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Gross v. Pare

Supreme Court of Rhode Island

June 14, 2018

Russell G. Gross et al.[1]
Steven M. Pare et al.

          Providence County Superior Court PC 15-4131 Associate Justice Maureen B. Keough

          For Plaintiff: Donald R. Lembo, Esq.

          For Defendants: Etie-Lee Z. Schaub, Esq. Kenneth B. Chiavarini, Esq. Megan K. DiSanto, Esq.

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



         This case came before the Supreme Court on April 11, 2018, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. The plaintiff, Russell G. Gross (plaintiff or Gross), appeals from a final judgment granting the motion of the defendants, Steven M. Pare, William Trinque, and James J. Lombardi (defendants or the city), for summary judgment. After hearing the arguments of counsel and examining the memoranda submitted by the parties, we are of the opinion that cause has not been shown and that this case should be decided without further briefing or argument. We affirm the judgment of the Superior Court.

         Facts and Travel

         At the time of the incident from which the instant case stems, plaintiff was a lieutenant with the department of communications in the Providence Fire Department. On March 13, 2015, defendant Trinque, who was director of the department of communications, allegedly berated plaintiff for allowing one of his dispatchers to be sprawled in his chair while on duty. The plaintiff alleged that Trinque asked the dispatcher, "Are you comfortable?" in a discourteous tone, to which the dispatcher allegedly responded, "Now that you mention it Director, not really." Trinque then allegedly yelled, "Sit up!" to the dispatcher. Shortly thereafter, Trinque summoned plaintiff to his office to discuss the incident, and the two engaged in a contentious conversation. On that same day, Trinque prepared and presented an interoffice memorandum to defendant Pare, the public safety commissioner, detailing the incident. Commissioner Pare ordered plaintiff's transfer from the department of communications to the division of training for four weeks, effective March 29, 2015. On June 30, 2015, plaintiff became ill with head pains and an elevated blood pressure, which he contends was due to the actions taken by defendants. On July 2, 2015, while plaintiff was absent from work due to his illness, Pare demoted him from the rank of lieutenant to the rank of firefighter, effective July 5, 2015. Following plaintiff's transfer and demotion, he filed two grievances against the city, arguing that the city violated the applicable collective bargaining agreement (CBA) by transferring and demoting plaintiff. These grievances were settled at arbitration for a monetary payment. The plaintiff retired on February 16, 2016.

         On September 23, 2015, plaintiff filed an action in Superior Court and later filed an amended complaint alleging intentional infliction of emotional distress, negligent infliction of emotional distress, loss of consortium, and invasion of privacy.[2] The city moved to dismiss plaintiff's complaint pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure on November 16, 2016, arguing that: (1) plaintiff failed to allege any facts demonstrating that defendants' conduct was extreme and outrageous; (2) plaintiff failed to assert facts supporting his claim for negligent infliction of emotional distress because he was neither in the "zone of danger" nor a bystander who witnessed a close relative being injured; and (3) plaintiff could not recover for invasion of privacy because he did not allege that the city had published a false or fictitious fact about him. The plaintiff filed an objection to the motion, to which he attached documents that were not part of the complaint. He asked the hearing justice to convert the city's motion to dismiss to a motion for summary judgment because he had submitted documents outside the four corners of the complaint. A hearing was held on the city's motion to dismiss on February 16, 2017, and the hearing justice treated the motion as one for summary judgment pursuant to Rule 56 of the Superior Court Rules of Civil Procedure. At this hearing, plaintiff voluntarily dismissed his loss-of-consortium claims, but he maintained that the city's conduct was extreme and outrageous and that his invasion-of-privacy claim was viable because the city portrayed him as being unfit for duty. The hearing justice rendered a bench decision in which she characterized the case at bar as "simply a workplace dispute, a difference of opinions as to whether or not someone was adequately performing their job." The hearing justice granted summary judgment in favor of defendants on all counts of plaintiff's amended complaint, stating:

"In reviewing the complaint as well as the attached exhibits the plaintiff has submitted, I do not find that plaintiff has, in fact, demonstrated the existence of extreme and outrageous behavior on the part of the defendants such that it would result in liability. * * *
"* * *
"With respect to the negligent infliction of emotional distress, * * * there's no evidence to establish that this theory of recovery would be appropriate, anything that would suggest that Mr. Gross was in the zone of danger of the defendants' negligent acts, or that he was a bystander to a related victim's injury resulting from negligent acts of the defendant.
"Finally, with respect to the invasion of privacy claim, * * * plaintiff[s] provide no evidence that suggests defendants published a false or ...

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