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Cain v. Aquidneck Consulting Engineers, LLC

Superior Court of Rhode Island

March 14, 2016

MAUREEN CAIN, Plaintiff,

Newport County Superior Court

For Plaintiff: Joseph P. Casale, Esq.

For Defendant: Adam C. Benevides, Esq.; Brian C. Newbury, Esq.



Before the Court is Defendant Aquidneck Consulting Engineers, LLC Alias ABC LLC's (ACE or Defendant) Motion for Summary Judgment in this breach of contract, negligence, breach of warranty, and malpractice action. On March 7, 2016, the Court held a hearing on the motion and heard arguments from both parties. Jurisdiction in this Court is pursuant to G.L. 1956 § 8-2-14 and Rule 56 of the Rhode Island Superior Court Rules of Civil Procedure. For the reasons set forth herein, the Defendant's Motion for Summary Judgment is granted.

I Facts and Travel

Maureen Cain (Plaintiff) is a resident of the Town of Portsmouth, Rhode Island. Sometime in 2008 or 2009, she decided to build a new house located at 29 Beach Street, Portsmouth, Rhode Island. In 2009, to assist her on that project, she hired ACE to design the foundation of the home. ACE is a structural engineering firm that is located in Newport, Rhode Island. Pursuant to their contract, ACE's only responsibility was to design the foundational plan in exchange for $1500. The contract further provided that ACE would incur no responsibility for construction supervision or administration.

The foundational plan prepared by ACE included a deck. To provide structural support for the deck, ACE's plan called for the contractor to use Wolmanized Parallel Strand Lumber (PSL) beams.[1] The manufacturing process for PSL provides it with superior structural strength as compared to ordinary wood. One manufacturer of PSL developed a technique to treat PSL in order to protect it from the outdoor elements. This Wolmanized PSL is known as Parallam Plus PSL[2] As one might expect, Wolmanized PSL is more expensive than un-Wolmanized PSL.

Once ACE prepared the foundational designs, Ms. Cain began to seek contractors to build the house. Ms. Cain engaged in a bidding process, with four contractors competing for the job. On February 8, 2010, one of the bidders questioned ACE whether non-Wolmanized beams could be used for the deck's foundation. ACE, through Douglas G. Hancher, P.E., responded to all of the bidding contractors that "everyone should bid on using the l6"-deep Wolmanized Service Level 2 PSLs" and that "[c]ladding details for non-Wolmanized PSLs is out of our depth; if you (or others) want to offer a clad plain (non-Wolmanized) PSL alternative (and take responsibility for the waterproofing detailing), that's okay structurally."

Additionally, on May 6, 2010, Plaintiff questioned ACE regarding the placement of "frost walls" in the foundation. Apparently, she believed that the plans provided by ACE would create an issue whereby water could collect in the foundation. Despite ACE telling her, and her contractor, that its plan would provide a runoff and prevent creating a catch basin, she insisted that the contractor take a different course of action. The implementation of those new plans resulted in an additional charge from the contractor.

That was the last contact that ACE had with anyone concerning Ms. Cain's project. Subsequently, Ms. Cain hired Island Design Homes, Inc. (Island) to build the house. Apparently, Island used non-Wolmanized beams on the project that were not treated. Those beams have since deteriorated due to the outdoor conditions. Plaintiff entered into arbitration with Island over the issue of the beams and indicated that "ACE would not provide the design for [non-Wolmanized] cladding" and that ACE informed the contractors that the beams had to be "completely protected from exposure to the atmosphere."

Following arbitration, on June 2, 2014, Plaintiff filed a complaint in Newport County Superior Court against Defendant alleging four counts: 1) breach of contract, 2) negligence, 3) breach of warranty, and 4) malpractice. On December 14, 2015, Defendant filed a Motion for Summary Judgment, to which Plaintiff timely objected. In its motion, Defendant forwards numerous arguments that it contends are fatal to Plaintiff's case. The Court heard oral arguments from the parties on March 7, 2016 and indicated it would issue a written decision.

II Standard of Review

Pursuant to Rule 56(c), "[s]ummary judgment is appropriate when, viewing the facts and all reasonable inferences therefrom in the light most favorable to the non-moving party, the court determines that there are no issues of material fact in dispute, and the moving party is entitled to judgment as a matter of law." Delta Airlines, Inc. v. Neary, 785 A.2d 1123, 1126 (R.I. 2001). In deciding if the parties dispute any issues of material fact, the Court must neither "pass[ ] on the weight and credibility of the evidence" nor "determine issues of fact." Palazzo v. Big G Supermarkets, Inc., 110 R.I. 242, 245, 292 A.2d 235, 237 (1972). Rather, the Court's role in ruling on a motion for summary judgment is "only [to] determine whether there are any ...

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