IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
                              DIVISION OF ST CROIX

REINALDO M BERMUDEZ                                           )

                            V                       Plaintiff 1    CASE NO SX 2017 CV 00275
                                           1                         ACTION FOR DAMAGES
VIRGIN ISLANDS PORT AUTHORITY and AMERICAN )
INFRASTRUCTURE DEVELOPMENT INC             )
                                           )                              

                                                Defendants )

                         MEMORANDUM OPINION AND ORDER

‘11 1   Before the Court are Defendant Viigin Islands Port Authority 5 (hereinafter       VIPA )

Partial Motion to Dismiss Second Amended Complaint filed December 13 2021 asserting fai1u1e
to state a claim upon which relief can be granted Plaintiff Reinaldo M Bermudez 5 Opposition
filed December 28 2021 and VIPA 5 Reply filed January 18 2022 Additionally before the
Court are Defendant American Infrastiuctme Development Inc 3 (hereinafter AID ) Motion for
Reconsideration of Novembei 15 2021 Order Gianting Plaintiff‘s Motion for Leave to Amend
Fiist Amended Complaint         filed November 24     2021    Plaintiff Reinaldo M   Bermudez 5
Opposition filed December 17 2021 and AID .8 Reply filed December 31 2021 Also bef01e the
Conn are Defendant VIPA 8 Motion to Reconsider Court Older Gianting Plaintiff 5 Motion to
Amend First Amended Complaint filed December 13 2021‘ Plaintiff Reinaldo M Beimudez s
Opposition filed December 28 2021 and VIPA 5 Reply filed Januaiy 18 2021 F01 the lemons
that follow VIPA 5 Partial Motion to Dismiss will be denied and Defendants Motions for
Reconsideration will be denied

                                       BACKGROUND

‘1[ 2   At the time of the events giving me to this action Plaintiff was employed by Rumina
Construction Company on the VIPA premises at the Hemy E Rohlsen Airport AID is a Florida
corporation and at all relevant times W219 the general engineeting consultant for VIPA with regard
to its airpon improvement ploject at the Henry E Rohlsen Airport AID was responsible for
peiforming inspections of the work being done during the improvement project and reporting
results of those inspections to VIPA At the time of the incident VIPA maintained a gate (gate 17)
on its pioperty that was defective Neveithelefi gate 17 had been selected by VIPA as the gate by
Bemmdv 1 Virgin Islands PortAur/umn eta]    8X 20I7 CV 00275
Memmandum Opinion and Urdu
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which Rumina employees should access their jobsite On or about May 17 2017 Plaintiff was
directed to open the gate He alleges that when he attempted to do so the gate fell on him and
pinned him underneath causing his injuries

‘11 3   The Complaint was filed on June 21 2017 asserting a premises liability claim generally
alleging that VIPA was negligent On May 3 2019 Plaintiff filed a Motion to Amend the
Complaint granted by May 15 2019 Older to include AID as a party Defendant On November
9 2021 Plaintiff filed his Motion to Amend the Fiist Amended Complaint to include a claim of
gross negligence against Defendants Same was granted by Order dated Noxember 15 2021
Defendants Motions followed

                                           DISCUSSION

                                         Motion to Dismiss

‘1 4    Under Rule 12(b)(6) a party may seek dismissal of a pleading for failure to state a claim
upon which relief can be granted     V I R Civ P 12(b)(6) The Virgin Islands is a notice pleading

jurisdiction and rules of pleading require that a plaintiff s complaint stating a claim for relief must
provide a sh01t and plain statement of the claim showing that the pleadel is entitled to 1elief
VlR Civ P 8(a)(2) See Bum Serif            [m 1 Govtof the VI 

 659 2019 V121 ‘11

10 (VI 2019) Mills Williams 1        Wupp 

-1 583 (\ l 2017) The pleading must be
sufficient to put the defendant on notice of the claims brought against it Mills 1171111111213 67 V l u
585 (     the Vilgin Islands is a notice pleading jurisdiction         this language is calculated to
 applyll an approach that dec [mes to enter dismissals of cases based on failule to allege specific
facts which if established plausibly entitle the pleader to relief        ) (citing VlR Civ P 8
Reporter s Note) (emphasis in original)

‘11 5   Rule 12(b)(6) disallows a pleading 01 pontion of a pleading which fails to state a claim upon
which lelief can be granted In considering a motion to dismiss for such failtue a court must \ iew
all factual allegations in the complaint as true and must construe the complaint libetally in the light
most fax orable to plaintiff In a Rule 12(b)(6) motion      the issue is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled to otfet evidence to support the claim A
motion to dismiss for failure to state a claim upon which relief can be granted does not address the
merits of the claim but meiely tests whether the claim has been adequately stated in the complaint
Bezmude \ Vugm Islands Pthur/unm (10!       9X 2017 CV 00275
Memorandum Opinion and Urdu
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Yummndl mus 1m 1 A/IIIl/c 5 (1m (mp N0 81 2017 C V 00077 2017 V11 1 X18 9] at                         3
4(V1 Supu June 21 2017) (Citations omitted)

(11 6   Further     the pleading shall be set forth in separate numbered patagraphs as provided in
Rule 10(b) with sepznate designation of counts and defenses f0: each claim identified in the

pleading       VI R Civ P 8(a)(2) Here VIPA argues that Plaintiff 9 gross negligence claim muet
be dismissed because the Second Amended Complaint fails to plead the claim as a separate count
and because Plaintiff fails to state a claim upon which lelief may be granted In order to prevail on
a claim for gloss negligence in the Virgin Islands    a plaintiff 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 8
breach constituted the proximate cause of (4) damages to plaintiff Bratlmazte v szei 71 V I
1089 1111 2019 V126 ‘1131 (VI 2019)

‘11 7   The Superion Court has held that [2119 a matte: of fairness a plaintiff must allege separate
Claims sepatately in 01det to permit a defendant to intelligently respond to the complaint raising
the appropriate defenses and adequately defending against each claim In addition the Court may
not construe two Claims out of one claim and must be able to identify issues of common law
requiring aBmzks analysis to Older the applopriate btiefing This Court has instxucted that a
comp1aint should identify each claim and provide factual allegations sufficient to advise the
responding palty 0f the transaction or occurrence on which the claim is based       Bum: 1 Algal 

 78 2019 V1 Super 90 ‘11 8 (V 1 Supet 2019) (citing Tutenn Pam 

 (V I

Super 2006) ( the function of a pleading is        to inform the opposing party and the court of the
natule 0f the C1aims and defenses being asserted      We find that as a matter of fairness a plaintiff
must allege gross negligence as a separate claim f10m negligence in an action arising from the
Statute 120 V I C § 555(a) with exclusion ftom statutory cap for gross negligence] in order to

[36111111 a defendant to adequately defend against a claim of gross negligence )

‘11 8   Noting that a claim for ordinary negligence does not put a defendant on notice of a claim
for gross negligence if the claims are independent from one anothet        the Brunt court found that
claims of negligence and gross neghgence must be pled under sepaxate counts          Id 71 V I at 79
80 The claim of gross neg1igence requires pleading factual allegations that beyond a duty of care
Bermude 1 Vugm Islands PmIAthrmrx (Ia!      SX 2017 CV 00275
Memorandum Opinion and Order
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  demonstrate a wanton reckless indifference to the risk of injury to plaintiff      Bratlmatte I
Xauer 71 at 1111 Because a c1aim of gross negligence is different in quality rather than degree
from ordinary negligence each must be presented as an independent claim

‘11 9    Here while Plaintiff has not included any counts within his Second Amended Complaint
his gloss negligence claim is asserted independently in a separate numbered palagraph that puts
Defendants on notice of the claim and allows them to respond adequately The Second Amended
Complaint sets forth factual allegations that both Defendants were aware that gate 17 had been in
a damaged and dangerous condition for more than two yeals yet they failed and refused to iepair
it while requiring workers to use it f01 ingress and egress acts that allegedly demonstrate reckless
disregard fox the safety of the public in general and Plaintiff Specifically     Second Amended
Complaint ‘11 13 Separately Plaintiff alleges that Defendants failed to p1ace wa1 ning signs on the
gate or to discontinue its use

‘11 10   Despite Plaintiff 5 failure to include in the Second Amended Complaint separate
designation of counte for each claim as required by Rule 8(a)(2) he has provided a short and plain
statement of his Claims sufficient to put Defendants on notice of the claims against them A; such
in keeping with thejudiciaty s pleference for hearing matters on their merits rather than dismissing
claims for technical failures to follow procedural rules the pleading will not be dismissed for its
failure to designate separate counts for each claim

‘11 11   In addition to Plaintiff s failure to set out his negligence and gross negligence claims in
separate counts VIPA also at gues that Plaintiff 5 Second Amended Complaint fails to state a ciaim
for gloss neingence upon which relief may be granted requiring dismissal of that claim As noted
aboxe in order to adequately plead a claim of gross negligence a plaintiff must provide facts
alleging that the defendant breached a duty owed to the plaintiff in such a way as to demonstrate
a wanton leckless indifference to the risk of injury to Plaintiff and that such breach constituted a
proximate cause of damages to Plaintiff

‘11 12   The Second Amended Complaint alleges that in early 2015 AID was aware that three
separate gates including gate 17 were damaged and in a dangerous condition that continued for
at least two years while AID regularly reported the issue to VIPA but neither did anything to
rectify the ploblems Second Amended Complaint ‘119 Plaintiff also alleges that VIPA employed
Bemma'e 1 Vugmlslands P(ntAut/tmm era]      SX ”’0I7 CV 00275
Memmandum Opinion and ()Idu
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security officers in charge of inspections who knew 01 should have known of the dangerous
condition and ieported that to VIPA Despite this Defendants failed to repair the gate place any
warning signs or discontinue use of the gate Id ‘11 ll          14 Plaintiff alleges that these facts
demonsttate a wanton reckless indifference to the risk of injury to Plaintiff

(IE 13   VIPA howevel argues that the allegations of the Second Amended Complaint do not
amount to gtoss negligence as a mattet of law stating that the key element of gross negligence is
the state of mind of Defendant and assetting that Plaintiff has failed to plead facts that could
reasonably be constiued to show wanton 01 reckless indifference Despite Plaintiff s allegation
that Defendants knew that the gate was in a dangetous condition for more than two years VIPA
points to the lack of allegations of othei accidents or other injuries involving the gate or that VIPA
had knowledge that harm was likely to occur Yet Plaintiff notes that VIPA and AID were aware
of the damage to the gate and nonetheless required contractors to use the gate to access the
consttuction site

‘1] 14   At this stage of the pi oceedings the issue is not whether Plaintiff s gloss negligence claim
will survive a dispositive motion based upon eVidence in the record or whether Plaintiff will
ultimately preVail on the claim at tiial Rather Defendant s Rule 12(b)(6) Motion merely tests

whether the claim has. been adequately pled in the Second Amended Complaint and whethet
Plaintiff is entitled to offer evidence to support the claim A motion to dismiss for failute to state
a claim upon which lelief can be granted does not address the meiits 0f the claim but merely tests
whether the claim has been adequately stated in the pleading It will be Plaintiff s burden to piesent
exidence of gross negligence that is Defendants         wanton reckless behavior demonstrating a
conscious indifference to the health or safety of persons or property   Such proof must demonsttate
 moxe than any mere mistake resulting flom inexpeiience excitement 01 confusion and more
than mere thoughtlessness or inadvertence or simple inattention         Biathwazte 1 szer 71 at
l l 10 ll (citation omitted) In Brathnatte the Supteme Couit found that the piaintiff had failed to

piesent any eyidenee that the defendant was grossly as opposed to ordinatily negligent Here at
the pleading stage the Court is unwilling to detetmine as a matter of law that Plaintiff is foreclosed
from attempting to present such proof of which he has adequater given Defendant notice As such
VIPA 3 Partial Motion to Dismiss Second Amended Complaint will be denied
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Memorandum Opinion and Order
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                                             Reconsideration

‘11 15   Rule 6 4(b) of the Virgin Islands Rules of Civil Procedure provides that a motion to

1econside1 must be based on (1) intervening change in controlling law (2) availability of new

eVidence (3) the need to conect clear error of law or (4) failure of the court to address an issue

specifically raised prior to the court s ruling V I R Civ P Rule 6 4 Here Defendants AID and
VIPA request reconsideration of the Court 5 November 15 2021 Ordex granting Plaintiff 3 Motion
to Amend the FilSt Amended Complaint Rule [5(a) prOVides that the C0u1t should freely give
leave when justice s0 tequhes        V I R Civ P 15(a)(2)      Approptiate justifications for deviating
from the norm of freely granting leave to amend include but are not limited to undue delay bad
faith or dilatory motiVe 0n the pan of the movant repeated failure to cu1e deficiencies by
amendments pleviously allow ed undue prejudiee to the opposing party by viltue 0f allowance of
the amendment [and] futility of the amendment[] Bum Sen               Inc 1 G01 (of the VI 7l VI
652 666 67 2018 V121 ‘I[ 26 (V1 2019) (intemal quotations omitted)

‘11 16   AID states that the basis for its Motion for Reconsideration is twofold to correct a clear
em or of law in allowing the amendment based on the current discovety ree01d Plaintiff s bad faith
motive and the futility of the amendment and the fai1u1e of the Court to addtess issues that AID
intended to raise within 14 days of service of Plaintiff s Motion ' Defendants note that the parties
attended mediation on November 4 2021 which did not result in a resolution of the matter
Shortly thereafter Plaintiff filed his Motion to Amend the First Amended Complaint Defendants
further note that after the filing of Plaintiff 3 November 9 2021 Motion the Coutt enteted the
Ordet gtanting Plaintiff s requested telief just six days later despite VI R Civ P 6 1(D(1)
language permitting Defendants f0u1teen days to respond Defendants assert that because the Court
ruled on Plaintiff 5 Motion without hearing before the deadline for a response Defendants did not
have the opportunity to taise their objections for the Court s consideration Defendants further
assert that Plaintiff 5 Amendment is unduly prejudicial and was not filed to comport with new
information but instead was brought in bad faith less than a week after mediation impasse as
Plaintiff was aware of all pertinent infoxmation since at least December 2018 Additionally AID




' Defendant AID 5 Motion for Reconsideration at 2
Bemzude 1 lug": Islands PortAut/Imm (ta!   SX 2017 CV 00275
Memmandum Opinion and ()ldLl
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argues that Plaintiff 5 claim does not evidence conduct that uses beyond mete negligence to the
level of reckless indifference

‘l[ 17   The Court was not required to await a response before ruling on the Motion          Nothing
herein shall prohibit the Cou1t from ruling without a response 01 reply when deemed appropriate
V I R Civ P 6 l(f)(6) While Rule 6 4(b) allows [econsideration based upon the failure of the

Court to adchess an issue specifically iaised prim t0 the Court 5 ruling     Defendants simply argue
that the Court did not address the issues that they intended to iaise      As such reconsideration is
not warranted on the basis of the Cou1t s failure to address issues           specifically raised     by
Defendants prior to the Court 5 ruling

(ll 18   Defendants argue that granting Plaintiff leave to amend was unduly prejudicial To be
deemed unduly prejudicial the proposed amendment must unfairly disadV antage the nonmovant
 [Pliejudice to the non mming party is the touchstone for the denial of the amendment But the
non moving party must do more than meiely claim piejudice it must show that it was unfairly
disadvantaged Ol deprived of the opportunity to present facts or evidence which it would have
offeied had the      amendments been timely         Bet hie] 

 F 2d 644 652 (3d Cir
1989) (citations and internal quotations omitted)

‘ll 19   Defendants point to the Supeiior Court 5 denial of the plaintiff s pioposed amendment in
Turem 1 Pam as instructive That court found the plaintiff 8 proposed amendment to be unduly
prejudicial where the attempted amendment to include a claim of gross negligence was made on
the eve of trial attei the defendant had conceded liability such that the amendment would have
exposed the defendant to a potential award in excess of the $75 000 statut01y damages cap At that
late date the trial count determined that the defendant would have been hampered in his ability to
mount a complete defense See 48 V I at 109

ll 20    Heie factual discmeiy is Closed but the deadlines for expert discoveiy and dispositive
motions have not passed In their Motions Defendants have not identified necessary factual
discoveiy of which they will be deprived or why the factual discovery to date is inadequate to
defend claims of gross negligence that are based upon the same alleged acts and omissions
underlying Plaintiff 5 01dinaiy negligence claim Because Defendants still have the opportunity to
Belmude l Virgin Islands PonAutlmIm er a]    SX 2017 CV 00275
Memorandum Opinion and Urdu
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adequately defend the claim they are not unfairly disadV antaged ox unduly prejudiced by the
amended pleading

‘11 21   As to AID s allegation that Plaintiff s Second Amended Complaint was filed in bad faith
no such inference can be drawn simply from the fact that the filing came shortly after the patties
failed to resolve their dispute in mediation Plaintiff s“ rebuttal that waiting until mediation failed
to resolve the case was simply to avoid unnecessaiy filings is just as credible as the amendment
would have been moot had the case been settled at mediation

RE 22    AID also at gues that Plaintiff 5 amended pleading was not based on new facts as Plaintiff
states but upon information obtained in disCOV e1 y seVeral years ago As such the recent
amendment comes too late and should properly be rejected on account of Plaintiff s undue delay
AID posits that such delay coupled with Plaintiff s improper motive and the futility of the
amendment are grounds tequiiing denial of the amendment Yet undue delay without more is
not sufficient grounds to deny lane to amend          Dam“ l UHF Pnyects Inc         74 V I 525 538
2021 V15 ‘11 19 (VI 2021) (citations omitted)

‘11 23   As noted Defendant s claim 01 bad faith on account of Plaintiff s impropei motive is‘
without eVidentiary support and the Court has found that the gross negligent claim in the Second
Amended Complaint is not futile as it adequately contains a shoxt and plain statement of the claim
sufficient to put Defendants on notice of the glow negligence claim against them

‘11 24   In its Motion VIPA aigues that the Order permitting Plaintiff s Second Amended
Complaint is significantly prejudicial to VIPA and its litigation strategy as it substantially iaises
VIPA s exposure by potentially overiiding the statutory cap on damages Specifically 29 V I C §
556(0) and ((1) limit VIPA s exposute in an adverse personal injury judgment to $75 000 except
whete them is a finding of gloss negligence
         (c) No judgment may be tendered against the Authority in excess of $75 000 in any
         suit or action against the Authority with iespeet to any injury to 01 loss of property
         01 personal injury 01 death that
         (l) is caused by the negligent or wrongful act or omission of an employee of the
         Authority while acting within the scope of the employee 5 employment under
         circumstances where the Authority if a private person would be liable to the
         claimant in accordance with the law of the place where the act or omission occurred
         or
Bumude l Vugm Islands PmrAm/zmm (I a!          8X 20W CV 00275
Memorandum Opinion and Olden
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         (2) occurs in connection with the use of the Authoxity 5 facilities
         (d) Paragraphs (1) and (2) of subsection (e) do not apply if the injury loss of
         propelty 01 death is caused by the gioss negligence of an employee of the Authority
         while the employee is acting within the scope of employment
29 V I C §556(c) and (d)

‘11 25   VIPA notes that it now faces the potential for an adveise judgment in excess of $75 000
arguing that it is prejudiced because factual discovery is closed preventing it from mounting a
complete defense to the gross negligence claim VIPA points to Tutem where the Superior Court
found sufficient prejudice to deny the plaintiff s assertion on the eve of tiial of a new gross
negligent claim Six years aftei the complaint had been filed in that action the parties stipulated
to a proposed final pretrial order where the defendant conceded negligence liability and a lack of
contributory negligence in the underlying motox vehicle accident However in the same filing the
plaintiff asseited for the first time the existence of a legal issue   whether the defendant had been
grossly negligent such that the $75 000 statutoxy cap became inapplicable Set 48 V I at 102 03

‘I[ 26   VIPA aigues that like the defendant in Tutem because of the amended pleading it will be
pievented f1 om mounting a complete defense to the new gross negligence claim VIPA claims that
its trial stiategies are affected and that it cannot now engage in other 01 different discovery that it
would have undertaken had it known earliet of the gloss negligence claim Yet VIPA has~ not
asserted any partu 111cm ed prejudice that it would sutfex if the amendment were permitted      Dai 19
t UHF P}()jeCIS Inc 74 V I at 537 (emphasis in Oiiginal) Acknowledging that prejudice to the
opposing party or the tiial court as the most important factor in deteimining whethei leave to
amend should be fieely given       the Supreme Court in Dam? reversed the Superior Court 5 denial
of the plaintiff s motion to amend based on the fact that an amendment would require additional
discoveiy and the lack of notice to the defendant evidenced that it may not have utilized the
discovery piocess to its full potential   [d

‘1[ 27   Unlike in Tutem no trial date has been set in this case Two days after the Coutt granted

Plaintiff leave to file his Second Amended Complaint the patties stipulated to extend expert
diseoxeiy deadlines Those expert disemeiy deadlines will be extended again ma sponte to
account for the period the present Motions have been pending Plaintiff now attempts to assert
gross negligence The Superior Court in Tutem found that the late amendment sought would have
Belmua’e t Vugm Islandt PmIAuflzmm (I a!        9X 2017 CV 00275
Memorandum Opinion and Urdu
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 essentially prevented Defendant fiom mounting a complete defense to the claim such as
obtaining expert ieports by an accident reconstructionist       48 V I at 109

‘I[ 28       Despite VIPA 5 Claim of unfair prejudice it has presented nothing to demonstrate that the
Couit 5 Older has depiived it of the oppOItunity to present evidence at trial or to otherwise justify
the Court 8 deviating from the nOim of fieely granting leave to amend           Dan? 74 V I at 536 37
(citing Bum Sen         Inc 71 V I at 667 and Remolds 1 Rolm 70 V I 887 899 900 2019 V18 (V I

2019)) The existence of the statutory cap does not play a role in determining prejudice to VIPA
in defending the gross negligence claim as the tact of the cap has no effect on the ability of the
parties to present facts supporting Oi negating Plaintiff 5 claims

(I 29        As Defendants have failed to point to any clean error of lav» warranting reconsideration of
the Court 5 November 15 2021 Ordei granting Plaintiff 5 Motion to Amend the First Amended
Complaint both Motions for Reconsideration will be denied Accordingly 0n the basis of the
foregoing it is hereby

             ORDERED that Defendant Vilgin Islands P01t Authority 5 Partial Motion to Dismiss
Second Amended Complaint is DENIED It is fmther

             ORDERED that Defendant American Infrastructure Development Inc s Motion for
Reconsideration of November 15 202] Order Granting Plaintiff 5‘ Motion for Lean: to Amend
First Amended Complaint is DENIED It is further

             ORDERED that Defendant Vitgin Islands Port Authority 5‘ Motion to Reconsider Couit
Older Granting Plaintiff 3 Motion to Amend First Amended Complaint is DENIED It is further

             ORDERED sua sponte that the dates set out in the Fou1th Scheduling Older filed
NOVember 29 2021 are amended as follows

         1   Plaintiff 3 Expert Disclosures pursuant to V I R Civ P 26(a)(2) shall be submitted by
             April 15 2022
     2       Defendants Expert Disclosu1es pursuant to V I R Civ P 26(a)(2) shall be submitted by
             June 15 2022
     3       Expert depositions shall be completed by August 1 2022
     4       A11 dispositive motions shall be filed by September 30 2022
Bermudez v Vugm Islands Port 4uthor1ty er al   SX 2017 CV 00275
Memorandum Opinion and Order
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     5   The Status Conference, now set for April 7 2022, is continued to Thursday June 23 2022,
         at 9 00 a In via Zoom




DATED March / C022                                        :4                              %
                                                        DOUGLAS A BRADY                       DGE
                                                                                      /
ATTEST
TAMARA CHARLES
Clerk of the Court
                                                                  Distribution List
            WV/                                                   Lee} Rohn Esq
By                                                                Robert] Kuczynski Esq
     Court Clerk Supemisor                                        Andrew C Simpson Esq
         §// 57,2432,