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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX REUBEN DOWLING ) ) CIVIL CASE NO SX 11 CV 510 Plaintiff ) ) ACTION FOR DAMAGES V ) ) GRAPETREE SHORES INC ) 2020 VI Super 58U ) Defendant ) MEMORANDUM OPINION AND ORDER 1] 1 Before the Court is Defendant Grapetree Shores, Inc ’3 (GSI) Motion for Summary Judgment (Motion), filed February 11, 2015, supplemented by its Supplement to Motion for Summary Judgment, filed March 21, 2019 By Order entered June 28, 2019, the request ofpro se Plaintiff Reuben Dowling was granted, permitting him an additional 60 days within which to respond to GSI 5 Motion Plaintiff has filed no reSponse For the reasons that follow, GSI’s Motion will be granted and Plaintiff s Complaint against GSI will be dismissed with prejudice 11 2 James Hunter, formerly a named Defendant in this matter,l was hired by GSI as General Manager of the Divi Carina Bay Resort as of June 15, 2009 and served in that position on December 1, 2009 2 At approximately 10 45 p m on December 1, 2009, while driving separate vehicles, Plaintiff and Hunter were involved in a motor vehicle accident on Lowry Hill Road, St Croix, from which this lawsuit arises 3 Hunter resided at the Divi Resort as part ofhis employment package with GSI, and normally completed his shift at 6 00 p m On the day of the accident after he completed his shift, Hunter travelled 6 15 miles to Cheeseburgers in America’s Paradise, not affiliated with GSI where he ate a personal meal 4 The accident occurred after Hunter left Cheeseburgers, while Hunter was not engaged in any activity relating to his employment, was not ' Defendant Hunter’s Motion to Enforce Settlement was granted, and Plaintiff‘s Complaint against Hunter was dismissed with prejudice by Order entered March 6, 2019 2 GSI Motion, Ex B, February 2, 2015 Affidavit of Valerie Caldwell, Corporate Comptroller 1] 5 3 GSI Motion, Statement of Undisputed Material Facts (SOF) unopposed, T 7 ‘ Id 11117 10 14 Memorandum Opinion and Order Dowlmg v Grapetree Shores Inc SX 1 1 CV 510 2020 VI Super 58U furthering any business interest of GSI and was not operating the vehicle at the direction of GSI Following the accident, Hunter was arrested and charged with Driving Under the Influence of an Intoxicating Liquor and Reckless Driving, among other charges All charges against Hunter were dismissed by Order of the Superior Court entered April 19 2010 6 At the time of the accident, Hunter was 58 years old and a had a valid unexpired driver’s license issued by the State of California Prior to the accident, GSI had no knowledge or reason to believe that Hunter, by reason of youth, inexperience or otherwise, would operate a motor vehicle in a manner involving unreasonable risk of harm to himself or others 5 ‘ 3 Plaintiff’s Complaint against GSI alleges that at the time and place of the accident, Hunter was in the course and scope of his employment with GSI, was driving a vehicle which was under the control and dominion of GSI, and that GSI negligently entrusted the vehicle to Hunter when it knew or had reason to know that he was not a safe driver and would be negligent 9 LEGAL STANDARD ll 4 In evaluating a motion for summary judgment, the Court must determine whether there exists a genuine dispute of material fact; one that would impact the outcome of the case under applicable law Machado v Yacht Haven US V1 LLC 6] VI 373 379 80 (VI 2014) (quoting Williams v I ruled ( orp , 50 V I 191 194 (V I 2008)) ‘ Summary judgment is a drastic remedy [and] should be granted only when the pleadings, the discovery and disclosure materials on file, and any affidavits Show there is no genuine issue as to any material fact,” and that judgment is appropriate as a matter of law Id at 379 80 Such a dispute is genuine if the evidence is such that a reasonable trier of fact could return a verdict as to that factual issue in favor of the nonmoving party 1d at 391 92 5 Id 111111 12 Caldwell Affid ll 15 6 The Court takesjudicial notice ofthe records ofthe Superior Coult in Gov t ofthe Vlrgm Islands v Hunter (SX 09 CR 670) 7 GSI Motion SOF1] 7 and Ex I 8 Id 111114 15 CaldwellAffid 111127 28 9 Complaint 1H] 6 ll Memorandum Opinion and Order Dowlmgv Grapetree Shores Inc SX 11 CV 510 2020 VI Super 58U T! 5 Reviewing Defendant 3 Motion the Court does not weigh the credibility of the evidence offered Instead, all inferences from the evidence are drawn in favor of the nonmoving party, and any conflicting allegations, if properly supported by the record, are resolved in favor of the nonmovant See Perez v Ritz ( arlton (i I ) Inc 59 VI 522 527 (VI 2013) (citing Williams 50 V I at 194 95} The moving party bears the burden ofdemonstrating the absence ofany genuine issue of material fact Martin v Martin 54 V I 379 389 (V I 2010) Only if the moving party discharges this initial obligation does the burden shift to the nonmoving party to introduce some evidence showing the existence of a genuine issue of material fact See Perez, 59 V I at 527 28 At this point, “the nonmoving party may not rest on its allegations alone, but must present actual evidence, amounting to more than a scintilla, showing a genuine issue for trial ” 1d at 527 DISCI SSIO.\l 'r 6 By its Motion and documentation submitted in support GSI has demonstrated that there are no genuine issues ofmaterial fact in dispute relative to Plaintiff‘s claims that GSI is vicariously liable for the negligence of its employee who Plaintiff alleges, was in the course and scope of his employment at the time of the accident and that GSI is directly liable to Plaintiff for negligently entrusting a vehicle to Hunter when it knew or should have known that Hunter 5 use of the vehicle constituted and unreasonable risk of harm to Plaintiff and others By the presentation of such evidence in the summary judgment record GSI has met its burden on the Motion shifting the burden to Plaintiff to show the existence of genuine issues of material facts that have a bearing upon Plaintiff’s claims against GSI Because Plaintiff has filed no response to GSI’s Motion, the facts as presented are deemed established” and the Court looks to the question of whether GS] is entitled to judgment as a matter of law See V I R Civ P 56(a) Vicarious Liabilig 11 7 Plaintiff‘s respondeat superior action against GSI is premised upon his allegation that Hunter was “acting within the course and scope of his employment with Grapetree Shores” at the ‘0 “The trial court must accept as true the facts stated in an unopposed motion for summary judgment ” Walters v Walters 60 V 1 768 796 (V I 2014) (citing Halliday v Footlocker Spectalty Inc 53 V l 505 512n11(V12010)) Memorandum Opinion and Order Dowlzngv Grapetree Shores Inc SX 11 CV 510 2020 VI Super 58D time of the accident ” “Whether an employee is acting within the course and scope of his employment is generally a question of fact, however, when the facts are undisputed, the Court may decide these questions as a matter of law ” Paul v Abramson Enterprises Inc , 64 V I 269, 273 (VI Super 2016) (citing Brunn v Dowdye 59 V I 899 905 06 (V I 2013) {I 8 To defeat GSI’s Motion and specifically, to permit the issue of whether at the time of the accident Hunter was acting within the course and scope of his employment with GSI to be presented to a trial jury, Plaintiffmay not rest on the allegations of his Complaint alone, “but must present actual evidence showing a genuine issue for trial ” Perez, 59 V I at 527 11 9 The only evidence in the record as to the issue was presented through the affidavit ofGS! s comptroller to the effect that after he completed his shift on December 1 2009 Hunter was not on company business, was not furthering his employer’s interests during and after partaking of a personal meal at Cheeseburgers, and was not operating the vehicle at the direction of GSI That evidence in the summary judgment record shifted the burden to Plaintiff as nonmovant to identify evidence from which at least a contrary inference might be drawn Instead, Plaintiff filed no response to GSI’s Motion and the evidence ofthe fact that Hunter was not acting within the course and scope of his employment remains unopposed and must be accepted as true As such, GSl is entitled to a finding as a matter of law that Hunter was not acting for or on behalf of the interests of his employer at the time of the accident Accordingly, GSI’s Motion will be granted and Plaintiff’s vicarious liability claim against GSI will be dismissed with prejudice Negligent Entrustment 1i 10 While the Supreme Court has not set forth the elements required to establish liability on a claim of negligent entrustment, case law in the Virgin Islands, like that in the majority of jurisdictions has consistently applied the provisions of § 390 of the RESTATEMBNT (SECOND) OF TORTS '2 This Court follows that precedent, adopts the reasoning and finding of Faulkner with respect to the standards of proof for a claim of negligent entrustment in the Virgin Islands, and " Complaint, 1] 6 ‘2 See Faulkner v Gov I of the V I 60 V I 65 89 (V1 Super 2014), conducting Banks analysis and iiSeIZeanining ‘that the Rt S KAT! MENT (SECOND) OF TORTS § 390 represents the soundest rule for the Virgin Memorandum Opinion and Order Dowlmgv Grapetree Shores Inc SX 11 CV SlO 2020 VI Super 58U looks to Section 390 of the RESTATEMENT (SECOND) OF TORTS to determine whether GSI may prevail on its Motion on Plaintiff‘s negligent entrustment claim One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them RESTATEMENT (SECOND) OF TORTS § 390 1| 1 1 Although it is unclear from the record, GSI has not denied that the vehicle Hunter drove at the time of the accident was entrusted to him by GSI Yet GSI suggests that it neither knew nor had reason to know that because of Hunter’s youth, inexperience, or otherwise, that he would be likely to use a vehicle entrusted to him in a manner involving an unreasonable risk of physical harm to himself and others In factual support of its Motion, GSI presents the affidavit of its comptroller Valerie Caldwell Ms Caldwell states that Hunter presented his application for the Divi Resort general manager position to Divi’s central office in North Carolina Divi’s Human Resources manager performed basic reference checks and referred Hunter to GSI GSI interviewed and hired Hunter ‘3 At the time of his hiring by GSI Hunter was 58 years old and possessed a valid, unexpired California driver’s license " GSI had no knowledge or reason to believe that Hunter, because ofyouth, inexperience or otherwise, would operate a motor vehicle in any manner involving unreasonable risk of harm to himself or others ' ll 12 The record reflects that Hunter was arrested following the December 1 2009 accident for driving while intoxicated, reckless driving and other charges Those charges were dismissed by Order ofthe Superior Court entered April 19, 2010 '6 GSI has no information whether Hunter was intoxicated at the time of the accident ’7 and the record is devoid of any evidence of Hunter‘s history of motor vehicle violations or use of alcoholic beverages n Caldwell Affid ll 6 '4 Id 117 '5 Id 1m 27 28 '6 Motion, Ex 2 '7 Caldwell Affid 1| 26 Memorandum Opinion and Order Dowlmg v Grapetree Shores Inc SX 11 CV 510 2020 VI Super 58U 1f 13 Accepting the truth, as we must of GSI’s presentation of unopposed facts, GSI is entitled to judgment as a matter of law as to Plaintiff‘s negligent entrustment claim as there is no genuine issue of material fact in the record that could support a jury finding that 081 knew or should have known that Hunter would operate a motor vehicle in any manner involving unreasonable risk of harm to himself or others Without presentation of any facts that could support a jury finding or inference of that necessary element of proof, Dowling’s negligent entrustment claim cannot survive GSI’s Motion For the reasons set forth herein it is hereby ORDERED that GS] 5 Motion for Summary Judgment is GRANTED It is further ORDERED that Plaintiff’s Complaint against Grapetree Shores Inc is DISMISSED with prejudice 7 x DATED May if? 2020 '~ (m Ig “by” J DOU LAS A BRADY JUDGE ATTEST TAMARA CHARLES Clerk of the Court / W By Court Clerk 39me DISTRIBUTION LIST Plaintiff, pro se Ryan C Meade Esq Kyle R Waldner Esq Gregory Kubarych Esq