54 RI Bar J., No. 5, Pg. 5 (Mar/Apr 2006). Clarifying Individual Capacity Liability and Other Doctrinal Confusion Surrounding Government Tort Claims in Rhode Island: The Basic Questions Attorneys Should Ask.

AuthorAnthony F. Cottone, Esq.

Rhode Island Bar Journal

Volume 54.

54 RI Bar J., No. 5, Pg. 5 (Mar/Apr 2006).

Clarifying Individual Capacity Liability and Other Doctrinal Confusion Surrounding Government Tort Claims in Rhode Island: The Basic Questions Attorneys Should Ask

Rhode Island Bar Journal March/April 2006 pg. 5

Clarifying Individual Capacity Liability and Other Doctrinal Confusion Surrounding Government Tort Claims in Rhode Island: The Basic Questions Attorneys Should AskAnthony F. Cottone, Esq.Anthony F. Cottone is a sole practitioner, Senior Assistant City Solicitor in Providence and Chair of the Rhode Island Disabilities Law Center*

It has been almost nine years since the Rhode Island Supreme Court first held in Pridemore v. Napolitano, 689 A.2d 1053 (R.I. 1997) that the benefits of Rhode Island's Governmental Tort Liability Act, RI Gen Laws § 9-31-1, et seq. (the "Tort Claims Act" or the "Act") did not extend to government employees who had been sued in their individual capacities. See id. at 1056. (fn1) More recently, in Feeney v. Napolitano, 825 A.2d 1 (R.I. 2003) and then again in Andrade v. Perry, 863 A.2d 1272 (R.I. 2004) the court reiterated that the Act's $100,000 cap on monetary damages as well as its preclusion of interest do not apply to individual capacity defendants. See Feeney, 825 A.2d at 5-6; Perry, 863 A.2d at 1278. (fn2)

Pridemore, Feeney and Perry, while purportedly not altering existing legal principles governing application of the so-called public duty doctrine, illustrate the doctrinal confusion surrounding governmental tort claims while highlighting the vulnerability of government employees. (fn3) The cases dictate that allegedly negligent government employees acting within the scope of their official duties face potentially unlimited personal liability to injured plaintiffs, an exposure which appears to bear little relation to the nature of the employee's actual conduct but instead depends upon factors which are largely outside of the employee's control, such as whether or not his or her employer has agreed to some form of indemnification and/or the plaintiff's attorney has added the employee as an individual capacity defendant. (fn4)

It is the premise of this Article that much of the doctrinal confusion surrounding government tort claims in Rhode Island is the result of a failure to recognize that the various tests that have developed in the context of sovereign immunity - whether the function is "governmental" or "proprietary," the conduct "discretionary" or "ministerial" and/or whether common law or statutory immunity is applicable - are not mutually exclusive and should be applied in a logical order. And it is the Article's corollary premise that any attorney prosecuting or defending a tort claim against a government entity in Rhode Island should ask certain fundamental questions before either drafting or answering a complaint, questions which are not limited to the potential liability of individual capacity defendants. (fn5) The questions, which are posed in the order of their suggested resolution, are as follows:

(1) Was the activity which resulted in plaintiff's injury part of a "government" or "public" function, or was it part of a so-called "proprietary" function? If the function was proprietary in nature, the Tort Claims Act limitations simply do not apply and one can skip to question (4), below. If, on the other hand, a government or public function was involved, one should then ask:

(2) Was the specific conduct of the alleged tortfeasor "discretionary," i.e., did it involve either (a) a government official's exercise of judgment in implementing government policy or procedure or (b) the conduct of a subordinate "carrying out the operations of government in accordance with official directions," (fn6) or instead, was it conduct which could more properly be described as "ministerial" and not just following specific directions? If the conduct truly was ministerial one can again skip to question (4), below. If one is dealing with discretionary acts, however, the government and its agents are likely immune from suit under the public duty doctrine unless the answer to the following question is in the affirmative:

(3) Is the "special duty" or "egregious conduct" exception to the public duty doctrine applicable? If not, the claim will not likely withstand a motion for summary judgment. If, however, one of the two exceptions does apply, one should then ask:

(4) Does an existing common law or statutory immunity preclude an action against either the government entity and/or the allegedly negligent individual? And finally, if there is no such immunity, the final question is:

(5) Should the alleged individual tortfeasor be sued in his or her individual capacity along with the government entity?

  1. Was the activity part of a "government" or a "proprietary" function?

    The Tort Claims Act became law in response to Becker v. Beaudoin, 106 R.I. 562, 261 A.2d 896 (1970), which abolished the judicial doctrine of sovereign immunity in Rhode Island as applied to municipal and quasi-municipal corporations. See id. at 571-72, 261 A.2d at 901-02. Yet, vestiges of governmental immunity survived Becker and the Act, including "well-settled rules of immunity of government officials for conduct within the scope of their authority." See Calhoun v. City of Providence, 120 R.I. 619, 628, 390 A.2d 350, 354 (1978); see also Mall at Coventry Joint Venture, v. McLeod, 721 A.2d 869-70 (R.I. 1998); Suitor v. Nugent, 98 R.I. 56, 61-62, 199 A.2d 722, 724-25 (1964). In addition, the distinction between "governmental" or "public," as opposed to "proprietary," functions was preserved in the Act, which simply does not apply if the relevant conduct is "proprietary" in nature, see note 1, supra. (fn7)

    Early on, Rhode Island defined a governmental function as concerning "a matter in which (the municipality) has no private or corporate interest." See Wixon v. City of Newport, 13 R.I. 454, 458-59 (1881). (fn8) The Becker Court described the governmental/proprietary distinction as follows:

    The doctrine of municipal immunity as applied in this state recognizes that a municipality may act in a dual capacity. It may, on the one hand, act as a corporate individual engaging in what have become known as proprietary functions. In the exercise of these corporate powers, a municipality generally is subject to civil liability for the omissions, negligence, or misconduct of its officers, agents, and servants. However, a municipal corporation may also act in the discharge of duties of a public character from which it derives no corporate advantage and in the exercise of which it is performing what is characterized as a governmental function. This court has clung to the doctrine that in the exercise of such public or governmental function a municipality is not subject to civil liability for the tortious conduct of its agents or servants unless such liability is specifically imposed by statute.

    Id. at 564, 261 a.2d at 898, citing Wrobrewski v. Clark, 88 R.I. 235, 146 A.2d 164 (1958). The court in Calhoun, supra, noted that:

    . . .there has been a decided reluctance in all jurisdictions that have considered the question to impose liability upon the state for certain activities conducted by its agents or servants. The rationale for this hesitancy is not difficult to discern. As Professor Prosser has observed: 'Some remnant of governmental immunity must be retained to insure effective government. It would be unthinkable, for example, to hold the state liable for a wrong decision of its courts or the implementation of a particular state program.' Prosser, Law of Torts, § 131 at 986 (4th ed. 1971). The disruptive effect such a result would have upon our branches of government needs no elaboration.

    Id. at 628, 390 A.2d at 354-55. A more recent and frequently-quoted (and unfortunately, somewhat misleading) test for distinguishing governmental from proprietary functions was set forth in Catone v. Medberry, 555 A.2d 328 (R.I. 1989), where the court held that the public duty doctrine did not prevent a state employee from being held liable for the death of one killed as a proximate result of a state employee's negligent operation of a state-owned dump truck while acting within the scope of his employment. Id. at 330. The court noted that:

    Under the Rhode Island Tort Claims Act the state is liable in tort 'in the same manner as a private individual or corporation.' In every case in which we have applied the public duty doctrine, the government or its agent was engaged in an activity inherently incapable of being performed by private individuals. In these situations, the state acts for the summum bonum of society and 'we decline to hold them liable for the consequences of performance of those functions in the absence of a duty to a specific person or class of persons.' Orzechowski v. State, 485 A.2d 545, 549 (R.I. 1984). When governmental employees engage in activities normally undertaken by private individuals, however, there is no need to cloak them in the protection of the public duty doctrine. In these situations, the doctrine will not apply.

    * * *

    We therefore hold that when the government or its agents engages in activity normally undertaken by private individuals in the course of their everyday lives, a duty arises under the common law to exercise reasonable care in the performance of this task. Governmental employees, like ordinary citizens, must operate their vehicles in...

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