Benner v. J.H. Lynch & Sons, Inc.

• Decision Date: 12 May 1994
• Docket Number: No. 93-81-M,93-81-M
• Court: Rhode Island Supreme Court
• Parties: Donna M. BENNER et al. v. J.H. LYNCH & SONS, INC., MJD Construction Corp. and the Rhode Island Department of Transportation, Dante E. Boffi, Jr., Director. P.

Page 332

641 A.2d 332

Donna M. BENNER et al. v. J.H. LYNCH & SONS, INC., MJD Construction Corp. and the Rhode Island Department of Transportation, Dante E. Boffi, Jr., Director.

No. 93-81-M.P.

Supreme Court of Rhode Island.

May 12, 1994.

Edward P. Manning, Jr., Providence, for plaintiff.

Rebecca Tedford Partington, Sp. Asst. Atty. Gen., Edward Moses, John R. Mahoney, Asquith, Mahoney & Robinson, Providence, for defendant.

OPINION

WEISBERGER, Acting Chief Justice.

This case comes before us on a petition for certiorari wherein the Rhode Island Department of Transportation (RIDOT or the department) seeks review of the Superior Court's denial of its motion for summary judgment. The department moved for summary judgment on the ground that the plaintiffs' complaint was barred by the statute of limitations. We grant the petition and quash the order of the Superior Court. The facts insofar as pertinent to this petition are as follows.

On the morning of July 6, 1989, Robert C. Benner III (Benner), was traveling north near the intersection of Interstate 295 and Interstate 195 in Johnston, Rhode Island, when his vehicle struck a guard rail and then a flatbed truck parked in the right travel lane at a highway construction site. Benner was killed as a result of the accident.

A number of months later, Donna M. Benner (plaintiff), the decedent's wife, retained an attorney to investigate the cause of the accident. Sometime in 1991, after having become dissatisfied with her attorney, plaintiff hired a new attorney to pursue the case.

In November of 1991 plaintiff's new attorney filed a "Petition for Perpetuation of Testimony" in Superior Court pursuant to G.L.1956 (1985 Reenactment) § 9-18-12, which allows for the perpetuation of testimony of witnesses "concerning any matter which is or may be the subject of litigation." The plaintiff sought to elicit testimony from the keeper of records and others associated with the State Police, the two construction companies working at the construction site, the Office of the State Medical Examiner, and RIDOT in order "to make a decision whether to litigate a possible wrongful death claim." In the petition plaintiff also stated that a "Rhode Island State Police accident reconstruction drawing indicates the possible failure to adequately notify oncoming motorists of the pending construction."

The petition for perpetuation of testimony was granted on November 18, 1991. Over the next several months, plaintiff took depositions from two troopers from the Rhode Island State Police and from the project coordinator of one of the construction companies involved in the project. The plaintiff also collected various documents, including police reports about the accident.

On April 1, 1992, plaintiff contacted Roy Anderson (Anderson), an engineer with expertise in highway safety, regarding the July 6, 1989 accident. The plaintiff ultimately retained Anderson on June 5, 1992. On July 24, 1992, Anderson rendered his opinion to plaintiff that the safety features of the highway construction site were negligently designed and/or maintained. On that date, three years and eighteen days after Benner's accident and death, plaintiff filed a complaint in Superior Court on her own behalf, as Benner's next of kin, and as parent/guardian of her minor child, Robert C. Benner IV. The plaintiff brought the complaint against RIDOT and against the two private contractors working on the project, J.H. Lynch & Sons, Inc., and MJD Construction Corp., pursuant to the Rhode Island wrongful death act, G.L.1956 (1985 Reenactment) §§ 10-7-1 to 10-7-14.

The department filed a motion for summary judgment, arguing that the statute of limitations had run for the bringing of the suit and also that the state was immune from suit in this instance under the doctrine of sovereign immunity. The trial justice denied the motion for summary judgment and stated that there existed a question of material fact in regard to whether plaintiff exercised due diligence in discovering the cause of and/or those responsible for Benner's death and that this factual question needed to be resolved before determining whether the statute of limitations had run. Moreover, the trial justice held that the question concerning whether possibly egregious conduct on the part of the state abrogated its sovereign immunity was also an issue of material fact to be determined by the factfinder.

In its brief to this court RIDOT seems to have abandoned the sovereign-immunity defense and has relied exclusively on a statute-of-limitations defense. However, RIDOT argues that the applicable statute of limitations is contained in G.L.1956 (1985 Reenactment) § 9-1-25, which provides that an action against the state must be brought "within three (3) years of the accrual of any claim of tort. Failure to institute suit within said three (3) year period of time shall constitute a bar to the bringing of said legal action." The department contends that this statute is to be strictly construed, especially because the waiver of sovereign immunity by the state is in derogation of the common law that did not allow any private actions to be brought against the state.

The plaintiff contends that the appropriate statute of limitations is contained in the wrongful death act, § 10-7-2, as amended by P.L.1989, ch. 525, § 1, which provides that

"[e]xcept as otherwise provided, every action brought pursuant to this chapter shall be commenced within three (3) years after the death of such person. With respect to any death caused by any wrongful act, neglect or default which is not known at the time of death, such action shall be commenced within three (3) years of the time that the wrongful act, neglect or default is discovered or, in the exercise of reasonable diligence, should have been discovered."

The plaintiff argues that the "discovery rule" set forth therein tolls the running of the statute of limitations until such time as a plaintiff, through reasonable diligence, can learn of the wrongful conduct of the parties responsible for the death of the decedent. The plaintiff therefore claims that the proper discovery date is July 24, 1992--the date Anderson rendered his opinion concerning the negligent design of the safety features at the construction site. At the least, plaintiff suggests, as the trial justice found, this is an issue of fact to be determined by the factfinder. ¹

The department counters that even if the statute of limitations in the wrongful-death statute, set forth in § 10-7-2, applies to actions against the state, the cause of action accrued on the date of the accident and the discovery rule contained therein would have no application.

I

First, we must consider whether a motion for summary judgment is the appropriate procedural vehicle by which to determine whether the discovery rule applies. In denying RIDOT's motion for summary judgment the trial justice stated that whether plaintiff had exercised reasonable diligence to discover the tortious conduct of defendant was a question of fact and that the resolution of this question was inappropriate on motion for summary judgment.

In determining whether to grant summary judgment, the trial justice reviews all the pleadings, affidavits, admissions, and other appropriate evidence in the light most favorable to the nonmoving party and then determines if the moving party is entitled to judgment as a matter of law. See Aetna Casualty & Surety Co. v. Vierra, 619 A.2d 436, 437 (R.I.1993). After such review, if any genuine issue of material fact to be resolved by the factfinder exists, the case is inappropriate for summary judgment. However, if no genuine issue of material fact exists, the judgment should be entered as a matter of law. Id. Upon review, we apply the same standard as the trial justice. Id.

In Dionne v. Baute, 589 A.2d 833, 835 (R.I.1991), we stated that on occasion, in order to determine whether a statute of limitations has run, a factual question must be determined by a jury (or other appropriate factfinder) as a predicate issue. Such cases involve circumstances in which the determination of the initial factual question essentially answers the question of liability of the parties. These instances include circumstances wherein the running of a statute of limitations was dependent upon knowledge that a contract had been breached, see Bader v. Alpine Ski Shop, Inc., 505 A.2d 1162, 1166-67 (R.I.1986), or the question of whether an interest payment had been made by a certain date, see Stedman v. Hinman, 67 R.I. 123, 128, 21 A.2d 10, 13 (1941).

In Dionne, however, we went on to hold that "Bader and Stedman suggest that a genuine issue of material fact in a statute-of-limitation defense is something more than that which is presently in dispute before us. * * * The simple issue before us is whether [the plaintiff's] conduct satisfied the reasonable-diligence standard set forth in the medical-malpractice statute. This is an issue of law." 589 A.2d at 835; see also Ashey v. Kupchan, 618 A.2d 1268, 1270 (R.I.1993) (per curiam) ("application of the statute of limitations is a matter of law for the trial justice to determine"); cf. Rodrigues v. The Miriam Hospital, 623 A.2d 456, 461 (R.I.1993) ("it is often necessary for the trial justice to find preliminary facts in deciding questions of law").

Similarly, the only issue before both the trial justice and this court is whether the reasonable-diligence standard contained within the discovery rule in § 10-7-2 is applicable to the case at bar. This question does not present a genuine issue of material fact as argued by plaintiff. As we stated in Dionne, it is a question of law for the trial justice to determine and for us to review using the same legal standard.

II

The first issue to be addressed is the determination of which statute of limitations applies when a party brings a wrongful-death action against the state or one of its subdivisions or agencies. As...