Opinion
C. A. KC-2017-0653
02-14-2020
MICHAEL MORALES v. DAVID C. OLSEN, in his official capacity as TREASURER FOR THE CITY OF WARWICK; VERIZON NEW ENGLAND, INC.; THE NARRAGANSETT ELECTRIC COMPANY d/b/a NATIONAL GRID; COXCOM, LLC; and JOHN DOES 1-5
For Plaintiff: Scott P. Tierney, Esq. For Defendant: Melody A. Alger, Esq.; Ronald P. Langlois, Esq.; Mark P. Dolan, Esq.; David R. Walsh, Esq.
For Plaintiff: Scott P. Tierney, Esq.
For Defendant: Melody A. Alger, Esq.; Ronald P. Langlois, Esq.; Mark P. Dolan, Esq.; David R. Walsh, Esq.
DECISION
LANPHEAR, J.
This matter came on for hearing before the Court on November 25, 2019 on Defendant, CoxCom, LLC's (Cox) Motion for Summary Judgment. Cox contends that the case against it violates the statute of limitations. This Court agrees and, as such, grants Cox's Motion for Summary Judgment.
I
Facts and Travel
Mr. Morales alleges that a Warwick trash truck became entangled with overhead wires in the City of Warwick on June 18, 2014. Some of the utility lines broke and fell. Plaintiff, Mr. Morales, who was on the sidewalk at the time, was injured by the wires or while running from the falling wires. Mr. Morales filed suit against the City of Warwick, Verizon New England, Inc. (Verizon), and The Narragansett Electric Company d/b/a National Grid (National Grid) in June of 2017. In December 2017 he moved to amend to add Cox. That motion was granted in February 2018 and Cox answered in April 2018.
When the Court first heard the motion, it attempted to determine whether Mr. Morales used due diligence in determining who was an appropriate defendant. Cox contended that given Mr. Morales' experience as a user of Cox's services in the area, that he should have recognized that a wire may belong to Cox. In determining whether Mr. Morales was diligent, the Court scheduled a hearing on the issue, pursuant to Hall v. Insurance Company of North America, 666 A.2d 805 (R.I. 1995). That hearing was held on December 16, 2019.
II
Findings of Fact
After the hearing, the Court makes the following findings of fact. In doing so, the Court finds facts for purposes of this motion only, following the protocol established in Hall. The Court reserves the findings of fact at trial to the trier of fact at trial.
Mr. Morales was the only person to testify at the hearing. The Court found him to be highly credible and affable, but impaired. He referred to a brain bleed with frontal lobe damage. He was limited in his ability to converse and recall events. He did not have a sharp recollection of what he said during his deposition, several months earlier. He was friendly, pleasant, very responsive. It is clear that he tried to assist counsel and the Court in determining what happened. However, he was not easily led and would vary from the question to clarify his answer where appropriate. He acknowledged that he was familiar with Cox and knew that it provided services in the area. Previously, he had contacted the Public Utilities Commission (PUC) questioning a utility bill, so he knew that it was responsive to utility questions. He has had several attorneys, he did not ask the PUC which utilities had wires in the area, and he was unsure of what his attorneys did. He knew he had Cox in the area, and still owes them payments now.
III
Standard of Review
Summary judgment should only be granted when all "'pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as [a] matter of law.'" Plunkett v. State, 869 A.2d 1185, 1187 (R.I. 2005) (quoting Wright v. Zielinski, 824 A.2d 494, 497 (R.I. 2003)). The party who opposes summary judgment bears the burden of producing competent evidence that establishes the existence of a genuine issue of material fact. Voccola v. Stop & Shop Supermarket Company, LLC, 209 A.3d 558, 561 (R.I. 2019) (citing Hill v. National Grid, 11 A.3d 110, 113 (R.I. 2011)). The opposing party that is seeking to establish a dispute concerning the existence of material fact cannot rest upon mere allegations or denials in pleadings, mere conclusions or legal opinions. Industrial National Bank of Rhode Island v. Patriarca, 502 A.2d 336, 338 (R.I. 1985).
IV
Analysis
Under the discovery rule, when the cause of an injury is not immediately known to the plaintiff, the statute of limitations will not run until the plaintiff, in the exercise of reasonable diligence, should have discovered the injury or some injury-causing wrongful conduct. Martin v. Howard, 784 A.2d 291, 299 (R.I. 2001). The "reasonable diligence standard" of the rule "is based upon the perception of a reasonable person placed in circumstances similar to the plaintiffs, and also upon an objective assessment of whether such a person should have discovered that the defendant's wrongful conduct had caused him or her to be injured." Id. at 300. "If a reasonable person in similar circumstances should have discovered that the wrongful conduct of the defendant caused her injuries as of some date before the plaintiff alleged that she made this discovery, then the earlier date will be used to start the running of the limitations period." Id. (citing Anthony v. Abbott Laboratories, 490 A.2d 43, 48 (R.I. 1985)).
This Court, in its objective analysis, finds that a reasonable person in Mr. Morales' circumstances should have and would have discovered that Cox was a defendant. The Court so finds based upon the following: (1) Mr. Morales and his wife were once Cox customers; (2) Mr. Morales had an email address owned by Cox; and (3) Mr. Morales was aware that Cox serviced a number of residents in his neighborhood. The Court also finds that Cox's identity was easily discoverable-a reasonable person conducting a brief investigation into the matter should have discovered which utilities owned which wires, and therefore, which defendant(s) should be sued. See Bustamante v. Oshiro, 64 A.3d 1200, 1207 (R.I. 2013) (holding that the due diligence standard does not require "perfect crystallization of the nature and extent of the injury suffered or a clear-cut anchoring to the allegedly negligent conduct of a defendant." Rather, the pertinent inquiry is "the time that the act or acts of the malpractice should, in the exercise of reasonable diligence, have been discovered") (citing G.L. 1956 § 9-1-14.1(2)). Further, as Mr. Morales was already aware of Cox's existence in his area, he began his search with an advantage, and could have easily contacted Cox to see if it had wires at the site of his injury.
Alternatively, Mr. Morales could have made similar inquiry of the City of Warwick or the Rhode Island PUC, with whom he was familiar. Even a preliminary internet search of cable and internet providers in Warwick would have given Mr. Morales some insight on who to investigate. See Compare Cable TV and Internet Deals in Warwick, RI, Cable TV.com, https://www.cabletv.com/ri/warwick (last visited Feb. 12, 2020).
V
Conclusion
In sum, the Court finds that a reasonable person should have discovered that Cox was a proper defendant before Cox was added as a defendant. As such, Cox's Motion for Summary Judgment is granted. However, the Court is not passing upon any crossclaims for contribution against Cox.