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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN KEKKKKKEEK ANNA CLARKE, ) CASE NO. ST-12-CV-520 ) Plaintiff, ) ACTION FOR DAMAGES ) v. ) ) JURY TRIAL DEMANDED JUDITH A. FRAZEE and THE TRUST ) AGREEMENT OF JUDITH A. FRAZEE, ) ) ) Defendants. ) MEMORANDUM OPINION Pending before the Court are the following: 1) Defendants’ Motion for Summary Judgment, filed on November 8, 2013; 2) Plaintiffs Response in Opposition to Defendants’ Motion for Summary Judgment, filed on December 13, 2013; 3) Plaintiff's Counterstatement of Material Facts, filed on December 13, 2013; 4) Reply to Plaintiffs Response in Opposition to Defendants’ Motion for Summary Judgment, filed on December 18, 2013; and 5) Supplemented Memorandum of Law in Support of Defendants’ Motion for Summary Judgment, filed June 4, 2014.! In support of their respective positions, both parties cited to various provisions of the Restatement Second of Torts.* In an Order dated November 18, 2015, the Court directed the parties to provide supplemental briefing on how this case is impacted by the Supreme Court of the Virgin Islands’ decision in Machado v. Yacht Haven. In Machado, the Court held that in all premises liability actions “the foreseeability of harm is the touchstone of the existence of a land possessor’s duty of reasonable or ordinary care.”? Both parties subsequently filed supplemental briefing in the matter. On December 21, 2015, Plaintiff filed Plaintiff's Supplemental Briefing in Compliance with the Court’s Order Dated November 18, 2015. On December 23, 2015, Defendants filed a Supplemental Brief in Support of Defendants’ Motion for Summary Judgment. Because there exists a genuine dispute of material fact as to whether the risk of harm to Plaintiff was reasonably foreseeable to Defendants such that Defendants were obligated to take reasonable steps to guard against it, summary judgment is inappropriate and Defendants’ Motion ' Plaintiff is represented by Attorney Desmond L. Maynard. Defendants are represented by Attorney Matthew J. Duensing. ? Both parties cite to the RESTATEMENT (SECOND) OF TORTS §§ 355, 357, 360, 361, and 362. 4 Machado v. Yacht Haven U S.V.1, ELC, 61 V.1. 373, 380 (V.I. 2014). Anna Clarke v. Judith A. Frazee, et al. Case No. ST-12-CV-520 Memorandum Opinion will be denied. Defendant’s Motion also moves to will dismiss all claims against Defendant Judith A. Frazee, in her individual capacity, since she has not been the record owner of the Property since September 22, 2000. Because the incident which gave rise to the instant matter occurred after Frazee transferred the property to a trust, the Court will grant Defendants’ Motion to the extent it seeks to dismiss the Amended Complaint as to Judith A. Frazce in the individual capacity. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff Anna Clarke (“Clarke”) alleges she sustained injuries after she leaned against the wooden balustrade (“balustrade”)* of her rental apartment’s porch. As she was leaning, the balustrade broke apart which caused her to fall backwards onto the porch. Based on a review of the parties’ submissions and record, the Court has determined that the following are undisputed facts of this case.° Defendant, The Trust Agreement of Judith A. Frazee (the “Trust”), is the owner of the property described as Parcel No. 1-142-1 Estate Wintberg, No. 3 Great Northside Quarter, St. Thomas, U.S. Virgin Islands (the “Property”).° Defendant Judith A. Frazee (“Defendant Frazee”) acts as the landlord of the Property on behalf of the Trust.’ In January of 2009, Defendant Frazee contacted a carpenter named Dennis Merrifield (“Merrifield”) to repair and replace portions of the apartment’s porch, namely the railing of the porch.* Two years later, upon signing the Residential Lease Agreement (the “Agreement”) on August 15, 2011, Clarke became a tenant on the Property and occupied a two-bedroom apartment that has a porch with a balustrade.” Specifically, paragraph 11 provides, That the Tenant agrees to give the Landlord or his agent immediate notice of any defects or breakage in the structure, equipment or fixtures on the leased premises. The Landlord shall be responsible for the cost of structural repairs to the premises unless damage is caused by the negligence or misuse by the Tenant. Tenant shall be responsible for maintenance and all necessary repairs to the leased premises and furnishing and fixtures contained that may be required. Repairs are to be made only by persons approved by Landlord and Landlord’s agent. In the event the Tenant fails to keep and maintain the premises and grounds in good condition, then the Landlord, or his agent, shall have the right upon 5 days written notice to the Tenant to cure to have the necessary work done 4 See WEBSTER’S It, NEW RIVERSIDE UNIVERSITY DICTIONARY, 150 (2nd ed. 1988) (“A balustrade is defined as a rail and a row of posts, as along an edge of staircase.”). 5 The undisputed facts are derived from the parties’ statements and counter-statement of facts, the responses thereto, answers to interrogatories, affidavits, and deposition testimony. © The Warranty Deed dated September 22, 2000 indicates that the Trust Agreement of Judith A. Frazee owns the Property. See Defs. Ex. 1. 7 Id. ® Defs. Stmt. of Material Facts J 7, Nov. 8, 2013. ° Pl. Counterstatement of Material Facts, 41, Dec. 13, 2013. Anna Clarke v, Judith A. Frazee, et al. Case No. ST-12-CV-520 Memorandum Opinion and the Tenant shall be held responsible for incurred expenses. It is understood and agreed that that Landlord shall not be liable for damage to property of Tenant caused by rain or water that may leak into or flow from any part of the property through any defects of the roof or plumbing or from any other source unless same occurs by reason of negligence of the Landlord in maintaining his property.!° In November 2011, the partics amended the Agreement providing, Amend the third sentence [of Paragraph 11] to read, Tenant shall be responsible for keeping the supplied furnishings and fixtures in good clean condition. Any repairs to same caused by Tenant’s misuse over and above normal wear and tear shall be for the account of the Tenant.!! In addition, the parties amended the Agreement with reference to the inspection of the Property providing, Amend to read: That the Landlord or his authorized agents shall have the right to enter into and upon the premises or any part thereof upon 24 hours written notice for the purpose of examining the same or for the purpose of maintenance of or making necessary repairs to the premises, including the who showing of the property for sale or rent EXCEPT in the case of emergency. With respect to liability, the Agreement provides, “[t]hat the Tenant shall accept full responsibility for any accidents that may occur or for any personal damage which might occur during period of occupancy, and agrees to hold harmless the Landlord and his Agent in such events except as to those acts that occur by reason of the negligence of the Landlord."3 As soon as either Clarke or Defendant Frazee noticed a repair issue with the apartment, Merrifield would immediately repair the problem.'* On or about October 21, 2011 between 8:00 p.m. and 9:00 p.m., Clarke went onto the porch of her rental apartment to look at the stars.'5 Clarke then leaned against the balustrade, which subsequently separated from the vertical support beam.'° Clarke then grabbed a vertical support post with her right arm and flung herself away from the edge, and fell backwards onto the deck of the porch.'” As a result of the fall, Clarke alleges she sustained injuries to her head and her right side, including her arm and leg.'* After examining the balustrade after her fall, Clarke observed that the wooden board “gave way” and was “complete[ly] '? See Residential Lease Agreement ¥ I 1. '! See Amendments to the Lease. 2 See Reply to Pl. Resp. in Opp. to Defs. Mot. for Summary Judgment, Exhibit | (Amendments to the Lease) (emphasis added). '3 Residential Lease Agreement {| 13 (emphasis added). '4 Defs. Stmt. of Material Facts ] 9. '5 PI, Counterstatement of Material Facts { 6. 16 Id. 46. 7 14.418. 8 14.49, Anna Clarke v. Judith A. Frazee, et al. Case No. ST-12-CV-520 Memorandum Opinion rotted out underneath.”!? She observed that the railing had broken away from a vertical support post because the horizontal support board had been “nailed rather than screwed” into the vertical post.2° That evening, Clarke emailed Defendant Frazee, who was off-island at the time, and told her about the incident.?! In response, Defendant Frazee indicated that she would have the problem fixed.” Approximately two weeks later, Defendant Frazee returned to the island. Defendant Frazee went to Clarke’s apartment to look at the damage and she made arrangements for the handyman to repair it.” Clarke admits that she did not have any reason to believe that Defendant Frazee knew that the balustrade in question was in disrepair prior to the accident.”4 Merrifield came to fix the balustrade and Clarke continued to reside in the apartment for the balance of her lease.?> Clarke contends that, since the accident, she cannot walk anymore and that she has difficulty driving,.*® On September 13, 2012, Clarke filed the instant negligence action against Defendants. Clarke alleges that Defendants’ negligence consisted of: 1) failing to repair and/or maintain the porch, 2) failing to warn Clarke that the porch was in a state of disrepair, 3) failing to warn Clarke that the porch was a potentially dangcrous area, 4) failing to provide Clarke with adequate protection against the use of the porch, and 5) failing to post any sign or device to warn Clarke that the porch posed a danger to persons.’’ Clarke seeks damages in the form of compensatory damages, attorney’s fees, and such other relief as this Court deems proper. Defendants now move for summary judgment on the grounds that there are no genuine issues of material fact.?* In addition, Defendants move to dismiss Defendant Frazee in her individual capacity because she is not the record owner of the Property involved in this litigation. SUMMARY JUDGMENT STANDARD Pursuant to Federal Rule of Civil Procedure 56(a),”” summary judgment is appropriate “only when the record shows that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." A fact is material if proof of its existence or '9 Id. 20 id. 2! Anna Clarke Dep., 27:7-8, Oct. 9, 2013. 22 Anna Clarke Dep., 26:10-11. 23 Anna Clarke Dep., 26: 24-26. 24 Anna Clarke Dep., 27: 11-21. 25 Anna Clarke Dep., 27: 1-2. 6 Anna Clarke Dep., 28: 24-25. 27 Amended Compl., 3-4, Nov. 8, 2013. 28 RESTATEMENT (SECOND) OF TORTS § 355. 2° Federal Rule of Civil Procedure 56 applies herein by virtue of SUPER. Cr. R. 7, and LRC1 56.1. * Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); White v. Spenceley Realty, LLC, 53 V.1. 666, 2010 WL 4961792, at *2 (V.I. 2010) (citations omitted). Anna Clarke v. Judith A. Frazee, et al. Case No. ST-12-CV-520 Memorandum Opinion non-existence might affect the outcome of the litigation, and a dispute is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”?! The moving party has the initial burden of establishing that there is no genuine issue of material fact as to each element of a claim.*? If the moving party meets this burden, then the nonmoving party must present specific facts showing that there is a genuine issue for trial.*> Those facts must amount to more than a mere “scintilla,” but may be less than a preponderance.>4 The court must draw all reasonable inferences “in the light most favorable to the non-moving party, and . . . take the non-moving party’s conflicting allegations as true if supported by proper proofs.”>° ANALYSIS In 2014, the Supreme Court of the Virgin Islands decided Machado, which set forth two important points. First, the Supreme Court held that in all premises liability actions “the foreseeability of harm is the touchstone of the existence of a land possessor’s duty of reasonable or ordinary care.”>° Second, the Court opined that the elements of negligence are (1) a legal duty of care to the plaintiff, (2) a breach of that duty of care by the defendant (3) constituting the factual and legal cause of (4) damages to the plaintiff.*’ Therefore, in light of Machado, the Court must determine whether Defendants have met their initial burden of demonstrating there is no genuine issue of material fact as to a material element of the negligence claim. I, Defendants Owed Clarke a Contractual Duty to Repair. The first question presented is whether Defendants owed a contractual duty to Clarke to repair the railing. Clarke argues that Defendants owed her a duty of care to maintain the premises in a reasonably safe condition.** First, Defendants could have reasonably foreseen that a rotten deck rail could coliapse and potentially injure a tenant residing on the premises.°° Second, Clarke argues that this incident was readily foreseeable because Defendant Frazee was aware that the rotten rail was not replaced in January of 2009 but “merely reinforced with nails” prior to Clarke’s fall. Third, relying on Jeffrey v. Caesar,*' Clarke argues that the Property is a two story building, multi- 3! Anderson y, Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). *® Celotex Corp., 477 U.S. at 322; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Battle v. Louis Industrious, 26 V1. 83, 1991 WL 11818239, at *1 (V.I. Terr. Ct. 1991). 3 Battle, 1991 WL 11818239, at *2. * See Saastopankkien Keskus-Osake Pankki (Skopbank) v, Allen-Williams Corp., 39 V.1. 220, 7 F. Supp. 2d 601, 605 (D.V.I. 1998) (citations omitted); Anderson, 477 U.S. at 247-48, 8 United Corp. v. Tutu Park Lid., 55 V.1. 702, 707, 2011 WL 4017711, at *2 (V.L 2011) (citing Joseph v. Hess Oil V1. Corp., 2011 WL 1304611, at *4 (V.I. 2011) (quoting Williams v. United Corp., 50 V.1. 191, 194 (V.1. 2008)). 36 Machado, 61 V.1. at 380, 37 Id, 8 Pl. Supplemental Briefing in Compliance with the Court’s Order dated November 18, 2015, 8, Dec. 21, 2015. 39 Id. 40 ld. 4! Jeffrey v. Caesar, 38 V.1. 84, 89 (V.1. Super. Ct. 1998). Aana Clarke v. Judith A. Frazee, et al. Case No. ST-12-CV-520 Memorandum Opinion family dwelling, consisting of Defendant Frazee’s private residence and two other apartment units.” As such, the law imposes upon the landlord the duty of maintaining such common facilities in a reasonably safe condition for the use and the enjoyment of the tenants.** Defendants counter that in order to establish negligence, Clarke is required to produce evidence that could support a finding that Defendants had actual or constructive notice of a dangerous condition.“ Defendants argue that neither Defendant Frazee nor Clarke had actual or constructive notice that the handrail was loose or that “others had experienced similar accidents in the area.”*° In the instant action, the Court finds that no genuine issue of material fact exists as to whether Defendants owed a duty of care to Clarke. First, the Agreement explicitly provides that the Landlord is responsible for making repairs. The Agreement states, the “Landlord or his authorized agents shall have the right to enter into and upon the premises or any part thereof upon 24 hours written notice for the purpose of examining the same or for the purpose of maintenance of or making necessary repairs to the premises. Further, deposition testimony from Defendant Frazee indicates that as soon as either Clarke or Defendant Frazee noticed a repair issue with the apartment, Merrifield would immediately repair the problem.*’ Such testimony indicates that, notwithstanding the contractual language, Defendant Frazee believed that she possessed a duty to make repairs to the Property. Therefore, the Court finds that Defendant Frazee had a duty to repair. II. A Genuine Issue of Material Fact Exists as to Whether Defendants Breached their Duty to Repair. Based upon Machado, to survive summary judgment Clarke must submit evidence supporting the contention that the Defendant breached its duty to take reasonable steps to protect her against foreseeable harm.** Clarke can either show actual notice or constructive notice, wherein a dangerous condition can be imputed to a land possessor through evidence that the condition persisted over a long enough period of time such that the owner should have become aware of it through the exercise of reasonable care.*? Clarke argues that Defendants breached a duty to repair by failing to take reasonable steps to protect her against foreseeable harm. Clarke argues that both parties acknowledged that the rail was rotten.*° According to Clarke, such a deterioration must have occurred over time which would have given Defendants notice of the dangerous condition of the rail.*! Clarke alleges that the wooden balustrade was completely rotted out underneath and yet Merrifield merely reinforced the 2 Id, 43 Id, “4 Supplemental Brief in Support of Defs. Mot. for Summary Judgment, 6, Dec., 23, 2015. 45 Id. “9 See Reply to PI. Response in Opposition to Defs. Mot. for Summary Judgment, Ex. 1 (Amendments to the Lease) (emphasis added). ” Defs. Stmt. of Material Facts 4] 9. 48 Machado, 61 V.I. at 392. “° Id, at 393 (citing Williams y. United Corp., 50 V.I. 191, 195-96 (V.I. 2008)). °° Pl. Supplemental Briefing in Compliance with the Court’s Order dated November 18, 2015, 10, Dec. 21, 2015. 5) fd, Anna Clarke v. Judith A. Frazee, et al. Case No. ST-12-CV-520 Memorandum Opinion railing with nails.** Therefore, Clarke argues that Defendant Frazee had constructive notice. Defendant Frazee counters that the mere fact that an accident occurred does not give rise to an inference that the injured person was the victim of negligence. Further, Defendants argue that they took reasonable steps to prevent Clarke from being injured while using the handrail.*5 Specifically, Defendants hired Merrifield to repair the railing.-® Thereafter, Defendants reasonably relied on Merrifield’s representation that the railing was in good repair because he was experienced and had reliably performed other repair tasks.°” Further, Defendants argue that, unlike in Machado, where the Court found evidence that the landowner was on notice of a defective condition creating a genuine issue of material fact, Defendants were not on notice of a dangerous condition. ** In the instant action, the Court finds there is a genuine issue of material fact as to whether the condition of the balustrade that resulted in Clarke’s fall was reasonably foreseeable such that Defendants were obligated to take reasonable steps to guard against it. In terms of actual notice, there is no evidence to suggest that anyone else had ever fallen from the porch, which would have given Defendant Frazee actual notice of a dangerous condition. With respect to constructive notice, the Court must determine whether the condition persisted over a long enough period of time that Defendant Frazee should have become aware of it through the exercise of reasonable care. By Clarke’s own admission, Clarke did not have any reason to believe that Defendant Frazee knew that the railing in question was in disrepair prior to the accident.*? However, having reviewed the record, the Court finds that a jury could determine that Defendants should have become aware of the condition of the railing through an exercise of reasonable care such as periodic inspections. In particular, Clarke’s Opposition identifies two genuine issues of material fact. First, there is a genuine issue of material fact as to whether Defendants breached their duty to repair by failing to inspect the Property. From 2009 to October 21, 2011, Defendant Frazee never inspected the railing, in fact, she waited until tenants told her that there was a problem before she would direct Merrifield to make the repairs. Specifically, Defendant Frazee states that, “I never had [the Property] inspected. I just went with what tenants would tell me and I would repair whatever and my own evaluation of it. I did my own cleaning and so forth so I was familiar with things.”™ A jury could determine that if the repairs were required in 2009, then it is reasonably foreseeable that three years later the wooden balustrade may require more attention and further repair. Therefore, there is a genuine issue of material fact as to whether Defendants breached their duty to repair by failing to inspect the Property. 52 Id. 33 Id, *4 Supplemental Brief in Support of Defs. Mot. for Summary Judgment, 5, Dec. 23, 2015. 55 Id, 56 Td, 38 Id. 5% Anna Clarke Dep., 27:11-21. ® Judith A. Frazce Dep., 20: 20-23. Anna Clarke v, Judith A. Frazee, et al. Case No. ST-12-CV-520 Memorandum Opinion Second, there is a genuine issue of material fact as to whether the repair was negligently performed. Specifically, whether the repair required the use of wooden screws or nails. The deposition testimony of Merrifield explained that he had extensive experience doing repair work.°! Merrifield also worked on the Property as needed for approximately twenty years. For example, as early as 1989, Merrifield did repair work on the roof of the Property after Hurricane Hugo.™ He has experience doing electrical, plumbing, and carpentry. He worked for Rupert Foster at East End Lumber for many years. He even stated that “woodwork was his nature.” After examining the Property in 2009, Merrifield made the determination, based on his experience as a handyman, to use nails rather than wooden screws to repair the problem. Defendant Frazee’s reliance on the professional opinion of Merrifield, her handyman of over twenty (20) years, could be deemed reasonable under the circumstances. However, it is also possible that a jury could find that such a repair did, in fact, require wooden screws. As such, the Court finds that a genuine issue of material fact remains as to whether the repair was negligently performed. Having determined that there are at least two genuine issues of material fact raised by Clarke’s Opposition, the Court will deny Defendants’ Motion for Summary Judgment. I. Summary Judgment Will be Granted in Favor of Defendant Judith A. Frazee in her Individual Capacity. There is no genuine issue of material fact that the incident which is the subject of this action occurred on October 21, 2011. By Warranty Deed dated September 22, 2000, Frazee transferred Parcel No. 1-142-1 Estate Wintberg to Judith A. Frazee, as Trust of the Trust Agreement of Judith A. Frazee, dated September 2000. The individual Judith A. Frazee did not own 1-142-1 Estate Wintberg when Plaintiff claims she fell and suffered injuries. Accordingly, the Court will grant Defendants’ Motion to the extent that it seeks summary judgment dismissing Plaintiff's Amended Complaint as to Judith A. Frazee in her individual capacity. CONCLUSION A genuine dispute of material fact exists as to whether the risk of harm to Clarke was reasonably foreseeable to Defendants such that Defendants were obligated to take reasonable steps to guard against it. Specifically, the Court finds that Clarke has identified the following genuine issues of material fact from which a jury could return a verdict in her favor: 1) whether Defendants breached their duty to repair by failing to inspect the Property; and 2) whether the repair was negligently performed. Accordingly, this Court will deny Defendants’ Motion for Summary Judgment. However, the Court will dismiss all claims against Defendant Frazee, in her individual 6! Dennis Merrifield Dep., 13:20-25. © Dennis Merrifield Dep., 5:12-23. Gh Id. 4 Id, 65 Id. 6 See Amended Compl. §] 7. Anna Clarke v, Judith A, Frazee, et al. Case No. ST-12-CV-520 Memorandum Opinion capacity, since she is not the record owner of the Property. An Order consistent with this Memorandum Opinion will follow. DATED: April “1, 2017 RQ TV). Tos uno DENISE M. FRANCOIS Judge of the Superior Court of the Virgin Islands CERTIFIED A TRUE COPY ATTEST: DATE: _4-10 -T] Estrella H George ESTRELLA H. GEORGE Clerk-af a (Hac by: _ \ Cameil A. Clarke _ Count Clerk Il Chief Deputy Clerk * /~ “" Clarke argues that Defendant Frazee owns the Property. See Pl.’s Response in Opp. to Defs, Mot. for Summ. J., J 2. However, the Warranty Deed dated September 22, 2000 indicates that the Trust Avreement of Judith A. Frazee owns the Property. See Defs. Ex. 1. Therefore, all claims against Defendant Frazee will be dismissed.