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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN ****x** RICHARD K SALKELD ) ) Plaintiff ) CASE NO ST 16 CV 726 ) v ) ) ACTION FOR DAMAGES MARRIOTT OWNERSHIP RESORTS ) (ST THOMAS) INC ) JURY TRIAL DEMANDED ) Defendant ) Cite as 2020 V I Super 81U ) MEMORANDUM OPINION 111 Pending before the Court is the Motion to Dismiss Plaintiff’s Claim of Gross Negligence and Request for Punitive Damages and ‘ Brief in Support of Motion to Dismiss Claims of Gross Negligence and Punitive Damages filed by Defendant Marriott Ownership Resorts, (St Thomas) Inc (‘ Marriott’ 0r Frenchman s Cove ) on January 4, 2017 Plaintiff filed Plaintiff‘s Opposition to Defendant 5 Motion to Dismiss on January 13 2017, and Defendant filed “Defendant 5 Reply to Plaintiff‘s Opposition to Motion to Dismiss Plaintiff‘s Claim of Gross Negligence and Request for Punitive Damages ’ on January 27, 2017 Both parties also filed supplemental briefs on May 8 2020 (Plaintiff) and May 12 2020 (Defendant) in support of their respective positions For the following reasons, Defendant 5 Motion will be granted I FACTUAL AND PROCEDURAL BACKGROUND 112 On November 9 2016 Plaintiff Richard K Salkeld a guest of Defendant Marriott Frenchman s Cove Hotel, swam out to a large inflatable device referred to as the Saturn Rocker to ensure that his minor son who was swimming out to the floating device would reach safely The Saturn Rocker was moored out in the ocean approximately 8 feet deep Salkeld was concerned Richard K Salkeld v Marriott Ownership Resorts (St Thomas), Inc Cite as 2020 V I Super 81U Case No ST 16 CV 726 Memorandum Opinion about his son 5 ability to swim to and from the Rocker Upon reaching out to the inflatable device, Salkeld mounted the Rocker, which already had five adults and three children on it Salkeld felt that the Saturn Rocker was unstable Salkeld had observed what appeared to be a slippery substance; sunscreen residue or an unknown greasy substance on the Saturn Rocker As Salkeld was leaving, he jumped off the top of the Saturn Rocker While jumping, Salkeld slipped and twisted his left leg When Salkeld slipped, he ruptured his tendon and sustained a tear in his quadricep muscle Salkeld needed the assistance of two other persons to help him swim back to shore 113 Plaintiff filed a complaint in the U S Virgin Islands Superior Court on December 5, 2016 Plaintiff seeks to recover damages for his injuries, under the theories of negligence gross negligence and further seeks punitive damages Marriott has since responded with the motion to dismiss claim for gross negligence and request for punitive damages pursuant Federal Rule of Civil Procedure 12(b)(6) ' II STANDARD 114 The standard at the time of filing was that when considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, a trial court must apply the three part test from the United States Supreme Court decision in Ashcroft v Iqbal, 556 U S 662 (2009) This legal standard requires the trial judge to, 1 ) take note of the legal elements of the asserted cause of action; 2 ) identify and disregard naked factual contentions and legal conclusions framed as allegations of fact; and 3 ) review the well pleaded facts against the necessary legal elements to determine whether the ’ Since the filing of the original papers, the Virgin Islands Supreme Court piomulgated the Virgin Islands Rules of Civil Piecedure replacing the Federal Rules of Civil Procedure which became effective March 31 2017 Iiiespective of the change in the name of the rule the substance and the numbering of this rule has remained the same 2 Richard K Salkeld v Marriott Ownership Resorts (St Thomas) Inc Cite as 2020 V I Super 81U Case No ST 16 CV 726 Memorandum Opinion claims are plausible ” Benjamin v Benneison, 2012 V I LEXIS 7 at *2 (V I Super Ct Feb 13, 2012) No assumption of truth attaches to allegations the court deems to be conclusory legal conclusions, as opposed to well pleaded facts Joseph v Bureau of Corrs , 54 V I 644 649 50 (VI 2011) With regards to a claim 5 plausibility, a court must assume its veracity, and then conduct a ‘ context based inquiry based on judicial experience and common sense ” Id Furthermore, for a claim to be plausible, the plaintiffmust allege facts in the complaint that permit the court to infer more than a possibility of misconduct See Ashcroft 1 Iqbal, 556 U S 662, 678 (2009) Joseph 54 VI at 650 115 However, in MlllS Williams v Mapp 67 V I 574 (2017) the Virgin Islands Supreme Court ruled that effective March 31, 2017 this Court adopted the Virgin Islands Rules of Civil Procedure, which supersede all previous civil procedure rules applicable to the Superior Court, including the Federal Rules of Civil Procedure that had been applicable thiough former Superior Court Rule 7 Significantly, Virgin Islands Rule of Civil Procedure 8 expressly states that the Virgin Islands is a notice pleading jurisdiction V I R Civ P 8(a) and the Reporter's Note eliminates any doubt that this language is calculated to apply[] an approach that decline? to enter dismissals of cases based on failure to allege specific facts which, if established, plausibly entitle the pleader to relief V I R Civ P 8 Reporter's Note (emphasis added) see also Brathwazte v H D V I Holdmg Co 2017 V I LEXIS 76 at *3 [WL] at *2 (V I Super Ct May 24 2017) (acknowledging that Virgin Islands Civil Procedure Rule 8(a)(2) eliminates the plausibility standard and instead will permit a complaint so long as it adequately alleges facts that put an accused party on notice of claims brought against it ) Therefore, going forward, it is clear that the adoption of Rule 8 of the Virgin Islands Rules of Civil Procedure supersedes our prior precedents which imposed the Twombly plausibility standard by virtue of the now amended Superior Court 3 Richard K Salkeld v Marriott Ownership Resorts (St Thomas), Inc Cite as 2020 V I Super 81U Case No ST 16 CV 726 Memorandum Opinion Rule 7, and restores the notice pleading regime that had previously been in effect See Estate of Knostei 1 Ford Motor Co 200 Fed Appx 106 111 n 3 (3d Cir 2006) (holding that the adoption of a new court rule ‘ plainly supersedes any cases to the contrary that applied the former rule) III LEGAL DISCUSSION 21 Plaintiff has not Pied Sufficient Facts to Support his Claim of Gross Negligence against Defendant Marriott 116 Under Virgin Islands common law, a claim for gross negligence, at minimum, 1equires a degree of ‘recklessness’ or a conscious indifference to the consequences of the conduct Biatlm alte v Xavzer 71 VI 1089 1102 (2019) (quoting Powell v Chi C0 .9 Dist; 1b 2014 VI LEXIS 21 *5 10 (V 1 Super Ct Apr 3 2014) Prior to Brarhnazte in Tutem v Pally 48 V I 101 (V I Super 2006), the Superior Court has most frequently defined gross negligence in terms of wanton and/or reckless behavior that demonstrates a conscious indifference to potential risk of injury to persons or property In Turem after noting a split in authorities from other jurisdictions, the court concluded that gross negligence in that context encompasses reckless and ‘wanton conduct wherein the actor demonstrate[s] a conscious indifference to the consequences of his conduct or act so unreasonable that imminent likelihood of harm or injury to another is reasonably apparent 48 V I at 107 Subsequent trial level cases following this line of reasoning expressly equate grossly negligent behavior with reckless behavior Brathwazte v Xavzer 71 V I 1089,1 103 (2019) (quoting See e g P0148111 Ch! C05 Dzstrzb 2014 VI LEXIS 21 *5 n 11 (VI Super 2014) (unpublished) (adopting the Tutem definition of gross negligence as equivalent to recklessness))‘ Manan v Fraser 2014 V I LEXIS 19 *7 (V I Super 2014) (unpublished) (holding that Plaintiff failed to state a claim of gross negligence as defined in Tutem) 117 The Brathw azte Court reconciled prior approaches and concluded that the soundest rule for the Virgin Islands is that to prevail on a claim for gross negligence in the Virgin Islands, a plaintiff 4 Richard K Salkeld v Marriott Ownership Resorts (St Thomas), Inc Cite as 2020 V 1 Super 81U Case No ST 16 CV 726 Memorandum Opinion must establish that (1 ) the defendant owed plaintiff a legal duty of care (2) the defendant breached that duty in such a way as to demonstrate a wanton, reckless indifference to the risk of injury to plaintiff; (3 ) and the defendant's breach constituted the proximate cause of (4 ) damages to plaintiff Brathwazz‘e v Xavzer 71 VI 1089,1103 (2019) This is the current and appropriate test for analyzing the conduct of Marriott {[8 In Brathwazte, the Court examined a claim of gross negligence by a passenger against a defendant, who crashed his boat, after operating the boat under excessive fatigue ’ according to Brathwaite The Coult reasoned that without additional evidence to establish how long defendant had been awake at the time of the accident how much he slept in the preceding days, or whether he was in the habit of being awake in the early morning hOUIS evidence merely demonstrating that Xavier operated his boat at app1 oximately 2 30 a m was insufficient to support a claim of gross negligence [The Court fuither reasoned that when distinguishing a claim of negligence from that of gross negligence the courts have noted that gross negligence is conduct that presents an unreasonable risk of physical harm that is substantially greater than that which is necessary to make the conductnegligent ]Brathwalte v Xavzei 71 VI 1089 1102 (2019) (quoting H1111) De Jongh 2012VI LEXIS 11 *19 20 (VI Super Ct Apr 19 2012)) 119 Defendant argues that for Plaintiff’s gross negligence claim to survive the instant motion Plaintiff’s allegations must plausibly suggest the accident was caused by Marriott’s gross negligence Defendant further argues that the plaintiff must plead facts that the defendant acted with a wanton and reckless disregard for others See Tutem v Pa) ry, 48 V I 101, 107 (V I Super Ct 2006) Defendant supports this argument by stating that wanton conduct is defined as the performance of an act which is so unreasonable and dangerous that imminent likelihood of harm or injury to another is reasonably apparent even though the actor possesses no intent to cause 5 Richard K Salkeld v Marriott Ownership Resorts (St Thomas), Inc Cite as 2020 V I Super 81U Case No ST 16 CV 726 Memorandum Opinion harm Id at 107 (quoting Myers v Lashley 2002 OK 14 44 P 3d 553 1142 (Okla 2002) as amended, (Mar 20, 2002) Defendant adds that reckless conduct is such as to evince disregard of, or indifference to, consequences, under the circumstances involving danger to life or safety of others, although no harm was intended Id at 107 1110 Defendant additionally points out that this court has held that failure to act does not amount to gross negligence Defendant cites to Powell v Ch: Co’s Dzstrzb , 2014 VI LEXIS 21 (V1 Super 2014), where the plaintifftripped and fell on a set of stairs that she alleged were dangerous because the defendants failed to ensure that the stairs were evenly spaced and failed to provide safety rails and lighting The Powell court dismissed the gross negligence claim on the grounds that the plaintiff failed to allege conscious indifference to the safety of individuals walking on the stairs, and reasoned that the mere failure to act without more is insufficient to support a claim for gross negligence Defendant further posits that gross negligence when defined in terms of wanton, reckless behavior ‘tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent, and represents ‘an aggiavated fonn of negligence, differing in quality rather than in degree from ordinary lack of care ”’ Brathwazte v Xavzer, 71 VI 1089, 1106 (2019) Defendant argues that this reasoning should apply to the Plaintiff’s claim for gross negligence This Court agrees 1111 Here, Plaintiff does not offer the requisite pleadings to suggest that the jury may find a showing of gross negligence The Plaintiff has alleged that Marriott acted with recklessness In order to support this allegation, the Plaintiff offers facts such as the Defendant’sfazlure to warn guests of the dangerous purpose and condition of the Saturn Rocker, failure to Instruct on proper use of the Saturn Rocker failure to provza'e lifeguard, and thefallure to advzse guests of the need to wear lifej ackets Whether these allegations are credible, or amount to the level of recklessness 6 Richard K Salkeld v Marriott Ownership Resorts (St Thomas), Inc Cite as 2020 V I Super 81U Case l\0 ST 16 CV 726 Memorandum Opinion required for a finding of gross negligence, is a matter for the jury to determine, but it is incumbent upon this court to determine whether the Plaintiff has established, at a minimum, a prima facie case, assuming that all of the Plaintiff’s allegations are true Salkeld has not pleaded any facts which may lead a reasonable jury to believe that Marriott was reckless, therefore grossly negligent 1112 Plaintiff’s complaint alleges that Marriott acted with indifference to human life All of Plaintiff’s claims under gross negligence are essentially the same under the negligence claim Plaintiff also alleges, based on deposition testimonies, that top level managers at Marriott including the Director of Engineering, General Manager, Director of Operations, and Activities Director all read the safety manual and therefore knew about the risks associated with the Saturn Rocker and furthermore knew that the Rocker was unstable Salkeld posits a systematic top management reckless diSIegard occurred This seems implausible 1113 Notably Salkeld does not allege any affirmative conduct which would suggest that any of these hotel officials had a wanton reckless disregard or conscious indifference to the safety of its guests In fact, the opposite theory would be more plausible; that the hotel officials would be concerned with maintaining safety to ensure repeat guests As stated, these allegations all entail bald statements of failures to act There are no facts which suggest Marriott knew and ignored a likelihood that injury would occur There are no allegations of prior complaints There are no allegations that Marriott was conscious that injury would likely occur and chose to remain indifferent There are no facts which support a finding of intent on behalf ofthe Defendant which is reckless or even consciously indifferent Without such allegations, a reasonable jury could not find that Marriott acted with gross negligence 7 Richard K Salkeld V Marriott Ownership Resorts (St Thomas), Inc Cite as 2020 V I Super 81U Case No ST 16 CV 726 Memorandum Opinion b Plaintiff is not Entitled to Punitive Damages 1114 Punitive damages is not a separate cause of action, but rather a demand for a certain type of damages Der Wee} t Hess 011 VI Corp 60 V I 91 95 n 1 (Super Ct 2014) Punitive damages are damages awarded in cases of serious or malicious wrongdoing to punish or deter the wrongdoer 0r deter others from behaving similarly called also exemplary damages, smart money ’ Merriam Webster's Dictionary of Law 120 (2005); see also Black's Law Dictionary 448 (9th ed 2009) (‘ Damages awarded in addition to actual damages when the defendant acted With recklessness, malice, or deceit; specific damages assessed by way of penalizing the wrongdoer or making an example to others ) Punitive damages must be based upon conduct that is not just negligent but shows, at a minimum, reckless indifference to the person injured conduct that is outrageous and warrants special deterrence Blathu cute v Xavzer, 71 V I 1089,111 1 (2019) Accordingly, the failure of a party to introduce sufficient evidence to support a claim of gross negligence precludes an accompanying request for an award of punitive damages Ambrosz v CB] Acqumtzom LLC N0 ST 16 CV 621 2019 V I LEXIS 151 (Super Ct Oct 25 2019) 1115 Here, because the Court has granted Defendant 5 Motion to Dismiss on the issue of gross negligence, it follows that punitive damages are also barred In relying on Biathu cute, just as the Supreme Court held that absent a finding ofsufficient evidence to sustain a gross negligence claim, a party may not seek an award of punitive damages This Court echoes the same as the record does not demonstrate that the imposition of punitive damages is proper Since punitive damages cannot stand alone, this Court grants Defendant s motion to dismiss on the issue of punitive damages Plaintiffhas not articulated a plausible claim for reliefunder gross negligence, therefore, Marriott s motion to dismiss claims of gross negligence and punitive damages will be granted 8 Richard K Salkeld v Marriott Ownership Resorts (St Thomas), Inc Cite as 2020 V I Super 81U Case No ST 16 CV 726 Memorandum Opinion IV CONCLUSION 1116 For the foregoing reasons, the Court will grant Defendant s motion to dismiss Plaintiff’s claims of gross negligence and punitive damages An Order consistent with this Opinion shall follow ”/7 i g m f; i f ” I g 3/ a g 1/? hig”’ly§s‘i;{’{{y/§ Dated September 1, 2020 ft / 5 7 {i} ALE L&é/Eégi nee Gumhs Ca ty Judge of the Superiorf putt / of the Virgin Islands K \_ M, ATTEST Tm a les fflllerk of the urt // i ,3 ‘1 ’ , Lori Boy ’Tyson j / I ChiefDe fly Clerk 5’ ///// ”Zfl/Qfl/ 9