Kuzniar v. Keach
| Decision Date | 09 April 1998 |
| Docket Number | No. 96-133-A,96-133-A |
| Citation | 709 A.2d 1050 |
| Parties | Claire L. KUZNIAR v. David S. KEACH, d.b.a. Keach Construction Co., et al. ppeal. |
| Court | Rhode Island Supreme Court |
James E. Kelleher, Warwick, for Plaintiff.
Michael DeSisto, Gregory A. Madoian, Providence, for Defendant.
Before WEISBERGER, C.J., and LEDERBERG, FLANDERS and GOLDBERG, JJ.
When, as here, a governmental entity and/or its officials are sued for alleged negligence, a Superior Court trial justice--rather than a jury--should determine the existence of any legal duties owing to the plaintiff and communicate to the jury what those duties consist of under the circumstances of the case. The trial justice should do so even when the existence of certain predicate, duty-triggering facts is disputed by the parties. In such a case the trial justice should instruct the jury that the extent and nature of any legal duties owed will depend upon whether it finds these disputed facts to have been established by a preponderance of the evidence. The jury should then be charged to determine whether any of these disputed facts have been proven, and if so, whether the defendants have breached whatever legal duty they may have owed to the plaintiff in these circumstances.
In this case, however, a Superior Court justice left it entirely up to a jury to determine whether the defendant municipality and certain of its officials owed a legal duty to plaintiff. Because the court should have performed this function rather than the jury, we reverse and remand for a new trial.
In 1988 plaintiff, Claire L. Kuzniar (Kuzniar), decided to renovate and winterize her summer cottage. Located within the city of Warwick (city), the cottage lay in a slight gully close to Occupassatuxet Cove, an arm of Narragansett Bay. It rested on blocks and was serviced by a domestic cesspool. Because of the topography in that littoral location, the water table by the cottage was in places a mere six inches from the surface of the ground. In addition rainwater would flow toward the cottage from the street level and collect or pool at the base of the gully.
In the spring of 1989 Kuzniar contracted with the defendant, builder David S. Keach (Keach), to renovate the cottage. Keach thereupon submitted an application for a building permit to the city building inspector's office. Keach's application indicated that in renovating the cottage, he would retain two walls from the existing structure. However, Keach did not submit a permit for an individual sewage-disposal system (ISDS) along with the application. 1 Relying upon Keach's application, the local building official issued a "reconstruction" or remodeling permit on April 15, 1989. The city contends that unlike a permit for construction of a completely new structure, a remodeling permit did not require prior ISDS approval by the Rhode Island Department of Environmental Management (DEM).
On May 8, 1989 Melvin Sturdahl (Sturdahl), the city's deputy building inspector, conducted an onsite inspection of the cottage and discovered that, contrary to the representations in Keach's permit application, the entire cottage had been razed. Sturdahl immediately posted a stop-work order at the site based upon Keach's apparent violation of the parameters of the remodeling permit. Keach thereafter applied for a second permit but again submitted no ISDS approval or permit. At that time Keach allegedly informed Shirley Reccko (Reccko), an employee in the building official's office, that an ISDS permit probably could not be obtained because of the nature of the land underlying the cottage and the height of the water table. The town's building official, Richard Crenca (building official), nevertheless issued a second remodeling permit (second permit) on May 24, 1989.
Keach asserted at trial that the city had issued the second permit to him so that the cottage-renovation project could continue but that the permit was subject to the condition that Keach had to present the requisite DEM approval before the city would issue a certificate of occupancy. The building official, however, testified at trial that he issued the permit on the basis of his mistaken belief that two walls of the original structure remained intact. He stated that he would not have issued the second permit had he known that the cottage had been demolished and that the water-table conditions precluded ISDS approval. However, the building official's records from May 8, 1989 (the date of the stop-work order issued by deputy inspector Sturdahl), contained the notation (Emphasis added.) The building official later admitted that his routine practice was to review such records after a stop-work order had issued.
Despite the lack of any ISDS approval, construction of the new cottage proceeded under the second permit. Eventually Kuzniar discovered that she would have to install an ISDS to replace the existing cesspool in order to obtain a certificate of occupancy. But by that time her relationship with her contractor, Keach, had deteriorated to the point that Kuzniar decided to arrange for another builder to install an ISDS. After doing so, she also learned that because the house foundation as built by Keach was too low to accommodate a relatively inexpensive "gravity-fed" ISDS, she had to install a more expensive pump-driven system that elevated wastes from the house to street level. Kuzniar thereafter filed suit against Keach for various breaches of their construction contract. A jury returned a verdict in favor of Kuzniar and against Keach for $76,000 in compensatory damages and an additional $30,000 in punitive damages. That verdict is not challenged here.
In addition to her lawsuit against Keach, Kuzniar also sued the city, alleging that the city's issuance of the second remodeling permit without the required ISDS approval allowed Keach to continue on the project in violation of the applicable ordinances and contrary to state environmental laws. Kuzniar theorizes that if the city had required an ISDS approval earlier in the course of her construction project, she would have hired a septic-system consultant who in turn would have advised her that her house foundation needed to be raised in order to install a gravity-fed septic system. As a result, Kuzniar reasons, not only would she have avoided the expense of the pump-driven ISDS but she would also have been able to dodge certain additional damages she sustained when rainwater collected at the base of her new home and rotted out the flooring timbers.
At trial Kuzniar contended that G.L.1956 § 9-31-1, and our case law addressing the "special duty doctrine," subjected the city to liability for its alleged negligence in issuing the second permit. Following a four-day trial the trial justice submitted to a jury the question of whether in the circumstances of this case the city owed a duty to Kuzniar. The jury then returned a verdict in favor of the city, on which verdict the court entered judgment. Alleging various errors of law, Kuzniar appeals from the judgment and from the trial justice's denial of her motion for a new trial. Because we hold that the trial justice erred in submitting the issue of the town's legal duty to the jury and because this error necessitates a remand for a new trial with respect to the municipal defendants, we address only the first of Kuzniar's assigned errors.
Section 9-31-1 provides:
"The state of Rhode Island and any political subdivision thereof, including all cities and towns, shall * * * hereby be liable in all actions of tort in the same manner as a private individual or corporation; provided, however, that any recovery in any such action shall not exceed the monetary limitations [$100,000] thereof set forth in this chapter."
In a succession of opinions articulating what has come to be known as the public-duty doctrine, this court has held that § 9-31-1's waiver of the traditional sovereign immunity enjoyed by state and municipal governments for their discretionary acts is restricted to three situations: (1) when the governmental entity owes a "special duty" to the plaintiff, 2 (2) when the alleged act or omission on the part of the governmental entity was egregious, 3 or (3) when the governmental entity engaged in activities normally undertaken by private individuals or corporations. 4 The parties to this action have agreed that only the special-duty exception to the public-duty doctrine is at issue here.
The special-duty rule holds that government entities will be liable for actions taken in the course of their public functions when "the plaintiffs have had some form of prior contact with state or municipal officials 'who then knowingly embarked on a course of conduct that endangered the plaintiffs, or they have otherwise specifically come within the knowledge of the officials so that the injury to that particularly identified plaintiff can be or should have been foreseen.' " Quality Court Condominium Association v. Quality Hill Development Corp., 641 A.2d 746, 750 (R.I.1994) (quoting Knudsen v. Hall, 490 A.2d 976, 978 (R.I.1985)).
The trial justice's jury instructions in this case left it entirely to the jury to decide whether the city owed a special duty to plaintiff. Thus, after rejecting the suggestion from Kuzniar's attorney that the court determine whether a special duty existed in the circumstances of this case, the trial justice gave the following jury charge on the issue of the city's potential liability for negligence:
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