SAO REALTY CO., INC.
MALCOLM MOORE, in his capacity as Finance Director of the City of East Providence; ELIZABETH RINDA, in her capacity as The Deputy Treasurer for the City of East Providence; and STEPHEN COUTU, in his capacity as Director of Public Works for the City of East Providence and JOHN DOE(S) 1-10, JANE ROE(S) 1-10, and XYZ CORPORATION(S) 1-10
Providence County Superior Court
For Plaintiff: Eric S. Brainsky, Esq. Michael E. Levinson, Esq.
For Defendant: Michael A. DeSisto, Esq. Timothy J. Chapman, Esq.
Before this Court is Sao Realty Co., Inc.'s (Plaintiff) motion in limine, asking this Court to find that the maintenance, operation, or repair of a drainage system is a proprietary act under G.L. 1956 § 9-31-3. For the reasons set forth below, this Court grants Plaintiff's motion.
Facts and Travel
In 1979, Plaintiff granted an easement to the City of East Providence (Defendant) to discharge municipal stormwater through a culvert on the southerly portion of Plaintiff's property. Although the easement did not grant a right to discharge stormwater on the northerly section of Plaintiff's property, Defendants allegedly discharged stormwater onto that section. On September 5, 2012, the pipe collapsed after rainwater collected in the stormwater drainage system. The release of the water created a sinkhole on the northerly portion of Plaintiff's property and damaged an apartment building on that property.
On March 8, 2013, Plaintiff filed a Complaint with the Superior Court alleging various tortious acts on the part of Defendant and asked for declaratory and injunctive relief and compensatory, consequential, and punitive damages. Plaintiff then filed this motion in limine, asking this Court to find that the maintenance, operation, or repair of a drainage system is a proprietary act under § 9-31-3 for which the statutory damages cap would be inapplicable. Plaintiff asks this Court to preclude Defendant from presenting testimony or other evidence that the maintenance, repair, or upkeep of a drainage system is a governmental and not a proprietary function. In opposition, Defendant argues that it has a public easement, in existence for the benefit of the public and, therefore, maintaining or repairing that culvert is a governmental function.
The purpose of a motion in limine is "'to avoid the impact of unfairly prejudicial evidence upon the jury'" and to "'prevent the proponent of potentially [inadmissible evidence] from displaying it to the jury . . . until the trial court has ruled upon its admissibility . . . .'" Ferguson v. Marshall Contractors, Inc., 745 A.2d 147, 150 (R.I. 2000) (quoting Gendron v. Pawtucket Mut. Ins. Co., 409 A.2d 656, 659 (Me. 1979); State v. Fernandes, 526 A.2d 495, 500 (R.I. 1987)). In ruling on a motion in limine, the underlying question of the admissibility of evidence and determinations of relevance and prejudice are within the sound discretion of the trial justice. DiPetrillo v. Dow Chem. Co., 729 A.2d 677, 692 (R.I. 1999); Soares v. Nationwide Mut. Fire Ins. Co., 692 A.2d 701, 701 (R.I. 1997). "[I]n appropriate circumstances, " this Court may "reconsider the motion in limine during the trial or in rebuttal." State v. Cook, 782 A.2d 653, 654-55 (R.I. 2001). Therefore, the pretrial granting of the motion "need not be taken as a final determination of the admissibility of the evidence . . . ." Fernandes, 526 A.2d at 500.
With respect to damages, § 9-31-3 states:
"In any tort action against any city or town or any fire district, any damages recovered therein shall not exceed the sum of one hundred thousand dollars ($100, 000); provided, however, that in all instances in which the city or town or fire district was engaged in a proprietary function in the commission of ...