GRAY v. DERDERIAN

400 F.Supp.2d 415 (2005) | Cited 1 time | D. Rhode Island | November 17, 2005

DECISION AND ORDER

On February 20, 2003, a deadly fire in West Warwick, RhodeIsland, destroyed a nightclub known as The Station. The firestarted as the featured rock band, Great White, began its liveperformance and the club was crowded with spectators, staff andperformers. The opening featured stage fireworks, ignited by theband's tour manager, as the band took the stage.

According to eyewitnesses, the fireworks created sparks behindthe stage which ignited polyurethane foam insulation on theclub's ceiling and walls. In minutes, the entire building was on fire and over 400 people were struggling to escape thecrowded, dark and smoky space. The final toll: One hundred peopledead and over 200 injured.

Numerous lawsuits, both criminal and civil, were filedthroughout southern New England in both state and federal courts.Last year, in Passa v. Derderian, 308 F. Supp. 2d 43 (D.R.I.2004), this Court asserted jurisdiction over several of the civilcases that had been removed here from Rhode Island SuperiorCourt, and asserted jurisdiction as well over the cases that hadoriginally been filed in this Court. The Court's exercise oforiginal federal jurisdiction is based upon the Multiparty,Multiforum, Trial Jurisdiction Act of 2002, 28 U.S.C. § 1369.Since then, to the best of this Court's knowledge, all civillawsuits resulting from the nightclub fire have been consolidatedin this Court, pursuant to a First Amended Master Complaint(hereinafter "the Master Complaint") filed and adopted jointly byabout 250 plaintiffs, against over 50 defendants.

Although this Court's jurisdiction relies upon federal law,Rhode Island provides the substantive law for these cases. ErieR.R. v. Tompkins, 304 U.S. 64 (1938); Ticketmaster-New York v.Alioto, 26 F.3d 201, 204 (1st Cir. 1994); Passa v. Derderian,308 F. Supp. 2d 43 (D.R.I. 2004). As of this writing, discoveryhas been stayed to permit an adequate time for service of, andresponse to, the Master Complaint and for the Court to deal with a number of motions to dismiss. To date, the Court has addressedfour previous motions to dismiss, three of which may be foundunder this same caption at 389 F. Supp. 2d 308 (D.R.I. 2005),371 F. Supp. 2d 98 (D.R.I. 2005) and 365 F. Supp. 2d 218 (D.R.I.2005). The fourth, most recent opinion is available through WestLaw, under the citation 2005 WL 3005046.

Presently before the Court are two Motions to Dismiss, pursuantto Federal Rule of Civil Procedure 12 (b) (6), brought by theState of Rhode Island and the Town of West Warwick. Additionaldefendants included in these Motions are State Fire MarshalIrving J. Owens, individually and in his official capacity;Malcolm Moore, in his capacity as Finance Director for the Townof West Warwick; Denis Larocque, individually and in his capacityas the Town's Fire Inspector; and Anthony Bettencourt,individually and in his capacity as a West Warwick policeofficer. Plaintiffs allege that these defendants were negligentin their enforcement of fire codes and other safety regulations,and that the State and the municipality are liable for thenegligence of their employees. Defendants move for the dismissalof all counts against them, based upon the doctrine of sovereignimmunity, among other grounds.

For the reasons set forth below, the Court grants the Motion toDismiss of the State of Rhode Island and the State Fire MarshalIrving J. Owens. The Court denies the Motion to Dismiss brought by the Town of West Warwick, on behalf of its FireInspector Denis Larocque, Finance Director Malcolm Moore, andpolice officer Anthony Bettencourt. For the sake of clarity, theCourt will address the allegations against the State and Towndefendants separately.

Standard of Review

Defendants move to dismiss the claims against them pursuant toFederal Rule of Civil Procedure 12 (b) (6), for failure to statea claim upon which relief may be granted. Accordingly, in thecourse of its analysis, the Court will assume that allPlaintiffs' allegations are true. The allegations and allreasonable inferences to be drawn from them will be construed inthe light most favorable to the Plaintiffs. Aulson v.Blanchard, 83 F.3d 1, 3 (1st Cir. 1996). As stated by the UnitedStates Supreme Court, "the accepted rule [is] that a complaintshould not be dismissed for failure to state a claim unless itappears beyond doubt that the plaintiff can prove no set of factsin support of his claim which would entitle him to relief."Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Defendants' motionwill fail if "the well-pleaded facts, taken as true, justifyrecovery on any supportable legal theory." Cruz v. Melecio,204 F.3d 14, 21 (1st Cir. 2000).

State of Rhode Island Defendants

Irving J. Owens Irving J. Owens was Fire Marshal for the State of Rhode Islandat the time of the fire. The State Fire Marshal is a positioncreated by Rhode Island statute, R.I. Gen. Laws § 23-28.2-1, andfilled by gubernatorial appointment.

In the Master Complaint, Plaintiffs allege that Owens isdirectly responsible "for the enactment and enforcement of firesafety laws within the State of Rhode Island," includinginspecting and enforcing code requirements for commercialstructures such as The Station. Master Complaint, ¶ 434.Plaintiffs allege that Owens was egregiously negligent in theperformance of these tasks, by "failing to enforce appropriatecapacity limitations and exit requirements, failing to discoverand order remedied highly flammable interior finish within thebuilding and failing to properly train and supervise statepersonnel responsible for enforcing the fire safety laws of RhodeIsland." Master Complaint ¶ 435. In Count 36, Plaintiffs seekdamages from Owens individually and in his official capacity.Master Complaint ¶ 440.

The State of Rhode Island, on behalf of Owens, has advanced atleast eight separate grounds for dismissal of the counts namingOwens and the State. In this decision, the Court will focus onthe argument that Owens is immune from liability based upon RhodeIsland statute, R.I. Gen. Laws § 23-28.2-17. The pertinentstatutory section, entitled "Relief from responsibility," provides, The state fire marshal, his or her deputies, and assistants, charged with the enforcement of the Fire Safety Code, chapters 28.1 through 28.39 of this title, shall not render themselves liable personally, and they are hereby relieved from all personal liability for any damage that may accrue to persons or property as a result of any act required or permitted in the discharge of their official duties. Any suit instituted against any officer or employee because of an act performed by him or her in the lawful discharge of his or her duties, and under the provisions of the Fire Safety Code, shall be defended by the legal representative of the state until the final termination of the proceedings. In no case shall the fire marshal, his or her deputies, or assistants, be liable for costs in any action, suit, or proceedings that may be instituted in pursuance of the provisions of the Fire Safety Code, and any fire marshal, acting in good faith and without malice, shall be free from liability for acts performed under any of its provisions or by reason of any act or omission in the performance of his or her official duties in connection therewith.R.I.G.L. § 23-28.2-17, (emphasis added). Owens' alleged failureto adequately enforce Fire Safety Code provisions inarguablyconcerns the discharge of his official duties, and falls squarelywithin the scope of this statutory provision. Plaintiffs havemade no allegation that Owens acted in bad faith or with malice.Consequently, Owens is relieved from all personal liability fordamages caused by The Station fire.

The State of Rhode Island

The State of Rhode Island is charged with negligence in the enactment and enforcement of fire safety laws, "through its FireMarshal, Irving J. Owens." Master Complaint ¶ 434. Under thetheory of respondeat superior, the State's liability resultsfrom the alleged negligence of Owens, acting in his officialcapacity. The Court has concluded above that Owens is relievedfrom personal liability; however, the question remains as towhether the State may still be liable for actions Owens took, orfailed to take, in his official capacity.

Plaintiffs assert that even if Owens is absolved from personalliability, the State remains liable for Owens' negligent conduct.However, for reasons explained below, this Court holds that RhodeIsland Gen. Laws § 23-28.2-17 also provides immunity for theState under these particular circumstances.

Returning to the above-quoted statutory immunity provision: thefirst sentence relieves the Fire Marshal from all personalliability for damages resulting from any official act. The thirdsentence goes further: . . . and any fire marshal, acting in good faith and without malice, shall be free from liability for acts performed under any of its provisions or by reason of any act or omission in the performance of his or her official duties in connection therewith.R.I.G.L. § 23-28.2-17. The impact of this sentence is to relievethe Fire Marshal from all liability for acts undertaken in theperformance of his duty, as long as his actions are free from badfaith and malice. This interpretation operates to absolve both Owens, and consequently the State, of all liability for any actsof negligence committed in connection with the enforcement ofregulations at The Station, as no bad faith or malice on the partof Owens has been alleged in the Master Complaint. If noliability can be charged against Owens, then no respondeatsuperior liability can be charged to the State.

Plaintiffs urge the Court to ignore this plain languageinterpretation, and to limit the relief granted by the statute topersonal liability only, leaving the State as a defendant.However, a close reading of the two Rhode Island Supreme Courtcases that have addressed this qualified immunity statute revealsthat Plaintiffs' position is not mandated, and is not the correctone.

The statutory immunity section was enacted by the Rhode Islandlegislature in 1975, and the Rhode Island Supreme Court firstinterpreted it in 1984 in Bitgood v. Allstate Ins. Co.,481 A.2d 1001. In that case, the plaintiff's place of business burneddown, killing his associate. An investigation ensued, undertakenby the State Deputy Fire Marshal. The plaintiff filed a claimwith his insurance company, and was told that he would be paidwhen the insurance company received the Deputy Fire Marshal'sfinal report absolving plaintiff from any criminal liability forthe fire. This report, which did clear plaintiff of allliability, was completed approximately six months after the fire, but not received by the insurance company until anotherseven months after that. In the meantime, Plaintiff sued theDeputy Fire Marshal, the State and the insurance company,alleging, among other charges, that they conspired to delay thefinal report and his financial recovery. An eventual pay-outunder the insurance policy constituted a settlement with thatdefendant, and the case against the State and the Deputy FireMarshal proceeded to trial, resulting in a directed verdict infavor of the Deputy Fire Marshal. In affirming the directedverdict, the Supreme Court wrote, Section 23-28.2-17 purports to relieve the fire marshal and his personnel from any personal liability resulting from the carrying out of their responsibilities. . . . A review of the record failed to disclose substantial evidence to support the allegation of bad faith as an issue for the jury.481 A.2d at 1006-1007.

The Court next goes on to dispense with the State's appealconcerning the denial of its motion to dismiss and allegedimproper service of process, declaring that "these issues havebeen rendered moot in light of the fact that the state and itsdeputy fire marshal, Ignagni, are the prevailing parties in thisaction." 481 A.2d at 1008. Although the Bitgood Court speaks interms of the statute providing the Deputy Fire Marshal relieffrom personal liability only, it does not preserve any cause ofaction against the State after affirming the directed verdict in favor of the Deputy Fire Marshal. 481 A.2d at 1009.

In Vaill v. Franklin, 722 A.2d 793 (R.I. 1999), a shop ownerclaimed that the town's fire chief and officers violated hiscivil rights when they conducted an emergency inspection of hisshop during the annual Christmas tree lighting ceremony/salesevent. The trial judge granted defendants' motion for summaryjudgment on the grounds that R.I. Gen. Laws § 23-28.2-17 shieldedthem from liability. 722 A.2d at 795. On appeal, the Rhode IslandSupreme Court held that there was no evidence to show that theofficers, who were following the orders of the Fire Chief, actedin bad faith or with malice. ". . . [T]herefore," the Courtconcluded, "the trial court did not err when it found that theofficers were shielded from liability based upon qualifiedimmunity." 722 A.2d at 795.

On the other hand, the determination of whether the Fire Chiefwas likewise shielded from liability by the statute was dependenton whether the spot inspection was a reasonable search under theFourth Amendment. Presumably, a search which failed to passconstitutional scrutiny could be found by the jury to be evidenceof bad faith. Consequently, summary judgment was vacated as tothe Fire Chief, and the case was remanded for a determination ofthe material facts concerning the constitutionality of thesearch. 722 A.2d at 796.

In the case herein, Plaintiffs urge the Court to follow cases where the Rhode Island Supreme Court has indicated that amunicipality could be liable for the negligence of its buildinginspector. See Haworth v. Lannon, 813 A.2d 62 (R.I. 2003) andQuality Court Condominium Ass'n v. Quality Hill Dev. Corp.,641 A.2d 746 (R.I. 1994). While these cases certainly have somesimilarities to the case before the Court, they are alsodistinguishable and, therefore, not controlling. The State FireMarshal has been granted immunity by the legislature; thebuilding inspector cases were analyzed by the Rhode IslandSupreme Court according to the public duty doctrine.

This Court's reading of the statutory immunity provision isconsistent with the Rhode Island Supreme Court's sovereignimmunity jurisprudence. In 1970, the State of Rhode Islandunderwent a radical shift in its policy on the historicaldoctrine of sovereign immunity. First the immunity previouslyenjoyed by the state's municipalities was abrogated by Becker v.Beaudoin, 261 A.2d 896 (R.I. 1970) (this writer was the trialjudge in that case); then the legislature followed with a broadwaiver of the State's immunity from tort liability as codified byRhode Island Gen. Laws § 9-31-1.1 In the ensuingthirty-five years, some fine tuning has taken place.

Despite the broad language of Rhode Island Gen. Laws § 9-31-1,courts have exercised restraint in imposing tort liability on theState in all cases. This is in keeping with the holdings of theUnited States Supreme Court, which has said on this issue, When the Court in 1793 held that a State could be sued in the federal courts by a citizen of another State, the Eleventh Amendment was passed precluding it. But this is an immunity which a State may waive at is pleasure. The conclusion that there has been a waiver will not be lightly inferred.Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 276(1959) (emphasis added) (cites omitted). In Marrapese v. RhodeIsland, 500 F. Supp. 1207 (D.R.I. 1980), Judge Pettine of thisCourt stated,

In accordance with the standard of Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938), this Court must find that there has been an "intentional relinquishment or abandonment of a known right or privilege." The most obvious evidence of such relinquishment would be an explicit, statutory statement that Rhode Island consents to be sued in the federal courts.500 F. Supp. 1207, 1212-1213. See also Andrade v. State,448 A.2d 1293, 1294 (R.I. 1982).

In Calhoun v. Providence, 390 A.2d 350, 355 (R.I. 1978), theRhode Island Supreme Court explicitly recognized that "there is a zone of governmental operation which should be insulated fromtort claims . . ." In Calhoun, the plaintiff was mistakenlyrearrested on a motor vehicle charge that had been resolved. Theerror came about when either the judge or court clerk failed tocancel the initial capias, or warrant, on resolution of the case.In upholding the notion of judicial immunity, the Court engagedin an extensive defense of the practice of limiting the State'swaiver of tort liability, However, unlike the common law doctrine of sovereign immunity which operated as a bar to recovery regardless of whether countervailing policies were implicated, current limitations upon governmental liability proceed from considerations of competing interests. There must be a weighing of the injured party's demand for justice against the state's equally valid claim to exercise certain powers for the good of all without burdensome encumbrances and disruptive forces.390 A.2d at 355.

This Court opines that it is precisely this weighing ofcountervailing values that resulted in the state legislature'sdecision to relieve the State Fire Marshal and his or herdeputies from tort liability for all actions undertaken inconnection with his or her official duties, except where thoseactions were motivated by bad faith or malice. Because Plaintiffsherein have not alleged that Owens acted in bad faith or withmalice, the charges against him, in his official capacity, mustbe dismissed. The Rhode Island Supreme Court in Calhoun also states clearlythat no liability can be charged to the State, based on thedoctrine of respondeat superior, if the state's agent oremployee is immune from prosecution: "We, therefore, find in thiscase, as did the trial justice, that plaintiff's claim is barredif the state official responsible for canceling the capiaspersonally enjoyed the protection of a governmental immunity fromtort liability." 390 A.2d at 357.

This same position was reiterated by the Rhode Island SupremeCourt in a case involving prison guards, Saunders v. State,446 A.2d 748 (R.I. 1982). In that case, this District Court hadcertified several questions of law to the Rhode Island SupremeCourt. One of the questions concerned the State's respondeatsuperior liability for the torts of its employees. In response,the Rhode Island Supreme Court wrote, Consequently, in the event that a correctional officer employed by the state was guilty of negligence and was not protected by personal immunity, the state would be liable under the doctrine of respondeat superior for the negligence of its employee subject to the monetary limitation set forth in § 9-31-2.446 A.2d at 752 (emphasis added).

Therefore, it appears that the immunity from personal liabilityafforded the Fire Marshal by R.I.G.L. § 23-28.2-17, for actionstaken in his official capacity, is sufficient to shield the Statefrom liability for those actions, even without the broader immunity offered by the section's final sentence.Accordingly, all allegations in the Master Complaint against theState of Rhode Island and Irving J. Owens must be dismissed.

Henault allegations

A group of plaintiffs from Connecticut, under the captionHenault v. American Foam Corp., C.A. No. 03-483L, has adopted theMaster Complaint and also enumerated several additional claims inits Notice of Adoption of First Amended Master Complaint. Basedon the immunity provided Fire Marshal Irving J. Owens and theState by Rhode Island Gen. Laws § 23-28.2-17, these additionalcounts are hereby dismissed. The counts include Count Eight fornegligence, Count Nine for damages stemming from the commissionof a crime (R.I.G.L. § 9-1-2), and Count Ten, which names Owensand the State in a joint venture with other named defendants,which is dismissed only to the extent of removing Owens and theState from the list of joint venturers.

Defendants from the Town of West Warwick

The Town Defendants include the Town of West Warwick asrepresented by Malcolm Moore, in his official capacity as FinanceDirector, police officer Anthony Bettencourt and Fire InspectorDenis Larocque. The Town's memoranda identifies seven grounds forthe dismissal of the allegations against these defendants. Todetermine whether or not any of these arguments is sufficient todefeat the allegations at this pleading stage, the Court will review each argument separately.

Statutory immunity

Town fire official Denis Larocque asserts that he is a deputyto the State Fire Marshal and, therefore, the allegations againsthim must be dismissed based upon the statutory immunity providedby Rhode Island Gen. Laws § 23-28.2-17. In the Master Complaint,as well as in the Henault Plaintiffs' Notice of Adoption of FirstAmended Master Complaint (hereinafter "Notice of Adoption"),Larocque is identified as Fire Inspector for the Town of WestWarwick.

Pursuant to Rhode Island Gen. Laws § 23-28.2-9, the State FireMarshal "may appoint as many nonsalaried assistant deputy statefire marshals as he or she may deem necessary . . ." The statuteprovides further: "(b) The chief of the fire department of theseveral cities, towns, and fire districts may be an assistantfire marshal subject to the approval of the state fire marshal. . ." R.I.G.L. 23-28.2-9 (b). At the present stage in thislitigation, there is no evidence of Larocque's appointment as adeputy. Without this evidence, the immunity statute cannotproperly be invoked or applied on his behalf.

Furthermore, Plaintiffs allege that Larocque's negligence"constituted a lack of good faith performance of his duties."Master Complaint, ¶ 421. If the Plaintiffs can demonstrate thatLarocque's negligence in carrying out his duties resulted from bad faith or malice, then the immunity statute would not providea shield for him — regardless of his status as a deputy firemarshal. R.I Gen. Laws § 23-28.2-17.

Quasi-judicial immunity

The Town Defendants argue that Larocque is protected fromliability under the doctrine of quasi-judicial immunity. TheRhode Island Supreme Court has recognized that ". . . agents ofthe state who performed a quasi-judicial function were entitledto immunity both for themselves and for the sovereign entity thatemployed them." Mall at Coventry Joint Venture v. McLeod,721 A.2d 865, 869 (R.I. 1998) (citing Psilopolous v. State,636 A.2d 727 (R.I. 1994)). In Suitor v. Nugent, 199 A.2d 722, 724(R.I. 1964), the Rhode Island Supreme Court adopted a descriptionof the quasi-judicial function from the New Jersey SuperiorCourt, Where a power rests in judgment or discretion, so that it is of a judicial nature or character, but does not involve the exercise of the functions of a judge, or is conferred upon an officer other than judicial officer, it is generally deemed `quasi-judicial.' Throop, Public Officers, Sec. 533. It is defined as a term applied to the action and discretion of public administrative officers, who are required to investigate facts, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature.199 A.2d at 724, (citing State v. Winne, 21 N.J. Super. 180,198, 91 A.2d 65, 74 (1952)).

Plaintiffs allege that Larocque was negligent in the performance of his duties, and some of those duties andresponsibilities are enumerated in the Master Complaint. However,the information supplied at this point in the litigation isinsufficient to make a determination as to whether Larocque wasrequired "to exercise discretion of a judicial nature" in theperformance of his job. Id., at 724. Consequently, dismissingthe allegations against Larocque or the Town based upon thedoctrine of quasi-judicial immunity would be inappropriate atthis time.

`Negligent enforcement' not a cause of action

The Town Defendants argue that the allegations against themmust be dismissed because there is no cause of action for agovernmental entity's negligent enforcement of a regulatoryscheme, such as the State Fire Safety Code. In support of thiscontention, they rely on a line of cases from Kentucky, and onefrom Vermont.2 The Town Defendants are correct that theFire Safety Code does not include a civil remedy for violations,and that the Rhode Island Supreme Court would be unlikely toinfer that such a remedy exists. See Bandoni v. State,715 A.2d 580, 585 (R.I. 1998).

However, Plaintiffs respond that the cause of action they havealleged is not for negligent enforcement of a regulatory scheme. Instead, according to Plaintiffs, the Town Defendants'duty was a common law duty to act carefully after affirmativelyundertaking a responsibility — in this case, to inspect thebuilding and enforce the fire code. The Rhode Island SupremeCourt has indeed held that such a duty exists, We have recognized the doctrine that one who assumes a duty must do so with reasonable care whether or not that person had an obligation to perform the act or repairs prior to assuming the duty.Izen v. Winoker, 589 A.2d 824, 828 (R.I. 1991).

Moreover, Plaintiffs are able to cite several Rhode IslandSupreme Court cases where a cause of action was found to existfor negligent enforcement of the State's building code, which,like the Fire Safety Code, does not include a private right ofaction or civil remedy. See Torres v. Damicis, 853 A.2d 1233(R.I. 2004); Haworth v. Lannon, 813 A.2d 62 (R.I. 2003);Boland v. Tiverton, 670 A.2d 1245 (R.I. 1996); Quality CourtCondominium Ass'n v. Quality Hill Dev. Corp., 641 A.2d 746 (R.I.1994). The Rhode Island Supreme Court relied on the lawpertaining to the public duty doctrine to analyze these cases.This Court concludes, therefore, that the Plaintiffs' negligencecount sets forth a cause of action and that a public dutydoctrine analysis is the appropriate approach.

Public Duty Doctrine

The Town Defendants assert that Plaintiffs' claims are barred by the public duty doctrine. The public duty doctrine isan exception to the broad waiver of sovereign immunity granted byRhode Island Gen. Laws § 9-31-1. The doctrine shields agovernment entity from tort liability, as long as the entity isengaged in a governmental function of the sort that is notordinarily undertaken by private individuals. In the followinginstances, the Rhode Island Supreme Court has found that thegovernment entity was performing a function not ordinarilyundertaken by private individuals: the issuance of anentertainment license by the town council, Martinelli v.Hopkins, 787 A.2d 1158 (R.I. 2001); highway maintenance,Wroblewski v. Clark, 146 A.2d 164 (R.I. 1958) and Knudsen v.Hall, 490 A.2d 976 (R.I. 1985); supervision of prisoners injail, Becker v. Beaudoin, 261 A.2d 896 (R.I 1970); issuance ofa driver's license, Ryan v. DOT, 420 A.2d 841 (R.I. 1980).

A government entity engaged in carrying out an exclusivelygovernmental function will generally be rendered immune from tortliability by the public duty doctrine, unless the government'sactions fall into one of two exceptions: 1) when the governmententity owes a special duty to the plaintiff; or 2) when thegovernment's negligent conduct is egregious. Martinelli v.Hopkins, 787 A.2d 1158, 1167 (R.I. 2001).

The Rhode Island Supreme Court distinguishes a `public duty'owed to the citizenry at large from a `special duty' owed to a specific identifiable individual, and describes the distinctionas "a manifestation of public policy." Orzechowski v. State,485 A.2d 545, 548 (R.I. 1984). In Quality Court CondominiumAss'n v. Quality Hill Dev. Corp., 641 A.2d 746 (R.I. 1994), theRhode Island Supreme Court concluded that the City of Pawtucket,because of the actions of the City's building inspector, owed aspecial duty to the condominium association whose buildings wereplagued by construction defects in violation of the statebuilding code. The Supreme Court emphasized that a single visitto a building site by the building inspector to ensure codecompliance would be insufficient to establish a special duty.However, in this case, the City's building inspector had metrepeatedly with the seller of the condominiums, the unit owners,the architect and the State building inspector in an effort toresolve the construction problems. The Supreme Court wrote, This court is persuaded that the specific events listed above brought the individual unit owners "specifically into the realm of [the city's] knowledge." This was not an instance in which the potential "victim" was unknown to the city. After the meeting with a representative of the Attorney General's office the city's duty was to the individual owners of the condominium's units and "not to some amorphous, unknown `public.'"641 A.2d at 751 (cites omitted).

The Rhode Island Supreme Court further limited the public dutydoctrine in 1991, when it established the `egregious' conductexception in the case of Verity v. Danti, 585 A.2d 65 (R.I. 1991). In that case, a girl was injured when she steppedoff the sidewalk in order to avoid a large tree that blocked herway. When she stepped onto Route 44, she was struck by a car. Thetree took up the entire sidewalk, and a stone wall preventedpedestrians from passing the tree on the other side. The trialjudge granted the State's motion to dismiss based upon the publicduty doctrine. 585 A.2d at 66.

But the Supreme Court found that state employees were aware ofthe tree, which had stood in that spot for over 100 years, andheld that the State's failure to remove the tree "forcedStephanie into the position of peril that caused her to beinjured." 585 A.2d at 67. The Supreme Court stated, We find that the state's negligence in this instance is so extreme that to bar suit under the public duty doctrine would effectively excuse governmental employees from remedying perilous situations that they themselves have created. To recognize governmental immunity under the present facts would violate the basic premise of the Tort Claims Act as stated above. . . . We conclude, therefore, that when the state has knowledge that it has created a circumstance that forces an individual into a position of peril and subsequently chooses not to remedy the situation, the public duty doctrine does not shield the state from liability.585 A.2d at 67.

To determine if the public duty doctrine provides a shelter ofimmunity for the Town Defendants, the Court must makedeterminations on the following three issues: 1) was the particular defendant engaged in an activity not ordinarilyundertaken by private individuals? 2) did the particulardefendant owe a special duty to the Station Plaintiffs? and 3)were the actions of that defendant egregiously negligent?Obviously, such determinations must await the presentation ofevidence.

Anthony Bettencourt

The threshold issue is sufficient to eliminate West Warwickpolice officer Anthony Bettencourt from the protection of thepublic duty doctrine. According to the Master Complaint,Bettencourt "was employed as a special detail officer to providesecurity services, and enforce the law, at The Station nightclubbefore and during the Great White Concert." Master Complaint ¶417. The act of providing security services is one that isfrequently carried out by private individuals. See HousingAuthority of the City of Providence v. Oropeza, 713 A.2d 1262,1264 (R.I. 1998). The Court has insufficient evidence to evaluateBettencourt's duties, or to make a determination as to theprecise nature of the arrangement among Bettencourt, The Stationowners and the Town of West Warwick. The analysis as to whetherBettencourt can be shielded from liability by the public dutydoctrine must await development of the facts pertaining thereto. Denis Larocque

West Warwick Fire Inspector Denis Larocque "was responsible forinspecting commercial structures in the Town of West Warwick andfor enforcing the fire code and building laws of the State ofRhode Island within West Warwick." Master Complaint ¶ 414. TheRhode Island Supreme Court recommends a "functional rather thanabstract" analysis of this activity: "We inquire whether this isan activity that a private person or corporation would be likelyto carry out?" O'Brien v. State, 555 A.2d 334, 338 (R.I. 1989).

The Supreme Court has consistently held that the enforcement ofthe state building code is not an activity engaged in by privatepersons or corporations. Torres v. Damicis, 853 A.2d 1233, 1239(R.I. 2004). Consistent with this analysis, this Court holds thatthe enforcement of the fire code is likewise not an activityundertaken by private persons or corporations.

The Henault Plaintiffs have alleged that Larocque owed a duty"in particular" to the patrons of The Station. Henault Notice ofAdoption ¶ 45. The Master Complaint has alleged that thenegligence of Larocque, and through him the Town, was egregiousin nature. Master Complaint ¶ 421. These allegations thatLarocque's negligence fits into one or both of the exceptions tothe public duty doctrine are sufficient to prevent the dismissalof the charges against Larocque and the Town on these grounds. In this decision this Court concurs with the Rhode IslandSupreme Court which has stated that "controversies in which thepublic duty doctrine is asserted as a defense are not susceptibleof disposition by means of a motion for judgment on the pleadings. . ." Haley v. Town of Lincoln, 611 A.2d 845, 847 (R.I. 1992).The Supreme Court explained further: In such cases to succeed on a Rule 12(c) motion, the state must demonstrate to a certainty that its relationship with the plaintiff does not come within an exception to the public duty doctrine. It is virtually impossible for the state to sustain such a burden when the pleadings are viewed in the light most favorable to the plaintiff. . . . In light of the fact-intensive exceptions to the public duty doctrine, the trial court is unlikely to be able to hold that the plaintiff could not establish the state's negligence under any set of facts that might be adduced at trial.611 A.2d at 849-50. See also Tedesco v. Connors,871 A.2d 920, 926 (R.I. 2005). Based on the information made available tothe Court at this time by the pleadings, viewed in the light mostfavorable to the Plaintiffs, it does not appear that the publicduty doctrine can shield Bettencourt, Larocque and the Town ofWest Warwick from the burden of going forward as defendants inthis case.

No criminal conduct giving rise to civil damages

Plaintiffs have alleged that Larocque's actions or omissionsconstitute the commission of a crime or offense, and, therefore,Plaintiffs may recover damages from him and the Town pursuant to Rhode Island Gen. Laws § 9-1-2, which provides crime victims withrecourse to make a financial recovery from crimeperpetrators.3 Defendants seek the dismissal of thiscount because, they argue, the allegations do not support afinding that Larocque committed a criminal act.

Under Section 9-1-2, a plaintiff may bring a cause of actioneven if no criminal complaint for the crime or offense has beenfiled. Mello v. Dalomba, 798 A.2d 405, 411 (R.I. 2002). TheRhode Island Supreme Court defines the common law crime ofinvoluntary manslaughter as follows, "This court has long heldthat the crime of involuntary manslaughter may be based uponproof that a defendant has been guilty of gross negligence andthat such gross negligence is equated with the term `criminalnegligence.'" State v. Cacchiotti, 568 A.2d 1026, 1030 (R.I.1990). If, as they have alleged, Plaintiffs can establish thatLarocque was egregiously negligent in carrying out, or failing tocarry out, his duties in enforcing the fire code, then it ispossible that his negligence could be found to be `gross' or `criminal' negligence. Consequently, the Court holds that itwould be premature at this time to dismiss the counts for civildamages under section 9-1-2.

Proximate cause

The Town Defendants assert that the negligence claims againstthem must be dismissed because their actions were not theproximate cause of Plaintiffs' injuries. The fire, they argue,was caused by intervening negligent and criminal acts of others,which acts break the causal chain.

To make a prima facie case of negligence under Rhode Islandlaw, Plaintiffs must show that 1) Defendants owed them a legalduty to refrain from negligent activities; 2) Defendants breachedthat duty; 3) the breach proximately caused Plaintiffs' injuries;and 4) actual loss or damages resulted. Splendorio v. BilrayDemolition Co., 682 A.2d 461, 466 (R.I. 1996).

Proximate cause is described as the proximate connectionbetween a defendant's negligence and plaintiff's injury, or acause which is natural, unbroken and continuous. Peycke v.United E. Ry., 49 R.I. 257, 259 (1928).

"It is well settled that in order to gain recovery in a negligence action, a plaintiff must establish * * * proximate causation between the conduct and the resulting injury, and the actual loss or damage." Jenard v. Halpin, 567 A.2d 368, 370 (R.I. 1989) (citing Atlantic Home Insulation, Inc. v. James J. Reilly, Inc., 537 A.2d 126, 128 (R.I. 1988)). "[P]roximate cause is established by showing that but for the negligence of the tortfeasor, injury to the plaintiff would not have occurred." Skaling v. Aetna Insurance Co., 742 A.2d 282, 288 (R.I. 1999) (citing Fondedile, S.A. v. C.E. Maguire, Inc., 610 A.2d 87, 95 (R.I. 1992)).English v. Green, 787 A.2d 1146, 1151 (R.I. 2001).

However, the Rhode Island Supreme Court has also stated that"the negligence of a third party intervening between thedefendant's negligence and the damage breaks the causalconnection between the two." Mahogany v. Ward, 16 R.I. 479, 481(1889). The Mahogany Court, charged with apportioning liabilitybetween the drivers of two horse-drawn carriages on a single-laneroad in Middletown, went on to explain an exception to the ruleabout intervening acts: The rule above stated is subject to the qualification that, if the intervening act is such as might reasonably have been anticipated as the natural or probable result of the original negligence, the original negligence will, notwithstanding such intervening act, be regarded as the proximate cause of the injury, and will render the person guilty of it chargeable.Mahogany v. Ward, 16 R.I. at 483.

More recently, the Rhode Island Supreme Court addressed theissue of proximate and intervening causes in the case of aninjured tennis player, Hueston v. Narragansett Tennis Club,502 A.2d 827 (R.I. 1986). There the Supreme Court wrote, "It isfundamental that there may be concurring proximate causes whichcontribute to a plaintiff's injury and that a defendant's negligence is not always rendered remote in the causal sensemerely because a second cause intervenes." 502 A.2d at 830. Thekey is foreseeability: Are the intervening acts the natural andprobable consequence of defendant's negligence; and could thoseintervening acts have reasonably been anticipated by thedefendant? Clements v. Tashjoin, 168 A.2d 472, 474 (R.I. 1961).

In the Master Complaint, Plaintiffs allege that police officerAnthony Bettencourt failed to enforce occupancy restrictions atThe Station, permitting dangerous overcrowding, and that hefailed to enforce the laws governing the legal use ofpyrotechnics. Denis Larocque allegedly failed to adequatelyinspect The Station for safety violations and failed to enforce amyriad of fire safety laws and standards. These laws andregulations were all enacted in order to ensure the safety of thegeneral public. These laws are designed to prevent fire ormitigate its impact in public places. It is logical thatviolations of these laws and regulations would result in anincreased possibility of fire and increased hazard to the generalpublic. By definition, fire is a foreseeable consequence of aviolation of a fire prevention regulation. Plaintiffs'allegations against Bettencourt, Larocque and the Town, ifproven, are sufficient to support a finding of proximate cause,and support a theory of liability against Defendants.Consequently, the Town Defendants' Motion to Dismiss the allegations of negligence based on a lack of proximate cause isdenied.

No in personam jurisdiction

In their Memorandum in Support of their Motion to Dismiss theHenault complaint4 (which complaint was originally filedin the United States District Court for the District ofConnecticut), Defendants argue that the Connecticut DistrictCourt lacks in personam jurisdiction over them. In reviewingthe travel of the case, this Court concludes that this issue hasbeen addressed and resolved, and therefore is moot.

In determining whether a transfer of venue is proper, courtslook to the jurisdictional authority of the transferee courtrather than the transferor court. See Goldlawr, Inc. v.Heiman, 369 U.S. 463, 466 (1962), Mulcahy v. Guertler,416 F. Supp. 1083, 1085 (D. Mass. 1976). In transferring the Henaultmatter to this Court in October 2003, United States DistrictJudge Dominic Squatrito wrote, Prior to determining whether a transfer is appropriate pursuant to Section 1404 [28 U.S.C. § 1404 (a)], certain conditions must be met. The phrase "where it might be brought" has been interpreted to mean that, in order to transfer a case to another district pursuant to Section 1404, the transferee court must have subject matter jurisdiction, the plaintiffs must have been able to acquire personal jurisdiction over each defendant in the transferee district. See Hoffman v. Blaski, 363 U.S. 335, 343-45. Here, these prerequisites have been satisfied.Memorandum of Decision and Order, Case No. 3:03CV999 (DJS),10/3/03.

When this Court held that it could properly exercisejurisdiction over all the Station fire cases in Passa v.Derderian, 308 F. Supp. 2d 43 (D.R.I. 2004), this writerspecifically made note of the Henault case: Currently, this Court has been transferred three additional cases arising from the Station nightclub fire from Connecticut and Massachusetts. The plaintiffs in these cases are not all from Rhode Island — indeed, in Estate of Henault v. American Foam, C.A. No. 03-483L, the filing plaintiffs are all from Connecticut, and have jurisdiction in this court based on the federal diversity statute, 28 U.S.C. § 1332.308 F. Supp. 2d at 59.

The determination of Judge Squatrito as to the propriety of thetransfer of venue, as well as this Court's conclusion in Passathat its exercise of jurisdiction was proper, indicate that theissue of in personam jurisdiction has previously been analyzedand decided in the case of these Defendants. Moreover, the factthat the Henault plaintiffs adopted the First Amended MasterComplaint on December 14, 2004, renders moot any hypotheticaltechnical shortcomings of their earlier filings. See Kendallv. Overseas Dev. Corp., 700 F.2d 536, 539 (9th Cir. 1983).

Joint venture

Count Ten of the Henault Plaintiffs' Notice of Adoption chargesthat the Town of West Warwick and Denis Larocque, along withseveral other defendants,5 entered into a joint venturein the pursuit of economic gain and their common businessinterests.

Under Rhode Island law, a joint venture is "an undertaking bytwo or more persons jointly to carry out a single businessenterprise for profit." Fireman's Fund Ins. Co. v. E.W. Burman,Inc., 391 A.2d 99, 101 (R.I. 1978). In McAleer v. Smith,860 F. Supp. 924 (D.R.I. 1994), this Court wrote, Generally, in order for a joint venture to exist, the parties must be bound by express or implied contract, providing for: (1) a community of interests, and (2) joint or mutual control, that is, an equal right to direct and govern the undertaking. In addition, the joint venture agreement must provide for a sharing of losses as well as profits.860 F. Supp. at 943. When a joint venture is established, thenall members of the joint venture are chargeable with thenegligence of one member acting in furtherance of the joint enterprise. Walsh v. Israel Couture Post, No. 2274 V.F.W.,542 A.2d 1094, 1096 (R.I. 1988).

A review of the joint venture allegations in the Notice ofAdoption reveals few of the requisite elements. The alleged jointventurers, twenty-five in number, include the owners of thenightclub, the band members and road manager, the corporatesponsors, Denis Larocque and the Town of West Warwick, Irving J.Owens and the State of Rhode Island, and two Californiacorporations which the Court believes may comprise the band'spromoter and/or recording company. According to Count Ten, theseparties entered into "an express or implied agreement for thecommon purpose and design of planning, endorsing, sponsoring,promoting, and/or advertising the concert" in order to pursuecommon business interests and economic gain. Notice of Adoption,¶¶ 67-68. The Henault Plaintiffs also allege that each jointventurer could "voice concerns regarding the event" and that eachcontrolled "certain aspects of the planning, endorsement,sponsorship, promotion, and/or advertising relating to the GreatWhite concert." Notice of Adoption, ¶ 69.

While it may be true that at least some of the joint ventureDefendants collaborated to put on the Great White concert,Plaintiffs fail to make the essential allegation that they had anagreement to share profits and losses. The Court has tried, inthe words of Circuit Chief Judge Boudin, "indulging to a reasonable degree a plaintiff who has not yet had an opportunityto conduct discovery." DM Research, Inc. v. College of Am.Pathologists, 170 F.3d 53, 55 (1st Cir. 1999). However, despiteall indulgent inferences, the Court is unable to imagine whatkind of an agreement could include these twenty-five defendants.Plaintiffs allege that the Town Defendants failed to adequatelyinspect The Station for fire and other safety hazards. There isno allegation that the Town Defendants had an agreement with thenightclub owners, the corporate sponsors, or any of the otherdefendants to share in the profits and losses from the concert,or, that they played any role in putting on the concert.

For all these reasons, the Court concludes that the HenaultPlaintiffs have failed to allege adequate factual predicates tosupport their claim. Even if all the allegations are taken astrue, a joint venture has not been sufficiently pleaded.Consequently, Count Ten of the Notice of Adoption in the Henaultcase is dismissed as to the Town of West Warwick and DenisLarocque.

Conclusion

For the aforementioned reasons, this Court grants the Motion toDismiss of the State of Rhode Island and State Fire MarshalIrving J. Owens as to all allegations set forth in the FirstAmended Master Complaint, and the Henault Notice of Adoption. TheCourt denies the Motion to Dismiss of the Town of West Warwick, on behalf of Malcolm Moore, Denis Larocque and AnthonyBettencourt, except that Count Ten of the Notice of Adoption ofFirst Amended Master Complaint in the Henault case is dismissedas to these Defendants. No judgment shall enter at this time.

It is so ordered.

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