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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX SHERWIN FLEMING Plaintiff CASE NO. SX-08-CV-0000621 ACTION FOR: DEBT-CIVIL vs STEPHANIE E. SCRIBNER ROBERT G SCRIBNER.JR. TO: Defendant NOTICE OF ENTRY OF MEMORANDUM OPINION JOMO MEADE, ESQ AND ORDER DOUGLAS CAPDEVILLE, ESQ. JUDGES AND MAGISTRATES OF THE SUPERIOR COURT LIBRARIAN IT / LAW CLERKS °RDpiease take notice that on September 22, 2010 a(n) MEMORANDUM OPINION AND ORDER dated September 15, 2010 was entered bythe Clerk in the above-entitled matter. Dated: September 22, 2010 ;netia H. Velazquez, Esq. ?ot ROXANNE SERRANO COURT CLERK II IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX SHERWIN A. FLEMING, v. STEPHANIE E. SCRIBNER and ROBERT G. SCRIBNER, JR., Plaintiff, SX-08-CV-621 ACTIONS FOR DAMAGES .JURY TRIAL DEMANDED Defendants. ORDER THIS MATTER is before the Court on Defendant Robert G. Scribner, Jr.'s (hereinafter, "Robert Scribner") Motion to Dismiss, filed on April 12, 2010. On July 20, 2010, Defendant Robert Scribner filed a Motion to Deem Plaintiff Conceded Motion to Dismiss. On August 20, 2010, Plaintiff filed a Response to Defendant Robert Scribner's Motion to Dismiss. Accordingly, it is hereby: Ordered that Defendant Robert Scribner's Motionto Dismiss For Failure to State a Claim is Denied. It is further: Ordered that Plaintiff is granted leave to amend the Complaint in regard to the Negligent Entrustment Claim against Defendant Robert Scribner, and re-file the amended Complaint within twenty(20) days of the entryofthis Order. day of September, 2010. isiT DONE and so ORDERED th rtarvey-Velazquez ii Mm v|tuLor HAROLD W. L. WILLOCKS Judge of the Superior Court CER Th VENETIA H. VELAZC/UEZ, ESQ. CLEgft OF THf/CCOURT ECOPY urt ClerjgjT IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX SHERWIN A. FLEMING, v. STEPHANIE E. SCRIBNER and ROBERT G. SCRIBNER, JR., Plaintiff, Defendants. SX-08-CV-621 ACTIONS FOR DAMAGES JURY TRIAL DEMANDED MEMORANDUM OPINION THIS MATTER is before the Court on Defendant Robert G. Scribner, Jr.'s (hereinafter, "Robert Scribner") Motion to Dismiss, filed on April 12, 2010. On July 20, 2010, Defendant Robert Scribner filed a Motion to Deem Plaintiff Conceded Motion to Dismiss. On August 20, 2010, Plaintifffiled a Response to Defendant Robert Scribner's Motionto Dismiss. FACTS On December 29, 2008, Plaintiff filed a Complaint against Defendants concerning an automobile accident. On or about December 21, 2006, Defendant Stephanie E. Scribner (hereinafter, "Stephanie Scribner") was operating a vehicle owned by Defendant Robert Scribner. Plaintiff alleges that Defendant Stephanie Scribner negligently operated said vehicle and caused it to collide with the vehicle Plaintiff was operating. Plaintiff claims that Defendant Stephanie Scribner failed to keep a proper look out for pedestrian traffic, failed to maintain proper control of the vehicle, failed to operate the vehicle within the designated speed limit, failed to operate the vehicle in the properlane and failed to yield the right of way. Additionally, Plaintiff also alleges that Defendant Robert Scribner negligently entrusted the vehicle to Defendant Stephanie Scribner because Defendant Robert Scribner knew or should have known that Defendant Stephanie Scribner would operate the vehicle in a manner that was likelyto cause SHERWIN A. FLEMING v. STEPHANIE E. SCRIBNER and ROBERT G. SCRIBNER, JR. . SX-08-CV-621 Memorandum Opinion serious injury to life, limb and property on the road and Defendant Robert Scribner failed to take the necessary action to ensure that Defendant Stephanie Scribner would carefully operate the vehicle. Plaintiff claims that, as a direct and proximate result of Defendants' negligence, Plaintiff suffered bodily injuries, damage to his vehicle loss income, total loss of use of the vehicle, expenses in an attempt to repair the vehicle and for substitute transportation, expenses to treat his injuries and pain, suffering and permanent disfigurement. In an Order dated June 15, 2009, this Court granted Defendant RobertScribner's Motion to Dismiss in regards to Plaintiffs personal injury claim and denied Defendant Robert Scribner's Motion to Dismiss in regards to Plaintiffs property damage claim. DISCUSSION 1. Motion to Dismiss For Failure to State a Claim Court cannot dismiss an action for failure to state a claim upon which relief can be granted unless it appears beyond doubt that plaintiff can prove no set of facts in support of claims as pled which would entitle plaintiff to relief. Bell v. Chase Manhattan Bank, 40 V.I. 377 (1999). A motion to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, tests the sufficiency of the allegations contained in the complaint. Ditri v. Coldwell Banker Residential Affiliates, Inc., 954 F.2d 869, 871 (3d Cir. 1992). In considering whether a complaint should be dismissed for failure to state a claim upon which reliefcan be granted, court must accept all well-pleaded allegations in complaint as true and view them in light most favorable to plaintiff. Inre Tutu Water Wells Contamination Litig., 40 V.I. 279 (1998); see also Shubert v. Melrophone, Inc., 898 F.2d 401, 403 (3d Cir.1990) ("...we must construe all factual allegations in thecomplaints most favorably to the appellants and affirm the dismissals only if it appears certain that no reliefcould be granted to them under any set of facts which could be proven."). SHERWIN A. FLEMING v. STEPHANIE E. SCRIBNER and ROBERT G. SCRIBNER, JR. SX-08-CV-621 Memorandum Opinion The issue is not whether the plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims. Matheson v. Virgin Islands Community Bank, Corp., 297 F.Supp.2d 819, 825 (D.V.I. 2003). However, if the plaintiff does not nudge his/her claims across the line from conceivable to plausible, the plaintiffs complaintmust be dismissed. Bell Atlantic Corp. v. Twombly, 540 U.S. 544, 570 (2007) ("...[w]e do not require heightened fact pleading of specifics, but only enough facts to state a claim to reliefthat is plausible on its face.") 2. Negligent Entrustment Claim Defendant Robert Scribner claims that Plaintiffs Complaint contains no reference to, no allegation of agency between Defendant Stephanie Scribner and Defendant Robert Scribner; Defendant Stephanie Scribner was not driving the subject vehicle at the direction or for the benefit of Defendant Robert Scribner. Defendant Robert Scribner argues that Plaintiffs complete failure to include actual allegations of alleged misconduct on the part of Defendant Robert Scriber or anyallegation of agency on the partof Defendant Stephanie Scribner to invoke vicarious liability, illustrates that Plaintiff has no plausible claim against Defendant Robert Scribner aside from the Negligent Entrustment claim, which was dismissed bythe Court. In his Response, Plaintiff argues that there are sufficient facts in his pleadings to put Defendant Robert Scribner on notice of the Negligent Entrustment claim. Plaintiff points out that, at this stage of the litigation, Plaintiff is not required to establish the merits of his claim in the pleadings. Therefore, Plaintiff requests the Court to deny Defendant Robert Scribner's Motion to Dismiss. 1 In his Motion to Dismiss, Defendant Robert Scribner incorrectly stated that the Court dismissed Plaintiffs Negligent Entrustment claim against Defendant Robert Scribner. SHERWIN A. FLEMING v. STEPHANIE E. SCRIBNER and ROBERT G. SCRIBNER, JR. SX-08-CV-621 Memorandum Opinion In its June 15, 2009 Order, the Court did not dismiss Plaintiffs Negligent Entrustment claim. The June 15, 2009 Order stated: "Ordered thai Defendant Robert G. Scribner, Jr.'s Motion to Dismiss is Granted in regards to Plaintiffs personal injury claims and Denied in regards to Plaintiffs personal property injury claims." Defendant Robert Scribner argues that Plaintiff did not allege an agency relationship between Defendant Stephanie Scribner and Defendant Robert Scribner to invoke vicarious liability, and therefore, the Court should dismiss Defendant Robert Scribner from this matter. However, Plaintiff is proceeding against Defendant Robert Scribner on a theory of negligent entrustment, not vicarious liability. Hence, there is no need for Plaintiffto allege an agency relationship between Defendants. Nevertheless, upon reviewing Plaintiffs Complaint, the Court finds that Plaintiff has stated a claim for Negligent Entrustment against Defendant Robert Scribner but does not find Plaintiffs allegations to be sufficiently well-pleaded. The Court will accept all well-pleaded allegations in Plaintiffs Complaint as true and view them in light most favorable to the non- moving party when considering whether a complaint should be dismissed for failure to state a claim upon which reliefcan be granted. In order to state a claim for Negligent Entrustment, Plaintiffmust allege the following elements: (1) entrustment of a chattel to a party; (2) likelihood that such party because of youth, inexperience, or otherwise would use the chattel in a manner involving unreasonable risk of harm to himself and others whom the entruster should expect to be endangered; (3) knowledge or reason to know by the entruster of such a likelihood; and (4) proximate cause ofthe harm to plaintiff by the conduct ofthe entrustee.2 Restatement §390. In Warrington v. Camacho, the Warrington alleged that he was injured as a resultof thedefendant's negligent entrustment of the vehicle to the co-defendant driver. 2007 WL 3124674 (D.V.I.). 2Absentcontrary local laws, the United States Virgin Islands apply the rules ofthe commonlawas expressedin the restatements of law. 1 V.I.C. § 4. SHERWIN A. FLEMING v. STEPHANIE E. SCRIBNER and ROBERT G. SCRIBNER, JR. SX-08-CV-621 Memorandum Opinion The court dismissed Warrington's negligent entrustment claim because Warrington failed to assert a specific reason why the entrustershould know that it was likelythat the driver would be involved in an accident. Id. "Warrington does not allege that there was a likelihood that Camacho's youth or inexperience would cause Camacho to use the automobile in a manner involving unreasonable risk to persons that Rovira should have expected to be endangered. Warrington also fails to allege that Rovira had knowledge or reason to know that such a likelihood existed. Accordingly, Warrington has failed to state a negligent entrustment claim." Warrington, 2007 WL 3124674 at *1 (D.V.I.,2007). Similar to the plaintiffin Warrington, Plaintiff in this case also failed to allege in the Complaint that there was anything about Defendant Stephanie Scribner that would cause a reasonable person to believe that entrusting a vehicle to Defendant Stephanie Scribner would result inanunreasonable risk ofan accident.3 Although Plaintiff asserted that Defendant Robert Scribner entrusted "the vehicle to Stephanie E. Scribner when he knew or should have known thatDefendant Stephanie Scribner would have operated the vehicle in a manner which waslikely to cause serious injury to life, limb and property on the Virgin Islands Highway" and that "[w]hen Defendant Robert G. Scribner, Jr., entrusted the vehicle to Defendant Stephanie E. Scribner, he failed to take the necessary action to ensure that Defendant Stephanie E. Scribner would carefully operate the vehicle on the highways of the Virgin Islands," Plaintiff did not assert the "likelihood that Defendant Stephanie Scribner because of youth, inexperience, or otherwise would use the chattel in a manner involving unreasonable risk of harm to himself and 3In PlaintiffsComplaint, onlythe following paragraphs addressed theNegligent Entrustment claim. 9. Vehicle License No. CDJ-339 is owned by Defendant Robert G. Scribner, Jr., who assumes responsibility for thetorts of DefendantStephanieE. Scribner. 10. RobertG. Scribner,Jr., entrustedthe vehicle to Stephanie E. Scribner whenhe knewor should have known that Defendant Stephanie Scribner would have operated the vehicle in a manner which waslikely to cause serious injury to life, limb and property on the Virgin Islands Highway. 11. When Defendant Robert G. Scribner, Jr., entrusted the vehicle to Defendant Stephanie E. Scribner, he failed to take the necessary action to ensure that Defendant Stephanie E. Scribner would carefullyoperate the vehicle on the highwaysof the Virgin Islands. SHERWIN A. FLEMING v. STEPHANIE E. SCRIBNER and ROBERT G. SCRIBNER, JR. SX-08-CV-621 Memorandum Opinion others whom Defendant Robert Scribner should expect to be endangered" or "knowledge or reason to know by Defendant Robert Scribner ofsuch a likelihood." CONCLUSION The Court finds that Plaintiff has stated a claim for Negligent Entrustment against Defendant Robert Scribner but does not find Plaintiffs allegations to be sufficiently well- pleaded. The Court will grant Plaintiff leave to amend the Complaint. Accordingly, the Court will deny DefendantRobertScribner's Motion to DismissFor Failure to State a Claim. DONE and so ORDERED this & day of September, 2010. ATTEST: Vene^H^rvey-Velazquez Clerl till 4tClAL.^ vXlerk f^./),/> A Dated: 9/M//b 'HAROLD W. L. WILLOCKS Judge of the Superior Court CERTIFIER TO BE^TBUk COP3| Thi^^day ofJ&£C 20/jZ VENET3A H. VELAZQUEZ, ESQ. fourt Clerk /