IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN
TARIQ DAVIS, a minor, by his parents and next ) CASE NO. ST-2009-CV-00070
friends, DIANNE BYNOE and ROOSEVELT )
DAVIS, and DIANNE BYNOE and ROOSEVELT )
DAVIS on their own behalf )
)
Plaintiffs ) ACTION FOR DAMAGES
vs )
)
)
AMERICAN YOUTH SOCCER )
ORGANIZATION, VIRGIN ISLANDS ) JURY TRIAL DEMANDED
AMERICAN YOUTH SOCCER )
ORGANIZATION, THE UNIVERSITY OF THE )
VIRGIN ISLANDS, and LAVAR BROWNE )
)
Defendants )
)
Cite as 2024 VI Super 43U
MEMORANDUM OPINION
ql THIS MATTER comes before the court on Plaintiffs’ Motion to Amend Complaint, filed
January 16, 2015 (“Motion to Amend”)! and Plaintiffs’ Supplemental Motion to Amend
Complaint, filed February 19, 2016 (“Supplemental Motion”),’ pursuant to Federal Rule of Civil
Procedure 15(c) (collectively, “Instant Motion”).? Both motions included different proposed
' On February 4, 2015, Defendant UVI filed an opposition; and Defendants, American Youth Soccer Organization
and V.I, American Youth Soccer Organization, filed their opposition on March 10, 2015
During a status conference hearing on January 5, 2016, Plaintiffs orally moved to supptement the motion to amend
the complaint, and the court granted Plaintiffs leave to do so. As a result, the Plaintiffs filed the Supplemental Motion
on February 19, 2016. Defendants American Youth Soccer Organization and V.I. American Youth Soccer
Organization filed an opposition to the Supplemental Motion on September |, 2016 (“Opposition”); and on September
16, 2024, Defendant The University of the Virgin Islands joined the AYSO defendants’ Opposition. Plaintiffs request
that the Amended Complaint attached to the Supplemental Motion supersede the Amended Complaint attached to the
initial Motion to Amend
amended complaints, however, the proposed amended complaint attached to the Supplemental
Motion (“First Amended Complaint”) supersedes the proposed amended complaint attached to the
Motion to Amend.4
For the reasons set forth herein the Instant Motion will be granted
BACKGROUND
q2 The instant action arose from an incident where, on or around February 17, 2007, Plaintiff
Tariq Davis (“Tariq”) was struck by a vehicle on a public roadway (“February 2007 incident”)
Tariq, a minor at the time, was practicing soccer with several teammates on the soccer field at the
University of the Virgin Islands (“UVI”).> When a ball was kicked onto the roadway (“Julian
Jackson Drive”) next to the field, Tariq chased after it and was struck by a vehicle driven by
Defendant Lavar Browne (“Defendant Browne”).° Tariq’s parents, Roosevelt Davis and Dianne
Bynoe, filed a complaint on February 12, 2009,’ claiming Tariq’s injuries were caused by
Defendants’ negligence (“Complaint”). The Complaint claims, inter alia, Defendants American
Youth Soccer Organization (““AYSO”), V.I. American Youth Soccer Organization (“VI AYSO”),
Feb. 15, 2019, by S. Ct. Prom. No. 2019-003). The V.1. Rules of Civil Procedure were enacted on March 31, 2017
and they govern actions where the proceedings were pending on the effective date of the V.I. Rules, unless the Superior
Court expressly finds that applying them “would be infeasible or would work an injustice.” V.I. R. Civ. P. 1-1(c)(2)(B)
(2017). Although the parties briefed the motions before the V.1. Rules of Civil Procedure took effect, and neither of
the parties re-filed moving papers regarding this matter after the V.I. Rules of Civil Procedure Rules went into effect;
the court finds that it would not be infeasible and unjust to apply rules which the parties did not brief given the case
was still pending when the V.I. Rules of Civil Procedure became effective. Basic Servs., Inc. v. Gov't of V.1, 2019
V1I21,911. Therefore, the court will proceed with the rules and standards set forth in the V.I. Rules of Civil Procedure
‘Pls.’ Suppl. Mot. to Amend2, n.1, Feb. 19, 2016
* Compl. 413, Feb. 12, 2009
* fad
and UVI failed to supervise the subject soccer game, failed to adequately monitor and supervise
Tariq’s practice, and failed to fence and/or enclosed the subject field.®
DISCUSSION
q3 Plaintiffs seek to make two distinct amendments to the Complaint: remove allegations
against Defendant Browne and add a claim for gross negligence, as Count II, against Defendants
AYSO, VI AYSO, and UVI. None of the Defendants oppose the removal of the claim against
Defendant Browne since Plaintiffs have already settled with him and that claim was dismissed.?
Therefore, the court will only focus on the portion of the Instant Motion that seeks to add a claim
for gross negligence against Defendants AYSO, VI AYSO, and UVI (collectively, “Defendants”)
Overall, the First Amended Complaint seeks to amend several of the general factual allegations,"
the negligence claim,'! and expand allegations to add a claim for gross negligence."
q4 As a basis for its addition of a claim for gross negligence, Plaintiffs’ new allegations assert
that Defendants had knowledge of soccer balls crossing onto Julian Jackson Drive prior to the
February 2007 incident; and AYSO and VI AYSO failed to supervise its players.
As a result, Plaintiffs assert that Defendants’ conduct rose to a level above mere, ordinary
negligence because Defendants “recklessly and unreasonably disregarded these risks by failing to
® Compl. {18
* Plaintiffs’ claims against Defendant Browne were dismissed with prejudice on September 23, 2013, pursuant to a
stipulation for dismissal filed by the parties
'0 See generally Pls.’ Suppl. Mot., First Am. Comp!
"Id
"2 Id. at ¥19-29
enclose the field and/or to provide proper supervision to its young players and proper instruction
and training to its volunteer parents and coaches.” '4
q5 Plaintiffs contend that testimony—in particular, by Adalio Araujo (“Araujo”), a former VI
AYSO soccer coach—is demonstrative of Defendants’ awareness of the risk that children would
run onto Julian Jackson Drive during AYSO games to retrieve errant soccer balls.'° Plaintiffs
contend Defendants failed to act to avert those risks. In addition, Plaintiffs claim their First
Amended Complaint will not cause undue delay or prejudice to Defendants because the gross
negligence claim revolves around the same set of facts that were alleged in the original
Complaint.'® Plaintiffs assert the proposed amendments and complaint concern the same subject
matter and the parties have conducted discovery and thus the Instant Motion should be granted.!7
6 In opposition, AYSO and VI AYSO (“AYSO Defendants”) argue Plaintiffs should not be
permitted to amend the Complaint because adding a gross negligence claim would be futile
Arguing there is no factual content demonstrating conduct qualifying as gross negligence,
Defendants oppose amending the complaint because they argue a claim for gross negligence entails
a distinct level of culpability compared to ordinary negligence — i.e., gross negligence requires
demonstrating that Defendants’ conduct rose to a wanton, reckless, or conscious indifference to
Tariq’s safety.'* Defendants assert the First Amended Complaint falls short of establishing a gross
negligence claim because Plaintiffs do not demonstrate a legal duty owed by Defendants; it was
not foreseeable that Tariq would be injured by the impact of a speeding car; and the alleged
Id at 29
'S Pls.” Suppl. Mot., Mem. 3-5
'6 Pls.” Mot. to Amend, Mem, 7
17 Id.
behavior does not rise to the level of wanton or reckless behavior.'? The AYSO Defendants also
oppose the proposed amendments as futile because they argue, citing V.I. CODE ANN. tit. 5, §
31(5)(A), that the statute of limitations has run on the gross negligence claim.”°
q7 Moreover, the AYSO Defendants argue that granting leave to Plaintiffs to amend the
Complaint, at this stage in the proceedings, would unduly prejudice them. The AYSO Defendants
reason that Plaintiffs' delay in bringing the gross negligence claim was inexcusable and reopening
discovery would cause undue burden and expense further delaying the matter.?' Specifically, the
AYSO Defendants contend the proposed amendments would unduly prejudice them because
Defendant Browne was dismissed from the matter on September 13, 2013, and the AYSO
Defendants would have to reopen the depositions of multiple witnesses to examine them on the
issue of gross negligence.”
Legal Standard
q8 Pursuant to VJ. R. Civ. P. 15(c) “[a]n amendment to a pleading relates back to the date of
the original pleading when . . . the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out—or attempted to be set out—in the original pleading . .”. V.I. R. Civ
P. 15(c)(1)(B). Still, the grant or denial of a motion to amend rests within the sound discretion of
the court, and “[t]he court should freely give leave when justice so requires.” V.I. R. Civ. P
15(a)(2); Powell v. FAM Protective Servs., Inc., 2020 V13, 914; Basic Servs., Inc. v. Gov't of V.L,
2019 VI 21, "26. Reasons for the court to deviate from the norm of freely granting leave include,
'9 Id. at 9, 16, 22
20 Id. at 30
' Id. at 34
but are not limited to, an undue prejudice to the opposing party and whether it would be futile to
amend. Powell, (14; Basic Servs.,§26. Although no factor on its own tips the scales of the court’s
consideration, a strong gauge for denial is when the allowing leave to amend causes undue
prejudice to the nonmoving party. Liburd v. V.1. Water & Power Auth., 2023 VI Super 76, 412
Davis v. UHP Projects, Inc.,2019 VI Super 119, 912; Tuteinv. Parry, 48 V.1. 101, 109 (V.L. Super
Ct. 2006)
I Plaintiffs’ proposed amendments are not futile
q9 The court should freely grant motions to amend when justice so requires, V.I. Civ. P
15(a)(2), but a motion to amend may be denied if the complaint, as amended, is futile; and futility
is determined by considering whether the proposed amendments are “frivolous, . . . barred by the
statute of limitations, or would otherwise not survive a motion to dismiss.” Bruni v. Alger, 2019
VI Super 90, 411; see Powell, 914, 20; Foman v. Davis, 371 U.S. 178, 182 (1962). Here
Defendants do not argue the First Amended Complaint is futile because the proposed amendments
are frivolous, but because, as amended, it would likely not survive a motion to dismiss, and because
the gross negligence claim would be barred by the statute of limitations
a. The First Amended Complaint would likely survive a motion to dismiss
because, as amended, the gross negligence allegations state a claim upon which
relief could be granted
q10 = Plaintiffs allege Tariq was a member of a youth soccer team associated with the AYSO
Defendants;”* and that AYSO and VI AYSO used the field for young players despite the field
being open and unfenced with no barriers separating it from Julian Jackson Drive.”4 Plaintiffs
claim Defendants had prior knowledge of a risk of young players crossing onto Julian Jackson
3 See Pls.’ Suppl. Mot., First Am. Compl. 993-6
Drive to retrieve errant soccer balls; a risk, Plaintiffs allege, that Defendants recklessly and
unreasonably disregarded.*> Lastly, Plaintiffs allege Defendants’ failure to act was the cause of
Tariq’s injuries.”° Plaintiffs’ allegations concerning Defendants’ reckless failure to enclose the
field, to provide proper supervision to its young players, or to properly instruct and train volunteer
parents relies on Plaintiffs’ assertion that prior to the February 2007 incident there were other
occurrences of young players crossing onto Julian Jackson Drive to retrieve errant soccer balls
during AYSO games.”’
411 The AYSO Defendants oppose the Instant Motion on the grounds that it is futile since
Plaintiffs did not properly state a gross negligence claim. For instance, the AYSO Defendants
maintain that Plaintiffs did not establish that they owed a legal duty to Plaintiffs, that it was not
foreseeable that Tariq would be injured by the impact of a speeding car, nor that Defendants’
conduct rose to the level of wanton or reckless behavior demonstrating a conscious indifference to
the safety of the players. The AYSO Defendants also contend that their alleged failure to act is
not sufficient to rise to the level of a conscious indifference to Tariq’s safety on February 17, 2007,
which is necessary to prove gross negligence. Defendant UVI, adopting and incorporating all of
the AYSO Defendants’ arguments and citations, highlight that a gross negligence claim was not
established because there were no reports of accidents where a pedestrian was struck while
crossing Julian Jackson Drive prior to the February 2007 incident.”®
5 Id. at 9924-25, 28
® See id. at 4922-23, 25, 28-29
77 Pls.’ Suppl. Mot., Mem. 3-4, 6-7; see Pls.’ Suppl. Mot., Am. Compl. 428
q12 The Virgin Islands became a notice pleading jurisdiction after the V.I. Rules of Civil
Procedure went into effect in March of 2017. V.I. R. Civ. P. 8(a)(2). Accordingly, to survive a
motion to dismiss, a complaint must state a claim upon which relief could be granted, which is
sufficiently pled when the complaint adequately alleges enough facts to put an accused party on
notice of the claims against it. Scully v. Peterson, Super. Ct. Civ. No. ST-16-CV-196, 2018 WL
4348345, at *3 (V.I. Super. Ct. Jan. 25, 2018) (unpublished) (quoting Mills-Williams v. Mapp,
67
V.I. 574, 585 (V.I. 2017)). Under this new notice pleading standard, which is quite different to
the standard under which the parties briefed the Instant Motion, the factual allegations made in a
complaint must only be adequately alleged to put the accused party on notice of the claims against
it. Scully, 2018 WL 4348345, at *3; Mills-Williams, 67 V.1. at 585
413 The court finds that Plaintiffs pled sufficient facts to put Defendants on notice of the gross
negligence claim being brought against them. Therefore, the gross negligence claim states a claim
upon which relief may be granted
b. The gross negligence claim is not barred by the statute of limitations as the
allegations relate back to the original pleading
414 Proposed amendments that relate back to the allegations of the original pleading are not
barred by the statute of limitations. Bluewater Construction, Inc. y. Hill, 2022 VI Super 87U, 925
Pursuant to V.I. R. Civ. P. 15, “[aJn amendment to a pleading relates back to the date of the original
pleading when the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out—or attempted to be set out—in the original pleading[.]” V.I. R
Civ. P. 15(c)(1)(B); see Bluewater, 419. Venrick Lake v. Kmart Corp., Super. Ct. Civ. No. ST-10
CV-50, 2012 WL 13220156, at *2 (VI. Super. Ct. June 29, 2012) (unpublished) (noting that once
| the statute of limitations bars a claim, a plaintiff must satisfy the requirements of Rule 15(c)(1)(B))
(13 The AYSO Defendants assert the gross negligence claim is barred by the statute of
limitations, pursuant to 5 V.I.C. § 31,7? because Tariq’s injuries were sustained on February 17,
2007, and Plaintiffs did not move to amend the Complaint until January 5, 2015. Specifically, the
AYSO Defendants argue the tolling provision under 5 V.I.C. § 36(a)(1)°° does not apply because
the instant action was commenced on February 12, 2009, and the tolling provision, they argue,
would not apply “to add claims which could have been brought at the time the action was
commenced.”3! The AYSO Defendants also contend the discovery rule doctrine does not toll the
statute of limitations because Tariq’s injuries occurred on February 17, 2007 and were immediately
evident. And the discovery rule applies “when, despite the exercise of due diligence, the injury or
its cause is not immediately evident to the victim.” Santiago v. V.I. Hous. Auth., 57 V.1. 256, 273
(V.I. 2012). The AYSO Defendants also highlight that Plaintiffs have not addressed the issue of
the statute of limitations, have not alleged facts that would toll the statute of limitations, nor
excused their failure to timely bring the gross negligence claim.*”
416 Here, the First Amended Complaint seeks to add a gross negligence claim that relies on the
same fundamental allegations asserted in the Complaint. Bluewater, 926. Accordingly, the court
finds the allegations involving the gross negligence claim grow out of the same allegations as those
of the original Complaint and the occurrence of the February 2007 incident, and, as such, the gross
negligence claim relates back to the date of the original complaint, pursuant to V.I. R. Civ. P
2° Pursuant to 5 V.L.C. § 31, “[a]n action for any injury to the person or rights of another not arising on contract
can be commenced within two years after the cause of action has accrued. 5 V.I.C. § 31(a)(5)
*” Under 5 V.I.C. § 36, when a person who is entitled to bring an action is, at the time the cause of action accrues
under twenty-one years of age, “the time of such disability shall not be a part of the time limited for the commencement
of the action, but the period within which the action shall be brought shall not be extended in any case longer than two
years after such disability ceases.” 5 V.I.C. § 36(a)
5" Defs. AYSO and VI AYSO’s Opp’n 30
15(c). Therefore, the court finds that the proposed amendments are not barred by the statute of
limitations since the allegations associated with the gross negligence claim arose out of the
occurrence of the February 2007 incident
Il Granting leave for Plaintiffs to add_a gross negligence claim would not cause
undue prejudice to Defendants
417 Proposed amendments that cause undue prejudice to the non-moving party are not favored
because undue prejudice is “the touchstone for the denial of the amendment.” Tutein, 48 V.I. at
109. Prejudice is undue when the non-moving party demonstrates that it would be “unfairly
disadvantaged or deprived of an opportunity to represent facts or evidence which it would have
offered had the amendments been timely.” /d. (quoting Stridiron v. Mobile Paint Mfg. Co. of
Delaware, Civ. No. 2002/44, 2003 WL 23198843, at *3 (D.V.I. Dec. 15, 2003) (unpublished))
As such, amendments may be prejudicial when they substantially change the theory on which the
action is proceeding, and if the non-moving party must engage in significant new preparation as a
consequence of new theories. Morton Int’l, Inc. v. A.E. Staley Mfg. Co.,
106 F. Supp. 2d 737, 745
(D.N.J. 2000)
418 Defendants contend they would be unduly prejudiced if the court granted Plaintiffs leave
to amend because Defendant Browne was dismissed from the matter and released based on the
fact that Plaintiffs had only asserted a claim for ordinary negligence against Defendant Browne.*?
The AYSO Defendants maintain they “waive[d] any claims against Browne related to this lawsuit
including but not limited to claims for defense, indemnity, contribution, and attorney fees, costs,
and expenses.”*4 Moreover, the AYSO Defendants state they would be prejudiced if the Instant
33 Defs. AYSO and VI AYSO’s Opp’n 32
Motion is granted because they would be required to reopen discovery, which would cause an
undue burden in the form of expenses and would further delay the matter because witnesses would
need to be re-deposed on the gross negligence claim.*> The AYSO Defendants contend Defendant
Browne was only deposed on the sole claim at the time: negligence.**> The AYSO Defendants also
assert the depositions of three other witnesses would need to be re-opened
q19 The court notes, however, that while discovery has been conducted in this matter, it is not
completed nor closed. In fact, pending before the court is the AYSO Defendants’ own motion to
amend their answer to file counterclaims and a third-party complaint against two additional parties,
which the AYSO Defendants filed more than 10 years after they filed their initial answer
Moreover, the AYSO Defendants have not demonstrated how they would be unfairly
disadvantaged or deprived of an opportunity to properly present its case against the gross
negligence claim, as the court is not persuaded that the dismissal of the claim against Defendant
Browne is unduly prejudicial to Defendants. But see Powell, 9926, 28°’; Davis, 98, 18
Considering the totality of the circumstances surrounding the instant action, the court finds that
Defendants would not be unduly prejudiced by allowing Plaintiffs to amend the Complaint
CONCLUSION
q20 =‘ Plaintiffs’ Instant Motion must be granted because Defendants have not demonstrated that
the new claim is futile or will cause Defendants to suffer undue prejudice. An examination of the
33 Id. at 33-34
36 Defs. AYSO and VI AYSO’s Opp’n 33
37 In Powell, the V.I. Supreme Court determined the Superior Court had abused its discretion because it allowed the
movant to amend a pleading not only “on the eve of trial” but, also, after “an unexcused, eight-year delay”. Powell
124, 29. Here, although the delay in moving to amend is similar in time and Plaintiffs have not provided a reason
gross negligence claim leads the court to find it is not a futile claim, and the claim will likely
survive a motion to dismiss because the gross negligence claim provides sufficient notice to
Defendants of the allegations against them; and the gross negligence claim is not barred by the
statute of limitations
§21 There exists a strong preference for trial courts to decide cases on their merits. Powell, €21
The court does not find a reason to deviate from the norm of granting leave for a party to amend
its pleading and leave to amend must be freely granted when justice so requires. Because it would
not be futile or unduly prejudicial, the court will grant the Plaintiffs’ Instant Motion to amend their
complaint to add a claim for gross negligence
DATED: October 24 , 2024 LY ZzZ a 1] Leokeg S e
Kathleen Mackay 0
ATTEST Judge of the Superior Court
TAMARA CHARLES of the Virgin Islands
Clerk of the Court |
BY BL tra
LATOYA CAMACHO
fe" Court Clerk Supervisor 10 | Z44 KO 2H