Konar v. PFL Life Ins. Co.

• Decision Date: 09 January 2004
• Docket Number: No. 2002-291-Appeal.,2002-291-Appeal.
• Citation: 840 A.2d 1115
• Parties: Bryan D. KONAR v. PFL LIFE INSURANCE COMPANY v. National Development Asset Management of New England v. Dennis DePalma, Alias, and Rhode Island Bureau of Investigation and Protection, Ltd.
• Court: Rhode Island Supreme Court

840 A.2d 1115

Bryan D. KONAR v. PFL LIFE INSURANCE COMPANY v. National Development Asset Management of New England v. Dennis DePalma, Alias, and Rhode Island Bureau of Investigation and Protection, Ltd.

No. 2002-291-Appeal.

Supreme Court of Rhode Island.

January 9, 2004.

Peter Brent Regar, for Plaintiff.

Amy Parker, Providence, for Defendant.

Present: WILLIAMS, C.J., FLANDERS, GOLDBERG, FLAHERTY and SUTTELL, JJ.

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 case 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 liable for plaintiff's 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. See 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 plaintiff's 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 plaintiff's 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]urisdiction 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." Hendrick, 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 plaintiff's 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 plaintiff's 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 plaintiff's 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...