IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
WILLIAM DESMOND AND TRACY i
DESMOND No SX 2018 CV 00048
Plaintiffs,
v ACTION FOR DAMAGES
VIRGIN ISLANDS WATER AND POWER JURY TRIAL DEMANDED
AUTHORITY and HAUGLAND ENERGY
GROUP LLC 2022 VI SUPER 85
Defendants
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Defendant Haugland Energy Group LLC s
(“Haugland”) Motion for Summary Judgment (“Motion”), filed December 1, 2021 Plaintiffs’
Opposition was filed January 31 2022 and Haugland 5 Reply was filed March 11 2022 For the
reasons explained below, Haugland’s Motion will be denied
BACKGROUND
On December 8, 2017, PlaintiffWilliam Desmond (“Desmond”), a journeyman electrician,
was supervising a crew for James Adams Electric, LLC (“Adams Electric”) at a private residence
The crew was getting a generator running and preparing the residence, Plot 135 Estate Shoys, St
Croix, for restoration of electric power following Hurricane Maria Deposition of William
Desmond (“Desmond Dep ”) at 31, 96; Affirmation of James Adams (“Adams Affirmation ’), 1]
5 1
Upon arrival that day, Desmond observed that there was no power at the guard station or
in other portions of Estate Shoys Plaintiff's Statement of Facts( Opp SOF ) 11 38 At Plot 135
Desmond “observed two telephone poles broken in half on the street and numerous meters
‘hanging and flapping all over the place’ in the area they were going to work ” Id at 1] 39 (citing
Desmond Dep at 32; Affirmation of Aldrin Clint Cherry( Cherry Affirmation ), Affirmation of
Michael Le Blane (“Le Blane Affinnation’ )) Prior to beginning work, Desmond and another
Adams Electric employee, Clint Cherry (‘ Cherry”), confirmed by voltage meters that no electricity
was flowing to the lines on which they would be working Id at 111] 40 44 In his deposition,
Desmond stated that “if there had been any chance of electricity flowing anywhere in the area,”
he would have had someone reach out to WAPA Id at 111] 54 55 (citing Desmond Dep at 61 182)
1 Only those facts relevant to the disposition of the Motion are addressed herein, treated in the light most favorable to
the non moving party Basw Sens Inc \ Gm tofthe V I 71 V1 652 659 (V I 2019)
Desmond v V]WAPA & Haugland Energz SX 2018 CV 00048
Memorandum Opinion and Order
Page 2 of 8 2022 V I SUPER 85
He further stated that he was never told to turn off the power at the pole” because there was no
power that needed to be turned off Id at 11 55 (citing Adams Affirmation, Le Blane Affirmation) 2
Haugland had been contracted by WAPA “to restore power, perform debris cleanup, and
construct the new composite pole project afier Hurricanes Maria and Irma in 2017, and was
responsible for all of the restoration work with regard to Feeder 2A in St Croix,” which services
the east side of the island including the Estate Shoys neighborhood Opp SOF at 1111 6 ll 12
100 3 Under WAPA 5 protocol, if a house had a damaged meter base or weatherhead, “that
customer was not permitted to be reenergized ” [d at 11 20 Further, Haugland ‘ had a protocol
where they had to run trucks up and down the area of reenergization” prior to reenergizing any
area, and if they came across someone working on a meter base in an area ready to be energized
during the pre energization sweep, ‘ all work would be stopped until the situation was rectified ”
1d at1|1| 56 77
While performing repair work on the day in question, Desmond ‘ never saw any Haugland
Energy trucks or personnel in the Estate Shoys area Opp SOF at 11 56 However, while Desmond
and Cherry were repairing the meter base at 135 Estate Shoys, “the lines were unexpectedly
energized ’ and, as a result, Desmond was electrocuted Id at 1111 58 61 Following the injury, ‘ Clint
ran down and found a Haugland Energy employee who came up to 135 Estate Shoys and
apologized for the incident Id at 11 63 The unidentified employee told Desmond that due to
what WAPA had showed them on their maps, that the line they were energizing was not the line
they meant to energize and the homes on the street with 135 Estate Shoys were not in fact ready
to be energized Id at 11 64 (citing Desmond Dep at 43; Cherry Affirmation) The employee also
told Desmond that ‘ Haugland never sent trucks through the 135 Estate Shoys area that day because
the area was never supposed to be energized and Haugland immediately turned off the power
because they realized it was a hazard ’ Id at 11 68 (Desmond Dep at 51) “[James] Adams testified
that he saw a bucket truck from Haugland Energy in the Shoys neighborhood on December 8,
2017 but not near 135 Estate Shoys [d at 11 82
According to Plaintiffs, some of the mapping information WAPA gave Haugland ‘ was
outdated as far as specific pole locations Id at 11 88 (citing Haugland Dep at 29) 4 Afier
2 “I did not tell William Desmond to contact WAPA to turn off the power at the pole nor did I do so because there was
NO POWER to the home at 135 Estate Shoys so there was no need to have WAPA ‘tum off the power at the pole ”
Adams Affirmation at 11 7 (emphasis in original)
“There would have been no need to call WAPA prior to doing work on the home at 135 Estate Shoys on December 8,
2017 to tell them to disconnect the power at the pole, because there was no power and the area was not yet ready for
reenergization ” Le Blane Affinnation at 11 7
3 See 30(b)(6) Deposition of Haugland by Anthony Jalbert ( Haugland Dep ) at 13 30(b)(6) Deposition of WAPA
by Niel Vanterpool ( WAPA Dep )at 28 9
‘ Anthony Jalbert 5 full response to the question posed paints a different picture than that urged by Plaintiffs The
relevant part of the exchange was as follows
Q Now, did Haugland Energy ever have an issue with inaccurate coordinates being given by WAPA to
Haugland Energy?
Desmond v VIWAPA & Haugland Energy SX 2018 CV 00048
Memorandum Opinion and Order
Page 3 of 8 2022 V I SUPER 85
Desmond s injury and conversation with the unidentified Haugland employee, Desmond lefl the
job and ‘ the power had turned back off" and no power was flowing to the lines around 135 Estate
Shoys Id at 1| 91 92 On his way home, Desmond saw some Haugland line trucks at Ziggy’s Island
Market, and he stopped to tell them ‘1 just got electrocuted off of one of your Haugland guys ”
Opp SOF at 1“] 94 96
LEGAL STANDARD
A court “shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law V I R
Civ P 56(a) When considering a summary judgment motion, a court should view the evidence in
the light most favorable to the non moving party Basw Servs Inc 71 V I at 659 (citing Machado
v YachtHaven U S V] LLC 61 V I 373 379 (V I 2014)) Once the moving party has identified
the portions of the record that demonstrate no issue of material fact, ‘the burden shifts to the non
moving party to present affirmative evidence from which a Jury might reasonably return a verdict
in [their] favor ’ ’ Rymer v Kmart Corp , 68 V I 571, 576 (quoting Chapman v Cornwall, 58 V I
431 436 (V I 2013))
The court ‘ must take the non moving party’s conflicting allegations as true ‘if supported
by proper proofs Kennedy Fundmg Inc v GB Props Ltd 73 V I 425 431 (V I 2020)
(quoting Williams v United Corp 50 V I 191 194 (V I 2008)) The evidence the non moving
party may rely on to show a genuine dispute for trial ‘ may be direct or circumstantial, ‘but the
mere possibility that something occurred in a particular way is not enough, as a matter of law, for
a jury to find it probably happened that way Id at 431 (quoting Saldana v Kmart Corp 260
F 3d 228, 234 (3d Cir 2001)) Thus, to survive the summary judgment stage, the non moving
party’s evidence must ‘ amount to more than a scintilla but may amount to less (in the evaluation
of the court) than a preponderance ” Saldana, 260 F 3d at 232
An affidavit in support or opposition has been found by the Virgin Islands Supreme Court
to be “an appropriate vehicle to establish a fact for summary judgment purposes,‘ but the affidavit
must set forth facts, not conclusory statements ” Baszc Servs Inc , 71 V I at 664 (internal citations
and quotation marks omitted) ‘ When an affidavit sets forth ‘facts that are unsupported by the
documents in the summary judgment evidence, the affidavit is conclusory Id (internal citations
omitted)
DISCUSSION
In support of its Motion, Haugland argues that Plaintiffs’ negligence claims “point to no
evidence that Haugland either (I) owed a duty to notify [Desmond] prior to energizing the St
Croix power grid; or (2) is the entity which in fact did energize the wire [Desmond] was holding
A I would say no Uhm well let me rephrase that. Some of their information was a little outdated as far as
the pole specific pole locations But in terms of direction of feeders and lines, those were those were
pretty on point
Haugland Dep at 29 (emphasis added)
Desmond v VIWAPA & Haugland Energy SX 2018 CV 00048
Memorandum Opinion and Order
Page 4 of 8 2022 V I SUPER 85
when he was shocked As such, Haugland argues that Plaintiffs’ ‘ negligence claim fails for both
lack of duty and lack of proximate cause ” Motion, at 1, l3 5 6
Haugland characterizes Plaintiffs’ position on Haugland s duty to Desmond a duty to go
‘ door to door to warn everyone outside that the power was going to be turned on in the area” as
a “conclusory allegation” for which there is no factual basis ’ that can be established Id at 14
Conversely, Haugland argues that Desmond had a duty ‘ to contact WAPA and request a
disconnect prior to working on any wires above the meter box, a duty Haugland asserts Desmond
breached Id at 14, 18 As to causation, Haugland argues that ‘ record evidence show[s]
[Haugland] was not located in, or doing work on, any of the power lines connected to the Shoys
neighborhood where [] Desmond claims he was shocked Id at l Haugland further assets that its
only connection to the events in issue is that one of its line crews just happened to be the first one
located after the incident [d at 21
Plaintiffs oppose summary judgment, arguing that genuine issues of material fact exist as
to both Haugland’s compliance with the duty owed and as to causation Plaintiffs claim that
Haugland “owed Desmond a duty of care to properly (I) inspect the meter base at 135 Estate Shoys
for energization eligibility, (2) isolate the service drop to 135 Estate Shoys due to its meter base
being damaged and being ineligible for energization, in preparation for energization of the
remainder of the Estate Shoys neighborhood; and (3) to perform the required Haugland Energey
and WAPA protocol, circuit sweep of the Estate Shoys area prior to energization of that area ’
Opposition, at 6 Plaintiffs argue there are disputed issues of fact as to whether Haugland breached
such duty Plaintiffs argue fimher that whether Haugland s breach of a duty to perform a necessary
circuit sweep, inspect the meter base, and isolate the service drop prior to energizing Estate Shoys
was a proximate cause of Desmond’s injuries is a genuine issue of material fact, which must be
determined by the fact finder at trial Id at 5 6 18
In reply, Haugland argues that Plaintiffs have fail[ed] to cite any record evidence which
would plausibly suggest that Haugland took any action which caused electricity to power the
service drop at 135 Estate Shoys,” in] uring Desmond Reply, at 1 Haugland also argues that
5 The foundational elements to make out a claim of negligence in the Virgin Islands are (l) a legal duty of care to the
plaintiff; (2) a breach of that duty by the defendant; (3) which constitutes the factual and legal cause of; (4) damages
to the plaintiff Machado 61 VI at 380 Whether a defendant breached a legal duty is a question of fact, but the
existence and nature of a legal duty are generally questions of law to be determined by the court Robbins v Port of
$ale Inc 2018 VI LEXIS 110 *8 (VI Super Oct 10 2018) (citing Seam Christan“ Sunny Isle Shopping Ctr
Inc , 52 V I 410, 420 (V I 2009)) (other citations omitted) “Although foreseeability is implicated to some degree in
every element of negligence, each element requires a distinct and separate analysis ’ Aubam v Kazz Foods Inc , 70
VI 943, 950 (VI 2019) (internal citations omitted) Haugland’s Motion challenges only the issues of duty and
causation, and this analysis is similarly focused
‘5 Haugland funher argues that Tracy Desmond’s loss of consortium claim, as “a derivative claim," cannot proceed
absent a viable tort claim, and that since summary judgment is appropriate as to Desmond’s negligence claims, the
loss of consortium claim also fails Motion, at 22 3 Plaintiffs respond that the existence of genuine issues of material
fact precluding summary judgment on the negligence claim also requires denial of the Motion as to the derivative loss
of consortium claim Plaintiff's Opposition to Summary Judgment Motion (“Opposition”), 19
Desmond v VIWAPA & Haugland Energy SX 2018 CV 00048
Memorandum Opinion and Order
Page 5 of 8 2022 V I SUPER 85
Plaintiffs rely on speculation that Haugland took action that caused Desmond’s injuries,
“unsupported by any admissible evidence Id at l 2 Specifically, Haugland argues that the facts
upon which Plaintiffs rely are inadmissible hearsay that do not qualify as agent admissions under
Virgin Islands Rule of Evidence 801(d)(2)7 or any other exception to the hearsay rule, and thus
cannot be considered for purposes of summary judgment 8 Id at 10
The Court first considers what duty, if any, Defendant Haugland owed to Plaintiffs The
question whether Haugland’s conduct conformed with the standard of conduct required by a duty
is a question of fact, but the question whether a duty actually existed is a question of law, generally
decided by the court See Robbins, 2018 V I LEXIS at *8 9 In discerning whether a duty exists a
court must consider (1) the reasonable foreseeability of the injury, (2) the likelihood of injury,
(3) the magnitude of the burden of guarding against the injury, and (4) the consequences of placing
that burden on defendant ” Aubam v Kazz Foods, 7O V I at 950 (citation omitted); see also Service
v Iszdor Patewonsky Assoczates Inc 2022 VI SUPER 8U 1[ 12 (V I Super 2022) The Virgin
Islands Supreme Court has recognized that “foreseeability permeates every element of a
7 (d) Statements That Are Not Hearsay A statement that meets the following conditions is not hearsay
(2) An Opposing Party’s Statement The statement is offered against an opposing party and
(A) was made by the party in an individual or representative capacity,
(B) is one the party manifested that it adopted or believed to be true,
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party’s agent or employee on a matter within the scope of that relationship
and while it existed; or
(E) was made by the party 3 coconspirator during and in furtherance of the conspiracy
The statement must be considered but does not by itself establish the declarant s authority under (C); the
existence or scope of the relationship under (D), or the existence of the conspiracy or participation in it
under (E)
3 The statements upon which Plaintiffs rely are set out in Opp SOP 1H] 63 4 and 66 70 as follows
63 After the lines were energized and Desmond was electrocuted, Clint ran down and found a Haugland
Energy employee who came up to 135 Estate Shoys and apologized for the incident
64 The Haugland Energy employee told Desmond that due to what WAPA had showed them on their maps,
that the line they were energizing was not the line they meant to energize and the homes on the street with 135
Estate Shays were not in fact ready to be energized and arcing was happening
66 The Haugland employee showed Desmond a map that WAPA had given him showing energization work
that was being done approximately three blocks away and that the area that Desmond was working in should
have never been energized, which the Haugland employee told Desmond was due to the fact that the 135 Estate
Shoys line had been looped onto the area that Haugland Energy was currently were [sic] working on,
unbeknownst to them
67 Desmond was shown a digital map on an iPad of the Shoys area that showed what Haugland was energizing,
and the map showed the 135 Estate Shoys area in a different circuit
68 Haugland never sent trucks through the 135 Estate Shoys area that day because the area was never supposed
to be energized and Haugland immediately turned off the power because they realized it was a hazard
69 The Haugland employee further told Desmond that Haugland was supposed to send cars up and down any
area to be reenergized and the reason they didn t send anyone was because Haugland had not planned on
reenergizing that area from what WAPA showed them on the iPad schematic
70 The Haugland crew told [Cherry] that they were aware that an individual was electrocuted and were
surprised as power was not supposed to be on in the area of 135 Estate Shoys and the crew then sent someone
to go to 135 Estate Shoys (internal citations omitted)
Desmond v VIWAPA & Haugland Energy SX 2018 CV 00048
Memorandum Opinion and Order
Page 6 of 8 2022 V I SUPER 85
negligence claim Aubam, 70 V I at 949 Regarding a defendant’s duty to a plaintiff,
foreseeability is ‘ the touchstone of the quality of an act as negligence, the most important test in
determining [the existence of] duty ’ Id (citing Renslow v Mennonite Hosp , 367 N E 2d 1250,
1258 (Ill 1977))
In this case, the record and common sense indicate that WAPA and Haugland were aware
of a foreseeable risk of harm to persons exposed to electrical lines when those lines became
energized in a particular geographic area WAPA’s protocol prohibited any house with a damaged
meter base or weatherhead from being reenergized Opp SOF, at 1| 2O 9 Prior to reenergizing an
area, Haugland had trucks run up and down the area to assure it was ready to be reenergized Id
at 1| 53 '0 Haugland’s safety observer testified that all work would be stopped if, during the
inspection sweep of an area to be reenergized, someone was found working on a meter base in the
area Id at1|77 ”
The Court finds that Haugland had a duty of reasonable care to prevent foreseeable harm
during the process of reenergizing the power lines There is a foreseeability of injury in that
process, and a likelihood of injury if done without reasonable care The burden to guard against
such injury is minimal, as are the consequences of placing that burden on Haugland It is not
necessary to find that, before energizing a particular area, Haugland had the specific duty to drive
throughout a neighborhood or to go door to door to inspect the meter box and weatherhead on
every house Suffice it to say, Haugland had a duty of reasonable care to sufficiently inspect an
area prior to reenergization to assure that there was no foreseeable danger of harm to any persons
working on or in close proximity to the power lines to be energized Whether Haugland’s conduct
at the time of the incident in issue conformed to its duty is a question of fact not now before the
Court, which makes no findings about what specific conduct would be deemed sufficient to meet
that duty of reasonable care '7
Having found that a duty exists, the Court next considers the element of causation
Causation has two parts, ‘ cause in fact and legal causation, which is often referred to as proximate
cause ” Brady v Cmtron, 55 V I 802, 823 (V I 2011) (quoting Fedorczyk v Caribbean Cruise
Lines Ltd 82 F 3d 69 73 (3d Cir 1996)) (internal quotation marks omitted) In order for the
negligent act to be regarded as the cause in fact of the injury, it must be shown that the injury
would not have occurred but for the act ” Id at 823 24 (citing Fedorczyk, 82 F 3d at 73)
9 So there couldn t be any visible damage to the roof of the service location, and there couldn t be any visible damage
to the weatherhead or meter box where the service drops would be reconnected to 80 based on the contractor s
assessment if they saw that any one of those conditions were questionable, then they should not reconnect that service
location WAPA Dep at 35
" Haugland Energy 5 protocol was to have a pickup truck with a foreman driving around an area prior to energization
to ensure that everything would be ready for energization prior to doing so Adams Affinnation at 1| 9
” If someone was working on one of the meter bases during the inspection prior to reenergization, “[t]he work would
all be stopped until that situation was rectified " Deposition of James Milton DeBoer (“DeBoer Dep ’) at 22 23
" Plaintiffs repeatedly argue that Haugland was required to perform according to “WAPA protocol ’ However,
WAPA’s internal procedures do not necessarily equate with the legal duty of reasonable care owed to Plaintiffs by
Haugland Ultimately, the finder of fact will determine whether Haugland s conduct met its duty of reasonable care
Court Clerk Supervisor
10/06/2022
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
District of St. Croix
WILLIAM DESMOND et al, Case Number: SX-2018-CV-00048
Plaintiff Action: Damages
v.
VIRGIN ISLANDS WATER AND POWER
AUTHORITY et al,
Defendant.
NOTICE of ENTRY
of
Memorandum Opinion and Order
To: Lee J. Rohn, Esq., Ryan C. Meade, Esq.
Jennifer Koockogey, Esq. Douglas L. Capdeville, Esq.,
Please take notice that on October 06, 2022
a(n) Memorandum Opinion and Order
dated October 05, 2022 was/were entered
by the Clerk in the above-titled matter.
Dated: October 06, 2022 Tamara Charles
Clerk of the Court
By:
Iris Cintron
Court Clerk Supervisor