USVI Public Records

Document text

| IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN LEOPOLD BENJAMIN, ) ) Case No. ST-13-CV-065 Plaintiff, ) (Consolidated with Case No. ST-13-CV-294) ) vs. ) ) ACTION FOR PERSONAL INJURY CORAL WORLD VI, INC., ) AND DAMAGES ) Defendant. ) JURY TRIAL DEMANDED ) MEMORANDUM OPINION By motion fil ed October 21, 2013, Defendant Coral World VI, Inc., moves to dismiss Plaintiff Leopold Benjamin’s June 14, 2013, Complaint! on the grounds that it fails to state a claim upon which reli Plaintiff responds tha juncture; Benjamin.. applicable exception t The Court find ef can be granted” because Plaintiff “was injured by his own negligence”.’ it “the requisite standard of review does not allow for dismissal at this has demonstrated a prima facie case of negligence; and... there is no 904 arring Coral World from liability. ls that the Plaintiff has failed to establish the elements of duty, breach and causation, and that hig own reckless behavior was a superseding cause of his injuries. Therefore, Defendant’s motion t¢ dismiss is granted. ’ Plaintiff's original Com dismissed without prejudi Complaint was “devoid o: 2013, Memorandum Opin June 14, 2013, with ques consolidated on April 27, ? Defendant is gently and 3 Defendant’s October 21 Claim Upon Which Relief ‘ Plaintiff's December 02 Brief to Dismiss Plaintiff’ plaint in Case No. ST-13-CV-065 was filed on February 08, 2013. That Complaint was ice on May 16, 2013 — and Plaintiff was granted leave to amend — because the original f facts... showing that Defendant should have anticipated the harm to Plaintiff’. May 16, ion, p. 3. Plaintiff filed a new Complaint in a new matter, Case No. ST-13-CV-294, on tions of law or fact common with Case No. ST-13-CV-065. Thus these matters were 2014, under Case No. ST-13-CV-065. singularly reminded of the requirements of LRCi 12.1(a)(1) and 12.1(d). 2013, Motion and Supporting Brief to Dismiss Plaintiff's Claim for Failure to State a Can Be Granted, p. 20. , 2013, Renewed Opposition to Defendant’s October 21, 2013, Motion and Supporting Complaint, p. 11. | Benjamin v. Coral World Case No. ST-13-CV-065 (Consolidated with Case 0. ST-13-CV-294) Memorandum Opinion, Bune 12, 2014 : Page 2 of 17. RELEVANT FACTUAL AND PROCEDURAL HISTORY In the early mloming hours of August 23, 2011, Plaintiff Leopold Benjamin was injured when he tripped over a pile of dirt on a pathway on Defendant Coral World’s property. At the time Benjamin fell, there was no natural light to reveal the presence of the dirt mound and the path was not Oy lit. Plaintiff's June 14, 2013, Complaint alleges that Defendant was negligent. Defendant moved to dismiss on October 21, 2013. The Court mu of the Federal Rules must be taken as tru ee OF REVIEW — MOTION TO DISMISS t consider two factors when deciding a motion to dismiss under Rule 12(b) of Civil Procedure. First, “all well-pleaded allegations of the complaint e and interpreted in the light most favorable to the plaintiffs, and all inferences must be diawn in favor of them.”° Although the Court must take all of the factual allegations in the Con couched as a factual and, while Rule 8° does not require “detailed factual allegations, nplaint as true, courts “are not bound to accept as true a legal conclusion allegation”.° Factual and legal elements of a claim should be separated,’ »? it does “demand[] more than 5 Kiskidee, LLC v. Certaii Civil Action 2009-07, 20 521, 526 (3d Cir.2009)); s App. Div. 2003) (“In con relief can be granted, thd allegations as true, drawin 6 Papasan v. Allain, 478 U offered in the guise of fact h Interested Underwriters at Lloyd's of London Subscribing To Policy No. NB043060b, WL 952752, at *2 (D.V.I. Mar. 21, 2012) (quoting McTernan v. City of York, 577 F.3d 1 : also Matheson v. Virgin Islands Cmty. Bank, Corp., 297 F. Supp. 2d 819, 825 (D.V.L., idering whether a complaint should be dismissed for failure to state a claim upon which Court must consider only those facts alleged in the complaint and accept all of the b all reasonable inferences in the plaintiff's favor”) (citations omitted). S. 265, 286 (1986) (also cited by Matheson, 297 F. Supp. 2d at 825 (“Legal conclusions hal allegations... are given no presumption of truthfulness”). 7 Bethea y. Merchants Commercial Bank, Civil No. 2011-51, 2011 WL 4861873, at *1 (D.V.I. Oct. 13, 2011) (citing Fowler v. UPMC § 1937, 1950 (2009)). 8 “A pleading that states 4 leader is entitled to relief) p Iqbal, 129 S. Ct. 1937 at hadyside, 578 F.3d 203, 210-11 (3d Cir.2009), which cited Ashcroft v. Iqbal, 129 S.Ct. claim for relief must contain a short and plain statement of the claim showing that the . FED. R. CIV. P. 8(a). 1949 (quoting Bell Atlanta Corp. v. Twombly, 550 U.S. 544, 555 (2007). 2 | Benjamin v. Coral World Case No. ST-13-CV-065 (Consolidated with Case No. ST-13-CV-294) Memorandum Opinion, ni 12, 2014 Page 3 of 17. an unadorned, TS eae accusation.”!? A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do,” nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.”!! | Second, the Court must decide whether the claim is plausible “on its face.”'? A claim is plausible when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” and a court must “draw on its judicial experience and common sense” in making the plausibility determination.'? The plausibility standard |requires more than “a sheer possibility that a defendant has acted unlawfully.”'* If the Court determines that “there are well-pleaded factual allegations, [it will] assume their veracity jand then determine whether [the allegations’] plausibly give[s] rise to an "entitlement to relief.”’> The Court now applies this standard. DISCUSSION A. Plaintiffs Conflicting Statements Defendant states that “in stark contrast to his [original] verified complaint..., Plaintiff now alleges that the mound of dirt in his path ‘was neither open nor obvious’,” and as a result, ° Igbal, 129 S.Ct. at 1949. "! Igbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555 and 557). ”2 Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570). 8 Saja A. Thomas, The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly, Lewis & Clark L. Rev. 15, 27 (2009) (discussing changes to the requirements for the motion to dismiss as recently established by the Supreme Court in Twombly and Iqbal and quoting Iqbal, 129 S.Ct. at 1949-50). 4 Iqbal, 129 S.Ct. at 1949. 'S Td. at 1950. Case No. ST-13-CV-065 (Consolidated with Case No. ST-13-CV-294) Memorandum Opinion, June 12, 2014 Page 4 of 17. i Benjamin v. Coral = Plaintiff should not bd allowed to relitigate this issue. '® Plaintiff does not address his conflicting factual allegations in his December 02, 2013, Response. i. BECAUSE THE MAY 16, 2013, MEMORANDUM OPINION Dip NoT RESOLVE THE ISSUE OF WHETHER THE DIRT MOUND PRESENTED AN OPEN AND OBVIOUS DANGER, THE DOCTRINE OF COLLATERAL ESTOPPEL DOES NoT APPLY. Defendant argues that “the doctrine of collateral estoppel prohibits Plaintiff from making [a] new claim [that the mound was not open and obvious].”’” The doctrine of collateral estoppel, also referred to as issue preclusion, “prevents the relitigation of issues that have been decided in a previous action” an | “protect[s] litigants from the burden of relitigating an identical issue with the same party”.!8 llateral estoppel applies if four elements are present: “(1) the previous determination was nedessary to the decision; (2) the identical issue was previously litigated; (3) the issue was... decided in a decision that was final, valid, and on the merits; and (4) the party being precluded from telitigating the issue was adequately represented in the previous action.”!” The Court stated on May 16, 2013, that “Plaintiff alleges he tripped and fell over a mound of dirt on Defendant’s property,” and then cited to the portions of Plaintiff's original Complaint that supported Plaintiffs contention that the dirt mound was an open and obvious danger.” The Court dia not make any binding findings of fact and was merely applying the necessary analysis when considering a motion to dismiss by accepting the allegations of the '6 Defendant’s October 21] 2013, Motion and Supporting Brief to Dismiss Plaintiff's Claim for Failure to State a Claim Upon Which Relief Can Be Granted, p. 5, quoting the June 14, 2013, Complaint, para. 7. '? Defendant’s October 21, 2013, Motion and Supporting Brief to Dismiss Plaintiff's Claim for Failure to State a Claim Upon Which Relief Can Be Granted, p. 10. '8 Hawksbill Sea Turtle v. Red. Emergency Mgmt. Agency, 126 F.3d 461, 474 (3d Cir. 1997) (on appeal from D.V.1.) (citing Montana v. United States, 440 U.S. 147 (1979) and quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979)). 19 Hawksbill Sea Turtle, 126 F.3d at 474 (citing Raytech Corp. v. White, 54 F.3d 187, 190 (3d Cir.1995)). 0 May 16, 2013, Memerangum Opinion, p. 2 (emphasis added). 4 | Benjamin v. Coral World Case No. ST-13-CV-065 (Consolidated with Case 0. ST-13-CV-294) Memorandum Opinion, Juhe 12, 2014 Page 5 of 17. : original complaint as Leu. Because the Court has not yet litigated the issue of whether the dirt mound was “open and| ii. Defendant argu a position in one judic obvious,” the doctrine of collateral estoppel is inapplicable. THE COURT WILL NOT APPLY THE DOCTRINE OF JUDICIAL ESTOPPEL HERE BECAUSE PLAINTIFF’S LEGAL CONCLUSIONS WERE NOT His TO MAKE; AND THEY WILL BE DISREGARDED BY THE COURT. es that “the doctrine of judicial estoppel prevents a litigant who has taken al proceeding from taking a contradictory position in another.””! Judicial estoppel is “a fact-spe tific, equitable doctrine, applied at courts' discretion””” that “rests on the basic notion that, ‘.. any good explanation, a party should not be allowed to gain an advantage by litigatio incompatible theory.”” may be judicially estopped from taking “two positions that are irreconcilably inconsistent. Once the Court determ party’s position was d adequately remedy the on one theory, and then seek an inconsistent advantage by pursuing an Although a party can assert alternative and even conflicting claims,”* it 9925 nes that positions are irreconcilably inconsistent, it must also find that the — hanged in bad faith and that there is no lesser sanction that would Hamage done by the misconduct.?° 7! Defendant’s October 21, Claim Upon Which Relief 2004). 2 Semper v. Gomez, 747 F. 638 (3d Cir.2010)). 3 Semper, 747 F.3d at 247 (d 4 See FED. R. Clv. P. 8(d)(2 (2) Alternative or defense alt 2013, Motion and Supporting Brief to Dismiss Plaintiff's Claim for Failure to State a €an Be Granted, p. 11, quoting Sibley v. McCord, 173 S.W.3d 416, 419 (Tenn. App. 3d 229, 247 (3d Cir. 2014) (on appeal from D.V.1.) (quoting Jn re Kane, 628 F.3d 631, uoting Jn re Kane, 628 F.3d at 638) (further citation omitted). -(3), Alternative Statements; Inconsistency. Statements of a Claim or Defense. A party may set out 2 or more statements of a claim matively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient. (3) Inconsistent Claims or Defenses. A party may state as many separate claims or defenses as it has, regardless of nsistency. 5 In re Prosser, 534 F. APD 126, 130 (3d Cir. 2013) (on appeal from D.V.I.) (quoting In re Kane, 628 F.3d at 638 (further citation omitted)). 6 In re Prosser, 534 F. App'x at 130 (quoting In re Kane, 628 F.3d at 638). 5 | Benjamin v. Coral World Case No. ST-13-CV-065 (Consolidated with Case No. ST-13-CV-294) Memorandum Opinion, ie 12, 2014 Page 6 of 17. The Court ae first determine if Plaintiff's statements — initially, that the dirt mound was open and obvious and, now, that is was not — are even “irreconcilably inconsistent”.2’ Positions are irreconcilably inconsistent when they are incomparable and impossible to make harmonious.”® | That a situation presents an open and obvious danger is a defense to premises liability,’ and, although a pint is under no duty to present defenses on a defendant’s behalf,” a well- | prepared complaint can and should acknowledge and discuss obvious defenses before they are even raised by the defending party. Plaintiff is not tasked with deciding which defense(s) the Defendant will choose, and thus the Court finds that Plaintiffs attempt to preemptively remove Defendant’s defense is harmless. “Obvious” means “that both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, 31 intelligence, and judgment When danger is so readily apparent that “all reasonable minds can draw but one inference from the facts, the question to be determined is one of law for the 8 Green v. City of Cascade, DICTIONARY (1969)). ?° «A possessor of land is nd 231 N.W.2d 882, 890 (Iowa 1975) (quoting WEBSTER'S THIRD NEW INTERNATIONAL t liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is kndwn or obvious to them”. RESTATEMENT (SECOND) OF TORTS § 343A. See also Fi igueroa v. Hess Oil Virgin Islands Corp., 198 F. Supp. 2d 632, 645 (D.V.I., App. Div. 2002) (“[O]ne is not ordinarily liable for obvious dangers on his land”) (citing to RESTATEMENT (SECOND) OF TORTS § 343A). : *° See, for example, FED. R.|Clv. P. 8(b)(1)(A) (“In responding to a pleading, a party must state... its defenses to each claim asserted against it”); FED. R. Civ. P. 55(a) (A clerk must enter default against a party that fails to defend); FED. R. Civ. P. 12(b) (“Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required”) (emphasis added). ' RESTATEMENT (SECOND) OF TORTS § 343A, cmt. b. Restatement (Second) of Torts § 343A, Known or Obvious Dangers, has been accepted fs the appropriate common law to be applied in the Virgin Islands by various binding authorities, including: Monk v. Virgin Islands Water & Power Auth., 53 F.3d 1381 (3d Cir. 1995) (on appeal from D.V.1.); Barnes v. XTRA Superfood Centers, Inc., 198 F. App'x 188 (3d Cir. 2006) (on appeal from D.V.I.); Williams v. Martin Marietta Alumina] Inc., 817 F.2d 1030 (3d Cir. 1987) (on appeal from D.V.I.); Figueroa v. Hess Oil Virgin Islands Corp., 198 F. WL 302694 (D.V.L, App. D (D.V.1., App. Div. 2002). Supp. 2d 632 (D.V.L, App. Div. 2002); Ambrose v. Nat'l Foods Disc., 1997-027, 2000 iv. Mar. 17, 2000); Proctor v. N. Shore Partners, Inc., 232 F. Supp. 2d 472, 476-77 Benjamin v. Coral World | Case No. ST-13-CV-065 | (Consolidated with Case No. ST-13-CV-294) Memorandum Opinion, Tae 12, 2014 Page 7 of 17. court.” Per Plaintt? s original and continued admissions that the pile of dirt resided on the pathway,” for the purpose of this analysis, the Court draws its own legal conclusion that the mound presented an open and obvious danger. As the Court is not required to accept any legal conclusions alleged in a complaint, the Court finds that Plaintiff's conflicting statements concerning whether the danger was or was not open and obvious — even when each was supported by his atppmney's signature — are harmless because this legal conclusion is not Plaintiff's to draw. As a result, Plaintiff’s conflicting allegations will be disregarded. The legal conclusions made by |the Plaintiff have not been previously litigated, and had no impact on the parties or the Court, ahd will not be subjected to estoppel. B. Negligence Plaintiff alleges that Defendant was negligent and that “Coral World’s negligent acts were the proximate cause of Benjamin’s injuries.”** Defendant moves to dismiss, arguing that “Plaintiffs complaint] present no plausible claim that Coral World owed him a duty”.> “The 32 Mosheuvel v. D.C., 191| U.S. 247, 252 (1903) (citations omitted); see also RESTATEMENT (SECOND) OF TORTS § 434(1)(a), Functions of Court and Jury (“It is the function of the court to determine whether the evidence as to the facts makes an issue upon|which the jury may reasonably differ as to whether the conduct of the defendant has been a substantial factor in causing the harm to the plaintiff’). 33 February 08, 2013, Cbmplaint, para. 6 (“mound of dirt directly in the path”); Plaintiff's April 29, 2013, Opposition to Defendant’s Motion to Dismiss Plaintiff's Complaint for Failure to State a Claim, p. 1 (“mound of dirt that was located directly pn a walking path”), p. 4 (“mound of dirt that was located on the pathway”) and p. 9 (“mound of dirt left on a common and frequented walking path”); June 14, 2013, Complaint, para. 6 (“mound of dirt on the pathway”) and para. 14 (“dangerous condition upon the walking pathway”; “dangerous condition on pathway”); Plaintiff's December 02, 2013, Renewed Opposition to Defendant’s October 21, 2013, Motion and Supporting Brief to Dismiss Plaintiff's Complaint, p. 1 (“mound of dirt that was located directly on a walking path”), p. 3 (“mound of dift that was located on the pathway”) and p. 6 (“mound of dirt on a common and frequented walking path”). Plaintiff twice attempts to claim that the dirt mound was not open and obvious, but fails to support this contention with any facts as to why it was would not be recognized by a reasonable man exercising ordinary perception. 4 Plaintiff's June 14, 2013, Complaint, para. 15. 35 Defendant’s October 21, 2013, Motion and Supporting Brief to Dismiss Plaintiff's Claim for Failure to State a Claim Upon Which Relief|Can Be Granted, p. 9. Benjamin v. Coral Worl (Consolidated with Case 0. ST-13-CV-294) Memorandum Opinion, June 12, 2014 d Case No. ey Page 8 of 17. elements of a neglige (4) damages.”?° Defendant ang i. Lee suit are well established: (1) duty, (2) breach of duty, (3) causation and DUTY ues that “Plaintiff's Complaint presents no plausible claim that Coral World owed him any duty under his alleged status as an invitee, much less under his obvious status as a trespasser[” Plaintiff responds that “[a]s an invitee... Coral World owed [him] a certain duty of care,” °8 but even “[i]f this Court does not find that Benjamin was an invitee... 36 White v. Spenceley, LL¢ citations omitted) (numbe negligence claim and is th example: Sealy-Christian Owners Assoc. v. Marshal 2012); Turbe v. Gov't of V F. App’x 101, 104 (3d Cir. Negligence, of the Restate line with our local comny Banks analyses. See Gov’ 2014), referencing Banks considering a question n Banks”). 37 Defendant’s October 21 Claim Upon Which Relief P, 53 V.I. 666, at *3 (V.I. 2010) (citing RESTATEMENT (SECOND) OF TORTS § 281) (other rs added for clarity). Restatement (Second) of Torts § 281 spells out the elements of a le common law within our jurisdiction, as established by various binding authorities. For v. Sunny Isle Shopping Center, Inc., 52 V.1. 410, at *4 (V.I. 2009); Mill Harbour Condo. /, 53 V.I. 581, at *2 (V.I. 2010); Santiago v. V.I. Housing Auth., 57 V.1. 256, at *22 (V.1. irgin Islands, 938 F.2d 427, 428 (3d Cir. 1991) (on appeal from D.V.1.); In re Barbel, 191 2006) (on appeal from D.V.1.). The Court’s reliance on additional sections of Division 2, ment (Second) of Torts, to define, clarify or expand upon these elements is, therefore, in on law. Therefore, reference to additional sections of Division 2 does not necessitate of the VI. v. Connor, S.Ct. Civ. No. 2013-0095, 2014 WL 702639, at *3 (V.I. Feb 24, v. Int’l Rental & Leasing Corp., 55 V.1. 967 (V.I. 2011) (“{T}he Superior Court, when t foreclosed by prior precedent... must perform a three-part analysis as set forth in , 2013, Motion and Supporting Brief to Dismiss Plaintiff's Claim for Failure to State a ‘Can Be Granted, p. 9. 38 Plaintiff's December 02, 2013, Renewed Opposition to Defendant’s October 21, 2013, Motion and Supporting Brief to Dismiss Plaintiff’3 Complaint, p. 5. Defendant cites to Restatement (Second) of Torts § 343 via 1 V.I.C. § 4 without reference or discussion of actual binding authority. 1 V.I.C § 4 was “implicitly repealed... [by] 4 V.LC. § 21 in 2004”. Connor, 2014 WL 702639, at *1 (citations omitted). Since that time, parties - and indeed, this Court — can no longer automatically and uncritically rely on the Restatements or any other non-binding authority when determining the best co: binding upon this Court re Circuit Court of Appeals, Division of the District Ca 702639; Simon v. Joseph, Court, when considering 4 forth in Banks.” Connor, involves: (1) ascertion of on law for the Virgin Islands. See Connor, 2014 WL 702639. The only decisions arding common law are those rendered by: the Virgin Islands Supreme Court; the Third when serving as the de facto court of last resort in the Virgin Islands, and; the Appellate urt of the Virgin Islands. Najawicz v. People, 58 V.I. 315 (V.I. 2013); Connor, 2014 WL 69 V.I. 611 (2013). All other holdings are merely persuasive. As a result, “the Superior question not foreclosed by prior precedent... must perform a three-part analysis as set S.Ct. Civ. No. 2013-0095, at *3, referencing Banks, 55 V.I. 967. A Banks analysis ‘whether any... local courts have considered the issue and rendered any decisions upon which litigants may have grown to rely;” (2) determination of the “position taken by a majority of courts from other jurisdictions;” and (3) identification of “the best rule for the Virgin Islands”. Connor, S.Ct. Civ. No. 2013-0095, at *3 (citations omitted). However, this Court “possesses, in the absence of binding precedent... concurrent authority with [the Virgin Islands Supreme Court] to shape Virgin Islands common law, and it need not even follow otherwise binding precedent that wag predicated solely on 1 V.L.C. § 4. Connor, S.Ct. Civ. No. 2013-0095, at *3 (citation omitted) and n. 1 (citations omitted). Thus, litigants are reminded of the requirements of LRCi 11.1. By signing a motion or supporting memorandum, an attorney certifies that the applicable law in this jurisdiction has been cited, 8 -“Invitees are limited Benjamin v. Coral World Case No. ST-13-CV-065 Memorandum Opinion, June 12, 2014 (Consolidated with Case ine ST-13-CV-294) Page 9 of 17. [Benjamin] was either a ‘discovered’ or ‘anticipated’ trespasser... [and Defendant] is under a duty to exercise ordinary care to warn [him of known]... artificial conditions ...that involve a risk of death or serious bodily injury. 9939 a. BECAUSE AN UNLIT PATH IS NOT AN INVITATION FOR TRAVERSE, PLAINTIFF Was NOT A PUBLIC INVITEE UPON DEFENDANT’S PROPERTY TO WHOM DEFENDANT WOULD OWE A DUTY TO WARN OF OPEN AND OBVIOUS DANGERS. According to Restatement (Second) of Torts § 332: (1) An invitee is either a public invitee or a business visitor. (2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. (3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.*° carries with it an imp been used to prepare the premises, and make them safe for their reception. o those persons who enter or remain on land upon an invitation which lied representation, assurance, or understanding that reasonable care has 41 “Ty the ordinary case, an invitee who enters land is entitled to nothing more than knowledge of the conditions and dangers he will encou nter if he comes”.” A possessor of land is subject to liability for harm including authority for or of discussion addressing: ( and (2) why the Court characteristics and needs deficient. Connor, S.Ct. C Conduct Rule 211.3.1, Me unless there is a basis in modification or reversal of ® Plaintiff's December 02 Brief to Dismiss Plaintiff's ainst the position being advocated by counsel. LRCi 11.1(a). Therefore, in the absence ) whether cited authority is binding upon this Court or presented as persuasive authority; ould adopt this view as the “appropriate common law rule based on the unique f the Virgin Islands” and the parties, the Court may begin striking motions as fatally iv. No. 2013-0095, at *3 and LRCi 11.1; See also Virgin Islands Rules of Profession ritorious Claims and Contentions (“A lawyer shall not... assert or controvert an issue... law and fact for doing so... which includes a good faith argument for an extension, existing law”). 2013, Renewed Opposition to Defendant’s October 21, 2013, Motion and Supporting Complaint, pp. 9-10. * See also Monk, 53 F.3d at 1384, n. 3 (stating that the Restatement provides the definition of invitee in Restatement (Second) of Torts § 332). 41 RESTATEMENT (SECOND) OF TORTS § 332, cmt. a. 42 RESTATEMENT (SECOND)|OF TORTS § 334A, cmt. e. | Benjamin v. Coral World Case No. ST-13-CV-065 (Consolidated with Case Memorandum Opinion, Ji Page 10 of 17. caused to invitees for e 12, 2014 the ST-13-CV-294) ini known dangers if, but only if, the possessor expects that the invitee would not “discover or realide the danger, or will fail to protect [himself] against it.” The Court takes judicial notice of the fact that Coral World’s business is that of a marine park tourist attraction that charges admission to its visitors and a substantial portion of the property is not made pranable to the general public for this business purpose.“* The Court also takes judicial notice t Coral World premise at, absent making its premises available for a special function or event, the are generally closed to the public outside of business hours. Plaintiff does not contend ~ nor do the facts support*’ — that he was a business invitee to Defendant’s establishment,” so the Court’s analysis will focus on whether the Plaintiff was a public invitee. A public invitee is a member of the public who enters property “for a purpose for which the land is held open to the public, »47 and an invitation is an essential element to determining if “3 RESTATEMENT (SECOND OF TORTS § 341A , cmt. a invitee] against conditions protection against the risk reasonably be expected that “ In the Interest of J.J. S the Federal Rules of Evide certain facts. Judicial notice adjudicatory fact through n¢ dispute because it: (1) is ge! readily determined from 3 (SECOND) OF TORTS § 201(8 % “Coral Wold VI, Inc.,... Virgin Islands... [and iJn tl exercise”. June 14, 2013, C the public for the purposes Plaintiff's December 02, 20 OF ToRTS § 341A, Activities Dangerous to Invitees; see also RESTATEMENT (SECOND) ‘The obligation of the possessor is... not limited to one of reasonable care to protect [an of which [the invitee] does not know or have reason to know... but extends also to f harm from activities of which the invitee knows or has reason to know, where it may he will fail to protect himself notwithstanding such knowledge”). . Ct. Crim. No. 2013-0022, 2013 WL 3378827, at *5 (V.I. July 05, 2013) (“Rule 201 of nce—which the Virgin Islands has adopted—permits courts to take judicial notice of —an evidentiary mechanism by which the proponent is relieved of its duty to prove an rmal evidentiary means—is only appropriate when the fact “is not subject to reasonable herally known within the trial court's territorial jurisdiction; or (2) can be accurately and jources whose accuracy cannot reasonably be questioned.” Quoting RESTATEMENT )(1)-(2)). s a Corporation... [which] maintains its principle place of business in the United States he early morning hours... Benjamin... was walking on a pathway commonly used for pmplaint, paras. 3 and 5. Plaintiff also adds that “Coral World held its premises open to bf exercise and leisure activity [and] Benjamin entered the property for these purposes.” 13, Renewed Opposition to Defendant’s October 21, 2013, Motion and Supporting Brief to Dismiss Plaintiff's Comp “6 Business visitors fall into purpose connected with the wo Classes. The first class includes persons who are invited to come upon the land for a aint, p. 6 (emphasis added). usiness for which the land is held open to the public... The second class includes those who come upon land not open to the public, for a purpose connected with business which the possessor conducts upon the land, or for a purpose connected with their own business which is connected with any purpose, business or otherwise, for which the possessor uses the land. RESTATEMENT (SECOND) OF TORTS § 332, cmt. e. 47 RESTATEMENT (SECOND) OF TORTS § 332, cmt. a. 10 | Benjamin v. Coral World Case No. ST-13-CV-065 Memorandum Opinion, Ji e 12, 2014 (Consolidated with Case ie ST-13-CV-294) Page 11 of 17. an individual is an invitee. As used within Restatement (Second) of Torts § 332, “an invitation is conduct which justif es others in believing that the possessor desires them to enter the land”.”° “A common form of invitation is preparation of the land for the obvious purpose of receiving the visitor.”°° Plaintiff alleges that he was on the property to exercise; that “Coral World held its premises open to the public for the purposes of exercise and other leisure activity;*! that “there _ was no natural light” i that “the pathway was not otherwise lit”.°* He does not allege that the area was normally lit or even expected to be illuminated. Even if, arguendo, the property was open to visitors at that|hour, clearly an invitation to enter would not extend to pitch-black or even poorly-lit areas. Because the path was unlit, the Defendant obviously had not prepared the walking path for after-dark use. “In determining b whether a particular person is an invitee, the important thing is the desire or willingness to receive that person which a reasonable man would understand as expressed by the... conduct of the possessor.”*> The Court finds that a reasonable man would not understand an unlit pathway to bean invitation for traverse. “The possessor of land is subject to liability to another as an invitee only for harm sustained while he is on the land within the scope of his | invitation.” The Plajntitt did not have an invitation to be on the property and was not an | 48 RESTATEMENT (SECOND) OF TORTS § 332, cmt. b. ” Cmt. b. 5! plaintiff's December 02, 2013, Renewed Opposition to Defendant’s October 21, 2013, Motion and Supporting Brief to Dismiss Plaintiff's Complaint, p. 6. * June 14, 2013, Complaint, para. 6. 53 RESTATEMENT (SECOND) OF TORTS § 332, cmt. c. 54 RESTATEMENT (SECOND) OF TORTS § 332, cmt. 1. 11 | Benjamin v. Coral World Case No. ST-13-CV-065 . ST-13-CV-294) Memorandum Opinion, June 12, 2014 (Consolidated with Case in Page 12 of 17. invitee. Therefore, the Defendant did not have a duty to warn the Plaintiff of the open and obvious danger posed b y dirt mound upon the pathway.” b. THE PLAINTIFF Was NoT A LICENSEE TO WHOM DEFENDANT Plaintiff alleges WOULD OWE A DUTY OF REASONABLE CARE BECAUSE THE UNLIT PATH INDICATED THAT DEFENDANT Dip Not CONSENT TO PLAINTIFF’S ENTRY. that “even if [he] is deemed a ‘licensee’... Coral World would still be tasked with warning him of known dangers.”** A licensee “is a person who is privileged to enter or remain on land only that the possessor is in by virtue of the possessor's consent.”°”** The word “consent” “indicates fact willing that the other shall enter or remain on the land, or that his conduct is such as to give the other reason to believe that he is willing that he shall enter, if he desires to do so.”°? “A possessor of land is subject to liability to his licensees for physical harm caused to them by his failure to carry on his activities with reasonable care for their safety if, but » Plaintiff also alleges that dangers or hazards when he, or may forget what he has “Coral World also had a duty to remedy and/or warn Benjamin of open and obvious as an invitee, could be distracted from observing or avoiding the dangerous condition(s) discovered and Coral World has reason to expect that he would nevertheless suffer physical harm.” June 14, 2013, Complaint, para. 12. The Court need not address this duty to warn of otherwise obvious dangers, as this dy RESTATEMENT (SECOND) OF ity is owed to an invitee, and Benjamin was not an invitee upon the property. See TORTS § 343A, cmt. f (“There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger... Such teason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or 56 Plaintiff's December 02, Brief to Dismiss Plaintiff's C 57 RESTATEMENT (SECOND) 0 58 Comment a. of the Restat} will forget what he has discovered, or fail to protect himself against it”). 2013, Renewed Opposition to Defendant’s October 21, 2013, Motion and Supporting omplaint, p. 9. F TORTS § 330. ement (Second) of Torts § 330 acknowledges that “[i]Jn some instances ‘licensee’ has been used to include any person who enters or remains on land with the consent of the possessor, including those who are classified as ‘invitdes’ under § 332.” Although the distinction or overlap of these terms has not been addressed by binding authori ty, the Court need not make such an analysis here. The Court instead reviewed the duty owed under either term, excluding neither. 5° RESTATEMENT (SECOND) OF TORTS § 330, cmt. c. 12 | Benjamin v. Coral World Case No. ST-13-CV-065 (Consolidated with Case Memorandum Opinion, , Page 13 of 17. 0. ST-13-CV-294) June 12, 2014 only if, he should expect that they will not discover or realize the danger, and they do not know or have reason to knob of the possessor's activities and of the risk involved.”™ “A failure to t an unwillingness to g land, and indicates onl -as licensee.”©’ Even provide lighting upon the pathway at night. uke burdensome and expensive precautions against intrusion manifests only jo to the trouble and expense of preventing others from trespassing on the ly toleration of the practically unavoidable, rather than consent to the entry Without signs or fencing, a reasonable man would be aware that failure to a pathway indicates that the property owner did not consent to entry upon Because Plaintiff did not have consent to enter Defendant’s property and was not a licensee, Defendant did not owe him a duty to warn him of undiscovered or unknown risks, let alone open at nd obvious ones. ic. BECAUSE THE DIRT MOUND WAS OPEN AND OBVIOUS, DEFENDANT Div Not OWE THE PLAINTIFF, A TRESPASSER UPON DEFENDANT’S PREMISES, A DUTY TO WARN. Plaintiff alleges that if he was not an invitee or a licensee, then he was either a discovered or anticipated trespasser. A trespasser is “is a person who enters or remains upon land in the possession of anothe otherwise,” and with physical harm caused reasonably safe for the “The rule whic [persistent] trespassers) t without a privilege to do so created by the possessor's consent or limited exceptions, “a possessor of land is not liable to trespassers for by his failure to exercise reasonable care to put the land in a condition ir reception, or to carry on his activities so as not to endanger them.”© h determines the liability of a possessor of land for bodily harm caused to by the possessor's failure to warn them of dangerous conditions created 69 RESTATEMENT (SECOND) 61 RESTATEMENT (SECOND) 62 RESTATEMENT (SECOND) Land to Trespassers). OF TorTS § 341. OF TORTS § 330, cmt. c. OF TORTS §§ 329 (Trespasser Defined) and 333 (General Rule, Liability of Possessors of 13 Benjamin v. Coral World | Case No. ST-13-CV-065 (Consolidated with Case \. ST-13-CV-294) Memorandum Opinion, June 12, 2014 _ Page 14 of 17. on the land by the earlier activities of the possessor... is stated in § 335.” According to the Restatement (Second A possess that trespi liability fe (a) the of Torts § 335, or of land who knows, or from facts within his knowledge should know, assers constantly intrude upon a limited area of the land, is subject to r bodily harm caused to them by an artificial condition on the land, if condition (i) is one which the possessor has created or maintains and (il) is, to his knowledge, likely to cause death or seriously bodily harm to such trespassers and (iii) is of such a nature that he has reason to believe that such trespassers (b) the |possessor has failed to exercise reasonable care to warn such trespassers of the condi es not discover it, and on and the risk involved. Plaintiff alleges that Defendant “had actual knowledge or information sufficient for a reasonable person to conclude th morning hours for the to accept this unsuppd duty to warn is temper his surroundings.” A t Benjamin and other like persons entered onto the premises during early purposes of exercise and other leisure activity.”™ Even if the Court were rted contention regarding Defendant’s knowledge as true, the Defendant’s ed by the level of attention a trespasser, as a reasonable man, should pay to \ possessor of land would reasonably believe that the artificial condition created by the dirt would be discovered by sensible steps to do so. As discussed above, a reasonable man, even Because the dirt mou warn. as a trespasser, would not walk or run along an unlit path before sunrise. nd was open and obvious, Defendant did not owe the Plaintiff a duty to 6 RESTATEMENT (SECOND this case. (Section 335 apg harm be caused by activiti requires that the possessor of the highly dangerous aj immediate control; section Plaintiff's December 02 Brief to Dismiss Plaintiff s 65 RESTATEMENT (SECOND OF ToRTS § 334, cmt. b. Sections 335, 336, 337, 338 and 339 do not apply to the facts of lies to harm caused by activity actively being carried out; section 336 requires that the bs carried out after the possessor is aware of the trespasser’s actual presence; section 337 know or have reason to know of the trespasser’s actual presence in dangerous proximity ttificial condition; section 338 requires a “moving force over which the possessor is in 339 concerns trespassing children). , 2013, Renewed Opposition to Defendant’s October 21, 2013, Motion and Supporting Complaint, p. 10. OF TORTS § 335, cmt. f. | Benjamin v. Coral World Case No. ST-13-CV-065 (Consolidated with Case No. ST-13-CV-294) Memorandum Opinion, J Page 15 of 17. ii. ia 12, 2014 BREACH OF DUTY Plaintiff conténds that Coral World had a duty to warn him “of dangerous conditions upon the premises” d that Defendant breached this duty. The Court finds that Defendant did not owe Plaintiff a duty to warn, as Plaintiff was a trespasser who unreasonably used a pathway in complete darkness. iii. Plaintiff argue’ result... [he] sustained There can be no breach of duty without a duty. CAUSATION s that he “tripped and fell over a mound of dirt on the pathway” and “[a]s a 1 multiple traumatic injuries”.°’ Pursuant to Restatement (Second) of Torts § 431, “{t]he actor's negligent conduct is a legal cause of harm to another if his conduct is a substantial factor in bringing about the harm”. In other words, even if there is a finding of negligence, the negligence must have been a “substantial factor in bringing about the plaintiff's -harm.”® “Substantial »69 and whetk conduct, that the dirt mound wé is found that a super: actor's antecedent con Even if the Co factual contentions — t cause” means that “the result would not have occurred without the party's her a plaintiff has submitted sufficient evidence to support his contention ns a substantial cause of his injuries is a question of law.” However, if “it seding cause has operated, there is no need of determining whether the duct was or was not a substantial factor in bringing about the harm.””! urt found that Defendant owed Plaintiff a duty of care, the Plaintiff's own hat the area was unlit when he traversed the pathway at night — establish § Plaintiffs June 14, 2013 § Plaintiff's June 14, 2013 68 RESTATEMENT (SECOND ® BUT-FOR TEST, BLACI cmt. a. (the term “substant the harm as to lead reason: 7 Anders v. Puerto Rican 409 F. App'x 539 (3d Cir. 7! RESTATEMENT (SECOND Complaint, para. 11. Complaint, paras. 6 and 8. OF TORTS § 431, cmt. a. K's LAW DICTIONARY (9th ed. 2009); see also RESTATEMENT (SECOND) OF TORTS § 431, lal” “is used to denote the fact that the defendant's conduct has such an effect in producing le men to regard it as a cause”). ‘ars, Inc., CIV.A. 04-0036, 2009 WL 3007367 (D.V.L, App. Div. Sept. 15, 2009) affd, 2011) (citation omitted). OF TORTS § 440, cmt. b. Benjamin v. Coral World | Case No. ST-13-CV-065 (Consolidated with Case No. ST-13-CV-294) Memorandum Opinion, June 12, 2014 Page 16 of 17. that Plaintiff has not! proven causation. Although Plaintiff alleges that “he did no act which contributed to the injuries he suffered,””* Plaintiff's choice to walk or run along an unlit path as a trespasser was an unforeseeable and reckless act set into force by his own actions. Plaintiff failed to exercise ordinary care for his own safety, and that decision operated as a superseding and actual cause of his injuries. Therefore Plaintiff fails to establish that “but-for” Defendant’s actions, he would not | ave been injured. C. THE COMPARATIVE NEGLIGENCE STATUTE DoEes Not APPLY HERE AS THERE Is No FAULT TO APPORTION. Unlike the dpctrine of contributory negligence, the Virgin Islands comparative negligence statute dogs not operate as a bar to recovery because it apportions divisible fault between the negligent parties.”? Because the Defendant did not owe a duty to Plaintiff, the Court finds that Defendant was not negligent. There is no fault on the part of the Defendant to share. Consequently, Plaintiff is responsible for his own injuries. 2 Plaintiff's June 14, 2013, Complaint, para. 16. BS VLC. § 1451. 16 Benjamin v. Coral World Case No. SiS.CV-6s (Consolidated with Case No. ST-13-CV-294) Memorandum Opinion, June 12, 2014 Page 17 of 17. 1 | CONCLUSION Because Plaintiff was a trespasser, Defendant was not under a duty to warn him of the dirt mound on the . an open and obvious danger. Even if the Defendant was found to have such a duty, the|Plaintiff’s own reckless behavior was the actual and superseding cause of his injuries. Therefore, because the Defendant’s acts did not cause Plaintiffs injuries, Defendant is not liable to Plaintiff. Defendant’s motion to dismiss is granted. An appropriate Order is issued simultaneously herewith. Dated: June 12, 2014 — a. HON. MICHAEL C. DUNSTON JUDGE OF THE SUPERIOR COURT OF THE VIRGIN ISLANDS Acting Clerk of the Sgurt Donna D. Donovan Le | é Ol Court Clerk Supervisor / / 17