                                                            Supreme Court

                                                            No. 2014-239-Appeal.
                                                            (KC 14-316)

        Melissa E. Goddard                :

                 v.                       :

APG Security-RI, LLC, alias John Doe      :
        Corporation et al.




         NOTICE: This opinion is subject to formal revision before
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         notify the Opinion Analyst, Supreme Court of Rhode Island, 250
         Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
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                                                                     Supreme Court

                                                                     No. 2014-239-Appeal.
                                                                     (KC 14-316)

              Melissa E. Goddard                  :

                       v.                         :

    APG Security-RI, LLC, alias John Doe          :
            Corporation et al.

              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                          OPINION

       Chief Justice Suttell, for the Court. Which period of limitation applies to a civil action

alleging a violation of the employer drug testing statute (EDTS) 1—ten years as provided in

G.L. 1956 § 9-1-13(a) 2 or three years as provided in § 9-1-14(b) 3—is the central question of this

appeal. This case came before the Supreme Court pursuant to an order directing the parties to

appear and show cause why the issue raised in this appeal should not be summarily decided.

After considering the parties’ written and oral submissions and reviewing the record, we

conclude that cause has not been shown and that this case may be decided without further




1
  The statute governing drug testing by employers is set forth in G.L. 1956 § 28-6.5-1(a) and
provides, in pertinent part, that:
                   “(a) No employer or agent of any employer shall, either orally
               or in writing, request, require, or subject any employee to submit a
               sample of his or her urine, blood, or other bodily fluid or tissue for
               testing as a condition of continued employment unless that test is
               administered in accordance with the provisions of this section.”
2
  General Laws 1956 § 9-1-13(a) provides that “[e]xcept as otherwise specially provided, all civil
actions shall be commenced within ten (10) years next after the cause of action shall accrue, and
not after.”
3
  Section 9-1-14(b) provides, in pertinent part, that “[a]ctions for injuries to the person shall be
commenced and sued within three (3) years next after the cause of action shall accrue, and not
after * * *.”

                                               -1-
briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the

Superior Court.

                                                   I

                                    Facts and Procedural History

          On March 27, 2014, Melissa Goddard (plaintiff) filed a complaint against APG Security-

RI, LLC, as well as against Scott Hemingway and Anna Vidiri in their capacities as

employees/agents of APG Security-RI, LLC (collectively, defendants). The complaint alleged

that, in January 2010, when plaintiff was employed as a security guard by APG Security-RI,

LLC, defendants violated G.L. 1956 § 28-6.5-1 when they required her to submit to a drug test

without the reasonable grounds set forth by the statute and subsequently terminated her

employment based on the result of that test. The plaintiff sought damages pursuant to both the

EDTS and § 9-1-2. 4 The defendants responded to plaintiff’s complaint with a motion to dismiss

pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure, in which they asserted

that the complaint was not timely filed. A hearing justice of the Superior Court held a hearing on

June 9, 2014, at which defendants argued that the three-year statute of limitations in § 9-1-14(b)

applied to civil actions arising out of alleged violations of the EDTS, and plaintiff argued that the

ten-year statute of limitations in § 9-1-13(a) applied instead. The hearing justice agreed with



4
    Section 9-1-2 provides that:
                     “Whenever any person shall suffer any injury to his or her
                 person, reputation, or estate by reason of the commission of any
                 crime or offense, he or she may recover his or her damages for the
                 injury in a civil action against the offender, and it shall not be any
                 defense to such action that no criminal complaint for the crime or
                 offense has been made; and whenever any person shall be guilty of
                 larceny, he or she shall be liable to the owner of the money or
                 articles taken for twice the value thereof, unless the money or
                 articles are restored, and for the value thereof in case of
                 restoration.”

                                                  -2-
defendants and found that the three-year statute of limitations in § 9-1-14(b) governed plaintiff’s

cause of action. The hearing justice also found that the statute of limitations began to run from

the date that the drug test was administered, and that plaintiff’s complaint had been filed more

than three years after the administration of the drug test. Accordingly, the hearing justice

granted defendants’ motion and dismissed plaintiff’s complaint. The plaintiff filed a premature

notice of appeal, which we nevertheless deem to be timely. See Miller v. Saunders, 80 A.3d 44,

47 n.8 (R.I. 2013). 5

                                                 II

                                       Standard of Review

        “In reviewing the grant of a motion to dismiss pursuant to Rule 12(b)(6), this Court

applies the same standard as the hearing justice.” Ho-Rath v. Rhode Island Hospital, 115 A.3d

938, 942 (R.I. 2015) (quoting Woonsocket School Committee v. Chafee, 89 A.3d 778, 787 (R.I.

2014)). “Because the sole function of a motion to dismiss is to test the sufficiency of the

complaint, our review is confined to the four corners of that pleading.” Id. (quoting Chafee, 89

A.3d at 787). “We will ‘assume[] the allegations contained in the complaint to be true and view[]

the facts in the light most favorable to the plaintiffs.’” Id. (quoting Chafee, 89 A.3d at 787). “A

motion to dismiss is properly granted when it is clear beyond a reasonable doubt that the plaintiff

would not be entitled to relief from the defendant under any set of facts that could be proven in

support of the plaintiff’s claim.” Id. (quoting Chafee, 89 A.3d at 787).

        This appeal also presents us with a question of law regarding which of two general civil

action statutes of limitations will apply to causes of action arising from alleged violations of the

EDTS. It is well settled that ‘“[t]he question of whether a statute of limitations has run against a

5
 The order granting defendants’ motion to dismiss entered on June 12, 2014; the final judgment
entered “nunc pro tunc” on October 20, 2014.

                                                -3-
plaintiff[’]s claim is * * * a question of law,’ which this Court reviews de novo.” Ho-Rath, 115

A.3d at 942-43 (quoting Balletta v. McHale, 823 A.2d 292, 294 (R.I. 2003)). “[T]his Court

[also] reviews questions of statutory construction and interpretation de novo.” Id. at 943 (quoting

National Refrigeration, Inc. v. Capital Properties, Inc., 88 A.3d 1150, 1156 (R.I. 2014)).

                                                III

                                            Discussion

       The plaintiff argues that the ten-year statute of limitations in § 9-1-13(a) should apply to

alleged violations of the EDTS because § 9-1-13(a) specifically states that the ten-year statute of

limitations applies “[e]xcept as otherwise specially provided,” the EDTS does not indicate the

applicable statute of limitations, and none of the other established statutes of limitations apply.

The plaintiff also argues that actions brought pursuant to the EDTS do not meet this Court’s

common law definition of § 9-1-14(b)’s “injuries to the person” because “the legislature intended

the rights created in the [EDTS] to accrue to an individual by reason of a peculiar status and not

as rights to which one is entitled by reason of being a person in the eyes of the law.” The

plaintiff asserts that § 9-1-14(b) does not apply, therefore, because “the right to be free from

unreasonable drug testing is a right that accrues to an individual by reason of a peculiar status

* * *.” The plaintiff contends that the “peculiar statuses” in question are created by the separate

sections within the EDTS that delineate different drug testing rules for employees as opposed to

job applicants.

       The defendants counterargue that the three-year statute of limitations in § 9-1-14(b)

applies because a violation of the rights protected by the EDTS results in an injury to the person

as defined by this Court and because plaintiff’s rights do not arise from any peculiar status. The

defendants assert that “the rights conferred and protected by the [EDTS] are * * * analogous” to



                                               -4-
civil rights even though the EDTS rights are not ‘“civil right[s]’ in the classical sense of th[e]

term.” The defendants also argue that the application of the three-year limit on causes of action

arising out of alleged violations of the EDTS is “consistent with the General Assembly’s use of

short limitations periods in other employment-related statutes” and supports the policy

considerations in favor of short statutes of limitations in the employment context.

       The EDTS provides employees with a right to be free from drug tests that are not

administered in accordance with the process set forth within the statute. See § 28-6.5-1(a). The

EDTS sets out several conditions under which an employer may request, require, or subject an

employee to a drug test using a sample of the employee’s blood, urine, or other bodily fluids. Id.

A violation of the EDTS can lead to a misdemeanor conviction of the employer as well as to an

award of punitive damages, attorney’s fees, costs, and injunctive relief in favor of an employee-

plaintiff in a civil action against the employer. Section 28-6.5-1(b), (c). The EDTS does not,

however, provide a limitation on the time in which an employee has to bring a civil action. See

§ 28-6.5-1.

       When a statute creates a civil remedy for its violation but is silent regarding the

applicable limitations period, we have often decided between one of two residual statutes of

limitations provided in chapter 1 of title 9: either the three years provided in § 9-1-14(b) or the

ten years provided in § 9-1-13(a). See Paul v. City of Woonsocket, 745 A.2d 169, 169, 172 (R.I.

2000) (holding that § 9-1-14(b) applied to a cause of action filed pursuant to 42 U.S.C. § 1983 to

recover payment of an allegedly improper water tapping fee); Lyons v. Town of Scituate, 554

A.2d 1034, 1035, 1036 (R.I. 1989) (holding that the statute of limitations in § 9-1-14(b) applied

to recovery sought pursuant to § 9-1-2). Section 9-1-14(b) provides, in relevant part, that

“[a]ctions for injuries to the person” must be initiated within three years from the date that the



                                               -5-
cause of action accrued. We have previously held that the phrase ‘“injuries to the person’ * * *

is to be construed comprehensively and as contemplating its application to actions involving

injuries that are other than physical.” Commerce Oil Refining Corp. v. Miner, 98 R.I. 14, 20, 22,

199 A.2d 606, 610 (1964) (Commerce Oil) (determining that an action for malicious prosecution

was to be considered an injury to the person and therefore subject to the statute of limitations in

§ 9-1-14). In Commerce Oil, we commented that the purpose of the phrase “injuries to the

person” is:

               “to include within that period of limitation actions brought for
               injuries resulting from invasions of rights that inhere in man as a
               rational being, that is, rights to which one is entitled by reason of
               being a person in the eyes of the law. Such rights, of course, are to
               be distinguished from those which accrue to an individual by
               reason of some peculiar status or by virtue of an interest created by
               contract or property.” Id. at 20-21, 199 A.2d at 610.

We have repeatedly applied the framework established in Commerce Oil to determine which

statute of limitations applies to various causes of action. See, e.g., Paul, 745 A.2d at 172;

McBurney v. Roszkowski, 687 A.2d 447, 448-49 (R.I. 1997) (holding that an action for

intentional interference with a contract was subject to the ten-year statute of limitations); Church

v. McBurney, 513 A.2d 22, 23, 24, 26 (R.I. 1986) (holding that actions for legal malpractice

were essentially claims for negligent breach of contract and were therefore subject to the statute

of limitations in § 9-1-13); Mikaelian v. Drug Abuse Unit, 501 A.2d 721, 724 (R.I. 1985)

(holding that the statute of limitations in § 9-1-14(b) applied to actions for libel because “the

right * * * to be free from defamatory statements [was] among those rights to which one is

entitled by reason of being a person, as opposed to a right arising out of contract or property”).

Clearly plaintiff has not alleged the invasion of a right or an interest created by contract or

property. Her ability to avail herself of the ten-year statute of limitations, therefore, turns on her



                                                -6-
claim that her right to recovery for a violation of the EDTS accrues to her “by reason of some

peculiar status”—the peculiar status being that of an employee.         Thus, she contends that

violations of the EDTS are an exception to the definition of “injuries to the person” that this

Court has applied since Commerce Oil.

       Since our pronouncement in Commerce Oil, we have not had an occasion to either define

or apply the “peculiar status” exception to the comprehensive construction that we have afforded

the language “injuries to the person” under § 9-1-14(b).       We have, however, consistently

emphasized that “it is the nature of the right invaded and not the elements of damage resulting

therefrom that determines its character as an injury to the person.” Nappi v. John Deere & Co.,

717 A.2d 650, 651 (R.I. 1998) (mem.) (quoting Pirri v. Toledo Scale Corp., 619 A.2d 429, 431

(R.I. 1993)); Lyons, 554 A.2d at 1036 (quoting Commerce Oil, 98 R.I. at 21, 199 A.2d at 610);

Church, 513 A.2d at 24 (quoting Commerce Oil, 98 R.I. at 21, 199 A.2d at 610).

       The plaintiff has essentially alleged a violation of her right to be free from drug testing

that is not conducted in accordance with the mandates set forth in the EDTS. See § 28-6.5-1. We

agree with plaintiff that the EDTS creates a right for employees to be free from drug testing

policies and procedures that do not comply with the statute. When we consider our previous

applications of § 9-1-14(b)’s “injuries to the person” pursuant to the definition expounded in

Commerce Oil, however, we conclude that the nature of the right created by the EDTS is

analogous to an invasion of privacy and thus one to which plaintiff was “entitled by reason of

being a person in the eyes of the law” and not by virtue of any “peculiar status” or by reason of

“an interest created by contract or property.” Commerce Oil, 98 R.I. at 20-21, 199 A.2d at 610;

see also Mikaelian, 501 A.2d at 724. As in our previous cases involving the Commerce Oil

framework, the injuries sustained from a violation of the EDTS are not necessarily physical and



                                              -7-
indeed need not be physical in order for § 9-1-14(b) to apply. See, e.g., Mikaelian, 501 A.2d at

724. We hold, therefore, that violations of the EDTS result in “injuries to the person” as

contemplated by § 9-1-14(b) and, accordingly, are subject to this three-year statute of limitations

and not to the ten-year period provided in § 9-1-13(a).

       We note that our conclusion is consistent with statutes of limitations that the General

Assembly has promulgated for other employment-related claims.              For example, the Fair

Employment Practices Act, G.L. 1956 chapter 5 of title 28, provides only one year to file a

charge with the commission for human rights, and thereafter the commission has two years to

issue a complaint. Section 28-5-17(a); § 28-5-18(b).        The Whistleblowers’ Protection Act,

G.L. 1956 chapter 50 of title 28, provides an explicit three-year statute of limitations, § 28-50-

4(a), and the Civil Rights Act of 1990, G.L. 1956 chapter 112 of title 42, also limits civil

litigation to three years after the alleged violation of the statute. Section 42-112-2. As a matter

of public policy, these statutes demonstrate the General Assembly’s preference for applying

relatively short statutes of limitations to employment-related claims. 6

       The plaintiff also sought damages pursuant to § 9-1-2. While the EDTS is silent with

respect to the applicable statute of limitations, we have previously held that § 9-1-2—the statute

providing civil liability for the victims of criminal offenses—was subject to the limitations

period set forth in § 9-1-14(b) because “[t]here is no peculiar status or contractual relationship

between the parties creating an alternative right upon which plaintiff might sue.” Lyons, 554

A.3d at 1036. Since we have previously held that actions for civil liability enabled by § 9-1-2 for

the victims of criminal offenses—which would include the misdemeanor offense created by the

6
  We also note that the statute of limitations for the misdemeanor offense created by § 28-6.5-
1(b) is three years. See G.L. 1956 § 12-12-17(c) (providing that the statute of limitations for any
criminal offense not enumerated in paragraphs (a) or (b) is three years “unless a longer statute of
limitations is otherwise provided for in the general laws”).

                                                -8-
EDTS—are subject to the three-year statute of limitations, we also hold that actions brought

pursuant to § 9-1-2 for an alleged violation of § 28-6.5-1 are subject to the three-year statute of

limitations provided in § 9-1-14(b). See Lyons, 554 A.2d at 1036.

                                                 IV

                                            Conclusion

         Because the plaintiff filed her complaint more than three years after the alleged violation

of the EDTS, her claims pursuant to both the EDTS and § 9-1-2 are time-barred. Accordingly,

we affirm the Superior Court’s judgment, and we remand the record of this case to the Superior

Court.




                                                -9-
                                 RHODE ISLAND SUPREME COURT CLERK’S
                                               OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Melissa E. Goddard v. APG Security-RI, LLC, alias John Doe
                      Corporation et al.

CASE NO:              No. 2014-239-Appeal.
                      (KC 14-316)

COURT:                Supreme Court

DATE OPINION FILED: March 7, 2016

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:           Chief Justice Paul A. Suttell

SOURCE OF APPEAL:     Kent County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Sarah Taft-Carter

ATTORNEYS ON APPEAL:

                      For Plaintiff: David R. Comerford, Esq.
                                     Frank R. Saccoccio, Esq.

                      For Defendants: Mark A. Pogue, Esq.
