IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN
)
TARIQ DAVIS, a minor, by his parents and next friends ) Case No. ST-2009-CV-00070
DIANNE BYNOE and ROOSEVELT DAVIS, and )
DIANNE BYNOE and ROOSEVELT DAVIS on their own)
behalf, ) ACTION FOR DAMAGES
)
Plaintiffs )
)
VS )
)
)
AMERICAN YOUTH SOCCER ORGANIZATION )
VIRGIN ISLANDS AMERICAN YOUTH SOCCER )
ORGANIZATION, THE UNIVERSITY OF THE )
VIRGIN ISLANDS, and LAVAR BROWNE )
)
)
Defendants
)
2024 VI Super 47U
MEMORANDUM OPINION
ql THIS MATTER is before the Court on Defendant’s American Youth Soccer Organization
and Virgin Islands American Youth Soccer Organization (“Defendants” or jointly “AYSO” or
AYSO defendants”) Motion for Summary Judgment, filed on February 21, 2020.! For the reasons
set forth herein, the court will deny the Defendant’s motion
' Plaintiffs filed an opposition on April 27, 2020. The Court finds that the opposition was filed in a timely manner
pursuant to the March 22, 2020 Administrative Order issued by the Supreme Court that extended the filing deadlines
due to COVID-19
While Defendant AYSO filed two Motions for Extension of Time to File Reply to Plaintiffs’ Responses in Opposition
BACKGROUND AND PROCEDURAL HISTORY
qj2 On February 12, 2009, Plaintiffs Tariq Davis, a minor, and his parents, Dianne Bynoe and
Roosevelt Davis (“Plaintiffs”) filed this action for premises liability and negligence against AYSO
and Defendant University of the Virgin Islands, for injuries arising out of an incident that occurred
on February 17, 2007, when Plaintiff Tariq Davis (“Tariq”), while at UVI’s soccer field before his
soccer game hosted by AYSO, ran into the roadway abutting the field to chase an errant soccer
ball and was struck by a car.” Dianne Bynoe and Roosevelt Davis sued in their individual capacities
as well as on behalf of their minor son, Tariq
q3 Previously, on February 17, 2015, AYSO filed a Motion for Partial Summary Judgment
against Plaintiff Dianne Bynoe. In that motion, AYSO argued that Dianne Bynoe filled out and
signed the 2005 Player Registration Form that included an exculpatory provision that released
AYSO from all claims Tariq have against AY SO, and that that form continued to bind the Plaintiffs
to the next soccer season, when the accident occurred. AYSO argued that their computer records
indicate Tariq was a registered player in 2007 and players do not have to fill out a form every year
so the 2005 registration form was still in effect at the time Tariq suffered injuries in 2007. Plaintiff
Dianne Bynoe countered that AYSO has used different registration forms, had annual registration
periods and collected fees annually
q4 On May 18, 2016, the court issued a Memorandum Opinion and Order denying AYSO’s
Motion for Partial Summary Judgment against Plaintiff Dianne Bynoe.’ The court found that there
? Plaintiffs also sued Defendant University of Virgin Islands, But the claims against that defendant are not pertinent
was a genuine issue of material fact whether any Registration Form was in effect at the time of the
accident because both parties disputed the duration of the agreement, which is material to a
contract. The court found that several different conclusions as to the duration of the registration
form were available to a reasonable jury, and thus the court denied the motion for partial summary
judgment
q5 On July 20, 2016, AYSO filed a Motion for Reconsideration of the court’s May 18, 2016
Order Denying Defendants American Youth Soccer Organization’s and Virgin Islands American
Youth Soccer Organization’s Motion for Partial Summary Judgment Against Plaintiff Dianne
Bynoe. AYSO argued that the court should reconsider the May 18, 2016 Order on the grounds that
they had new evidence: an affidavit from Rebecca Garlington, AYSO’s Regional Registrar during
the 2006-2007 season outlining the procedures upon which players were registered and further
identified the player registration form she used when she registered Tariq for the 2006-2007
season’; and a deposition of John McDonald, VI AYSO’s Coach Administrator for the 2006-2007
season which provided further evidence relating to the registration forms and Rebecca
Garlington’s role as Registrar.> Both pieces of evidence were obtained by AYSO after filing the
Motion for Partial Summary Judgment against Plaintiff Dianne Bynoe, but before the court issued
the May 18, 2016 Order.
+ Defendants filed a blank copy of the Player Registration Form for the 2006-2007 season with the court. but
Defendants do not have a copy filled out or signed by either of Tariq’s parents
UNDISPUTED MATERIAL FACTS®
!. On the day of the accident, Tariq and his father, Plaintiff Roosevelt Davis, arrived at
the UVI field at approximately 8:45 a.m
2. On February 17, 2007, at around 9:45 a.m., Tariq Davis, who was 9 % years old at the
time, ran out into Julian Jackson Drive from between two parked cars to chase after an
errant soccer ball on the adjacent roadway and was hit by an SUV being driven by
Defendant LaVar Browne
3. At the time, Tariq was a member of AYSO, which regularly utilized the UVI field for
its young members, who ranged from ages four (4) to nineteen (19), to practice and
play soccer.
4. The speed fimit on Julian Jackson Drive where the accident occurred was 10 miles per
hour
5. The athletic field is owned by Defendant UVI, not AYSO, and is open to the public
° According to V.I. R. Civ. P. 56(c){2)(B), “‘a party opposing entry of summary judgment must addregs in a separate
section of the opposition memorandum each of the facts upon which the movant has relied pursuant to subpart (c)(1)
of this Rule, using the corresponding serial numbering, either: (i) agreeing that the fact is undisputed for the purpose
of ruling on the motion for summary judgment only; or (1i) stating that the fact is disputed and providing affidavit(s)
or citations identifying specifically the location(s) of the material(s) in the record relied upon as evidence relating to
each such material fact, by number.” Plaintiffs have failed to do that in this case, only providing their own list of
facts rather than addressing Defendant AYSO’s statement of facts. Additionally, according to V.I. R. Civ. P
56(c)(3), a movant shall respond to any additional facts asserted by the non-moving party by filing a response using
the corresponding seria! numbering of each such fact to state whether the fact is disputed or not. AYSO failed to do
that in this case. Thus, the Court may act in accordance with V_I. R. Civ. P. 56(e), which permits the court to
6. Julian Jackson Drive is a public roadway owned by the Government of the U.S. Virgin
Islands and is adjacent to the UVI athletic field. AYSO had no right or ability to close
off Julian Jackson Drive or limit who utilized that street
7. The northern edge or perimeter of the field was the same elevation as the adjacent
road
8. At the time, Roosevelt Davis was a volunteer assistant coach for AYSO on Tariq’s
youth soccer team
9. Tariq Davis was not on the UVI athletic field when he was struck by the motor
vehicle
10. At all times material hereto, the field was an open, unfenced field with no barriers to
separate it from the adjacent roadway.
11. AYSO did not have the authority to build a fence on UVI’s athletic field or erect any
type of barrier on the field
12. There is no evidence that the UVI athletic field had any hidden dangers or was in any
way inherently unsafe; and there is no evidence AYSO created any dangerous
condition or that any dangerous condition existed on Julian Jackson Drive on the
morning of February 17, 2007.’
13. AYSO advised the parents to have their children report early to UVI’s field to warm up
before their scheduled game
14. After arriving at the field, Tariq was kicking the ball with other AYSO players at the
far western end of the athletic field
15. Roosevelt Davis remained seated in the bleachers on the eastern part of the athletic
field
16. On February 17, 2007, between 9:00 and 9:45 a.m. there was no AYSO soccer game
going on at the western end of the UVI field
17. As a result, Tariq was struck by a Suzuki SUV driving westbound on Julian Jackson
Drive and suffered severe injuries
18. The driver of the SUV was Defendant LaVar Browne
19. From September 6, 2003, through and including February 17, 2007, Tariq Davis was a
registered player with AYSO
20, Ms. Rebecca Garlington was the Registrar for AYSO on St. Thomas during the 2006
2007 season, and that she was personally responsible for entering the player
registration information onto AYSO’s national computer system
21. The 2006-2007 Player Registration Form contains the following exculpatory clause
I, the undersigned parent or guardian . . . hereby enter into the following agreements
IN CONSIDERATION OF Player’s being able to participate in any way at
practices, games or other activities (“EVENTS”) sanctioned by the American
Youth Soccer Organization (“AYSO”) as well as IN CONSIDERATION OF
myself, Player and anyone else we may invite to attend being able to enter into or
upon the premises or facilities where the EVENTS are or will be taking place
I HEREBY RELEASE, DISCHARGE AND AGREE TO HOLD
HARMLESS, to the fullest extent permitted by law, AYSO, its players
employees, volunteers, officials, sponsors and other representatives and any and all
owners, lessors, lessees or other persons or entities allowing, permitting or
or other damage that may result to said participant or to members of my family
or my household or individuals | invite or for whom I am otherwise responsible
while participating in or present at any of the EVENTS, WHETHER FROM
THE NEGLIGENCE OF THE RELEASES OR OTHERWISE. | further
acknowledge that AYSO is primarily administered by volunteers rather than paid
professionals
I further acknowledge that this Disclaimer, Assumption of Risk and Waiver is
intended to be as broad and inclusive as permitted by the law of the state in which
we live
22. English is Bynoe’s native language, and she admits to being proficient in the English
language
23. Bynoe is college educated and worked for the V.I. Department of Health as a
Community Education Specialist, and then as a training coordinator for the V.I
Division of Personnel, and she testified that she understood the terms contained in the
Player Registration form’s release, discharge and hold harmless provision
LEGAL STANDARD
16 Rule 56 of the Virgin Islands Rules of Civil Procedure contains the legal standard on a
ruling for a motion for summary judgment. V.I. R. Civ. P. 56(A) provides that
A party may move for summary judgment, identifying each claim or defense - or the part
of each claim or defense - on which summary judgment is sought. The 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. The court should
state on the record the reasons for granting or denying the motion
Additionally, V.1. R. Civ. P. 56(c)(1) states that “‘[e]ach summary judgment motion shall include
a statement of undisputed facts in a separate section within the motion.” The undisputed fact shall
be “supported by affidavit(s) or citations identifying specifically the location(s) of the material(s)
in the record relied upon regarding such fact.”
47 A moving party for summary judgment bears the burden of showing no genuine issue of
any material fact exists and that it is entitled to judgment as a matter of law.’ After the moving
party has met its burden, the opposing party “must present actual evidence showing a genuine issue
for trial.””'® The opposing party “must provide more than a scintilla of supporting evidence to
survive a motion for summary judgment.”"' As such, “[t}he non-moving party may not rest upon
mere allegations but must present actual evidence showing a genuine issue for trial.””!
q¥8 V.I. R. Civ. P. 56(c)(2)(B) provides that “a party opposing entry of summary judgment
must address in a separate section of the opposition memorandum each of the facts upon which
the movant has relied.” Additionally, the opposing party must either agree “that the fact is
undisputed for the purpose of ruling on the motion for summary judgment only” or it must state
the fact is disputed and providing affidavit(s) or citations identifying specifically the location(s)
of the material(s) in the record relied upon as evidence relating to each such material fact, by
number.”!3
q? In Antilles School, Inc, v. Lembach, the Virgin Island Supreme Court held that a judgment
as a matter of law is appropriate after “considering all of the evidence the court concludes
8 VIR. Civ. P. 56(c)(1)
9 VIR. Civ. P. 56(a)
Allahar v. 2DD Bjerge Grade, LLC, 2022 VESUPER 18U, at *15 (V.I. Super. C1. Feb. 10, 2022) (citing Williams
v. United Corp.. 50 V.1. 191. 194 (V.1. 2008))
" Fd. (citing Anderson v. Am. Fed'n of Teachers, 67 V.1. 777, 788-89 (V1. 2017) (citing Perez v. Ritz-Carlton
(Virgin Islands), Inc., 59 VA. 522, 527-28 (V1. 2013)))
2 Greenleaf Commons, LLC v. St. John Day Spa & Salon, LLC, 2021 V1 SUPER 2U, at *8 (V.L. Super. Ct. Jan. 11
2021) (citing Anthony v. FirstBank Virgin Islands, 58 V1. 224, 229 (V.1. 2013) (quoting J¥illiams. 50 V.L. at 194
that a reasonable jury could only enter judgment in favor of the moving party.”'4 Summary
judgment is a “drastic remedy” and only proper where “the pleadings, the discovery and disclosure
materials on file ... show that there is no genuine issue as to material fact{.]?!>
410 Asthe moving party, the Defendants have the initial burden of demonstrating that there are
no genuine issues as to any material fact
DISCUSSION
11 Inanegligence action, the Plaintiff must satisfy a four-factor test: “(1) a legal duty of care
to the plaintiff, (2) a breach of that duty of care by the defendant, (3) constituting the factual and
legal cause of (4) damages to the plaintiff.”'®
q12 In a premises liability action, the Plaintiff must satisfy the same four-factor test as
traditional negligence claims.'’ The Supreme Court “has recognized foreseeability as ‘the
touchstone of premises liability in the Virgin Islands’ because foreseeability permeates every
element of a negligence claim.”!®
q13 “Given the subjective nature of this test, ‘this Court’s jurisprudence has consistently
favored—wherever possible—the adjudication of negligence cases by a jury, a preference codified
by the Legislature in 5 V.1.C. § 1451(a), instead of by a single judge at summary judgment.’”””
4 64 VI. 400, 409 (V.E. 2016)
'S Rogers v. Gov't Emplovees' Ret. Sys. of United States Virgin Islands, 2022 V.1. LEXIS 45, at *14 (V.L. Super. Ct
May 10. 2022) (citing Anthony, 58 V1. at 228) (quoting Iilliams, 50 VI. at 194)
'6 Machado v. Yacht Haven Grande USV.1, LLC, 61 V.E. 373, 380 (V4. 2014)
7 Dover y. Univ, of the V1, 2020 V.1. LEXIS 29, at *7 (V.1. Super. Ct. 2020)
414 For the AYSO Defendants to prevail they must show that there are no issues of material
facts, that they had no legal duty to plaintiffs, or if they did, AYSO and VI AYSO did not breach
the duty. In their motion, the AYSO Defendants argue that: (1) there is no evidence that AYSO or
VI AYSO ever assumed a duty to supervise Tariq on February 17, 2007 because Tariq and his
father arrived hours before Tariq’s scheduled game; (2) paramount responsibility for supervising
Tariq rests with his father, not AYSO or VI AYSO; (3) the AYSO Defendants did not own or
control UVI athletic field, so they had no duty to fence or enclose the field; (4) even if the AYSO
Defendants had a legal duty to supervise Tariq and violated that duty, their alleged negligence was
not the proximate cause of Tariq’s injuries because LaVar Browne’s speeding in a school zone
was an intervening superseding cause; and (5) the AYSO Defendants contend that Tariq’s mother,
Dianne Bynoe, filled out and signed the Player Registration Form for the 2006-2007 season, which
included a valid enforceable release, discharge and hold harmless provision which bars the
Plaintiffs claims and requires them to hold AYSO harmless for all costs and expenses.”
qi5S For the AYSO Defendants to prevail, the court must find that the record includes sufficient
undisputed facts to entitle the AYSO Defendants to a summary judgment.”!
" In raising this issue, Defendants AYSO are renewing their Motion for Reconsideration of Court’s May 16, 2018
Order Denying Defendants American Youth Soccer Organization's and Virgin Islands American Youth Soccet
A. There is a genuine dispute of material facts as to whether AYSO had a duty to
adequately supervise Tariq Davis at the time of the accident
G16 =AYSOand VI AYSO argue that they had no legal duty to supervise Tariq when the accident
occurred. They contend that Tariq was not engaged in any AYSO game, practice, or pre-game
warm-up, he was simply kicking a soccer ball around with friends at the field. Therefore, they
argue, AYSO and VI AYSO had no duty to supervise Tariq at the time of the accident, and as a
result they did not negligently supervise Tariq. In addition, they argue that since Tariq’s father
Roosevelt Davis, was at the field, Davis had a duty to supervise Tariq
q17 Plaintiffs counterargue that Tariq was not just kicking around with his friends: he was
engaging in a pre-game warm-up prior to his scheduled AYSO game. While AYSO and VI AYSO
contend that Tariq arrived at the field hours prior to his scheduled game, Plaintiffs contend that
there was a conflict in the game schedule, unknown to them at the time, and the game was supposed
to be earlier: that is, closer to their arrival time. Plaintiffs also argue that there is an issue in dispute
as to when a player should arrive at the field before a scheduled game. AYSO contends that,
according to their manual, players should arrive 15-30 minutes prior to their scheduled game
However, the Plaintiffs contend that VI AYSO advised the parents to have their children arrive
“early” to warm-up prior to their scheduled game
418 To establish a cause of action for negligence, the defendant must have a duty of care
towards the plaintiff. The AYSO Defendants argue that a duty to adequately supervise Tariq never
began because he was not engaged in an AYSO-sanctioned activity: he was simply playing with
his friends.” However, Plaintiffs argue that Tariq was engaged in an AYSO-sanctioned activity
he was warming up for his upcoming game with his teammates.” These contrary “facts” advanced
by the two sides constitute a genuine issue of material fact. Whether Tariq was engaged in a pre
game warm-up 1s a question of fact that may only be determined by the jury. This determination
is material to decide whether the AYSO Defendants had a duty to adequately supervise Tarig and
his teammates at the time of the accident and/or if Davis was the sole legal supervisor. If Tariq had
been engaging in a pre-game warm-up, then he was likely the responsibility of AYSO and VI
AYSO. But if Tariq had simply been kicking around with his teammates, a jury may decide that
AYSO and VI AYSO may have had duty to supervise him at the time of the accident
B. There is a genuine dispute of material facts as to the proportion of fault, if any,
apportioned to Plaintiffs
q19 The AYSO Defendants also argue that they had no legal duty to supervise Tariq because
Tariq’s father, Roosevelt Davis, had the paramount responsibility of supervising his child as
Tariq’s father.” They argue, therefore that since Tariq’s father was present to supervise him and
allowed him to go over to the far western end of the field, the duty to supervise Tariq remained
with his father, not the AYSO Defendants
» This argument is supported by Def.’s Mt. Summ. J., at Exh. 10, Dec. 5, 2013 R. Davis Dep.. at p. 137:8-18
139:17-19; Exh. 12. April 9, 2014 AYSO 30(b)(6) dep., at p. 96:4-8, 10-15, 18-21 & 141:3-145:19: Exh. 13. “U-10
Coaching Manual” at pg 15-17; and Exh. 4, Willis Aff. 4] 14, 18, & 19
3 This argument is supported by Pl."s Opp., at Exh. G., 2013 R. Davis Dep., p. 137; Exh. H.. AYSO Incident Report
Form; and Exh. R., Uniform Traffic Accident Report
4 This argument is supported by Def.’s Mot. Summ. J., at Exh. 10. 2013 R. Davis Dep., at pp. 4153:2-20, 161:5
420 Plaintiffs counter by reasserting that Tariq was engaged in a pre-game warm-up, which is
an authorized AYSO activity. Thus, Plaintiffs argue the AYSO Defendants had a duty to provide
Tariq and his teammates with adequate supervision.”> Further, Plaintiffs assert that the AYSO
Defendants’ argument directly conflicts with 5 V.I.C. § 1451(a), the Virgin Islands contributory
negligence statute, which states
[iJn any action based upon negligence to recover for injury to person or property,
the contributory negligence of the plaintiff shall not bar recovery, but the damages
shall be diminished by the trier of fact in proportion to the amount of negligence
attributable to the plaintiff.”°
421 Contributory negligence may only bar recovery if the trier of fact finds the plaintiff more
at fault than the defendant.”’ The V.1. Supreme Court has held that “if there is evidence suggesting
that a plaintiffs actions contributed to her own injury it must be presented to the jury, which may
then allocate fault accordingly under section 1451(a).*
422 Tariq’s father, Roosevelt Davis (“Davis”), is one of the plaintiffs in this case and he was
present at the UVI filed on the day Tariq was struck by a car. The AYSO Defendants argue that
Davis’s “paramount responsibility” as a father to supervise his child trumps a landowner’s duty to
warn, supervise or protect a child from obvious dangers which the parent is aware of. In
accordance with 5 V.I.C. § 1451(a), even if both AYSO and Roosevelt Davis were negligent, a
determination of what proportion of fault is attributable to each party is a factual dispute that should
be decided by the jury
5 See supra note 22
5 VIC. § 1451 (a)
C. There exists a genuine dispute of fact whether AYSO was a land possessor that owed
a duty under the theory of premises liability to make it safer for its young players
AYSO and VI AYSO argue that they did not have an obligation to erect a fence or enclose
423 UVI’s athletic field because AYSO did not own the athletic field or have a right to fence
or enclose the field and the athletic field was open to the public.”
424 = Plaintiffs do not dispute that AYSO did not own the field or that the field was open to the
public. However, they argue that AYSO selected and utilized the field for its young members’ use,
and that while utilizing the field, AYSO was in control of the field for the purpose of making sure
that those AYSO sanctioned activities were conducted safely. Therefore, Plaintiffs argue AYSO
and VI AYSO had a responsibility to select and maintain a safe playing facility at the time of the
incident.”
425 An action for premises liability may be brought against the landowner and/or the land
possessor.*' The Virgin Islands has not yet defined a land possessor in regards to premises liability
claims. Thus, pursuant to Banks, the parties briefed the issue of the definition of a land possessor
of the athletic field.*
” This argument is supported by Def.’s Mot. Summ. J., at Exh. 8. UVI 30(b)(6) dep., at pp. 30:7-13, 32:5-18, 78:16
79:8, 96:23-97:5, & 99:8-23
*° Pl.‘s Opp., at Exh. C., Mr. Tobin dep., at pp. 97, 109-10, & 131-35; Exh. O., Adalio Araujo dep.. at pp. 8-10, 12
64-65, & 93-94; Exh. V.. Lynn Freehill, 9-vear-old accident victim still unconscious. V.L. Daily News. at t (2008)
3! See Polanco v. Southern Holdings, LLC, 2024 V.1. 8, at *P7 (V.1. 2024)
A. The Court conducted a Banks analysis to define the term “land possessor” and
adopts a definition that focuses on a party’s control over the premises
depending upon whether the party could foresee any harms resulting from the
conditions of the premises
426 = Ina Banks analysis, courts must consider three non-dispositive factors: (1) “whether any
Virgin Islands courts have previously adopted a particular rule;” (2) “the position taken by a
majority of courts from other jurisdictions;” and (3) “which approach represents the soundest rule
for the Virgin Islands.”*?
1. There are two cases in the Virgin Islands that are similar to this case
(27 The closest the Virgin Islands has come to defining a land possessor is when the Virgin
Islands Supreme Court decided Polanco v. Southern Holdings, LLC.“ In Polanco, the Supreme
Court overturned summary judgment in favor of a property owner that had leased the property to
another.*> The Supreme Court held that despite subleasing the property, the landowner was still a
land possessor for purposes of premises liability because they had reserved a legal right to reenter
the premises and remedy any dangerous conditions caused by the tenant.** The Court emphasizes
the importance of foreseeability over the label of the defendant, reiterating that “’foreseeability
is the touchstone of the existence of the duty of reasonable or ordinary care’ in premises liability
actions because ‘liability for such foreseeable harms is based on the possessor’s superior
knowledge of the property.”
3 Gov't of the Virgin Islands v. Connor, 60 V1. 597 (V1. 2014)
342024 V.1. 8 (V.1. 2024)
8 Id. at *P3
q28 While Polanco is like this matter, Polanco involved a landowner that was not in active
legal possession of the property. Whereas, in this case, neither AYSO nor VI AYSO own the
subject athletic field or the adjacent street, nor do they have a formal agreement with the landowner
(UV]) granting them explicit possession of the property
q29 However, before Polanco, the Superior Court had defined a land possessor in Henry v. V.1
Water & Power Auth.*® That case, however, was decided prior to Gov't of the Virgin Islands \
Connors*’, and the court had not been required to conduct a Banks analysis. Instead, the court, “in
the absence of ‘local law to the contrary,’” applied the Restatements.*” Although the Superior
Court did not conduct a Banks analysis, they did define land possessor using Restatement (Third)
of Torts: Liability for Physical and Emotional Harm § 49, discussed below.*!
2. A majority of jurisdictions have adopted Restatement (Second) of Torts § 328E as a
definition for “land possessor.”
430 AYSO proposes the adoption of Restatement (Third) of Torts: Liability for Physical and
Emotional Harm § 49, which states
A possessor of land is
(a) a person who occupies the land and controls it;
(b) a person entitled to immediate occupation and control of the land, if
no other person ts a possessor of the land under subsection (a); ot
(c) a person who had occupied the land and controlled it, if no other
person subsequently became a possessor under subsection (a) or (b).*”
8 2012 V.E LEXIS 56 (V.I. Super. Ct. 2012)
° 60 VL. 597 (V.I1. 2014)
” Henry, 2012 V.1. LEXIS at fn. 24
“Td. at *8 (the court cited to Restat. 3d of Torts: Liability for Physical and Emotional Harm § 52 in its opinion
however, this citation is incorrect, as it actually quotes § 49)
* Restat. 3d of Torts: Liability for Physical and Emotional Harm § 49. See Brenner v. Amerisure Mut. Ins. Co., 2017
q31 = Plaintiffs do not propose the adoption of a specific Restatement section, rather they ask
that the court put more emphasis on a defendant’s possession, occupation, and control of a property
than whether the defendant is a landowner. They cite to several jurisdictions that define a land
possessor as ‘. a person who is in occupation of land with the intent to control it.”
932 In conducting its own analysis, the court reviewed Restatement (Second) of Torts § 328E
which states
A possessor of land is
(a) a person who is in occupation of the land with the intent to control it or
(b) a person who has been in occupation of land with intent to control it, ifno other
person has subsequently occupied it with intent to control it, or
(c) a person who is entitled to immediate occupation of the land, if no other person
is in possession under clauses (a) and (b).**
q33 Restatement (Second) of Torts § 328E and Restatement (Third) of Torts: Liability for
Physical and Emotional Harm § 49 are both very similar except that §328E defines the previous
occupier as the land possessor if no one is occupying the land with intent to control it, whereas
8 See Cashman v. U.S. Postal Service, 1989 U.S. Dist. LEXIS 4232, fn. 2 (Me. 1989) (this court cites to Restat. 2d of
Torts § 325E (1965)): Erickson v. Brennan,
513 A.2d 288, 289 (Me. 1986) (this court cites to Restat. 2d of Torts §
325E (1965)); Lemmons v. Evcon Indus.,
2011 U.S. Dist. LEXIS 147079, *9 (D. Kan. 2011) (this court cites to Restat
2d of Torts § 328E), Cohen, 63 F. Supp. 3d at 139 (as stated above, this case cites to Restat. 3d of Torts: Liability for
Physical and Emotional Harm § 49)
“4 Restat. 2d of Torts § 328E. See Vanterpool v. CTF Hotel Mgmt. Corp.,
2013 U.S. Dist. LEXIS 158582, *13-*14
(D. V.L. 2013): Muckey v, Dittoeetal,
235 Neb. 250, 253 (1990); Davis v. City of Philadelphia, 987 A.2d¢ 1274, 1279
(Commw. Ct. 2010); Prestwood v. Taylor,
728 S.W.2d 455, 459-60 (3d. Ct. App. 1987); Coulson v. Huntsman
Packaging,
121 Wn. App. 941 (App. Div. 1 2004); Kloiber v. Jellen,
207 Conn. App. 616, 625 (Conn. App. 2021)
Tompkins v. Bonnie Plants, Inc.,
2021 U.S. Dist. LEXIS 1060, *9 (E.D, Ken. 2021): Drum v. Northrup Grumman
Sys.,
560 Fed. Appx. 733, 739 (10th Cir. 2014); Brakeman v. Theta Lambda Chapter of Pi Kappa Alpha. 2002 lowa
App. LEXIS 1258, *5 (lowa App. 2002); O'Connell v. Turner Constr, Co,,
409 Ill. App. 3d 819, 824 (Ist Dist. Ct
under § 49 the party entitled to immediate occupation is the land possessor unless someone is
occupying the land. More jurisdictions appear to have adopted § 328E instead of § 49
3. The soundest rule for the Virgin Islands to adopt is a definition of “land possessor”
that focuses on a party’s control over the premises and whether the party could
foresee any harm resulting from conditions on the premises
434 The court, in choosing which definition of “land possessor” to adopt, looked at which
definition most closely aligned with current premises liability law in the Virgin Islands
435 In Machado v. Yacht Haven U.S.V.L, LLC®, the Supreme Court abolished the
classifications of entrants onto the land, emphasizing the importance of foreseeability over the
status of the entrant.*° Polanco put this same emphasis on foreseeability over whether a landowner
had actual possession at the time of the incident.*’ This focus on foreseeability over individual
classification is a modern negligence trend, and more closely aligns with the Restatement (Third)
of Torts: Liability for Physical and Emotional Harm rather than the Restatement (Second) of Torts
Therefore, the soundest rule for this court to adopt is Restatement (Third) of Torts: Liability for
Physical and Emotional Harm § 49
61 -V.1. 373 (VL. 2014)
B. The Court finds that there is a genuine dispute of material fact as to whether
AYSO and/or VI AYSO were {and possessors of the UVI athletic field
436 It is undisputed that the AYSO Defendants are not the owners of the UVI athletic field
However, Plaintiffs contest that the AYSO Defendants were land possessors that were in control
of the field for the purpose of ensuring games and practices were conducted safely. As stated
above in Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 49(a), a land
possessor is, firstly, a “person who occupies the land and controls it.“* To be a land possessor in
control of the land for purposes of premises liability
Occupation and control can be demonstrated by ownership of the land, adverse
possession, or any other control of the land where the person has the ability to take
precautions to reduce the risk of harm to entrants on the land.””
Black’s Law Dictionary defines occupation as “possession; control; where a person exercises
physical control over land.”°° At the time of the incident, the AYSO Defendants were present at
the athletic field and had regularly used the field, but there is no evidence that they had actual
possession over the field, like a tenant or landowner, such that they could physically control the
field
437 Plaintiffs do not dispute that the AYSO Defendants could not fence the area or enclose it
in some manner. Instead, Plaintiffs argue the AYSO Defendants had a duty to make sure games
and practices were conducted safely, and that included selecting a safe venue for those activities
For example, while the news article Plaintiffs cite to in their argument states that AYSO was going
8 The court finds that subsection (a) of § 49 is the only pertinent section because if there is a land possessor under
subsection (a). then subsections (b) and (c) do not apply. Regarding the UVI athletic field, UVI would be a land
possessor under subsection (a) because they owned the field, so UVI both occupied the land and controlled it
to act by “shifting younger children’s play farther from the road” and “prohibiting parking along
the roadway,” it does not state that AYSO is going to fence or enclose the field.*! Instead, it states
that AYSO is going to ‘“‘advocat[e] for increased safety measures,” such as “. . speed bumps or
fences.”
438 The parties agree that the UVI soccer field is a public field. However, neither party has
presented any evidence regarding a legal agreement between the two parties, or a reservation
system that may have contained a clause delegating powers related to field safety. Nor do AYSO
and VI AYSO present any evidence showing an explicit lack of control, such as an agreement
between AYSO and/or VI AYSO and UVI stating that UVI retains exclusive control over the
athletic field. Nor do the AYSO Defendants present any evidence showing that any AYSO and VI
AYSO representatives lacked the control and familiarity with the athletic field such that any harms
resulting from the conditions of the athletic field would not have been foreseeable to the AYSO
Defendants. On the other hand, Plaintiffs do not present any evidence showing that either of the
AYSO defendants controlled the field itself. Instead, the evidence presented by Plaintiffs shows
AYSO’s control over AYSO-related activities and AYSO members. But to be a land possessor. a
party must have control over the premises itself.
q39 As stated previously, the V.I. Supreme Court has held that “{g]iven the subjective nature
of this test, ‘this Court’s jurisprudence has consistently favored — wherever possible ~ the
5! PL.‘s Opp., at Exh. V., Lynn Freehill. 9-vear-old aceident victim still unconscious, V1. Daily News, at 1 (2008)
>» fd. Of course the court is mindful that the rules of evidence preclude the court from considering subsequent remedial
measures, except for limited purposes, e.g. impeachment or—if disputed—proving ownership, control or the feasibility
of precautionary measures. V.I.R.E. 407. But because the parties cite to the article. the court acknowledges the
adjudication of negligence cases by a jury, a preference codified by the Legislature in 5 V.I.C. §
1451(a), instead of by a single judge at summary judgment.”** While this court acknowledges that
Plaintiffs have not provided strong evidence that a jury could rely upon to find that AYSO was a
land possessor in control of the field such that they could erect a fence or enclose the field to
improve safety, the court also notes the Plaintiffs’ arguments are sufficient to avoid summary
judgment since this jurisdiction has a strong preference for this issue of foreseeability being
decided by a jury. It is conceivable that a jury could find that the AYSO defendants had a duty to
find and/or use a safer athletic field for their purposes
D. There is a genuine dispute of material facts regarding whether LaVar Browne was
speeding at the time of the accident and whether AYSO’s alleged negligence was a
proximate cause of Tariq’s injuries
q40 The AYSO Defendants also argue that their alleged negligence is not the proximate cause
of Tariq’s injuries, but that LaVar Browne’s speeding in a school zone was an intervening
superseding cause that broke the causal chain because speeding in a school zone is an
unforeseeable criminal act.**
941 = Plaintiffs argue that a young player being struck by a car while chasing their soccer ball
out into the adjacent road was a foreseeable danger. Thus, plaintiffs argue the allegedly speeding
vehicle would not be an independent superseding cause. Plaintiffs contend that LaVar Browne was
3 See supra note 19
+ This argument is supported by Def.’s Mot. Summ. J. at Exh. 1, Uniform Traffic Accident Report; Exh. 3, Carolyn
not convicted of speeding, and any errors in his driving would not be a crime or even gross
negligence, it would be simple negligence.*°
942 There is a genuine dispute of facts as to whether LaVar Browne’s driving was criminal or
simple negligence. AYSO supplied several witnesses that report that LaVar was driving
approximately 20-35 miles per hour when the speed limit was 10 miles per hour. However, the
Plaintiffs show that LaVar Browne was not cited for speeding or even negligent driving and have
their own witness to the accident who stated that Browne was not speeding at the time of the
accident. These facts directly contradict each other, and thus a jury must determine whether or not
Browne was speeding and whether his actions constituted an independent superseding cause
E. AYSO’s Motion for Reconsideration is denied for lacking sufficient undisputed facts
to prove that the Plaintiffs signed the Player Registration Form for the 2006-2007
season
443 ~—_ Lastly, on July 20, 2016, AYSO filed a Motion for Reconsideration of the court’s May 18
2016 Order that denied the motion for partial summary judgment against Plaintiff Dianne Bynoe
AYSO now seeks summary judgment on the same grounds against the rest of the plaintiffs. AYSO
contends that the Player Registration Form for the 2006-2007 soccer season contains an
exculpatory provision that bars Plaintiffs’ claims against AYSO. While AYSO does not have a
copy of the form signed by the Plaintiffs, AYSO contends that Dianne Bynoe would have signed
it because the information AYSO and VI AYSO would have received from the Player Registration
Form is on their electronic database, and it would not have been on the database if the Registration
Form had not been filled out by one of Tariq’s parents. AYSO also has copies of the Player
Registration Form from two previous seasons signed by Dianne Bynoe and proof that she paid the
registration fee for the 2007 soccer year
944 = Plaintiffs argue that this is an untimely second motion for reconsideration and fails to
provide an indisputable, signed exculpatory agreement for the applicable season that was signed
by any of the Plaintiffs.*°
q45 The Motion to Reconsider is based on new evidence, however both alleged new pieces of
evidence were available to AYSO before issuance of the original Order on the Motion for Partial
Summary Judgment Against Plaintiff Dianne Bynoe and were obtained from volunteers associated
with AYSO. Additionally, and more importantly, AYSO has still failed to produce a signed copy
of the Player Registration Form, by any of the Plaintiffs, that was applicable to the 2006-2007
season. Without a signed form, a fact finder could still find that the Plaintiffs did not sign a Player
Registration Form for the 2006-2007 season, so the court is precluded from granting summary
judgment on any exculpatory clauses on the 2006-2007 form since AYSO has not presented a form
signed by Bynoe or Davis.’
CONCLUSION
946 Given the analysis herein, the court finds that Defendants AYSO are not entitled to
judgment as a matter of law. The court finds that the Plaintiffs have provided sufficient facts
showing a genuine dispute exists as to Defendants’ liability for negligence and premises liability
Accordingly, the Defendants’ Motion for Summary Judgment will be denied
é Defendants AYSO subnitiied two Motions for an Extension of fime to Submit Motion for Reconsideration of the
Court’s May 18, 2016 Order Denying the AYSO Detendant’s Motion for Partial Summary Judgment Against
An Order consistent with this Memorandum Opinion will be entered
DATED: October Xf , 2024 Zs y)dja eeey
Kathleen Mackay
Judge of the Superior Court
ATTEST of the Virgin Islands
TAMARA CHARLES
Clerk of the Court ¥
\7
By, ee VL
LATOYA CAMACHO
Court Clerk Supervisor i) ns, / DOH