Yvon Georges v. State of Rhode Island

May 11, 2021

Supreme Court

No. 2019-219-Appeal.
(KC 14-355)

Yvon Georges :

v. :

State of Rhode Island et al. :

NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email: opinionanalyst@courts.ri.gov, of any
typographical or other formal errors in order that
corrections may be made before the opinion is published.
 Supreme Court

No. 2019-219-Appeal.
(KC 14-355)

Yvon Georges :

v. :

State of Rhode Island et al. :

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Justice Goldberg, for the Court. In this negligence action for personal

injuries sustained when his vehicle struck a pothole, the plaintiff, Yvon Georges,

appeals from the grant of summary judgment in favor of the defendants, the City of

Warwick (the city)1 and the State of Rhode Island (the state). The plaintiff

challenges only the judgment in favor of the state.2 On appeal, we consider

whether the plaintiff’s claim against the state is barred by the public duty doctrine.

1
The amended complaint names Ernest Zmyslinski, in his capacity as Director of
Finance for the City of Warwick.
2
The city’s motion for summary judgment was granted in 2014, on the basis that
the city did not own the road on which the pothole was located. The plaintiff did
not file a notice of appeal and does not argue against judgment in favor of the city
before this Court.
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 This appeal came before the Supreme Court on March 9, 2021, 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 having reviewed the memoranda filed by the parties, we are satisfied that

cause has not been shown, and we proceed to decide this appeal. For the reasons

set forth in this opinion, we affirm the judgment of the Superior Court.

Facts and Travel

On or about May 13, 2011, plaintiff was operating his motor vehicle in the

area of 2046 West Shore Road and Judith Avenue in Warwick, Rhode Island, when

he struck a pothole in the roadway with the front end of his vehicle, causing one of

the wheels to dislodge. The pothole was approximately eighteen inches in width.

At the time of the incident, the weather was sunny, with no precipitation. As a

result of the incident, plaintiff suffered injuries and was unable to work from

May 13, 2011, through approximately June 30, 2011.

In May 2014, plaintiff filed an amended complaint against defendants,

alleging that the state was liable for maintaining West Shore Road in “such a

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negligent and careless manner, so as to allow a pothole to exist in said roadway[,]”

and that plaintiff suffered personal injuries as a result of this alleged negligence.3

On November 20, 2018, the state filed a motion for summary judgment

under Rule 56(b) of the Superior Court Rules of Civil Procedure,4 arguing that

plaintiff’s claims were barred by the public duty doctrine, which shields the state

from tort liability for the performance of discretionary governmental functions.

The state relied on cases in which the public duty doctrine was applied to

governmental decisions regarding road design, road maintenance, placement of

traffic controls, the decision to open an exit ramp, and intersection design.

3
The amended complaint also alleged that plaintiff sustained property damages to
his motor vehicle as a result of the accident. The state then moved to dismiss
plaintiff’s action. Before the state’s motion was heard, plaintiff, by stipulation,
voluntarily dismissed his property damage claim with prejudice, and the state
withdrew its motion to dismiss.
4
Rule 56(b) of the Superior Court Rules of Civil Procedure provides: “A party
against whom a claim, counterclaim, or cross-claim is asserted or a declaratory
judgment is sought may, at any time, move with or without supporting affidavits
for summary judgment in the party’s favor as to all or any part thereof.”

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 The plaintiff objected, noting that government liability for failure to repair

potholes had not been addressed by this Court. The plaintiff argued that G.L. 1956

§ 24-8-35 created a limited exception to the public duty doctrine for property

damage caused by the state’s failure to repair potholes.5 The plaintiff contended

that extending § 24-8-35 to a claim for personal injuries placed his claim outside of

the protection of the public duty doctrine. Alternatively, plaintiff argued that, if

the state’s failure to repair the pothole fell within the protections of the public duty

doctrine, then one of this Court’s recognized exceptions to the doctrine applied,

because road maintenance is an activity capable of being performed by private

citizens in situations where the road is privately owned.

After a hearing, the trial justice issued a bench decision granting summary

judgment in favor of the state based on the public duty doctrine and his conclusion

that none of the exceptions applied. The trial justice also held that § 24-8-35 did

not apply because plaintiff was seeking damages for personal injuries, and the

statute was limited to damages to motor vehicles, up to a maximum of $300 in

reimbursement. On March 5, 2019, the trial justice entered an order granting the

5
General Laws 1956 § 24-8-35 provides, in pertinent part,

“If any person shall incur damage to his or her motor
vehicle by reason of a pothole on any state highway * * *
which damage would not have occurred without the
existence of the pothole, he or she may recover from the
state the amount of damages sustained up to and not
more than the sum of three hundred dollars ($300).”
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state’s motion for summary judgment, as well as a final judgment in favor of

defendants. The plaintiff filed a timely notice of appeal on March 8, 2019.

Standard of Review

“This Court reviews a grant of summary judgment de novo.” Yanku v.

Walgreen Co., 224 A.3d 1130, 1132 (R.I. 2020) (brackets omitted) (quoting

Ballard v. SVF Foundation, 181 A.3d 27, 34 (R.I. 2018)). Examining the case as

the trial justice would, “we view the evidence in the light most favorable to the

nonmoving party, and if we conclude that there are no genuine issues of material

fact and that the moving party is entitled to judgment as a matter of law, we will

affirm the judgment.” Id. at 1132-33 (quoting Ballard, 181 A.3d at 34). “Although

summary judgment is recognized as an extreme remedy, to avoid summary

judgment the burden is on the nonmoving party to produce competent evidence

that proves the existence of a disputed issue of material fact.” Id. (quoting Ballard,

181 A.3d at 34). “In the absence of a credible showing of the existence of material

facts, summary judgment is warranted.” Id. (quoting Ballard, 181 A.3d at 34).

Analysis

The issue presented in this case is narrow: whether plaintiff’s negligence

action against the state for personal injuries sustained when his vehicle struck a

pothole on a state road is barred by the public duty doctrine.

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 G.L. 1956 § 24-8-35

We begin by addressing plaintiff’s contention that, because there is no

caselaw applying the public duty doctrine to the state’s failure to repair potholes,

the authority to determine the state’s liability for potholes is limited to § 24-8-35.

The plaintiff maintains that § 24-8-35 creates a limited exception to the public duty

doctrine that should be applied here. We disagree.

This Court reviews questions of statutory interpretation on a de novo basis.

Iselin v. Retirement Board of Employees’ Retirement System of Rhode Island, 943

A.2d 1045, 1049 (R.I. 2008). “It is well settled that when the language of a statute

is clear and unambiguous, this Court must interpret the statute literally and must

give the words of the statute their plain and ordinary meanings.” Id. (quoting

Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I.

1996)).

As noted supra, § 24-8-35, entitled “Damage caused by potholes—Claims

against the state[,]” provides, in pertinent part:

“If any person shall incur damage to his or her motor
vehicle by reason of a pothole on any state highway,
causeway, or bridge which damage would not have
occurred without the existence of the pothole, he or she
may recover from the state the amount of damages
sustained up to and not more than the sum of three
hundred dollars ($300).”

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This enactment constitutes a limited waiver of sovereign immunity and a limited

abrogation of the protections of the common law public duty doctrine. The state’s

liability pursuant to the statute is restricted to “damage to * * * [a] motor

vehicle[.]” Section 24-8-35. Surely, if the General Assembly intended for this

provision to include liability for personal injuries, it would have included that

language in the enactment. Because we conclude that this provision is clear and

unambiguous, as the trial justice properly found, plaintiff’s reliance on § 24-8-35

to establish liability is without merit.

The Public Duty Doctrine

The plaintiff next argues that, when maintaining a roadway, the state

performs an identical function that a private individual might perform for

condominiums, shopping plazas, and the like, such that the public duty doctrine

should not bar his claims. We reject this contention.

The judicially created public duty doctrine “shields the state and its political

subdivisions 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, 895 A.2d 721, 730 (R.I. 2006) (quoting Schultz v.

Foster-Glocester Regional School District, 755 A.2d 153, 155 (R.I. 2000)). “The

primary purpose of the public duty doctrine is to encourage the effective

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administration of governmental operations by removing the threat of potential

litigation.” Catone v. Medberry, 555 A.2d 328, 333 (R.I. 1989).

This Court has carved out three exceptions to the public duty doctrine which,

if present, may lead to state liability. Two of these exceptions are situations in

which (1) the state owes a special duty to the plaintiff and (2) the state participates

in what can be categorized as “egregious conduct.” DeFusco v. Todesca Forte,

Inc., 683 A.2d 363, 365 (R.I. 1996). The plaintiff concedes that the “special duty”

exception and “egregious conduct” exception do not apply to plaintiff’s claims.

Thus, the only issue before this Court is whether the third exception to the public

duty doctrine applies; that is, whether “the allegedly negligent activit[y] [is]

normally performed by private citizens.” Id. If the conduct in question constitutes

a discretionary governmental function and is not normally performed by private

citizens, the public duty doctrine bars state liability.

We first consider whether the specific activity that resulted in plaintiff’s

injuries—i.e., the state’s failure to repair a pothole on a public roadway—

constitutes a discretionary governmental action. This Court previously has held

that government decisions about roadway design, construction, and maintenance

constitute discretionary governmental action and therefore fall within the domain

of the public duty doctrine. See, e.g., Toegemann v. City of Providence, 21 A.3d

384, 388 (R.I. 2011) (holding that placement and maintenance of traffic control

-8-
devices fall within the public duty doctrine and “are purely governmental

functions”); DeFusco, 683 A.2d at 364, 365 (holding that opening of an exit ramp

that was still under construction was a discretionary government function); Catri v.

Hopkins, 609 A.2d 966, 968 (R.I. 1992) (holding that “decision making involved in

the maintenance of an intersection, and in particular the placement of a

traffic-control mechanism, is a discretionary activity”).

We pause to note that, at the summary-judgment hearing, plaintiff seemingly

conceded that repairing potholes falls into the category of road maintenance.

When the trial justice asked plaintiff to address Martinelli v. Hopkins, 787 A.2d

1158 (R.I. 2001), which stated that “the maintenance of state highways” is “an

activity that a private individual typically would not perform,” id. at 1167, plaintiff

responded that the Court had not spoken “specifically on the issue of potholes[.]”

The trial justice pressed, “But if the pothole requires maintenance of a state

highway, the pothole is maintenance.” The plaintiff responded, “That is correct,

but potholes are very, very numerous.”

We are of the opinion that repairing potholes, no matter how numerous they

may be, is part and parcel of the state’s responsibility for roadway maintenance

and falls squarely within the protections of the public duty doctrine. The state’s

reasonable decisions about repairing potholes, like many other aspects of road

maintenance and construction, are subject to time and resources, as well as

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consideration of engineering standards and the effect on traffic volume. See Catri,

609 A.2d at 968 (noting that the state requires “sufficient time necessary to

implement” its discretionary decisions). Accordingly, the state’s failure to repair a

pothole in this case is precisely the type of discretionary governmental activity that

is shielded from tort liability under the public duty doctrine.

We next consider whether pothole repair on a state roadway is an activity

normally performed by private citizens. In reliance on O’Brien v. State, 555 A.2d

334 (R.I. 1989), plaintiff asserts that the state acts as a private landowner when it

repairs potholes on public roadways (or fails to do so), because private individuals

maintain private roadways. This analogy is unavailing. In O’Brien, the plaintiff

tripped over a horseshoe stake embedded in the grass at a state park and

commenced a negligence action against the state. O’Brien, 555 A.2d at 335.6 The

Court reasoned that operating a public park is an activity in which a private person

or corporation might well engage, and, therefore, the state was acting as a private

person and had a duty to maintain the property in a reasonably safe condition. Id.

6
The case of O’Brien v. State, 555 A.2d 334 (R.I. 1989), arose before the General
Assembly amended Rhode Island’s Recreational Use Statute, G.L. 1956 chapter 6
of title 32, to shield the state from negligently maintaining its public parks. See
§ 32-6-2(3), as amended by P.L. 1996, ch. 234, § 1 (“‘Owner’ means the
private-owner possessor of a fee interest, or tenant, lessee, occupant, or person in
control of the premises, including the state and municipalities[.]” (emphasis
added)).
- 10 -
at 338. However, we noted that liability hinged on whether the conduct in question

“is an activity that a private person or corporation would be likely to carry out.” Id.

In cases where the public duty doctrine arises, “the government or its agent

was engaged in an activity inherently incapable of being performed by private

individuals.” Catone, 555 A.2d at 333. Here, although private individuals may be

charged with repairing roadways on private property, private individuals do not

build, repair, or maintain public roads. In fact, the Rhode Island Department of

Transportation is statutorily charged with an affirmative duty to maintain roads.

See, e.g., G.L. 1956 § 37-5-2(a) (“The department shall maintain and construct

highways, roads[.]”). Furthermore, we have declared that the “construction and

maintenance of public highways are typically not performed by private

individuals.” DeFusco, 683 A.2d at 365; see also Longtin v. D’Ambra

Construction Company, Inc., 588 A.2d 1044, 1046 (R.I. 1991) (“When the state

engages in an activity that a private individual typically would not perform, such as

the maintenance of state highways[,] * * * the public duty doctrine will shield the

state from liability.”). Accordingly, pothole repair on a state roadway is not an

activity capable of being performed by a private individual.

We therefore continue to immunize the state for harm resulting from the

non-egregious failure to perform governmental activities, because “[t]he state

would be unable to function if liability was imposed each time an individual was

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deleteriously affected by such activities.” Catone, 555 A.2d at 333. We affirm the

trial justice’s grant of summary judgment in favor of the state.

Conclusion

For the reasons set forth in this opinion, we affirm the judgment of the

Superior Court. The papers in this case may be returned to the Superior Court.

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 STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Title of Case Yvon Georges v. State of Rhode Island et al.

No. 2019-219-Appeal.
Case Number
(KC 14-355)

Date Opinion Filed May 11, 2021

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.

Written By Associate Justice Maureen McKenna Goldberg

Source of Appeal Kent County Superior Court

Judicial Officer from Lower Court Associate Justice Richard A. Licht

For Plaintiff:

Michael S. Pezzullo, Esq.
For State:

Michael W. Field
Attorney(s) on Appeal Department of Attorney General

Sean P. Malloy
Department of Attorney General

Sean Lyness
Department of Attorney General

SU-CMS-02A (revised June 2020)