Lead Opinion
OPINION
for the Court.
This civil matter comes before the Court on appeal from a Superior Court judgment in favor of the plaintiff, Ms. Victoria Roach (Roach or plaintiff). The plaintiff slipped and fell while she was working as a per diem contract nurse at the Rhode Island Veterans Home (Veterans Home or the Home) on November 10, 2008, She brought suit against the State of Rhode Island and Gary Alexander in his official capacity as Director of the Rhode Island Department of Human Services (collectively, the state).
The case was tried before a jury beginning on March 12, 2014. At the conclusion of plaintiffs ease-in-chief, the state moved for judgment as a matter of law pursuant to Rule 50 of the Superior Court Rules of Civil Procedure, which the state renewed at the close of the evidence. On March 19, 2014, the jury awarded plaintiff $500,000. Under Rule 59(e) of the Superior Court Rules of Civil Procedure, the state then filed a motion for new trial, and a motion to amend judgment and for a remittitur. The trial justice granted a remittitur, lessening plaintiffs award to $382,000; however, the prejudgment interest award increased the judgment to $631,373.66.
The state asserts multiple arguments on appeal: (1) the public-duty doctrine shields the state from liability; (2) the statutory tort cap in G.L. 1956 § 9-31-2 limits damages to $100,000; (3) the-prejudgment interest award was improper; (4) the trial justice erred in denying the state’s motion for judgment as a matter of law; and (5) the trial justice erred in failing to instruct the jury on comparative negligence. For the reasons set forth below, we affirm the judgment of the Superior Court.
I
Facts and Travel
A
Background
The Veterans Home serves as a nursing home for many of Rhode Island’s veterans.
Of particular relevance here is Unit N-7 (N-7). A “skilled unit,” N-7 included residents requiring heightened care and palliative (end-of-life) residents.
At the start of a 4 p.m. shift, CNAs went directly to their respective room assignments and checked whether residents needed washing or changing.
B
The Accident
On November 10, 2008, Roach reported to work for her Veterans Home assignment, arriving around 3:45 p.m. for the 4 p.m. to 12 a.m. shift. As a contract nurse
Roach eventually arrived at Room .B-7 — the room from which the crux of this case arises. At the time, Room B-7 housed two resident-patients.
Roach proceeded to administer Resident 2’s medication. He required one medication, which she administered in a 30-cubic-centimeter (cc) cup along with a 90-cc Dixie cup filled about halfway with water. After he took his pill, about 30 ccs of excess water remained in his cup. Roach tossed the medication cup in the trash near B-7’s entrance and approached the bathroom to dump the excess water in the sink,
Walking towards the bathroom with the water cup in her right hand, Roach reached inside the room with her left hand and attempted to flick on the light switch.
While on the floor, Roach felt liquid on both sides of her. It was enough liquid to dampen both the back and side of her pants. Based on its smell, Roach believed the liquid was cleaning solution or soapy water used to bathe residents. Unable to reach the call light above her on the wall, Roach yelled out multiple times for help, to no avail. With no one around to assist, she used her uninjured leg to push herself up and out of the bathroom. Relying on the medical cart for support, Roach then made her way down the hall to the nursing station.
At the nursing station, Roach notified Kelley of her fall. Kelley provided Roach with an ACE bandage wrap and ice pack. She also gave Roach an incident report, which Roach completed shortly thereafter. Kelley retained a mop and bucket and went to Room B-7 to clean up the spill. Kelley recalled needing only one mop swipe to clean the liquid. Although plaintiff remained in pain, which she described as a “ten” on a one-to-ten scale, she completed her shift.
C
Bathroom Access
While the jury heard no direct evidence regarding how the liquid reached the bathroom floor, the parties presented circumstantial evidence detailing the possible events leading to Roach’s slip and fall. All staff members, including nurses, CNAs, and housekeeping, could access B-7 and its bathroom. Additionally, the Home allowed visitors, who could access the Home and B-7, including the bathroom.
In particular, Heritage Healthcare Company (Heritage or housekeeping) cleaned the Home’s rooms and bathrooms daily, including on November 10.
Beyond housekeeping, nurses and CNAs also accessed unit bathrooms. Several nurses and CNAs testified that they accessed the bathroom during the resident-cleaning process. Generally, CNAs used one of two resident-cleaning methods: either Perineal (Peri) Spray and disposable wipes, or a bucket of soapy water and a washcloth.
Regarding B-7, Kelley testified that CNAs washed Residents 1 and 2 either bedside or over the toilet. If over the toilet, Kelley said that the CNAs cleaned Resident 1 with Peri Spray, while if they cleaned him at his bedside, they probably used warm water and soap. Ms. Ursula Souza, the N-7 LPN on duty before Roach during the 8 a,m. to 4 p.m. shift, testified that CNAs always washed B-7 residents at their bedsides. She also noted that CNAs disposed of washing materials and water in bathrooms. Additionally, Ms. Patricia Brum, a CNA who worked in N-7 during Roach’s shift, testified that she used the bathroom to wash out any used urinals. Nurses also accessed bathrooms to wash their hands.
Because housekeeping staff left around 8:80 p.m., the nurses cleaned up spills after this time. Employees, including CNAs, consistently testified that if a CNA or nurse noticed a spill, they were responsible for cleaning it up. LPN Souza and CNA Demello covered Room B-7 during the 8 a.m. to 4 p.m. shift on November 10. Specifically, Demello cared for Residént 1 and eight to ten other B-wing residents. Souza testified that she could not recall seeing liquid on B-7’s floor at the end of her November 10 shift; however, she also could not recall whether she looked in the bathroom. She did note, though, that if she saw liquid, she would clean it up. Demello testified that she clearly remembered seeing no liquid anywhere in B-7 or its bathroom when she finished her shift. As a “perfectionist,” Souza stated that she double-checked her residents and rooms often.
CNA Mr. Allemand (Al) Morantus assisted one of B-7’s residents during the 4 p,m. to 12 a.m. shift on November 10. He could not recall whether he cared for both B-7 residents. While he did not remember a spill that evening, he noted the importance of cleaning spills, stating, “If you don’t [pick up spilled liquid], any nurses see that, you can get punished for that. That’s why everybody have [sic] a concern
Finally, the jury heard testimony regarding visitor access to the Home and N-7. Although rare, Kelley testified that some Home residents have had visitors who could access the Home units almost any time during the day. Further, Kelley recalled that she never saw family members visit Resident 1 as he did not have family. She did not remember visitors for Resident 2, but she recalled that he had an out-of-state daughter. Souza, however, testified that Resident 2 occasionally had visitors; though she could not specifically recall the last time someone visited. Roach testified that on the evening in question, she did not observe any visitors between 4 and 5 p.m. and claimed that she would have noticed if anyone visited.
D
The Aftermath
As a result of the fall, Roach saw numerous physicians, underwent arthroscopic surgery, and engaged in several months of physical therapy, both before and after surgery. Although Roach experienced a torn anterior cruciate ligament (ACL) and torn meniscus, her surgery addressed only her torn meniscus.
Roach' did not resume nurse employment for about three-and-a-half years. When she resumed work in the fall of 2012, she modified her schedule from forty hours per week to sixteen. Although she earned approximately $1,250 before taxes based on a forty-hour work week, she earned about $450 before taxes based on a sixteen-hour work week. After her fall, Roach wore a brace on her injured knee for assistance and support while working.
After hearing arguments and'considering all pending motions, the trial justice issued a bench decision on April 17, 2014. She denied the state’s Rule 50 motion for judgment as a matter of law, finding that reasonable minds could differ and that there was sufficient evidence for a reasonable juror to side with Roach in terms of liability. Additionally, the trial justice found the public-duty doctrine inapplicable. In denying the state’s Rule 59 motion for a new trial, she found her jury charge correct, especially regarding her rejection of a jury instruction on open and obvious dangers, comparative negligence, and assumption of risk. Finally, the trial justice granted the state’s request for a remitti-tur, reducing the jury’s award by $118,000 to $382,000. Approximately $250,000 in prejudgment interest was added to this amount, giving Roach a total award of $631,373.66. On April 30, 2014, the state appealed the judgment. This opinion sets forth further relevant facts as needed.
II
Standards of Review
A
Public-Duty Doctrine, Statutory Tort Cap, and Prejudgment Interest
This Court reviews pure questions of law under a de novo standard. Drescher
B
Motion for Judgment as a Matter of Law
“Our review of a trial justice’s decision on a motion for judgment as a matter of law is de novo.” McGarry v. Pielech,
C
Juiy Instructions
“[T]he standard of review for jury instructions is well settled. A charge ‘need only adequately cover[] the law.’” State v. Long,
Ill
Discussion
A
Public-Duty Doctrine
Under traditional common-law sovereign immunity, individuals lacked recourse for state-induced tortious injuries. Grounded in the common-law theory that “The King Can Do No Wrong,” this liability-shielding principle was the law in Rhode Island for much of the twentieth century. See Catone v. Medberry,
Following Becker, the General Assembly enacted the Rhode Island Tort Claims Act, § 9-31-1, as enacted by P.L. 1970, ch. 181, § 2. Through § 9-31-1, the General Assembly further chiseled away at common-law immunity, construing state tort liability in a manner akin to that of a private person or corporation, while also confining potential damages. To the extent that gov
This Court interpreted § 9-31-1 for the first time in Calhoun v. City of Providence,
In O’Brien v. State,
“[It] does not resurrect the concept of sovereign immunity but it does take into account the unquestionable fact that many activities performed by government could not and would not in the ordinary course of events be performed by a private person at all. Among such activities would be those that we have considered in our cases, such as licensing of drivers, management and parole of incarcerated prisoners, and the exercise of the police power through officers authorized and empowered by the state to perform a police function. We believe that the exercise of these functions cannot reasonably be compared with functions that are or may be exercised by a private person.
“However, the state as a landowner or an owner of motor vehicles, to mention only two of its activities, performs the identical function that a private person might perform or which a private person might well parallel, and therefore, the duties of the state as landowner or owner or operator of motor vehicles should be the same as that of any private person or corporation as the Legislature has ordained in § 9-31-1.” (Emphasis added).
The current jurisprudential landscape of the public-duty doctrine shields the state from liability in limited circumstances. Namely, the public-duty doctrine immunizes the state from “tort liability arising out of discretionary governmental actions that by their nature are not ordinarily performed by private persons[.]” Morales v. Town of Johnston,
As such, under our analysis of the public-duty doctrine, we differentiate between “discretionary” governmental activities and acts capable of performance by private citizens. For example, in Catone,
Applying the correct standard, the trial justice found the public-duty doctrine inapplicable. The trial justice noted that the Veterans Home performs tasks analogous to private nursing homes, in that it houses and cares for patients, which includes care from agency-employed nurses. Further, she found that the Home’s sole distinguishing characteristic from a private nursing home is its legislatively defined population and funding structure, which bestows oversight authority on the Director of Human Services. The trial justice stated that, similar to how a private nursing home decides internal-policy matters, bylaws govern the Home’s internal processes. She also noted that daily nursing care and nursing care facilities are not unique to state entities.
The trial justice considered whether the public-duty doctrine applies “solely due to the fact that the Veterans’ Home is a creature of statute and the duties of which patient population, funding, and administration are statutorily imposed.” In refusing to apply the public-duty doctrine, the trial justice first rejected the state’s assertion that the Veterans Home is distinct because its duties are statutorily imposed, noting that she could not “think of any of the [s]tate’s duties that are not statutorily imposed and regulated.” Further, she cited Adams v. State Department of Corrections,
The discrete function here — that is, care for nursing home resident-patients — is not the type shielded from tort liability. Although the parties agree that we must analyze whether the state is engaged in a function capable of private-party performance, the parties diverge on the vantage point from which we conduct this analysis. For instance, the state confines the function to the Veterans Home’s maintenance, which it argues a private person cannot replicate because the Home is statutorily created with its management vested in. the Director of Human Services. The plaintiff, however, asserts that this Court should view the activity more functionally, con
Importantly, the activity giving rise to plaintiffs injuries is not a discretionary governmental function warranting immunity. To this point, Adams is instructive. In Adams,
Despite the fact that TEFAP restricted its shipment to state agencies (excluding private individuals or corporations), this Court nonetheless imposed liability on the state. See Adams,
Similarly, here, the administration, operation, or maintenance (in a broad sense) of the Veterans Home is not at issue. Rather, the pertinent government function is resident-patient care. The plaintiff does not assert that her injuries stem from a discretionary decision of the Director of Human Services, such as a decision to admit or deny a resident. Instead, she asserts that the negligence of a nurse or housekeeper caused her injuries. Regardless of whether this incident occurred in the Veterans Home or a private nursing home, the underlying function at issue — resident-patient care — remains unchanged. Therefore, we will not disturb the trial justice’s public-duty doctrine finding.
B
Statutory Tort Cap
Rhode Island operates under a general statutory-damage limitation applicable in tort cases asserted against the state. This limitation provides:
“In any tort action against the state of Rhode Island or any political subdivision thereof, any damages recovered therein shall not exceed the sum of one hundred thousand dollars ($100,000); provided, however, that in all instances in which the state was engaged in a proprietary function in the commission of the tort, or in any situation whereby the state has agreed to indemnify the federal government or any agency thereof for any tort liability, the limitation on damages set forth in this section shall not apply.” Section 9-31-2.
Thus, this Court recognizes that damages above $100,000 are permitted when the tort action stems from the state’s “proprietary function.” “Proprietary” functions are those “actions normally performed by private individuals.” Graff v. Motta,
This Court recognizes the somewhat murky nature of deciphering when the state executes a proprietary versus a governmental function. Yet, we do not read the above “proprietary function” articulations as inconsistent. Whether a function is so intermingled with governing, such that only government agents or employees can execute it, begs the question of whether nongovernmental employees or private persons can also perform the function. In both inquiries, this Court pinpoints the function at issue and examines whether it is so significantly tied to governing that private persons or entities could not possibly fulfill it.
In analyzing whether the statutory tort cap applied, the trial justice found that the Home’s daily operations were not so intertwined with governing to require the state to solely utilize state employees in executing its functions. The trial justice noted that the Home contracted with private employment agencies (including plaintiffs employer) and a private company for cleaning services. She reasoned that the Home’s CNAs routinely executed tasks that private employees similarly performed. The trial justice cited Lepore, noting numerous similarities between the Veterans Home and the Rhode Island Public Transit Authority (RIPTA). For instance, she noted that both entities are legislatively created, neither is self-sustaining or expected to generate pecuniary profits, and although both collect revenue, each also relies on government funds.
The state argues that the damages cap applies because Veterans Home maintenance is a governmental function. The state further asserts that the trial justice applied the improper test in analyzing the cap. Specifically, the state asserts that the trial justice incorrectly applied the public-duty doctrine standard in this context, concluding that “the CNAs * * * were performing tasks that privately employed CNAs routinely perform.” The state asserts that the trial justice should have instead asked whether it “engaged in a proprietary function in the commission of the tort.”
We deem the state’s arguments unpersuasive. The trial justice correctly adopted plaintiffs argument, finding the statutory tort cap inapplicable based on the Veterans Home’s performance of a proprietary function. While we acknowledge that similarities between the public-duty doctrine and statutory tort cap standards create overlap in the trial justice’s analysis of each issue, we are satisfied that the trial justice properly framed the issue before her. To inquire whether private individuals routinely perform the function is synonymous with asking whether the Veterans Home, in commission of the tort, acted in a proprietary manner. The state’s semantical assertion is unfounded.
Moreover, we are not persuaded by the state’s broad assertion that the Veterans Home is a creature' of statute and therefore is protected by the tort cap.
In this context, we are mindful that certain entities exercise a “dual nature,” and pei'form both governmental functions and proprietary functions. For example, in Rhode Island Student Loan Authority v. NELS, Inc.,
Here, the Veterans Home is capable of fulfilling both governmental and proprietary functions. The events giving rise to liability — the resident-care functions of CNAs, or alternatively, contracted housekeepers — constitute proprietary functions. Under Graff,
Moreover, CNA and housekeeper duties are not “so intertwined with governing that the government is obligated to perform it only by its own agents or employees.” Lepore,
Further, that the Veterans Home' performed a proprietary function in this instance is not to say that it is incapable of
C
Prejudgment Interest
The state argues that the court erred in awarding approximately $250,000 in prejudgment interest against it. Moreover, it avers that, because plaintiff never requested interest, none should have been awarded.
The state cites Andrade v. State,
In Lepore,
“Section 9-31-2 does not place a limit on the amount of damages recoverable in the instant action because the government is performing a proprietary function. As a result, our holding in Andrade does not apply to this situation. Because it appears from § 9-31-2 that the Legislature did not intend to limit recovery in cases wherein the state is performing a proprietary function, we believe that the trial justice appropriately awarded prejudgment interest in the case at bar.” Lepore,
Alternatively, the state argues that plaintiff did not request that the trial justice award prejudgment interest, which therefore makes the award improper. The state’s assertion in this respect similarly
“(a) In any civil action in which a verdict is rendered or a decision made for pecuniary damages, there shall be added by the clerk of the court to the amount of damages interest at the rate of twelve percent (12%) per annum thereon from the date the cause of action accrued, which shall be included in the judgment entered therein.” G.L. 1956 § 9-21-10.
“[WJhether [the plaintiff] specifically requested the interest by motion * * * [is] not relevant for the awarding of prejudgment interest pursuant to § 9-21-10. This [C]ourt has long held that the awarding of such interest is a ministerial act for the clerk of the court, not an issue to be decided by the court.” Cardi Corp. v. State,
D
Motion for Judgment as a Matter of Law
The state argues that the trial justice erred in her denial of the state’s motion for judgment as a matter of law.
A review of the evidence reveals that plaintiff set forth legally sufficient evidence such that denial of the state’s motion for judgment as a matter of law was appropriate. Specifically, the trial justice recalled plaintiffs statement that she fell on liquid, which she thought was housekeeping cleaning fluid. The trial justice further noted that housekeeping finished cleaning at 3 p.m. and left the Home by 3:30 p.m. She recalled that plaintiff fell around 4:45 to 5 p.m., more than an hour after housekeeping finished. She noted that many CNAs consistently testified that their responsibilities included patient-room and bathroom inspections about every two hours. The trial justice found that if the jury determined that housekeeping caused the spill, sufficient evidence demonstrated that the spill was present' long enough for the CNAs to inspect, discover, and clean it.
The trial justice then recalled the testimony of Demello, the CNA who covered Room B-7 during the 8 a.m. to 4 p.m. shift. She noted that Demello testified: (1), patient-safety inspections were essential; (2) as a perfectionist, she conducted inspections at least every one-and-a-half hours; (3) one of the first things CNAs should do after starting a shift is check the patients, rooms, and bathrooms to ensure no spills or messes; (4) she was aware that discarding patient-bath water could cause spills; and (5) she visited Room B-7 frequently during her shift that day. The trial justice concluded that if the jury found housekeeping left the liquid, Demello could have
The trial justice also recalled the testimony of Morantus, the CNA who worked during plaintiffs shift, starting at 4 p.m. She recalled evidence that one B-7 resident remained in his room for dinner, which started around 4:30 p.m. She noted that if necessary or appropriate, CNAs washed patients bedside, and, in the process, discarded excess water in the toilet. The trial justice also noted the CNAs’ high standard of care when washing patients and discarding water, which required avoiding spills or immediately cleaning up any spills. The trial justice emphasized that all CNAs detailed the paramount importance of cleaning up spills in executing their functions. She recalled that Morantus was in B-7 shortly before plaintiff fell and noted that circumstantial evidence supported the inference that he was present in B-7 to feed a resident dinner. The trial justice gleaned sufficient evidence that could lead the jury to infer that one of the CNAs left the liquid, failing to reasonably inspect the bathroom during their shift. Because sufficient evidence allowed the jury to reach a verdict in plaintiffs favor, the trial justice properly denied judgment as a matter of law.
E
Comparative-Negligence Instruction
The trial justice refused to instruct the jury on comparative negligence as she found that the state never articulated a clear comparative-negligence theory. The state asserts that this refusal to instruct was erroneous. Below, the state struggled to communicate its reasoning in favor of a comparative-negligence instruction and later argued alternative comparative-negligence theories.
However, for the first time on appeal, the state posits a new theory, suggesting that the trial justice should have instructed on comparative negligence because the jury heard testimony that the plaintiff entered the bathroom before she turned on the light. “It is well settled [under our raise-or-waive rule] that a litigant cannot raise an objection or advance a new theory on appeal if it was not raised before the trial court.” State v. Bido,
IV
Conclusion
For the reasons stated herein, we affirm the Superior Court’s judgment. The record shall be remanded to that tribunal.
Notes
. Residency at the Home is limited to Rhode Island resident veterans having served during a time of war.
. The unit included residents with chronic obstructive pulmonary disease (COPD), residents undergoing psychiatric treatments, and amputees. Many N-7 residents required help getting out of bed and ambulating, using the bathroom, eating, and bathing.
. The charge nurse oversaw a particular unit, which included nurse and CNA oversight.
. Working at the charge nurse’s direction, an N-7 staff nurse, who could be a Registered Nurse (RN) or Licensed Practical Nurse (LPN), primarily distributed resident medication, usually to either the A or B wing.
. CNAs delivered meals to residents, fed, washed, toileted, and ambulated them.
. Because most on-duty CNAs regularly worked in N-7, they needed little guidance in fulfilling their duties.
. Roach worked on a per diem basis for MAS Medical Staffing.
. For privacy purposes, we refer to both residents as Resident 1 and Resident 2. Resident 1 refers to the B-7 resident whose bed was closest to the door, and Resident 2 refers to the resident, located proximate to the room's window.
. At trial, plaintiff offered divergirig testimony regarding whether she turned on the light before or after entering the bathroom.
. The Home contracted with Heritage for daily cleaning services.
. Ms. Charlene Demello, a CNA with twenty years of experience at the Home, described the washing process. She testified that, ‘‘[y]otx would go in the bathroom and — you would first get the bucket, bring the bucket into the bathroom, get the water in the bucket, bring it to [the patient’s] bedside, wash them up, and then empty the water out immediately because in the process of getting them up, you don’t want to drop any of that water on the floor.”
. Interestingly, Demello did not initial a standard nursing observation record during her November 10 shift. When asked why she failed to complete the form, she repeatedly ' responded "Nolo,” which she asserted meant she could not answer the question. She did, however, assert that it was not because she was too busy to initial the form during her shift.
. Pires’s testimony seemed to suggest that she had difficulty understanding the English language. Similarly, tire trial justice noted that Morantus seemed to have trouble with English, and at certain points, it seemed that he simply agreed with questions, when posed in a leading form.
. We note that, in certain instances, this Court has highlighted a third public-duty doctrine exception: “when the governmental entity engaged in [non-discretionary] activities normally undertaken by private individuals or corporations.” Medeiros v. Sitrin,
. The trial justice made additional comparisons between the Home and RIPTA. She observed that, whereas RIPTA floats public bonds, the Veterans Home accepts private donations. Each entity’s governing authority is established by its respective enabling statute; RIPTA is an instrumentality and "state political subdivision” whereas the Home's supervision and administration is bestowed upon a state department head, the Director of Human Services.
. Although the state moved for a new trial, it does not challenge the trial justice’s finding in this respect on appeal.
. At trial, among other inartful assertions of comparative negligence, the following colloquy occurred:
"The Court: But, what was the negligent conduct?
“[The state]: I mean, it’s really just that she had a duty of care. I don't think there's going to be a negligent — I don’t think there’s going to be a comparative negligence — I don’t think it’s going to rise to that, that she actually did something, or failed to do something.
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"[The state]: It’s — I guess comparative negligence doesn’t — I understand, the Court’s concern. It doesn’t rise to the level of comparative negligence or claim of comparative negligence. It more goes to her duty of care and her duty as a nurse assigned to this particular locale and ward and whether she performed her duties as she was required.”
Dissenting Opinion
dissenting.
After a great deal of research and reflection and even soul-searching, I have concluded that I must dissent from the Court’s thoughtful and well-written opinion. I do so respectfully, but quite ardently. The majority opinion is unquestionably the product of a conscientious attempt to apply this Court’s precedent to the instant factual situation; however, I simply disagree with the legal conclusions reached by the majority. It is my view that: (1) the $100,000 statutory tort cap (G.L. 1956 § 9-31-2) should apply; and (2) the award of prejudgment interest was inappropriate in the instant case.
I
The Statutory Tort Cap
Because the Court’s opinion nicely describes Rhode Island’s rejection of common law sovereign immunity and the legislative enactment of the Rhode Island Tort Claims Act (chapter 31 of title 9), it is not necessary for me to replow that ground. It is § 9-31-2 of that act,
I begin by emphasizing that our precedents in this domain surely do not constitute a seamless rule of law — far from it! Indeed, as I shall seek to demonstrate, there are actually two quite different “lines” of cases from this Court with respect to the statutory tort cap issue. The majority has chosen to base its holding on one of those lines of cases, but I am firmly convinced that the instant case should be
Preliminarily, I note that the issue at hand is one of statutory interpretation, and we review such issues in a de novo manner. Shine v. Moreau,
It is my view that § 9-31-2 is a model of clarity until one encounters the clause that begins with the word “provided” (which clause contains the exception from the statutory tort cap for “all instances in which the state was engaged in a proprietary function in the commission of the tort”). In other words, § 9-31-2 presents the reader with a provision that is starkly clear (the legislative desire that there be a cap on tort damage awards against government), which provision is immediately followed by another provision (the “proprietary function” exception) that is undefined and not reducible to a precise definition. As our two lines of cases reflect, the “proprietary function” term is one which “is fairly susceptible of two or more conflicting constructions.” Newport Gas Light Co. v. Norberg,
Throughout my weeks of mulling over this admittedly very difficult case, I have kept constantly in mind the General Assembly’s unwavering insistence that there should be a specific monetary ceiling on
“When the government acts in the same manner as a private individual, ‘the only difference between the State of Rhode Island and other tort defendants is the [monetary] limitation on liability contained in § 9-31-2.’ * * * This cap on damages * * * ensure[s] that the state is not crippled by excessive judgments.” Catone v. Medberry,555 A.2d 328 , 334 (R.I. 1989) (quoting Laird v. Chrysler Corp.,469 A.2d 425 , 429 (R.I. 1983)).
It is self-evident that the raison d’étre of the statutory tort cap is to “protect[ ] the state’s treasury against excessive claims.” Barratt v. Burlingham,
The majority correctly notes that § 9-31-2 excepts from the reach of the statutory cap “all instances in which the state was engaged in a proprietary function in the commission of the tort * * The majority then focuses on certain opinions issued by this Court over the years which have sought to delineate what the General Assembly meant when it employed in that statute the undefined term “a proprietary function.” Those decisions relied upon by the majority vary in their analytical clarity, but they generally tend to equate a proprietary function with one that can be performed by a non-governmental actor as readily as by a governmental actor. See, e.g., Housing Authority of the City of Providence v. Oropeza,
By contrast, as I indicated at the outset, there is another line of cases that should not be overlooked. These cases focus not on the nature of the activity at issue but rather on whether, or not the alleged tort was somehow related to the maintenance of a public building. See, e.g., Kuhl v. Perri,
I viéw this Court’s opinion in the case of Matarese,
II
Prejudgment Interest
I am also of the opinion that the Superi- or Court erred in adding prejudgment interest to the award of damages. I would not deviate from the rationale of this Court’s holding in Matarese,
III
Conclusion
I do acknowledge that there is precedent upon which the majority could logically rely for its conclusion that the statutory tort cap should not apply in this case. But I am equally aware that there is also a line of eases applying the statutory tort cap to activities connected to the maintenance of public buildings. (One yearns for Occam’s metaphorical razor to cut through this clash of authoritative precedents.) In view
It is my opinion that the obvious goal of the General Assembly in enacting the Tort Claims Act was to allow some measure of relief to plaintiffs seeking relief for alleged governmental torts while also protecting taxpayers from having to be responsible for very large awards of damages. With that in mind, I respectfully but earnestly submit that the scope of the “proprietary function” exception to the statutory tort cap cries out for definitive clarification by the General Assembly — lest the ever-beleaguered taxpayer be required to be responsible for very large awards of damages (such as those in the instant case) against a background of uncertainty as to the meaning of the “proprietary function” exclusion in the underlying statute.
For these several reasons, I respectfully dissent.
. In writing this dissent, I have kept constantly in mind the following hauntingly perceptive observation of Judge Learned Hand at the conclusion of an opinion concerning the meaning of a particular federal statute:
"When we ask what Congress 'intended,’ usually there can be no answer, if what we mean is what any person or group of persons actually had in mind. Flinch as we may, what we do, and must do, is to project ourselves, as best we can, into the position of those who uttered the words, and to impute to them how they would have dealt with the concrete occasion. He who supposes that he can be certain of the result is the least fitted for the attempt.” United States v. Klinger,199 F.2d 645 , 648 (2d Cir. 1952).
. Although the majority opinion does provide the reader with the text of G.L, 1956 § 9-31-2, I nonetheless proceed to do the same in this footnote so that that statutoiy provision will be readily accessible for the reader grappling with die difficulties presented by this very complex and challenging case. That statute reads as follows:
"In any tort action against the state of Rhode Island or any political subdivision thereof, any damages recovered therein shall not exceed the sum of one hundred thousand dollars ($100,000); provided, however, that in all instances in which the state was engaged in a proprietary function in the commission of the tort, or in any situation whereby the state has agreed to indemnify the federal government or any agency thereof for any tort liability, the limitation on damages set forth in this section shall not apply.” Section 9-31-2.
. In order to avoid any confusion, I note that “[t]he limitation on liability was $50,000 when * * * § 9-31-2 was first enacted by P.L. 1970, ch. 181, § 2, but it was increased to $100,000 by P.L. 1984, ch. 87, § 1." Graff v. Motta,
. In view of the dilemma posed by.the very inconsistent nature of our precedent with respect to the statutory tort cap, one inevitably recalls the following lines from one of Robert Frost’s most quoted poems:
"Two roads diverged in a wood, and I—
I took the one less traveled by,
And that has made all the difference.”
Robert Frost, “The Road Not Taken,” in A Little Treasury of Modern Poetry 137 (Oscar Williams ed., Charles Scribner's Sons 1952).
. See also Andrade v. State,
. The opinion in Lepore v. Rhode Island Public Transit Authority,
. I would add that, in my judgment, the General Assembly's clearly expressed preference for finite monetary limitations in the domain of governmental tort liability calls for the application of the statutory tort cap in doubtful cases — although I do not believe that this case is in any way doubtful.
. It is important to note that, just like the plaintiff in the instant case, the plaintiff in Matarese “attempted to bring her case within
. I concede that not all cases under the Tort Claims Act will be controlled by the rationale of the Matarese line of cases, which focuses on the maintenance of government buildings. However, I am convinced that that line of cases should control the case at bar; and, for me, that is sufficient for this day. See Grady v. Narragansett Electric Co.,
. This Court is free to overrule the Matarese line of cases if it concludes that the reasoning in those cases is faulty. But unless and until that happens, it is my view that those cases should govern the analysis and the result in cases involving the maintenance of public buildings.