*1 ST. JAMES CONDOMINIUM et al.

ASSOCIATION

Ken et LOKEY al. 94-321-Appeal.

No.

Supreme Rhode Court of Island.

OPINION LEDERBERG, Justice. Supreme

This ease came before the Court appeal on the of St. Condominium James Whalen, Joseph individually Association and and on behalf of other condominium unit judgment (plaintiffs), owners from a final of plain- of dismissal Court against defendants, complaint tiffs’ Ferrante, of the Madeline treasurer town of (town), DePetrillo, North Al Providence and building inspector of North the town of Prov- (building inspector). idence For reasons forth, set appeal plain- we sustain the Superi- tiffs and reverse the of the or Court. A brief of the recitation relevant to this follows. Additional provided necessary facts will be to the discussion of the issues. and Travel Case

Facts of the 22, 1993, plaintiffs, On March as owners of condominium units Condo- St. James (St. James) development minium in North Providence, Island, brought Rhode suit in against developer Court project, against as well as architect and its warranty company, damages seeking allegedly defective construction work- manship building in the units. The their plaintiffs alleged negligent plans construction the St. James units purchased during years 1987 to 1993 defects, major including settling resulted in foundations, walls, pipes, cracked frozen roofs, leaking heating. improper ad- dition, plaintiffs alleged regula- “proper were tion firewalls not constructed between the units.” against brought also suit building inspector, alleging town negligently in- spected plans inspect failed project negli- construction of the and had gently occupancy permits for issued units development. complaint within the stat- Quinlan, Birt, Patrick J. Kathleen A. Prov- “proper investigation by budding ed that idence, for Plaintiff. construction, inspector at the time of would Providence, Salvadore, Joseph C. for De- violations,” have revealed code fendant. charged town “negligent that the Lokey, [referring public Ken Pro Se. actions its officials granted. upon which relief Re- claim building inspector] doctrine of under the Nevertheless, spondeat Superior.” contended “[b]y using matters outside September On or about [sic ] treatment Plaintiffs invited building inspec- interrogatories on served *3 for as a motion sum- the Defendants’ Motion Superior granted plain- the Court tor. After contention, this we mary judgment.” With compel tiffs’ motion to answers to the inter- disagree. must building his rogatories, inspector the filed 16, February town answers on 1994. The a to recognized filed motion that “when Court has This 17, February plaintiffs’ claims on dismiss justice incorpo trial considers evidence a 1994, immunity liability invoking from under a motion to pleadings, in final rated the opposing the doctrine. defen- 12(b)(6) automatically Rule dismiss under motion, plaintiffs dants’ submitted to the trial summary judgment into for transformed one inspection an

justice documents: form two Tangleridge Develop pursuant to Rule 56.” buildings that question for one of the in 1109, Joslin, 1111 Corp. ment 570 A.2d states, stops units. “Need smoke between (R.I.1990) (citing Temple Sinai-Suburban re-building overhang no Boiler Stairs need Richmond, Temple v. 112 R.I. Reform occupancy permit rooms” and an for the (1973)). In such a 308 A.2d 511 building. granted same The Court case, however, the mandate of Rule clear 26, 1994, April the motion to dismiss on and 12(b)(6) to requires that whenever a motion final entered the and was for town summary motion is treated as a for dismiss building inspector May The the on judgment, parties given reason “all shall be timely a plaintiffs appeal filed notice of on opportunity present to all material made able placed case was on by 56.” pertinent to such motion Rule regular briefing argu- full calendar for ment. Although plaintiffs did for the submit justice’s documents Complaint trial consideration two

Dismissal of the of the our review extrinsic appeal, plaintiffs that case On claimed this record, particularly of the trial our review special-duty exception within the fell to motion, justice’s granting order defendants’ they argued doctrine and that justice us trial leads to conclude provided opportuni- had not a been sufficient 12(b)(6) a Rule motion decided the motion as ty present supported to the full facts dismiss, rather than as a motion for sum to The at plaintiffs their claim. contended that mary We judgment under Rule 56. reach justice granted trial time the defendants’ justice the motion this conclusion because dismiss, plaintiffs “only just motion had to no outside the made reference to matters begun discovery, and the dismissal an was pleadings when she ruled on the motion. abuse town of discretion.” The hand, entitled, justice’s inspector argued, trial “Order on the other The order Ferrante, plaintiffs oppor- Defendants, Granting were afforded sufficient Madeline tunity support adequate offer to their to Treasurer of the Town of North Providence to claims but that had failed do so. DePetrillo, Building Inspector for Albert Town of North Providence’s Motion jus- determining whether the trial Before Plaintiffs Action Pursuant R.C.P. Dismiss motion, granting tice in defendants’ we erred 12(b)(6).” The had drafted the must ascertain the nature of the motion first argued but on that the order order granting trial itself.1 The order judgment. granted summary plain fact correctly mo- motion referred defendants’ notified, tiffs, however, required 12(b)(6) were not as Super. tion as P. motion to a R. Civ. 12(b)(6), by for a Rule that defendants’ motion dismiss claims failure state 12(b) presented pleading are and not excluded 1. Rule of the Court Rules of Civil court, provides, pertinent part: by Procedure shall treated as one motion 12(b)(6) summary judgment disposed pro- ] “If on a motion to dismiss for [under pleading upon of the to state a claim failure 56." vided in Rule granted, outside which relief can be matters 1346 being dismiss was converted into motion Department Transportation, a v. State judgment. summary (R.I.1980). A.2d opinion We are the better can establish the ex practice ruling when on motion a to dismiss special by duty demonstrating istence of a using a Rule standard for the they form prior “have some con expressly court to state in its on decision municipal tact with state or officials “who it motion whether has excluded extrane knowingly then embarked on a course of ous matters from its consideration. Under endangered plaintiffs, conduct that procedure, parties such a as well as this specifically have otherwise come within upon confi review ascertain with knowledge of the officials so that dence whether the trial court has excluded injury plaintiff particularly to that *4 identified pleadings matters the from con outside its can be or should have been foreseen.’” Nevertheless, sideration. we review the Quality Court Condominium Association v. judgment in judgment the case at bar as a to Quality Development Corp., Hill 641 A.2d summary judgment. dismiss and not as a (R.I.1994) 746, Hall, (quoting 750 v. Knudsen In reviewing grant a trial (R.I.1985)). 976, light 490 A.2d 978 In of our of a motion pursuant to dismiss to Rule previous “virtually impos statement that it is 12(b)(6), allegations this Court assumes the invoking immunity for sible” a defendant un complaint contained in the to be true and public-duty der the doctrine to sustain its in light views the facts the most to favorable dismiss, in burden a motion to we are of the plaintiffs. Specialty the Builders Co. v. justice opinion grant that the trial erred in Goulet, 59, (R.I.1994); 639 A.2d 60 Ellis v. Haley, ing defendants’ motion. 611 A.2d at Authority, Rhode Island Public Transit 586 849.2 (R.I.1991). 1055,

A.2d 1057 This Court has cautioned that such a motion should not be record before us reveals ambi granted appears certainty it to a that “unless guity to a sufficient create reasonable doubt plaintiffs] will [the not be entitled to relief plaintiffs that would be unable to establish any might under set proved of which be duty. special that defendants owed them a support in Bragg of claim.” v. War [their] holding judgment on pleadings the World, Inc., Shoppers wick 102 R.I. 227 inappropriate Haley, in we concluded: 582, (1967). pursuant 584 A.2d Dismissal allegations in “The factual the contained particularly Rule disfavored in the manner most fa viewed where, here, immunity assert defendants plaintiffs, vorable to the nonmovant were public-duty Haley under the doctrine. v. incomplete too for court to found the have (R.I. Lincoln, 611 Town A.2d 849-50 of plaintiffs prove would be unable to at 1992). trial facts that constitute a valid claim for beyond a relief. It could not be said doubt Public-Duty Doctrine * * * that defendants under set of public-duty protects doctrine the might support facts that in of proven be political state its subdivisions from tort complaint, plaintiffs spe do a the not owe liability performance out arising of duty cial of care.” 611 A.2d at 850. governmental commonly functions not under possible It is to conceive of factual scenarios 849; by private Bier taken entities. Id. at that, trial, proven by plaintiff if a at could (R.I. Shookster, man 590 A.2d 403 special duty the of a owed establish existence 1991). recognized, long This has how by plaintiff. a to that In their defendant ever, immunity not does extend complaint, example, for here plaintiff in a a cases which show that alleged special duty by was owed the defendant to plans specifications individually, pub “failed to examine plaintiff and not to the 849; general. Haley, Ryan negligently plans specifiea- lic in 611 A.2d at examined Lincoln, 12(c) holding Haley 2. Our in v. Town 611 suant to Rule and to motions to dismiss of (R.I.1992), applicable 12(b)(6). A.2d 1 both pursuant 850 n. a to Rule failure to state claim pleadings pur- motions a on

1347 tions,” a claim is peri test that he had to make the whether “failed negligent failing inspections odic or he was As our by doctrine. barred thorough proper inspections,” Lincoln, make 611 opinion Haley v. Town of approved plans and “negligently that he had clear, (R.I.1992), makes A.2d specifications did not meet which rapier can used to summary-judgment ap negligently requirements code [had] “upon touch the boundaries parry suits that proved on-site construction which also violat Accord Catri v. public duly doctrine.” code,” occu ed and that he had “issued (R.I.1992) (sum Hopkins, 609 A.2d pancy permits for the condominiums when he granted when mary judgment appropriately they have were in knew or should known pro “pierce plaintiffs evidence failed to appropriate building codes.” violation affords”). Stated shell the doctrine tective allegations Although these are insufficient to in which differently, even in those situations duty, special of a establish the existence might suffi plaintiff possibly a adduce facts possibility preclude do that such a recog complaint bring cient within a a Moreover, duty existed. we are satisfied doctrine, if exception nized plaintiffs’ bespoke complaint ade grounds to believe that have quately claim nature exist, mo summary-judgment a no such facts grounds upon which it rested. disposi “early seek an tion can be used to 11-12, 102 R.I. at 227 A.2d at 584 Bragg, *5 thereby litigation tion” avoid the Gibson, (quoting Conley v. 47- 355 U.S. for and con preparing costs and burdens of 2 L.Ed.2d 85-86 78 S.Ct. ducting Haley, 611 A.2d at 850. (1957)). a trial. See summary, we conclude that the case present not before us does one of the rare plaintiffs’ plead-

circumstances in which the

ings leave no doubt whatsoever

plaintiffs could not succeed at trial. Conse- 12(b)(6)

quently, pursuant dismissal to Rule Therefore, inappropriate. sustained, judg- is reversed, ment case of dismissal STATE

remanded Court for trial. FLANDERS, Justice, concurring. David MOREL. Although fully opin- I concur in the court’s ion, emphasize separately I write one No. 94-631-CA. dealing practical point complaints with like Supreme Court Rhode Island. potentially subject this one are exceptions. doctrine and its notice-pleading Zeitgeist Because a domi filed un nates consideration of motions

der Rule Rules Procedure, granting of such a Civil “virtually impossible” now obtain

motion is against respect govern

with those claims exception

mental defendants where some may applicable. doctrine Ryan Department But v. State Trans see (R.I.1980)

portation, 420 A.2d 842-43

(complaint appropriately dismissed when “allege facts that would failed them”). give special duty to a owed to rise defen-

But this does mean such expeditious no have recourse short of

dants