Calise v. Hidden Valley Condo. Ass'n
| Decision Date | 11 June 2001 |
| Docket Number | No. 1999-452-Appeal.,1999-452-Appeal. |
| Citation | 773 A.2d 834 |
| Parties | CALISE v. HIDDEN VALLEY CONDO. ASS'N. |
| Court | Rhode Island Supreme Court |
Present WEISBERGER, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.
Timothy D. O'Hara, East Providence, for plaintiff.
Thomas C. Angelone, John G. Rallis, Providence, for Defendant.
In this appeal we hold that a Superior court trial justice, at a hearing held pursuant to G.L.1956 § 9-20-2 to determine the amount of the plaintiff's damages,1 committed no error in precluding two defaulted defendants from attempting to question and litigate their liability to the plaintiffs by seeking to introduce evidence of probable comparative negligence on the part of two former defendants, who because of settlement stipulations, had been dismissed with prejudice as parties in the case.
On July 3, 1992, Jeanette Calise was injured when she slipped and fell of a common walkway leading to her condominium at 19 Trellis Drive in West Warwick. She attributed her fall to the negligence of the Hidden Valley Condominium Association, Inc. (the Association) and, as a result, she field a negligence action against the Association. In that action she sought damages for her personal injuries. Her husband, Vincent Calise, alleged a loss of consortium and sought damages, pursuant to G.L.1956 § 9-1-41.
The Association filed an answer to the plaintiffs' complaint and denied any alleged liability. During pretrial discovery, it indicated that other parties might be responsible for the negligent condition alleged to have caused Jeanette's slip and fall. Jeanette and her husband (hereinafter collectively referred to as the plaintiffs) then moved to amend their complaint to include as party defendants, the Downing Corporation (Downing), Downing/Hidden Valley, Inc. (Hidden Valley), D'Ambra Construction Company, Inc. (D'Ambra), and Lincoln Sealcoating Company (Lincoln). On June 5, 1995, the motion was granted and the plaintiffs amended their complaint accordingly.
Subsequently, D'Ambra and Lincoln each duly filed answers to the plaintiffs' amended complaint.2 Downing and Hidden Valley (collectively, the defendants), however, neglected to file answers to the plaintiffs' amended complaint, as required by Rule 12 of the Superior Court Rules of Civil Procedure. Subsequently, on April 7, 1997, they were defaulted pursuant to Rule 55(a) of the superior Court Rules of Civil Procedure.
Six months after the default orders had been entered against Downing and Hidden Valley, an attorney representing both parties field an appearance for them; however, he failed to move to vacate the defaults, or move to file answer out of time. In the meantime, pretrial discovery took place between the plaintiffs and the co-defendants, D'Ambra and the Association, in preparation for trial.
On January 13, 1999, about twenty-one months after they both had been defaulted, Downing and Hidden Valley somehow stumbled into the continuing litigation and field motions for leave to file cross-claims against the defendants, D'Ambra and the Association. In response, D'Ambra and the Association objected to the motions and filed their own motions for leave to file cross-claims against the two, defaulted and now awakened defendants. The record indicates that no ruling ever was made on these motions. Thereafter, both D'Ambra and the Association elected to settle with the plaintiffs and were given full releases. Orders were duly entered dismissing them with prejudice as party defendants in the case.3
At this juncture, the only parties left remaining in the case were the plaintiffs and the two long-defaulted parties. Downing and Hidden Valley. Because the defaults of Downing and Hidden Valley had served to establish their liability to the plaintiffs, no trial on that issue was required. Accordingly, pursuant to § 9-20-2, the plaintiffs moved for hearing at which to present evidence of their damages.
At the damages hearing, Downing and Hidden Valley, believing that their former co-defendants might be liable for some proportionate share of the plaintiffs' damages, attempted to introduce evidence of the purported "comparative negligence" of those parties. Pursuant to G.L.1956 chapter 6 of title 10, entitled contribution Among Joint Tortfeasors (Uniform Contribution Among Tortfeasors Act). The trial justice excluded the proffered evidence and, after hearing the evidence and reviewing the record, found the plaintiffs' damages to be $60,000, plus interest and costs to Jeanette, and $5,000, plus interest and costs to Vincent.4 The final judgment amount was not offset by the settlement amounts previously paid to the plaintiffs by the joint tortfeasors in consideration of their releases.5 Downing and Hidden valley timely appealed.
1. Comparative Negligence of the joint Tortfeasors
The defendants initially concede that the entry of default for their failure to answer the plaintiffs' complaint precluded them from introducing evidence of the plaintiff Jeanette's comparative negligence at the hearing held to assess the plaintiffs' damages. However, they maintain that each defendant that ever was in the case is liable only for its proportionate share of the plaintiff's damages. Accordingly, they contend that, for purposes of indemnification and/or contribution pursuant to our Uniform Contribution Among Tortfeasors Act, their right both to fully participate at the hearing on damages and to mitigate their own damages necessarily entitled them to introduce evidence of the comparative negligence of the settling joint tortfeasors who no longer were parties to the case.
This contention, as it involves any comparative negligence on the part of the defendants who formerly were in the case, basically is flawed. If, as the defendants concede, they may not show comparative negligence on the part of the plaintiffs then, because no other defendant ever has established any negligence attributable to the plaintiffs, comparative negligence is not at issue in this case.
Our comparative negligence statute, § 9-20-4, is not a comparative fault statute. It comes into play only after negligence is first established on the part of both the plaintiff and the defendant. Once that is established, the plaintiff's "damages shall be diminished by the finder of fact in proportion to the amount of negligence attributable" to the plaintiff. Section 9-20-4. Our comparative negligence statute, it must be noted, only permits comparison of either the negligence between a plaintiff and a defendant or, in the case of multiple defendants, the comparison of any negligence on the part of the plaintiff and on the part of each particular defendant. It does not contemplate or address the proportionate negligence between the various defendants. It is perhaps for this reason that § 9-20-4.1 provides that there is no set-off permitted under the comparative negligence statute. Accordingly, we are concerned with consideration our Uniform Contribution Among Tortfeasors Act and its probable application to the particular fact scenario before us.
The defendants assert that the trial justice erred in precluding them from introducing evidence that might show contributing negligence on the part of the settling defendants at the hearing to establish the plaintiffs' damages. This is an issue of first impression for this court.
Rule 12(h) states that "[a] party waives all defenses and objections which the party does not present either by motion as herein before provided or, if the party has made no motion, in the party's answer or reply * * *." "[T]he failure to raise an affirmative defense in a timely manner constitutes a waiver of that defense." World-Wide Computer Resources, Inc. v. Arthur Kaufman sales Co., 615 A.2d 122, 124 (R.I.1992). "Failing to plead or answer bespeaks an implied concession that the party is liable, or perhaps an indifference to the outcome of the litigation." Kalamazoo Oil Co. v. Boerman, 242 Mich.App. 75, 618 N.W.2d 66, 73 (2000). Although "a default does not concede the amount of damages[,] * * * the factual allegations of a complaint will be taken as true upon default[.]" Bashforth v. Zampini, 576 A.2d 1197, 1200 (R.I.1990). Thus, "`[d]ue to [their] default, defendants[s are] in a position of having admitted each and every material allegation of the plaintiff[s'] complaint except as to the amount of damages suffered by plaintiff[s].'" Kalamazoo Oil Co., 618 N.W.2d at 72. "`The element of proximate cause, as well as negligence, having been alleged in plaintiff[s'] complaint is admitted due to the default of defendant[s] and requires no further proof.'" Id.
"[A] default judgment may not be entered without a hearing on damages unless the amount claimed us liquidated or ascertainable from definite figures contained in documentary evidence or detailed affidavits." Bashforth, 576 A.2d at 1200.6 Thus, "[w]hile a default judgment constitutes an admission of liability, the quantum of damages remains to be established by proof [at the hearing] unless the amount is liquidated or susceptible of mathematical computation," Id. (quoting Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir.1974)). (Emphasis added.) Such a hearing "is limited to the question of damages." Id. (Emphasis added.)
In Bashforth, this Court concluded that a defaulted defendant is entitled to discovery in personal injury litigation to determine the causal relationship between a plaintiff's injuries and the plaintiff's amount of claimed damages. See Bashforth, 576 A.2d at 1200
. Such discovery facilitates the ascertainment of a reasonable figure for the plaintiff's unliquidated damages. See id. In this case, it is important to note that at the hearing to determine the plaintiff's damages, pursuant to § 9-20-2, the plaintiffs only burden was to prove the amount of damages they were entitled to recover from the defaulted parties, and not the comparative negligence, if...
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...Superior Court who have presided over it at various points in time are to be commended. 23. See also Calise v. Hidden Valley Condominium Association, Inc., 773 A.2d 834, 839 (R.I. 2001). 24. In their Motions for reconsideration and to vacate judgment, plaintiffs raised several additional ar......
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