                                                       Supreme Court

                                                       No. 2015-259-Appeal.
                                                       (NC 07-243)




  Joseph Hall et al.              :

          v.                      :

City of Newport 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 222-
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    corrections may be made before the opinion is published.
                                                                    Supreme Court

                                                                    No. 2015-259-Appeal.
                                                                    (NC 07-243)



             Joseph Hall et al.               :

                     v.                       :

           City of Newport et al.             :


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

                                         OPINION

       Justice Robinson, for the Court. The plaintiffs, Joseph Hall, his wife, Marilyn Hall,

and their children, Jacob and Philomena Hall (the Halls), appeal from the April 16, 2015 entry of

partial final judgment (entered pursuant to Rule 54(b) of the Superior Court Rules of Civil

Procedure) in favor of the defendant, Rhode Island Public Transit Authority (RIPTA),1 in

Newport County Superior Court. The partial final judgment was entered as a result of the

Superior Court’s granting of the defendant’s motion for summary judgment. This case came

before the Supreme Court pursuant to an order directing the parties to appear and show cause

why the issues raised in this appeal should not be summarily decided. After a close review of the

record and careful consideration of the parties’ arguments (both written and oral), we are

satisfied that cause has not been shown and that this appeal may be decided at this time.

       For the reasons set forth in this opinion, we vacate the judgment of the Superior Court.




1
       There are numerous defendants in this case; for the purposes of this appeal we are
concerned only with the claim brought by the Halls against RIPTA.


                                               -1-
                                                  I

                                         Facts and Travel

       According to plaintiffs’ first amended complaint, in March of 2003, Leon Budlong, a bus

driver in RIPTA’s employ, claimed that he was assaulted while on his Ruggles Avenue bus

route. Over a year after the assault, Mr. Budlong identified Mr. Hall as his attacker for the first

time. Mr. Hall was ultimately acquitted by a jury in the Newport County Superior Court after

appealing thereto for a de novo trial following his conviction in District Court. According to the

first amended complaint in the instant case, Mr. Budlong’s bus route went by the Halls’ home on

Ruggles Avenue in Newport “some thirty-two * * * times each day.” Mr. Budlong was assigned

to that bus route during all times pertinent to this case. The plaintiffs alleged, in their first

amended complaint, that Mr. Budlong “embarked on a pattern of harassment of the Halls” in

2004, after identifying Mr. Hall as his alleged attacker.

       The plaintiffs’ attorney sent two letters to RIPTA informing them of the alleged

harassment by Mr. Budlong—one letter being dated September 22, 2005 and the second letter

being dated November 14, 2005. In his first letter, the Halls’ attorney stated the following:

                       “One of your trolley drivers, Leon Budlong has engaged in
               a long series of harassing actions against my clients. My clients
               have had to resort to the Superior Court to obtain a restraining
               order against Mr. Budlong, which remains in effect.[2]
                       “After an extended absence, Mr. Budlong returned to the
               route which includes Ruggles Avenue on September 1, 2005 and
               his harassment of the Halls has escalated.




2
        On July 7, 2005, in a separate civil action, a Superior Court justice granted the Halls a
temporary restraining order against Mr. Budlong. On December 7, 2005, the Superior Court then
issued a preliminary injunction ordering mutual restraining orders against Mr. Budlong and the
Halls. That preliminary injunction specifically stated: “These proceedings do not resolve the
case * * * neither the Court nor either party, respectively, having ordered or requested that the
hearing be consolidated with a trial on the merits.”


                                                -2-
                      “This all culminated on Saturday, September 17, 2005
               when Mr. Budlong drove his trolley bus up to the Halls’ residence,
               stopped, and took a picture of Mrs. Hall in her yard.
                      “The Halls have had it with Mr. Budlong and demand that
               you remove him from this route to prevent any further harassment
               of them by Mr. Budlong, which would have serious implications
               for RIPTA.”

After no response was received, Mrs. Hall herself then sent a letter to RIPTA (the third written

communication to that entity) on November 28, 2005. In that letter she stated that she was “in

fear” for her children, herself, and her husband. She added that Mr. Budlong had “devastated our

family by his aggravated, out-of-control harassments.” RIPTA’s response came on December 9,

2005. It stated that RIPTA had investigated the matter, and then it provided as follows:

                       “You have indicated that you would like RIPTA to change
               Mr. Budlong’s route. Please be advised that routes are assigned to
               drivers pursuant to a detailed process set forth in the collective
               bargaining agreement between RIPTA and the Amalgamated
               Transit Union.
                       “Again, it appears from what we have learned of this matter
               that this is a private dispute. Furthermore, while you state in your
               letter that you are in fear for yourself, your husband, and your
               children, RIPTA considers this to be a police matter, and if at any
               time you fear for your safety or that of your family, I urge you to
               contact the police.
                       “Finally, if you have specific complaints about what Mr.
               Budlong may be doing while he is driving for RIPTA, I urge you
               to write to us again.”

       On May 23, 2007, plaintiffs filed the instant action in the Superior Court as a result of

Mr. Budlong’s alleged harassment of them. (The complaint contained other counts addressing

the alleged actions and/or inactions of other defendants.) In plaintiffs’ first amended complaint,

they included one count against RIPTA, alleging a “[f]ailure to [p]roperly [c]ontrol [d]efendant

Budlong.” The first amended complaint specifically stated that RIPTA had “received complaints

from the Halls about the conduct of their employee, [d]efendant Leon Budlong, explaining his

conduct and repeatedly requesting that he be removed from his route” and that RIPTA had



                                              -3-
“failed to take appropriate action in preventing, discouraging or reprimanding [d]efendant

Budlong.” The first amended complaint further alleged that RIPTA’s failure to control and

supervise constituted negligence because RIPTA had a duty to prevent Mr. Budlong from

harassing the Halls; the Halls further alleged that RIPTA breached that duty, which breach was

the proximate cause of the Halls’ injuries.

                                      Summary Judgment

        On October 24, 2014, RIPTA filed a motion for summary judgment, asserting that the

Halls failed to show that Mr. Budlong was an “incompetent or unfit bus driver” and failed to

offer any evidence showing that any negligence on the part of RIPTA proximately caused

physical injury or any compensable injury to the Halls. The plaintiffs objected in writing to

RIPTA’s motion for summary judgment, alleging that there were numerous issues of material

fact in the case.

        Attached to plaintiffs’ objection to RIPTA’s motion for summary judgment were

affidavits from each plaintiff. In his affidavit, Joseph Hall stated that Mr. Budlong: (1) drove by

him and rang the trolley bell at him; (2) ripped down reward posters that the Halls had put up in

an attempt to find the person who had committed the attack on Mr. Budlong of which Mr. Hall

was accused; (3) had his wife call Mrs. Hall on the telephone pretending to be a witness to Mr.

Hall’s purported attack on Mr. Budlong; (4) harassed Mr. Hall and his family since “May 23,

2004;” (5) stopped in front of the Halls’ home; (6) “c[a]me at [them] with [their] children in

[their] vehicles to scare them;” (7) “cut off” the Halls’ vehicle and then “stalked” them; (8) tried

to “run [Mr. Hall] and [his wife] off East Main Road;” (9) blocked the Halls’ driveway with his

vehicle; (10) drove a RIPTA bus “straight at” the Halls’ daughter as she drove behind Rogers

High School, forcing her “up onto the sidewalk” and then laughing at her; (11) drove by the




                                               -4-
Halls’ residence and gave them “intimidating stares;” (12) “swerved at” Mr. Hall’s truck with his

trolley; (13) drove a RIPTA vehicle right through “a stop sign on Ruggles Ave. onto Bellevue

Ave.” at the Halls in their truck; and (14) stopped his RIPTA bus by the Halls, who were walking

to church, making “masturbation motions” at them. Mrs. Hall’s affidavit provided more detail

and set forth even more incidents of harassment than had her husband’s affidavit. However, the

incidents Mrs. Hall referenced are similar in nature to those described by her husband. Mrs. Hall

did allege in her affidavit that Mr. Budlong intentionally inflicted emotional distress on her and

her family members, causing them to “lose sleep.” Additionally, the affidavits of Philomena and

Jacob Hall set forth allegations of similar incidents of harassment by Mr. Budlong.

       On April 6, 2015, a hearing was held on RIPTA’s motion for summary judgment.

Numerous exhibits were entered into the record; those exhibits included the two letters to RIPTA

from the Halls’ attorney, the letter from Mrs. Hall to RIPTA, and the written response by RIPTA,

as well as the affidavits from the four plaintiffs. At that hearing, the hearing justice granted

RIPTA’s motion for summary judgment. Partial final judgment was entered on April 16, 2015

pursuant to Rule 54(b) of the Superior Court Rules of Civil Procedure. The plaintiffs then filed a

timely notice of appeal.

                                                II

                                      Standard of Review

       As we have repeatedly stated, this Court reviews the grant of summary judgement in a de

novo manner. Shine v. Moreau, 119 A.3d 1, 7 (R.I. 2015); see DeMarco v. Travelers Insurance

Co., 26 A.3d 585, 605 (R.I. 2011); Tanner v. Town Council of East Greenwich, 880 A.2d 784,

791 (R.I. 2005). It is our practice to “review the pleadings, affidavits, admissions, answers to

interrogatories, and other appropriate evidence in the light most favorable to the nonmoving




                                              -5-
party.” Aetna Casualty & Surety Co. v. Vierra, 619 A.2d 436, 437 (R.I. 1993). After that

review, if we conclude “that there is no genuine issue of material fact to be decided and that the

moving party is entitled to judgment as a matter of law, we will affirm the grant of summary

judgment.” Peerless Insurance Co. v. Luppe, 118 A.3d 500, 505 (R.I. 2015) (internal quotation

marks omitted); see also Shine, 119 A.3d at 8. We remain mindful of the fact that “[s]ummary

judgment is an extreme remedy that should be applied cautiously.” Ferris Avenue Realty, LLC

v. Huhtamaki, Inc., 110 A.3d 267, 279 (R.I. 2015) (internal quotation marks omitted).

       It is the party opposing summary judgment that “bears the burden of proving, by

competent evidence, the existence of facts in dispute.” Jessup & Conroy, P.C. v. Seguin, 46

A.3d 835, 838 (R.I. 2012) (internal quotation marks omitted); see also Higgins v. Rhode Island

Hospital, 35 A.3d 919, 922 (R.I. 2012). That party must, “by affidavits or otherwise * * * set

forth specific facts showing that there is a genuine issue of material fact * * *.” Jessup &

Conroy, P.C., 46 A.3d at 839 (emphasis in original) (internal quotation marks omitted); see also

Bourg v. Bristol Boat Co., 705 A.2d 969, 971 (R.I. 1998).

                                               III

                                            Analysis

                                                A

                                 The Halls’ Negligence Claim

       RIPTA counters the Halls’ contention on appeal that RIPTA’s motion for summary

judgment should have been denied, by positing that summary judgment was appropriate in the

instant case because RIPTA did not owe a duty to the Halls, no actionable incident took place,

and the Halls did not suffer any actual injury or damages. RIPTA states that none of the exhibits

which the Halls submitted in support of their objection to RIPTA’s motion for summary




                                              -6-
judgment support their claim against RIPTA and RIPTA adds that the Halls may not rely solely

on their pleadings.

       In order to “maintain a claim for negligence, a plaintiff must establish a legally

cognizable duty owed by a defendant to a plaintiff, a breach of that duty, proximate causation

between the conduct and the resulting injury, and the actual loss or damage.” Wyso v. Full

Moon Tide, LLC, 78 A.3d 747, 750 (R.I. 2013) (internal quotation marks omitted); see Medeiros

v. Sitrin, 984 A.2d 620, 625 (R.I. 2009); see also Splendorio v. Bilray Demolition Co., 682 A.2d

461, 466 (R.I. 1996). We shall address each of those requirements in turn.

                                            1. Duty

       The Halls contend that RIPTA owed them a duty to not supervise its employee in a

negligent manner. RIPTA claims it owed no duty to the Halls because the letters it received

from the Halls and the Halls’ attorney generalized the harassment and did not put RIPTA on

notice of any of the specific allegations against Mr. Budlong, including that Mr. Budlong used a

RIPTA vehicle in a dangerous manner so as to harass the Halls. The hearing justice did not

make any specific finding with respect to whether or not RIPTA owed a duty to the Halls.

       Whether or not a duty exists is a question of law. Wyso, 78 A.3d at 750; see also Brown

v. Stanley, 84 A.3d 1157, 1162 (R.I. 2014); Ouch v. Khea, 963 A.2d 630, 633 (R.I. 2009). In our

opinion in Welsh Manufacturing, Division of Textron, Inc. v. Pinkerton’s, Inc., 474 A.2d 436,

438, 441, 443 (R.I. 1984), we recognized the existence of a cause of action against an employer

for negligent supervision, and we stated that we were recognizing “the direct liability of an

employer to third parties who are injured by acts of unfit, incompetent, or unsuitable

employees.” See also Rivers v. Poisson, 761 A.2d 232, 235 (R.I. 2000) (stating that in Welsh we

“recognized the viability of a cause of action against an employer for the negligent retention




                                              -7-
and/or supervision of an employee when a third party is injured by the acts of unfit or

incompetent employees”). The employer has a duty to “exercise reasonable care” in supervising

an employee; whether the degree of care is reasonable in a particular case depends upon “the risk

of harm inherent in the employment—[t]he greater the risk of harm, the higher degree of care

necessary * * *.” Id. at 235 (internal quotation marks omitted).3

       In the instant case, the letters sent by the Halls and their attorney to RIPTA put it on

notice that there was a conflict between one of its employees and the Halls and that there was a

repeated claim of harassing behavior on the part of Mr. Budlong.            Accordingly, it is our

judgment that RIPTA had a duty to exercise reasonable care in conducting a full investigation,

which should have included obtaining more specific information from the Halls—and, if their

claims were meritorious, then taking appropriate action to ensure that its employee was not

harassing the Halls. Thus, we do not find RIPTA’s contention that it did not have a duty in the

instant case to be availing.

                           2. Breach, Proximate Cause, and Damages

       In addressing the remaining three elements of a negligence claim, we keep in mind that

they are fact-based and that the “[trial] justice may treat the issue of negligence as a matter of

law only if the facts suggest only one reasonable inference.” Berard v. HCP, Inc., 64 A.3d 1215,

1218 (R.I. 2013) (internal quotation marks omitted).        We also bear in mind our repeated

admonition that “complaints sounding in negligence generally are not amenable to summary

3
        In our opinion in Rivers v. Poisson, 761 A.2d 232, 235-36 (R.I. 2000), we concluded that
summary judgment for the employer was appropriate in a situation where an employer was
alleged to have negligently supervised its employee who was making harassing phone calls while
at work. However, crucial to our holding was the fact that the employer was not aware of the
telephone calls until after they had stopped and the fact that the nature of the employee’s job as a
janitor did not require any heightened degree of supervision. Id. at 235. Thus, Rivers is
factually distinguishable from the instant case, in which RIPTA had repeatedly been put on
notice of Mr. Budlong’s alleged actions.


                                               -8-
judgment and should be resolved by a fact finding at the trial court * * *.” Id.; see Wyso, 78

A.3d at 750 (“[W]e have frowned upon the disposition of negligence claims by summary

judgment * * *.”); see also DeMaio v. Ciccone, 59 A.3d 125, 130 (R.I. 2013) (“[T]his Court has

recognized that issues of negligence are ordinarily not susceptible of summary adjudication, but

should be resolved by trial in the ordinary manner.”) (internal quotation marks omitted).

       The hearing justice, in making his decision on RIPTA’s motion for summary judgment,

failed to take into account any of the numerous exhibits and affidavits which the Halls had filed

with their objection to the motion for summary judgment.4 Our review of those exhibits and

affidavits leads us to the inescapable conclusion that the Halls have borne their burden of

proving by competent evidence the existence of issues of material fact with respect to whether or

not there was a breach of duty and whether or not that breach proximately caused an injury to

members of the Hall family.

       RIPTA’s December 9, 2005 letter to the Halls reflects the fact that RIPTA was aware of a

conflict between the Halls and Mr. Budlong, but it nevertheless took no further action in the

matter and simply urged the Halls to “contact the police.” That letter is evidence on the basis of

which a reasonable fact-finder could determine that RIPTA breached its duty to the Halls. In

addition, the several affidavits filed by the Halls detailing the numerous incidents of harassment

that they allegedly suffered at the hands of Mr. Budlong over a long period of time while he was

employed by RIPTA and driving the bus route past their residence constitute evidence of the

“red flag” variety that genuine issues of material fact remained to be decided. See Peerless

Insurance Co., 118 A.3d at 505.      A trier of fact would eventually be required to make a

4
        The Halls point out, in their filings before this Court, that the hearing justice focused
much of his discussion at the hearing on the length of time during which this case has been
pending. We note that, while we share the hearing justice’s concern about the duration of this
case, that fact should not affect an analysis of a motion for summary judgment.


                                               -9-
determination as to the credibility of the Halls and other witnesses, and we express no view as to

what the outcome of that credibility-assessing process will be.          For our present purposes,

however, the key point is that that determination must be made by a fact-finder in the first

instance. See Estate of Giuliano v. Giuliano, 949 A.2d 386, 393-95 (R.I. 2008).

       With respect to damages, RIPTA claims that no evidence of any injury exists. However,

Mrs. Hall’s affidavit contains a statement reflecting the fact that Mr. Budlong’s actions caused

her family members emotional distress, which emotional distress she asserts caused them to

“lose sleep.” Once again, if a fact-finder found Mrs. Hall to be credible, then the requirements of

proximate cause and actual damage would be met. Thus, the issues of proximate cause and of

damages cannot be resolved on a motion for summary judgment in the instant case.

       It is our conclusion that the Halls adequately supported their objection to the motion for

summary judgment with exhibits and affidavits. See Jessup & Conroy, P.C., 46 A.3d at 838-39.

When that evidence is reviewed in the light most favorable to the Halls, it is clear that granting

summary judgment on this necessarily fact-intensive claim of negligence was inappropriate.5

See Peerless Insurance Co., 118 A.3d at 505; see also Berard, 64 A.3d at 1218.

                                                  B

                          RIPTA’s Additional Contentions on Appeal

       RIPTA makes two additional arguments which we deem it prudent to briefly address.

RIPTA argues that the Halls’ case against it is barred by the doctrine of collateral estoppel. With

respect to the doctrine of collateral estoppel, we have stated the following: “It is axiomatic that in

order for collateral estoppel to apply, there must be an identity of issues; the prior proceeding

5
        In their filings before this Court, the Halls make an additional argument to the effect that
the hearing justice inappropriately made credibility determinations during his decision on
RIPTA’s motion for summary judgment. We note that our review of the transcript does not
reveal any findings of credibility.


                                                - 10 -
must have resulted in a final judgment on the merits; and the party against whom collateral

estoppel is sought must be the same as or in privity with the party in the prior proceeding.”

Commercial Union Insurance Co. v. Pelchat, 727 A.2d 676, 680 (R.I. 1999) (internal quotation

marks omitted).    RIPTA bases its contention that the Halls’ action against it is barred by

collateral estoppel on an order with respect to a preliminary injunction which was entered by the

Superior Court on December 7, 2005. That order states: “These proceedings do not resolve the

case * * * , neither the Court nor either party, respectively, having ordered or requested that the

hearing be consolidated with a trial on the merits.” Thus, by its own terms, the order is not a

final judgment. As such, RIPTA’s collateral estoppel argument is without merit.

       In addition, RIPTA makes much of the fact that, in their first amended complaint, the

Halls allege that RIPTA failed to “[p]roperly [c]ontrol” Mr. Budlong, whereas on appeal the

Halls focus on their claim of negligent infliction of emotional distress. RIPTA contends that,

due to that fact, the Halls have waived any argument on appeal with respect to RIPTA’s failure

to “properly control” claim. We are of the opinion that RIPTA’s argument elevates form over

substance. Regardless of the title which the Halls put on their claim, the basis of the claim

remains the same: the Halls allege that RIPTA acted in a negligent manner when it failed to

properly supervise Mr. Budlong and that that failure proximately caused them emotional harm.

As such, we do not perceive any waiver on the part of the Halls.

       Accordingly, we hold that the hearing justice erred when he granted RIPTA’s motion for

summary judgment in view of the fact that unresolved material issues of fact still exist in this

case and those issues must be resolved by a fact-finder.




                                              - 11 -
                                             IV

                                         Conclusion

       For the reasons stated in this opinion, we vacate the judgment of the Superior Court. We

remand the record to that tribunal.




                                            - 12 -
                                 RHODE ISLAND SUPREME COURT CLERK’S
                                               OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Joseph Hall et al. v. City of Newport et al.

CASE NO:              No. 2015-259-Appeal.
                      (NC 07-243)

COURT:                Supreme Court

DATE OPINION FILED: June 2, 2016

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

WRITTEN BY:           Associate Justice William P. Robinson

SOURCE OF APPEAL:     Newport County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Walter R. Stone

ATTORNEYS ON APPEAL:

                      For Plaintiffs: Sol Cohen, Pro Hac Vice
                                      Gordon P. Cleary, Esq.

                      For Defendants: Lori C. Silveira, Esq.
                                      Kenneth M. Sambour, Esq.
                                      Marc Desisto, Esq.
