IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN
)
rFARIQ 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
)
Cite as 2024 VI Super 46U
MEMORANDUM OPINION
THIS MATTER is before the Court on Defendant’s University of the Virgin Islands
(“Defendant” or “UVI”) Motion for Summary Judgment, filed on August 17, 2020. The motion is
fully briefed.' For the reasons set forth herein, the Court will deny the Defendant’s motion
BACKGROUND AND PROCEDURAL HISTORY
On February 12, 2009, Plaintiffs Tariq Davis, a minor, and his parents, Dianne Bynoe and
Roosevelt Davis (collectively “Plaintitfs”) filed this action for premises liability and negligence
against UVI, for injuries arising out of an incident that occurred on February 17, 2007. when
Plaintiff Tariq Davis, while at soccer practice, ran into the roadway abutting the UVI soccer field
to chase an errant soccer ball.’ In their complaint, Plaintiffs allege that UVI breached its duty of
care towards Tariq Davis by failing to enclose the field to protect against the dangers of the
adjacent highway
UNDISPUTED MATERIAL FACTS?
[. On February 17, 2007, Tariq was a member of the American Youth Soccer
Organization (*AYSO”), a youth soccer organization
2. On February 17, 2007, AYSO held soccer practice at the UVI soccer field located
in Lindberg Bay, St. Thomas, U.S.V.1
? Plaintiffs also sued Defendants American Youth Soccer Organization and Virgin Islands American Youth Soccer
Organization. But the claims against those defendants are not pertinent to the analysis of the motion at bar.
According to V.I. R. Civ. P. 56(c)(2)(B), “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 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 (ii) 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 UVI’s statement of facts. Additionally, according to V.1. 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
serial numbering of each such fact to state whether the fact is disputed or not. UVI failed to do that in this case. Thus
3. AYSO regularly utilized the UVI field for their young members, who ranged in
ages from four (4) to nineteen (19), to practice and play soccer
4. On February 17, 2007, Tariq, then nine (9) years old and in the third grade and his
father, Roosevelt Davis, arrived at the soccer field in Lindberg Bay, St. Thomas
V.I., at approximately 8:45 a.m
5. The soccer field used by AYSO on February 17, 2007, is owned by UVI
6. The soccer field is adjacent to Julian Jackson Drive, a public roadway in St
Thomas, Virgin Islands
7. The northern edge of the perimeter of the field was the same elevation as the
adjacent road
8. At all times material hereto, the field was open and unfenced with no barrier to
separate it from the adjacent roadway
9. At all times material hereto, there was no barrier to keep errant soccer balls from
crossing into the adjacent roadway. There was also no physical barrier to prevent
young players from chasing these balls into the road
10. Shortly after arriving at the field on February 17, 2007, Tariq joined a few other
boys at the western end of the field to dribble and kick the ball around
11. Plaintiff Tariq Davis ran out into Julian Jackson Drive, a public roadway, to chase
after a ball
12. Plaintiff Tariq Davis was struck by a vehicle driven by Defendant LaVar Browne
on Julian Jackson Drive
13. Plaintiffs have entered into a settlement with LaVar Browne and he is no longer a
party in this action
14. UVI has no authority or control over the public roadway
15. Julian Jackson Drive extends throughout the length of the University’s property,
from the western end to the eastern end
16. Julian Jackson Drive runs through UVI’s property, between the UVI athletic field
and UVI’s academic campus
17. Prior to the accident, UVI filed a formal request with the V.I. Department of
Public Works to have speed bumps and signage placed on Julian Jackson Drive to
regulate traffic on that roadway
18. This request was made to allow University students to safely traverse across the
roadway to get from one side of the campus to the next
19. In February 2007, organizations “{did] not have to get permission from the
University to use any of its outdoor facilities” because all outdoor facilities were
open to the public
LEGAL STANDARD
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.I. 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.’
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.’
V.1. 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.”
TVIILR. Civ. P. 56(c)(1)
VLR. Civ. P. 56{a)
® Allahar v. 2DD Bjerge Grade, LLC, 2022 VI SUPER 18U, at *15 (V1. Super. Ct. Feb. 10, 2022) (citing Iilliams
v. United Corp., 50 V1. 191, 194 (V.1. 2008))
Id. (citing Anderson v, Am. Fed'n of Teachers. 67 V1. 777, 788-89 (V.1. 2017) (citing Perez v. Ritz-Carlton (Virgin
Islands), Inc., 59 VA. 522, 527-28 (WA. 2013))
* Greenleaf Commons, LLC v. St. John Day Spa & Salon, LLC, 2021 VI SUPER 2U, at *8 (V.L. Super. Ct. Jan. 1),
2021) (citing Anthony v. FirstBank Virgin Islands, 58 V1. 224, 229 (V1. 2013) (quoting Williams. 50 V.E at 194
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
that a reasonable jury could only enter judgment in favor of the moving party.”'' 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[.]””!”
As the moving party, the Defendants have the initial burden of demonstrating that there are
no genuine issues as to any material fact
DISCUSSION
In a negligence 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.”'°
In a premises liability action, the Plaintiff must satisfy the same four-factor test as
traditional negligence claims.'* The V.I. Supreme Court “has recognized foreseeability as ‘the
touchstone of premises liability in the Virgin Islands’ because foreseeability permeates every
element of a negligence claim.”
“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.I.C. § 1451(a), instead of by a single judge at summary judgment.”!®
64 VL. 400 (V.I. 2016)
"Td. at 409
' Rogers v. Gov't Employees’ Ret. Sys. of United States Virgin Islands, 2022 V.L LEXIS 45. at *14 (V.L Super, Ct
2022) (citing Anthony, 58 VI. at 228) (quoting MWilliams, 50 V1. at 194)
'3 Machado v. Yacht Haven Grande U.S.V.L, LLC, 61 V.1. 373, 380 (V.1, 2014)
4 Dover v. Univ. of the V1, 2020 V.1. LEXIS 29. *7 (VI, Super. Ct. 2020)
The issue is whether Defendant UV] has shown the lack of any genuine issue of material
fact that would entitle it to summary judgment resulting in the dismissal of Plaintiffs’ claims
against UVI. In their motion, UVI argues that they did not owe Plaintiffs a duty of care because
the accident occurred on the public road, which they do not own or control
For UVI to prevail, the court must find that the record includes sufficient undisputed facts
to entitle UVI to a summary judgment.'”
I The Court conducted a Banks analysis to determine the duty of care a land
possessor owes a person that is not injured on the premises
As UVI points out, the court is required to conduct a Banks analysis because the Virgin
Islands has not determined whether a landowner owes a duty to ensure a person’s safety when they
are injured on an adjacent public roadway. The parties briefed the Banks analysis issue
Plaintiffs allege that the dangerous condition in this case is that the field did not have an
enclosure to prevent children from chasing errant soccer balls into the public roadway. UVI
disputes this allegation, instead arguing that the dangerous condition was the traffic in the public
roadway and UVI did not owe a duty to Plaintiffs to protect them from the dangers in the public
roadway since it is not owned by UVI and UVI did not create the dangerous condition.'® Whether
the dangerous condition was on UVI’s property would determine what, if any, duty UVI owed to
Plaintiffs. '°
UVI proposes that this jurisdiction, like many others, adopt Restatement (Second) of Torts
§ 349, which states
7 VT.R. Civ. P. 56(a)
'8 The Court finds that whether the lack of fencing or enclosure around UVI’s field is a dangerous condition 1s a
disputed fact
[a] possessor of land over which there is a public highway or private right of way
is not subject to liability for physical harm caused to travelers upon the highway or
persons lawfully using the way by his failure to exercise reasonable care
(a) to maintain the highway or way in a safe condition for their use, or
(b) to warn them of dangerous conditions in the way which, although not created
by him, are known to him and which they neither know nor are likely to discover.”
The cases cited by UVI all involve matters in which the dangerous condition was on the
roadway,”! which may be different to the situation in this case. If a fact finder agrees with Plaintiffs
that the lack of enclosure surrounding the field was a dangerous condition, this section of the
Restatement would not define UVI’s duty of care towards a person injured on a public roadway
when the dangerous condition occurred on the premises
In a 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. Only one case in the Virgin Islands is similar to this case
The closest the Virgin Islands has come to adopting such a rule regarding a possessor’s
duty to those who may travel from the property into a public roadway is in Simkins v. Gov't of the
© Restat. 2d of Torts § 349
*! See Curl v. Indian Springs Natatorium, 97 Idaho 637, 638 (1976) (The dangerous condition in this case was an iron
grill on the road that was installed by the highway district); Lane v. Groetz,
108 N.H. 173, 175 (1967) (The dangerous
condition in this case was ice on the public sidewalk); Walinsky v. St. Nicholas Ukrainian Catholic Church.
740 A.2d
318, 319 (Pa. Cmwlth. 1999) (The dangerous condition in this case was an icy public road); Kuzmicz v. fy: Hill Apts
147. N.J. 510, 512 (1997) (The dangerous condition in this case was an assault that occurred when the plaintiff was
traveling through an adjacent vacant lot); HNMC v. Chan.
683 S.W.3d 373, 379 (Tex. 2024) (The dangerous condition
in this case was a careless third-party driver): Bradley v. O'Donoghue.
216 Fed. Appx. 150, 152 (3d Cir, 2007) (The
dangerous condition in this case was the safety of the ingress and egress to the restaurant): Pentecost v. Ansan Corp
Virgin Islands.’ In Simkins, the court adopted the majority rule that a “property owner or leasee
owes no duty to individuals for the condition of public sidewalks abutting that property, when the
property owner or leasee has taken no action to create the dangerous condition.”’* In their
reasoning, the court states that “the Court cannot find that placing the burden of maintaining public
property on adjacent Virgin Islands property owners and possessors is the best rule for the Virgin
Islands.”?> However, Simkins limits this rule to public sidewalks. Whereas, in this case, the injury
occurred on a public roadway that runs through the campus of the University of the Virgin Islands
Furthermore, the dangerous condition in Simkins was a poorly maintained manhole cover on the
sidewalk.”° In this case, the alleged dangerous condition is the lack of an enclosure on the property
owned by UVI. However, should the jury determine that the traffic on Julian Jackson Drive was
the dangerous condition, not a lack of enclosure around the field, then that would be condition on
the public roadway similar to that in Simkins
2. A majority of jurisdictions rely on their own common law in determining the duty of
care a land possessor owes to someone injured on an adjacent public roadway, or they
apply Restatement (Second) of Torts § 349 in cases where the alleged dangerous
condition is on the public roadway
While UVI cites many cases in several different jurisdictions, none of the cases cited
addresses the scenario proposed by the Plaintiffs: that a dangerous condition on the landowner’s
property resulted in harm off the premises and on a public roadway.*’ But UVI proposes the
362 V.I. 76 (V.I. Super. Ct. 2014)
4 Simkins v. Gov't of the Virgin Islands, 62 V.1. 76, 83 (V.1. Super. Ct. 2014). The court retied on Restat. 3d of
Torts; Liability for Physical and Emotional Harm. § 54(c)
3 Id
adoption of Restaternent (Second) of Torts § 349, which states that land possessors are not liable
to those injured on public highways as long as the land possessor did not create the harm.** The
court agrees this rule is applicable when a jury finds that a dangerous condition is not on a
landowner’s property, but on a public roadway. And if a jury finds that the only dangerous
condition in this case was the traffic on Julian Jackson Drive, this case would closely align with
the majority of jurisdictions that apply Restatement (Second) of Torts § 349
Separately, in researching and determining what duty of care UVI would owe the Plaintiffs
if the jury determines that the lack of enclosure is a dangerous condition, the court considered
Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 54, which states
(a) The possessor of land has a duty of reasonable care for artificial conditions or
conduct on the land that poses a risk of physical harm to persons or property not on
the land
(b) For natural conditions on land that pose a risk of physical harm to persons or
property not on the land, the possessor of the land (1) has a duty of reasonable care
if the land is commercial; otherwise (2) has a duty of reasonable care only if the
possessor knows of the risk or if the risk is obvious.””
If a jury determines that the lack of enclosure was a dangerous condition, this Restatement
section, on its face, is better applicable to the Plaintiffs’ assertions in this case as it defines the land
possessor’s duty of care to those injured off premises when the dangerous condition was on
premises.°°
In California, the court held that “a landowner’s duty of care to avoid exposing others to a
risk of injury is not limited to injuries that occur on premises owned or controlled by the
* See Restat. 2d Torts § 349
* The court in the Simkins case used Restat. 3d of Torts: Liability for Physical and Emotional Harm § 54(c) in their
Banks analysis, ultimately adopting it as the applicable duty in that case. See supra note 24)
landowner.’?! California reasoned that a landowner’s duty of care “encompasses a duty to avoid
exposing persons to risks of injury that occur off site if the landowner’s property is maintained in
such a manner as to expose persons to an unreasonable risk of injury offsite.”*
In New Hampshire. the Supreme Court held that “for a duty to exist on the part of a
landowner, it must be foreseeable that an injury might occur as a result of the landowner’s actions
or inactions.’”? In fact, the New Hampshire court has “never ruled that as a matter of law, if the
injury occurs outside the boundaries of one’s property, an owner can never be liable,” because that
would “violate the general principles of negligence law embodied in cases such as Palsgraf and
Ouellette."
In Florida, the court held that “the general standard of care which the common law places
on all landowners to protect invitees under a wide spectrum of circumstances can authorize a case
specific standard of care requiring protection of invitees on nearby property if the landowner’s
foreseeable zone of risk extends beyond the boundaries of its properties.’°
In New Mexico, the court held that “tan owner or occupier of property has a duty to maintain
the property in a safe condition, and that the duty to avoid creating or permitting an unsafe
condition to exist on the premises is not limited by the physical boundaries of the lands." The
New Mexico Supreme Court also held that “an occupier of premises ‘owes a duty to safeguard
* Barnes v. Black, 71 Cal. App. 4th 1473, 1478 (1999)
» Jd. The court does not cite to the Restatement, this decision was based on Califommia common law
3 Kellner v. Lowney,
145 N.H. 195, 198 (2000)
Id at 197-8
*§ Johnson v. Howard Mark Productions, Inc.,
608 So. 2d 937, 938-9 (2d DCA 1992). This case cites to Restat. 2d
of Torts § 371 tn its decision. Restat. 2d of Torts § 371 states: “A possessor of land is subject to liability for physical
harm to others outside of the [and caused by an activity carried on by him thereon which he realizes or should realize
will involve an unreasonable nsk of physical harm to them under the same conditions as though the activity were
each business visitor whom the occupier reasonably may foresee could be injured by a danger
avoidable through reasonable precautions available to the occupier of the premises.””
3. The soundest rule for the Virgin Islands is that: a possessor of land over which there
is a public highway or private right of way is not subject ¢o liability for physical harm
caused to travelers upon the highway or persons lawfully using the way by the land
possessor’s failure to exercise reasonable care to maintain the highway or way in a
safe condition, or to warn them of dangerous conditions in the way which were not
created by the land possessor but are known to him and which he knew the traveler
or persons lawfully using the roadway are not likely to discover. However, if the lack
of enclosure on the athletic field is determined by a jury to be a dangerous condition,
the land possessor would have a duty of reasonable care if they knew of the risk or
the risk was obvious
The plaintiffs presented the court with two different theories as to what the alleged
dangerous condition is. Whether the dangerous condition is the lack of enclosure on UVI’s athletic
field or the traffic on the road, or both, is determinative of what duty of care, if any, UV1 owed to
the Plaintiffs. In deciding the soundest rule for the Virgin Islands to adopt, the court looked closely
at two cases: Simkins v. Gov't of the V.1*8 and Machado v. Yacht Haven U.S.V.L, LLC®
Simkins applied Restatement (Third) of Torts: Liability for Physical and Emotional Harm
§ 54(c) when deciding whether a property owner was liable to a person injured on a public sidewalk
adjacent to their property. The court found that a property owner is not liable to a person injured
on a public sidewalk adjacent to their property unless they created the risk.*? At first blush it
appears logical for this court to adopt the same Restatement section when dealing with a person
injured on a public roadway. However, Restatement (Third) of Torts: Liability for Physical and
7 Id. (quoting Klopp v. Waeckenhut Corp... 143 N.M, 153, 157 (1992)
8 62 V.L. 76 (V.I. Super. Ct. 2014)
Emotional Harm § 54 would not apply if the lack of enclosure on the property is not a dangerous
condition because that Restatement section is limited to dangerous conditions on the land. Whereas
the traffic on Julian Jackson Drive would not be a condition on UVI’s land
Machado held that “the foreseeability of harm ‘is the touchstone of the existence of {a land
possessor’s} duty of reasonable or ordinary care’” in premises liability actions.*! The Court went
on to reason that “holding a land possessor to a uniform duty of reasonable care with respect to all
entrants on the land does not impose ‘strict’ or ‘limitless’ liability.”*? Nowhere does Machado
place physical limits on the foreseeability of harm. Thus, if it was foreseeable that the harm would
occur, then whether the harm occurred on or off the premises should not be as relevant in
determining liability
If the lack of enclosure is determined to be a dangerous condition. Restatement (Third) of
Torts: Liability for Physical and Emotional Harm § 54 is the soundest rule for the Virgin Islands
as it best defines the duty of land possessors with a dangerous condition on the land to those not
on the land possessor’s land and closely aligns with the purpose of foreseeable premises liability
set out in Machado
However, if a jury decides the lack of enclosure, nor any other condition on the athletic
field, are not dangerous conditions, the soundest rule for the Virgin Islands to adopt would be
Restatement (Second) of Torts § 349 because it closely aligns with the ruling in Simkins and
follows what a majority of jurisdictions are doing. Thus the soundest rule for the Virgin Islands is
that: a possessor of land over which there is a public highway or private right of way is not subject
“ Machado v. Yacht Haven Grande U.S VL, LLC, 61 V.1. 373. 386 (V.1. 2014) (quoting Perez v. Ritz-Carlton
to liability for physical harm caused to travelers upon the highway or persons lawfully using the
way by the land possessor’s failure to exercise reasonable care to maintain the highway or way in
a safe condition, or to warn them of dangerous conditions in the way which were not created by
the land possessor but are known to him and which he knew the traveler or persons lawfully using
the roadway are not likely to discover
Il There is a genuine dispute of material fact that UVI is a land possessor that
owed Plaintiffs a duty of reasonable or ordinary care at the time of the incident
There is no dispute that the Government of the Virgin Islands owns and controls the public
roadway——Julian Jackson Drive—upon which the accident occurred, that Julian Jackson Drive is
a public roadway, that it is not owned by UVI, and UVI does not have the authority to set the speed
limit. add speed bumps, or install any signage to regulate traffic
Thus, UVI argues it did not owe Plaintiffs a duty of reasonable or ordinary care as a land
possessor since the injury occurred on a public roadway over which UVI had no control
Plaintiffs respond by arguing that their premises liability claim is based on UVI’s failure
to fence or enclose the field to separate it from the adjacent road that UVI knew posed a significant
danger to pedestrians on its property. Plaintiffs’ premises liability claim against UVI does not
argue that UVI had any control to make the public road better. Nor do Plaintiffs allege UVI created
any hidden danger on the road. As stated previously, whether the lack of enclosure was a dangerous
condition is a disputed fact that must be determined by the jury
Machado v. Yacht Haven U.S.V.I., LLC,” stated that “the foreseeability of harm ‘is the
touchstone of the existence of [a land possessor’s] duty of reasonable or ordinary care.”** The
Court further explained that foreseeability means that “if a possessor could anticipate that the
conditions on its property would result in injury to those foreseeably using the property, the
possessor can be held liable for those injuries.” This closely aligns with Restatement (Third) of
Torts: Liability for Physical and Emotional Harm § 54, which defines the duty of care a land
possessor owes to persons injured off the premises
A lack of enclosure would not be an artificial condition of the land, so subsection (a) would
not apply. In addition, there are no facts on the record asserting that the athletic field is a
commercial property. Indeed, the testimony from UVI’s Rule 30(b)6 witness is that the soccer
field was open to the public. Thus, if a jury finds the lack of enclosure is a dangerous condition, a
jury could decide that UVI had a duty of reasonable care to protect against known or obvious risks
of which the public might not be aware
The Plaintiffs assert that the land possessor (UVI) could anticipate that the conditions on
its property would result in injury to those foreseeably using the property.*° There is evidence that
UVI was aware of the hann that could come to University students crossing Julian Jackson Drive
which is the reason UVI asked the Department of Public Works to install signage and speed bumps
but there 1s nothing in the record stating that the UVI was aware that children were running into
2 Id.
“Id. at 386 (citing Perez, 59 V.L. at 533)
% id at 394
the roadway after soccer balls or that they could be harmed.*’ Therefore, whether UVI had
knowledge of this risk or whether it was obvious is a disputed fact to be determined by a jury
UVI argues that they lacked control over the conditions that caused Tariq’s injuries because
they do not control the adjacent public roadway. Assuming that the lack of enclosure is not a
dangerous condition, the duty of care owed by UVI would be defined by Restatement (Second) of
Torts § 349, which states
[a] possessor of land over which there is a public highway or private right of way
is not subject to liability for physical harm caused to travelers upon the highway or
persons lawfully using the way by his failure to exercise reasonable care
(a) to maintain the highway or way in a safe condition for their use, or
(b) to warn them of dangerous conditions in the way which, although not created
by him, are known to him and which they neither know nor are likely to discover.**
There are no facts on the record stating that UVI took any action that made the public
roadway itself dangerous nor that they took any affirmative action to maintain the roadway in a
safe condition for use. However, it is undisputed that UVI knew the traffic on the road was
dangerous for its students, but it would be improper for the court to—without more—conclude
that the Plaintiffs did not know of the danger nor were likely to discover
CONCLUSION
Given the analysis herein, the court finds that Defendant UVI is 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 Defendant’s duty of reasonable or ordinary care as a land possessor
tor the purposes of Plaintiffs’ premises liability action. While the injury occurred off the premises,
ona public roadway, UVI’s duty of care is dependent on whether there was a dangerous condition
on the premises that caused the injury off the premises. Further, even if such a condition did not
exist, the court is precluded from granting summary judgment as there is insufficient information
to determine if the Plaintiffs knew of the danger of the public roadway or were likely to discover
such danger. Accordingly, the Defendant’s Motion for Summary Judgment is denied
An Order consistent with this Memorandum Opinion will be entered
os J Z2 Zz
DATED: October P|AVGWa 2024 f: ici Avian
Kathleen Mackay
Judge of the Superior Court
ATTEST of the Virgin Islands
TAMARA CHARLES
Clerk of the Coyrt
BY
LATO¥A CAMACH
on Clerk Supervisor 10 MY AY