2d 845, 848 (R.I.1992)). “The policy behind these liberal pleading rules is a simple one: cases in our system are not to be disposed of summarily on arcane or technical grounds.” Id. (quoting Haley, 611 A.2d at 848).

Applying the liberal pleading rule, this Court has recognized the sufficiency of complaints even when the claims asserted within those complaints lack specificity. For example, in Hendrick, this Court held that the Superior Court erred by failing to consider a party’s pleadings under G.L. 1956 §§ 7-1.1-90 and 7-1.1-90.1. Hendrick, 755 A.2d at 790-91. That case involved a dispute over a closely held corporation. “Section 7-1.1-90, entitled ‘[j]u-risdiction of the court to liquidate assets and business of corporation,’ allows corporate shareholders to seek relief from ‘illegal, oppressive, or fraudulent’ acts of those controlling the corporation.” Hen-drick, 755 A.2d at 790. Under § 7-1.1-90.1, a corporation may avoid dissolution by buying out an aggrieved shareholder’s stock. Hendrick, 755 A.2d at 790. The plaintiffs complaint in Hendrick alleged conduct “that was ‘illegal, oppressive or fraudulent’ and demanded relief pursuant to §§ 7-1.1-90 and 7-1.1-90.1.” Hendrick, 755 A.2d at 791. This Court noted that, although the complaint “could have been framed with more particularity” the plaintiff provided adequate notice of the type of claim that was asserted. Id.

Similarly, in Butera v. Boucher, 798 A.2d 340, 353 (R.I.2002), this Court held that the plaintiffs complaint adequately asserted a claim for abuse of process. Although that claim was “embedded in the malicious-prosecution count of the complaint,” id., the complaint specifically alleged the defendant’s “actions were wanton, reckless, willful, malicious prosecutions and abuses of process.” Id. at 352 n. 2. Thus, the defendants were given “more than sufficient notice of the type of claim” that was asserted against them. Id. at 353.

The plaintiffs complaint in this case, however, is substantially less specific than the complaints at issue in Hendrick and Butera. The complaint at issue here broadly states that “a male assailant, known to the defendant * * * to pose an immediate threat of bodily harm to the plaintiff was allowed to remain on the [mall] premises” and that plaintiff “was physically beaten, assaulted and battered by the above-described assailant upon the premises of the defendant.” The complaint further alleges that plaintiffs injuries were “a direct and proximate result of, but not limited to, the defendant’s, its’ [sic] agents, servants and/or employees [sic] negligent failure to provide security, recklessness, carelessness, misfeasance and/or malfeasance.” The plaintiffs complaint does not mention the phrase “premises liability.” Furthermore, unlike the complaint in Hendrick, which specifically referred to the key words necessary to obtain relief under § 7-1.1-90, the complaint here does not mention the underpinning of a premises liability claim: the duty to maintain the premises in a reasonably safe condition. Tancrelle, 756 A.2d at 752. Nor is a premises liability claim embedded in another claim in the pleading, as was the case in Butera.

The majority of this Court is not willing to overlook the overly broad, seatter-shot style of pleading on the part of plaintiff in this case to allow him to proceed on a premises liability claim. By generally mentioning the word “negligence” in a complaint, without alleging breach of a particular duty, it is not clear whether a defendant must defend a general negligence claim, a premises liability claim, or a claim for negligent supervision or hiring. In light of plaintiffs allegation of “negligent failure to provide security,” we understand plaintiffs complaint in this case as only a general claim for negligence. To succeed on a general claim for negligence, plaintiff must demonstrate that defendant did not act as a “reasonably prudent [person] would under the circumstances.” Vanvooren v. John E. Fogarty Memorial Hospital, 113 R.I. 331, 335, 321 A.2d 100, 102 (1974) (holding that, to avoid being liable for negligence, “one must act as a reasonably prudent [person] would under the circumstances”); Breaux v. State, 326 So.2d 481, 483-84 (La.1976) (recognizing that, in a negligence claim, a security guard will be held to the standard of other reasonably prudent security guards). Thus, to prevail under that theory of liability, plaintiff would have to demonstrate the security guard was negligent by failing to act as a reasonably prudent security guard would have acted under the circumstances, imputing that negligence to defendant.¹ Conversely, to succeed on a claim for premises liability, plaintiff would have had to demonstrate that RIBI’s negligence constituted a direct failure by defendant to fulfill its duty to provide safe premises.

Moreover, in granting summary judgment in favor of defendant, the motion justice commented, “this complaint is not one sounding in * * * premises liability which would warrant a different analysis.” He then proceeded to grant summary judgment in favor of defendant based on the independent contractor rule as it applies to general negligence cases. Thus, the motion justice neither granted nor denied plaintiffs claim under this state’s premises liability law. The plaintiff does not challenge the motion justice’s classification of the claim as a general claim for negligence. This failure to challenge the motion justice’s ruling is deemed conclusive on this issue. Although our review of summary judgment is de novo, it is not without limits. The taking of an appeal does not provide the appealing party with a second bite at the apple. For example, a party may not assert an argument on appeal that was not presented below. Allstate Insurance Co. v. Lombardi, 773 A.2d 864, 871 (R.I.2001). Similarly, this Court will only review evidence that was before the motion justice. Id. at 870-71. Without a challenge to the motion justice’s failure to rule on a premises liability claim in this case, we limit our review to whether the trial justice erred in granting summary judgment on a general claim for negligence.

We are unwilling to excuse plaintiffs failure to expressly challenge the motion justice’s ruling that this is not a premises liability case. This Court is not willing to look past the ambiguous state of the pleadings, the motion justice’s specific conclusion that plaintiff did not assert a premises liability claim and the fact that defendant, on appeal, relies on the fact that the motion justice analyzed this case only under a general negligence standard. Based on these facts, this Court -will not sua sponte apply premises liability law to review a summary judgment on a completely distinct negligence claim. Based on plaintiffs theory of the case, the only issue is whether defendant can be responsible for RIBI’s allegedly negligent security lapse; not whether RIBI’s alleged security lapse constitutes a breach of defendant’s duty to provide reasonably safe premises. Tanc-relle, 756 A.2d at 752. Because § 425 of the Restatement does not affect the independent contractor rule as it pertains to a general negligence claim, our decision to adopt that section would have no bearing on plaintiffs appeal in this case. Accordingly, even if we were to adopt § 425, defendant would not be liable for RIBI’s negligent security service “as though [it] had retained [the mail’s] maintenance in [its] own hands.” Restatement (Second) Tents § 425.

Despite this Court’s grave concerns over landowners’ ability to escape liability for unsafe conditions on their premises through the hiring of independent contractors, we decline to adopt § 425 of the Restatement at this time for the reasons set forth above. Given the right facts and circumstances, which are not present here, this Court may revisit the issues of § 425 as they pertain to premises liability.

Conclusion

For the reasons indicated herein, the plaintiffs appeal is denied and dismissed and the judgment of the Superior Court is affirmed. The papers of the case shall be remanded to Superior Court.

1 . The dissent takes the position that the complaint adequately included a claim for premises liability. Although we respect and acknowledge the points raised by the dissent, especially in light of liberality in this state's rules of pleading, we believe this complaint is so inartfully drafted as to be beyond the pale of what liberality allows. The dissent specifically refers to a portion of plaintiff’s complaint where it is alleged that defendant knowingly allowed a dangerous individual to remain on its premises, thereby causing plaintiff's injuries. According to the dissent, this allegation is similar to the duty recognized by this Court in Volpe v. Gallagher, 821 A.2d 699 (R.I.2003), and, thus, provided sufficient notice that a premises liability claim was being asserted. In Volpe, the plaintiffs brought suit against the defendant after the defendant's mentally ill adult son shot and killed the defendant’s neighbor. The gun used in the killing had been stored on the defendant’s property. Id. at 703. The evidence indicated that the defendant had control over her son’s ability to store the deadly weapon at her home and, given the "nature of his mental illness, she should have appreciated the necessity for exercising such control.” Id. at 715. Thus, recognizing that landowners have a duty to prevent third persons whom they allow to use their property from causing intentional bodily harm or creating an unreasonable risk of such harm to others, this Court held that the defendant could be held civilly liable for her negligence. Id. at 709. In contrast, this case concerns the possible duty of a commercial, rather than residential, landowner. Also, the defendant's liability in Volpe was predicated on her ability to control the conduct of a third party. Id. at 718. Here, there is no allegation that defendant had any control over in-strumentalities that may have been used in the attack on plaintiff or over the attacker himself. Because Volpe is not directly applicable to this case, any similarity in phrasing between plaintiff's complaint and the duty recognized in Volpe does not change our conclusion that plaintiff's complaint failed to include a claim for premises liability.