Supreme Court
No. 2014

- 240

- Appeal

. ( N C 1 1

- 266 ) Newstone Development, LLC :

v. : East Pacific, LLC 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

- 3258 of any typographical or other formal errors in order tha t corrections may be made before the opinion is published.- 1

- Supreme Court
No. 2014

- 240

- Appeal

. ( N C 1 1

- 266 ) Newstone Development , LLC :

v. :
East Pacific , LLC et al. :

Pr esent: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
O P I N I O N Chief Justice Suttell, for the Court. This case ar ises from an incident involving a
frozen water pipe and its diluvial aftermath , which caused extensive property damage to several Newport waterfront luxury condominium units

. The plaintiff , Newstone Development , LLC (Newstone) , owned several units in the condominium complex at the time of the incident

. Newstone now appeal s from a Superior Court judgment in favor of the defendants , East Pacific , LLC (East Pacific), Micha el Rabinowitz, Diane Rabinowitz (the Rabinowitz es ) , and the contractors, engineers, and architects who were involved in building the condominium (construction defendants)

. 1 The sole issue before th is Court is whether the plaintiff can recover loss

- of

- use damages during the time that the condominium units were under repair. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

1 The construction defendants include the following: Stonestreet Construction , LLC, Newport Collaborative Architects, Inc., Bergmeyer Associates, Inc., Odeh Engineers, Inc., Allied Consulting Engineering Service s, Inc., Fire Suppression Systems Group, Sun Fire Protection & Engineering, Inc., Cinco Plumbing & Heating, Inc., Baystate Drywall Co., Inc., and Johnson Insulation Company, Inc.- 2

- I Facts and Procedural History
The essential facts in this case are not in dispute and are as follows

. Newstone owned
several condominium units at T he Residen ces at Brown and Howard Wharf Condominiums in Newport (The Residences)

. East Pacific, a n enti ty formed by the Rabinowitzes for the sole
purp ose of purchasing their condominium unit , owned unit 205 at T he Residences

. For a period of time prior to December 19, 2009, the Rabinowitz es had turned off the heat in unit 205

. On December 19, 2009, water in a pipe passing through their unit froze , causing the pipe to rupture

. The ensuing flood caused extensive damage to T he Residen ces , including to common areas and

to units within the building . Units 203 , 204 , and 206 , all of which were owned by Newstone (the Newstone units) , sustained a total of $1 , 6 00,000 in property damage

. At the time of the incident,
the Newstone units were unoccupied, and were listed and being marketed for sale. Newstone’s
insurance provider has since paid for all the necessary repairs to the Newstone units and the units
have been sold at full market value

. On May 9, 2011 , Newstone filed a f our
- count complaint against the Rabinowitzes and
East Pacific

. The complaint alleged counts of negligenc e (count 1), trespass (count 2),
diminution of valu e of plaintiff’s property ( count 3), and strict liability (count 4). In its complaint, Newstone alleged that the “condominiums [at T he Residences] were extensively damaged as a result of the flooding and water damage cause d by * * * [ d ] efendant s .” On August
8 , 2012, Newstone filed a motion for leave to file an amended complaint, which the hearing justice granted. T he amended complaint omitted counts 2 and 4 , and alleged that Newstone suffered damages as a result of “not being able to use, occupy, rent or lease the Newstone- 3

- [u]nits.” The complaint was amended again o n February 20 , 2013 . The second amended complaint add ed construction defendants as additional defendants to th e suit

. 2
On January 24 , 2014, East Pacific and the Rabinowitzes filed a m otion for summary judgmen t , to which plaintiff objected

. A hearing was held on April 7, 2014

. At the summary judgment hearing, plaintiff acknowledged that the Newstone units had sold and had not lost value; consequently, plaintiff informed the court that it w ould no longer be press ing its claim for
diminution of property value

. As to its negligence count, plaintiff sought to recover damages for
the loss of use of the units as measured by the fair rental value for the period of time that the Newstone units were under repair. T he p laintiff argued before the hearing justice that its damages during this period amounted to “loss of use [ of the Newstone units , ] [l]oss of the ability to rent the [Newstone units] or use the[m] * * * as its own * * *. ” The hearing justice granted
East Pacific and the Rabinowitzes ’ motion for summary judgment. 3 The p laintiff subsequently filed a mo tion to reconsider. During the May 5, 2014 , hearing
on the motion to reconsider , the hearing justice explained that he had granted East Pacific and the Rabinowitzes’ motion for summary judgment because “it was pretty much conceded that at the time of the loss that [the Newstone units] were not being offered for rentals.” The plaintiff argued for the first time during the hearing on the motion to reconsider t hat , irrespective of
whether it had actually suffered a loss of use, it was entitled to recover for a “prospective loss of

use
. ” The hearing justice disagreed and denied plaintiff’s motion.

2 On March 14, 2013, East Pacific and the Rabinowitzes filed a third party complaint against several construction defendants. 3 During the summary judgment hearing , counsel representing one of the construction defendants requested that the hearing justice apply his grant of summary judgment to all construction defendants, because their separately filed motions would mirror the one before the court. The hearing justice declined to decide any motion that was not properly before him.- 4

- Following the denial of plaintiff’s motion to reconsider , construction defendants filed their respective motions for summary judg ment

. 4 A hearing on their motion s was held on June 23, 2014 . At the hearing, plaintiff raised the same argument that it had made during the motion
to reconsider , i.e., that it was entitled to recover loss

- of

- use damages even in the absence of
actual economic loss. T he hearing justice granted construction defendants’ motion s for summary judgment reasoning that “awarding * * * [ p]laintiff damages for loss of use , ” where there was no actual loss of rent, “would result in * * * [p]laintiff profiting from this incident, something which the law should discourage.” Final judgment entered for all defendants and plaintiff filed a timely notice of appeal.
II
Standard of Review “This Court will review the grant of a motion for summary judgment de novo , ‘employing the same standards and rules used by the hearing justice.’ ” Daniels v. Fluette , 64 A.3d 302, 304 (R.I. 2013) (quoting Great American E & S Insurance Co. v. End Zone Pub & Grill of Narragansett , Inc. , 45 A.3d 571, 574 (R.I. 2012) )

. “ We will affirm a [trial] court ’ s decision only if, after reviewing the admissible evidence in the light most favorable to the nonmoving party, we conclude that no genuine issue of material fact exists and that the moving party is entitled to judgment as a m atter of law.” Id. ( quoting Great American E & S Insurance
Co. , 45 A.3d at 574). Furthermore , “ the nonmoving party bears the burden of proving by competent evidence the existence of a disputed issue of material fact and cannot rest upon mere allegations or denials in the pleadings, mere conc lusions or mere legal opinions.” Id. (quoting

4 The construction d efendant Odeh Engineers, Inc. had already filed its motion on May 1, 2014 , and construction defendant Allied Consulting Engineering Services, Inc. had filed its motion on April 28, 2014

.- 5

- Great American E & S Insurance Co. , 45 A.3 d at 574)

. It is well settled that “issues of negligence are ordinarily not susceptible of summary adjudication, but should be resolved by trial in the ordinary manner.” Holley v. Argonaut Holdings, Inc. , 968 A.2d 271, 274 (R.I. 2009) (quoting Gliottone v. Ethier , 870 A.2d 1022, 1028 (R.I. 2005) )

. However, “ summary judgment
should enter ‘ against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case * * *. ’ ” Lavoie v. North East Knitting, I nc. , 918 A.2d 225, 228 (R.I. 2007) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986)).
III
Discussion On appeal, plaintiff acknowledges th e absence of actual economic loss, but “ maintain [ s ]
that it [ is ] nonetheless entitled to damages from [defen d ants ] for their tortious invasion and deprivation of its right to use its units during the repair period.” The plaintiff argues that § § 929
and 931 of the Restatement (Second) Torts (1979) (the Restatement) provide for damages for the
loss of use o f the property

— measured by the property’s fair rental value during the repair period

— where real estate is tort i ously damaged, “even where the owner in fact suffers no harm by the deprivation.” ( E mphasis omitted .) The plaintiff contends that , “ in property loss cases, proof of actual economic loss is not an essenti al element for recovery of loss[

- ] of [

- ] use damages , ” and , consequently, that the decision of the Superior Court should be reversed

. In response, defendants argue that plaintiff has failed to present any evidence to support a finding that plaintiff actually lost the use of the Newstone units , “let alone that it sustained any injury related to the alleged loss of use.” The defendants argue that , even if plaintiff had presented evidenc e that it lost use of the Newstone units, plaintiff nonetheless waived any argument that §§ 929 and 931 of the Restate ment do not require proof of actual damages to- 6

- recover for loss of use because plaintiff presented this argument for the first time during the hearing on the motion to reconsider

. Additionally, d efendants maintain that , e ven if the argument w ere properly before this Court, “[o]nce [plaintiff] concede[d] that it [had] not
sustain [ed] any economic loss * * *, [ its ] claim failed as a matter of law.” Contrary to plaintiff’s contentions, defendants insist that an actual injury must be proven to recover any consequential damages related to the loss of use of the Newstone units

.

“ It is well settled that to prevail on a claim of 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 [an] actual loss or damage.” Nationwide Prop erty & Ca s ualty Insurance Co

. v. D.F. Pepper Const ruction , Inc. , 59 A.3d 106, 110 (R.I. 2013) (quoting Habershaw v. Michaels Stores, Inc. , 42 A.3d 1273, 1276 (R.I. 2012)). Generally, when the damage to property is temporary , the cost of repair is the proper measur e of damages. Banville v. Brennan , 84 A.3d 424, 432 (R.I. 2014). However, in certain circumstances involving an encroachment upon land , damages “may include the difference in value of the land before and after the harm as well as damages for the loss of u se of the land.” I d. at 433 ( citing Restatement (Second) Torts § 929 (1979) ). Section 929 (1)(b) of the Restatement provides that , for an invasion of land “ not amounting to a total destruction of [ its ] value, ” the landowner may recover damages for “the loss of use of the land.” Moreover, an o ccupant of real property may recover damages for harm to the occupant’s enjoyment of his or her property in the event that he
or she can prove “ some interference with or d eprivation of a possessory interest in the property in question as a condition precedent to obtaining damages for any resulting inconveni ence, discomfort, or annoyance * * * .” Hawkins v. Scituate Oil Co. , 7 23 A.2d 771, 772, 773 (R.I. 1999).- 7

- Here, it is un contested that there are no material facts in dispute , rendering this case ripe for summary disposition

. As to plaintiff’s negligence count , plaintiff has failed to set forth competent evidence that it suffered an “actual loss or damage , ” and we decline to depart from
this venerable predicate of our law of negligence in the circumstances of this case. See Nationwide Prop erty & Cas ualty Insurance Co

. , 59 A.3d at 110. Rather , we find plaintiff’s
assertion that it can recover loss

- of

- use dama ges

— despite the fact that it conceded that it
suffered no actual economic loss

— to be misplaced. The principal Rhode Island cases upon which plaintiff rel ies are readily distinguishable.
In Hawkins , 723 A.2d at 772, th is Court allowed homeowners to recov er damages for inconvenience, discomfort, or annoyance when their home was flooded with home heating oil. Unlike the case at bar, Hawkins involved “a physical interference with or a loss of a possessory interest in real property.” Id. at 773. There, the tortfeasor’ s wrongdoing interfer e d with the plaintiffs’ rightful occupancy of the property. Id

. Here, it is conceded that plaintiff held the condominium units solely for sale. Moreover , in Banville , 84 A.3d at 4 33 , relying in large measure upon § 929 of the Restatement, we affirmed an award of damages for diminution in value for, at least in part, loss of use of the plaintiff’s real estate. The trial justice had found that the plaintiff’s use and enjoyment of her pr operty had been adversely impacted by the defendant’s behavior, which included the construction of a building encroaching on the plaintiff’s land.
Banville , 84 A.3d at 433 . In upholding the award of damages for the loss of the plaintiff’s use and enjoyme nt of her property, we sp ecifically noted “the defendant s ’ willful encroachment, in the face of ample notice that there was a significant problem with [a] survey, and the real and lasting harm to the plaintiff’s property as a result of the defendant’s beha vior.” Id. In this case, there is no allegation, let alone evidence presented, of any willful encroachment on the part of- 8

- defendant s or of any “real and lasting harm” to the Newstone units. To the contrary, it is undisputed that the Newstone units were f ully restored at no cost to plaintiff and were sold at fair
market value

. Additionally, p laintiff’s reliance on § § 929 and 931 of the Restatement to support its argument is also unavailing. Section 931 provides that:
“I f one is entitled to a judgment for the detention of, or for preventing the use of, land or chattels, the damages include compensation for (a) the value of the use during the period of detention or prevention or the value of the use of or the amount paid for a substitute, and (b) harm to th e subject matter or other harm of which the detention is the legal cause. ” Restatement (Second) Torts § 931 at 551

- 52

. Importantly, i llustration 1 to comment b

. of § 931 offers the following scenario : “ A takes possession of and detains for six months B ’ s land, which has a rental value for the period of $1000. B is entitled to receive this amount as damages although he never had used and would not have used the land during t he period.” The p laintiff ’s insistence that the Restatement supports its positio n disregards the fact that , in the illustration provided , “ A [ took ] possession of
and detain [ ed ] * * * [ the ] land.” See id. § 931 cmt. b , illus. 1 at 552

. Here, the alleged negligen t
acts relate to the pipe s freezing and burst ing; plaintiff d id not allege that defendants wrongful ly
took possess ion of the Newstone units

. Similarly , the case law from other jurisdictions cited by plaintiff is inapplicable to the
facts in this case

. For example , several cases involve a cause of action for replevin where the plaintif fs were allowed to recover loss

- of

- use damages for the time the ir chattel was wrongfully detained, without having to prove any intention of actually using the chattel during th at period

. See , e.g. , Ben Lomond, Inc. v. Campbel l , 691 P.2d 1042 , 1044, 1045 , 1046 (Alaska 1984) ( loss

of

- use damages awarded to an owner of a generator after the defendant wrongfully took- 9

- possession of the generator, in the absence of evidence that the owner would have used the generator during the per iod of detention ) ; see also Nichols v. Martin , 589 P.2d 451, 453 ( Ariz. Ct. App. 1978) ( the plaintiff recovered damages for loss of use of an aircraft equal to value of leasing the aircraft during the period of wrongful detention irrespective of what the plaintiff actually expended to replace her loss of use of the aircraft )

. While damages for loss of use of a
chattel may be proper in a replevin action, again, plaintiff does not allege that defendants wrongful ly possess ed t he Newstone units

. See Rule 64 of the Superior Court Rules of Civil
Procedure ; see also Gem Plumbing & Heating Co. v. Rossi , 867 A.2d 796, 806 n. 14 (R.I. 2005) (r eplevin is an “action for the repossession of personal property wrongfully taken or detained by
the defendant” ) (quotin g Bla ck’s Law Dictionary 1325 (8th ed. 1999) )

. The plaintiff’s reliance on cases involving allegations of wrongful occupation is similarly
flawed. See , e.g. , Don v. Trojan Construction Co. , 178 Cal. App. 2d 135, 136, 137

- 38 (Cal. Dist. Ct. App. 1960) ( the defendant who stored dirt on property owned by the plaintiff without consent

was responsible for the fair rental value of the property for the entire period of the wrongful occupation despite the plaintiff’s not otherwise intending to rent the property) ; s ee also Robert v.
Scarlata , 899 A.2d 666, 669 (Conn. App. Ct. 2006). Notably, torts such as trespass are intentional and do not require a plaintiff to have sustained an actual loss

— instead, the invasion of one’s property alone gives rise to the cause of a ction. See Bennett v. Napolitano , 746 A.2d 138, 141 (R.I. 2000) (“ A trespasser is ‘ [o]ne who intentionally and without cons ent or privilege
enters another’ s property. ’ ” ) (quoting Ferreira v. Strack , 652 A.2d 965, 969 (R.I. 1995)). It is our opinion that pl aintiff wa s indeed required to allege and put forth competent
evi dence that it in fact suffered an actual injury when faced with a summary judgment motion

. See Nationwide Prop erty & Cas ualty Insurance Co

. , 59 A.3d at 110. Instead, h owever, plaintiff- 10

- conceded that the Newstone unit s were being marketed for sale at the time of the incident and
that the units had not los t value when they were ultimately sold . Additionally, p laintiff present ed
no evidence that , but for the damage caused by the burst pipe , it would h ave rented the Newstone units during the time they were being repaired. To the contrary, plaintiff acknowledged that the
Newstone units were not being offered as rentals at the time that they were damaged

. Under these circumstances

— where the plaintiff d id not allege encroachment, wrongful possession, wrongful detention , or trespass, and where the plaintiff concede d that it did not incur any economic loss

— our law does not permit recover y for loss of use

. To allow recovery in this

case would grant the plaintiff a windfall by placing it in a better position tha n it was in prior to the alleged negligent act , something this Court declines to do

. See Morabit v. Hoag , 80 A.3d 1, 18 (R.I. 2013) (“ The overall goal is to place the injured landowner a s near as possible to his or her pre

- injury position, not to grant the landowner a windfall. ”)

. Consequently, the plaintiff’s
concessions that it had not incurred any economic loss as a result of the defendants’ negligent
conduct , coupled with its failure to raise any claims that would allow recovery despite an
absence of an economic loss , renders summary judgment in the defendants’ favor appropriate. 5
IV
Conclusio n For the reasons stated herein, we affirm the judgment of the Superior Court. The record shall be returned to the Superior Court.

5 The d efendants’ assertion that plaintiff ’s loss

- of

- use argument is waived because it raised such claim for the first time in its motion to reconsider has not been entertained by this Court, because any waiver would relate to claims solely against East Pacific and the Rabinowitzes, not construction defendants. The plaintiff properly ra ised the loss

- of

- use argument in its objection to construction defendants’ motion for summary judgment.

### R HODE 

### I SLAND 

### S UPREME 

### C OURT 

### C LERK 

### ’ S 

### O FFICE


### Clerk’s Office Order/O pinion Cover Sheet

TITLE OF CASE: Newstone Development, LLC v. East Pacific, LLC et al.
CASE NO : No. 20 1 4

- 240

- Appeal. ( NC 11

- 26 6)
COURT: Supreme Court
DATE OPINION FILED: June 24 , 2016
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, J J.
WRITTEN BY: Chief Justice Paul A. Suttell
SOURCE OF APPEAL: Newport County Superior Court
JUDGE FROM LOWER CO URT : Associate Justice Bennett R. Gallo
ATTORNEYS ON APPEAL :
For Plaintiff : Michael T. Eskey , Esq. Stephen A. Izzi, Esq.
For Defendant s : Donald J. Maroney , Esq. Paul T. Sullivan , Pro Hac Vice Warren D. Hutchison, Esq. Michael Daly, Esq.