Palazzo v. Big G Supermarkets, Inc.

Citation292 A.2d 235,110 R.I. 242
Decision Date19 June 1972
Docket NumberNo. 1516-A,1516-A
PartiesHenry PALAZZO et ux. v. The BIG G SUPERMARKETS, INC. ppeal.
CourtUnited States State Supreme Court of Rhode Island
OPINION

PAOLINO, Justice.

This matter is before this court on the plaintiffs' appeal from an order entered in the Superior Court granting the defendant's motion to dismiss. We reverse.

The pertinent facts follow. In December, 1970, plaintiffs commenced this civil action for personal injuries allegedly sustained by plaintiff Lida Palazzo while she was an invitee on defendant's premises and allegedly caused by the negligence of defendant in failing to provide a safe condition on those premises. The husband seeks consequential damages. The complaint expressly alleges that the incident occurred on September 12, 1968. The defendant did not file an answer to the complaint. Instead it filed a Super.R. Civ.P. 12(b) (6) 1 motion to dismiss on the ground that the complaint fails to state a claim upon which relief can be granted, '* * * as the right of action set forth in the Complaint did not accrue within two (2) years next before the commencement of this action as appears by the record.'

The motion was heard before a justice of the Superior Court. The plaintiffs admit that this action was commenced after the expiration of the statute of limitations, but, as appears from the transcript, plaintiffs claimed that their failure to bring the action within the statutory period '* * * was because of the representation of the claims adjuster for the insurance company * * *.' The plaintiff, Lida Palazzo, filed an affidavit setting forth her negotiations with the adjuster and alleging that 'During the period of negotiation he advised me not to see an Attorney and that a settlement will be reached in the near future.' The adjuster also filed an affidavit describing his relations with plaintiffs. He alleged that he offered $2,200 in settlement but that they demanded $10,000, which he told them was excessive. He denied that he had advised her concerning the possibility of her retaining an attorney or that he ever assured plaintiffs that a settlement of this action would be made by his company. The trial justice accepted these affidavits and also deemed it advisable to take further testimony.

At the evidentiary hearing on the motion to dismiss, plaintiffs and their son Angelo testified in support of plaintiffs' claim that their failure to bring the action within the statutory period was due to the adjuster's representations and that therefore defendant was estopped from using the statute of limitations as a defense. The defendant, in turn, presented the testimony of the adjuster. He denied the plaintiffs' version of what happened. After the hearing an order was entered granting the motion to dismiss 2 with prejudice.

The main thrust of plaintiffs' argument is that the trial justice treated defendant's Super.R. Civ.P. 12(b)(6) motion to dismiss as a Rule 56 motion for summary judgment and it should, therefore, be disposed of according to the pertinent provisions of Rule 56. The defendant disagrees and argues that the procedure followed by the trial justice is authorized by Rule 12(d). This provision provides for a preliminary hearing before trial on the defenses enumerated in Rule 12(b).

The defendant is correct only up to a point. A Superior Court justice may indeed conduct a hearing on a Rule 12(b)(6) motion. Such a motion, however, is directed solely to the sufficiency of the complaint itself and if matters outside the complaint are considered by the justice, then Rule 12(b) specifically requires the motion to be considered as one for summary judgment.

While the record does not disclose under what rule the trial justice granted the motion to dismiss, it is obvious that she considered matters outside the complaint. She accepted opposing affidavits and heard conflicting testimony on the issue of estoppel.

Accordingly, having delved into matters dehors the pleadings, the trial justice was bound to treat defendant's 12(b)(6) motion as one for summary judgment and dispose of it according to the pertinent provisions of the rule. Ewing v. Frank, 103 R.I. 96, 234 A.2d 840 (1967); Warren Education Ass'n v. Lapan, 103 R.I. 163, 235 A.2d 866 (1967); DiBello v. St. Jean, 106 R.I. 704, 262 A.2d 824 (1970). See Burns v. Hirsch, 108 R.I. 251, 256-257, 274 A.2d 421, 424 (1971). See Professor Kent's commentary in 1 Kent, R.I. Civ.Prac. sec. 12.12 at 117-18.

Although the trial justice did not comment on the evidence in her decision, it is evident from a reading of the transcript of the hearing on defe...

To continue reading

Request your trial
95 cases
  • Smithfield Estates, LLC v. Heirs of John M. Hathaway
    • United States
    • Rhode Island Superior Court
    • August 15, 2011
    ...finding, not issue determination. O'Connor v. McKanna, 116 R.I. 627, 633, 359 A.2d 350, 353 (1976); Palazzo v. Big G Supermarkets, Inc., 110 R.I. 242, 245, 292 A.2d 235, 237 (1972); Slefkin v. Tarkomian, 103 R.I. 495, 496, 238 A.2d 742, 742 (1968). "Summary judgment is appropriate if it is ......
  • Smithfield Estates, LLC v. Hathaway
    • United States
    • Rhode Island Superior Court
    • August 15, 2011
    ... ... GRAY; DOMESTIC LOAN AND INVESTMENT BANK f/k/a DOMESTIC SAFE DEPOSIT COMPANY; MAINE DEVELOPMENT, INC.; PAUL FILIPPI; [ 1 ] MARION FILIPPI a/k/a MARIAN FILIPPI; [ 2 ] DOMENIC D'AMBRA; BI REALTY, ... O'Connor v. McKanna , 116 R.I ... 627, 633, 359 A.2d 350, 353 (1976); Palazzo v. Big G ... Supermarkets, Inc. , 110 R.I. 242, 245, 292 A.2d 235, 237 ... (1972); ... ...
  • DeFilippo v. National Broadcasting Co., Inc., 80-318-A
    • United States
    • Rhode Island Supreme Court
    • June 15, 1982
    ...to plaintiffs.2 The motion was styled in this manner because affidavits were attached to the pleadings. See Palazzo v. Big G Supermarkets, Inc., 110 R.I. 242, 292 A.2d 235 (1972); Super.R.Civ.P. 12(b) and 56. The Superior Court considered the motion to be one for summary judgment in accorda......
  • Summers v. Fin. Freedom Acquisition LLC
    • United States
    • U.S. Court of Appeals — First Circuit
    • October 23, 2015
    ...between standard for surviving motion to dismiss and standard for surviving summary judgment); Palazzo v. Big G Supermkts., Inc., 110 R.I. 242, 292 A.2d 235, 237 (1972) (same, applying Rhode Island law).Second, the record here—unlike in Chhun, 84 A.3d at 423 —fails to delineate particular f......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT