SUPERIOR COURT OF THE VIRGIN ISLANDS



DIVISION OF ST. THOMAS AND ST. JOHN



RICHARD SHEALY, SHERRY SHEALY, LAUREN)

SHEALY, EMILY SHEALY, and ASHLEY TURNER, )



Plaintiffs,



vs. CASE NO. ST-09-CV-619

WEST INDIES MANAGEMENT CO., INC., d/b/a

WIMCO, McANDERSON REAL ESTATE INC., d/b/a

McLAUGHLIN ANDERSON LUXURY VILLAS,

ALABAMA WORLD TRAVEL INC., CORAL

GARDENS LLC, VILLA CORAL GARDENS LLC,

SANZABAL LLC, JOHN DOE 3, JOHN DOE 4,



Defendants.



Ne Ne ee ee eee ee ee ee eee ee”



MEMORANDUM OPINION



Pending before the Court is Defendant West Indies Management Company, Inc.’s

(“WIMCO”) renewed motion for summary judgment. ' For the following reasons,

Defendant’s motion will be granted.



FACTUAL AND PROCEDURAL HISTORY



On April 1, 2002, Villa Coral Gardens, LLC hired McAnderson Real Estate, Inc.,

d/b/a McLaughlin Anderson Luxury Villas, to “carry on the management and rental of [a

private villa] known as Coral Gardens,” located at 9-2-25 Estate Peterborg”® on St.

Thomas. Also in April of 2002, Villa Coral Gardens, LLC entered into an almost



identical contract with McLaughlin to “carry on the management and rental of [a private



' WIMCO filed its motion on May 20, 2011; Plaintiffs filed their opposition on August 30, 2011; and

WIMCO filed a reply on September 16, 2011.



2 There is evidence that Coral Gardens, LLC is the record owner of Coral Gardens, which is located at 9-2-

24 Estate Peterborg. See Werner Scott deposition, at pages 21 and 22.



3 Vacation Rental Management Agreement, at page |.

Richard Shealy, et al. v. West Indies Management Company, Inc.

ST-09-CV-619

. Memorandum Opinion, December 1, 2011

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villa] known as Secret Gardens, located at 9-2-25 Estate Peterborg.”* McLaughlin

engaged Defendant WIMCO to “arrange rentals of,” as well as promote and advertise,

both properties. > WIMCO is a Rhode Island company that markets and arranges

reservations for vacations in private homes and villas. Bernice Young, a relative of

Plaintiffs, used Alabama World Travel (“AWT”) to book a vacation on St. Thomas on

behalf of Plaintiffs. AWT contacted WIMCO to reserve the two private villas. On

January 3, 2008, Plaintiffs and their family members, fourteen in all, gathered on the deck

of the Coral Gardens villa for a family photograph. At that moment, the deck collapsed

hurtling Plaintiffs to the rocks below and causing extensive injury to them. On December

30, 2009, Plaintiffs filed a Complaint against Defendants, which was amended on June 3,

2010. On November 30, 2010; August 4, 2011; and October 4, 2011, the Court issued

orders dismissing Plaintiffs’ claims against Defendants McLaughlin, AWT, Coral

Gardens LLC, Villa Coral Gardens LLC, and Sanzabal LLC, which left WIMCO as the

lone Defendant remaining in this case.

STANDARD OF REVIEW



Rule 56 of the Federal Rules of Civil Procedure, made applicable to the Virgin

Islands Superior Court through Rule 7 of the Rules of the Superior Court, provides that

summary judgment is appropriate only “if the pleadings, depositions, answers to



interrogatories, and admissions on file, together with the affidavits, if any, show that



there is no genuine issue as to any material fact and that the moving party is entitled to a



4 There is evidence that Villa Coral Gardens, LLC is the record owner of Secret Gardens. See Werner Scott

deposition, at pages 21 and 22



* Nancy Anderson affidavit, at 1 and 2.



© WIMCO memorandum of law, at 4.

Richard Shealy, et al. v. West Indies Management Company, Inc.

ST-09-CV-619

. + Memorandum Opinion, December 1, 2011

Page 3 of 15

judgment as a matter of law.” In considering a motion for summary judgment, a court

must “draw ... all reasonable inferences from the underlying facts in the light most

favorable to the non-moving party.” Battaglia v. McKendry, 233 F.3d 720, 722 (3d Cir.

2000). An issue is “genuine” if a reasonable jury could possibly hold in the nonmovant’s

favor with regard to that issue. Andersen v. Liberty Lobby, Inc., 477 U.S. 242, 247-48

(1986).

ANALYSIS

Plaintiffs assert that Defendant owed them a duty of care on several grounds: as a

lessor under Restatement (Second) of Torts § 359; as an agent of the possessor of the

property under Restatement (Second) of Torts § 383; as an entity that negligently

performed an undertaking under Restatement (Second) of Torts § 324A; and as an entity

that made intentional or negligent misrepresentations under Restatement (Second) of

Torts § 552.

Pursuant to Restatement (Second) of Torts § 359, a lessor:

who leases land for a purpose which involves the admission of the public

is subject to liability for physical harm caused to persons who enter the

land for that purpose by a condition of the land existing when the lessee

takes possession, if the lessor (a) knows or by the exercise of reasonable

care could discover that the condition involves an unreasonable risk of

harm to such persons, and (b) has reason to expect that the lessee will

admit them before the land is put in safe condition for their reception, and

(c) fails to exercise reasonable care to discover or to remedy the condition,

or otherwise to protect such persons against it.

Section 359 is an exception to the general rule that a lessor is “not liable to his lessee or



to others on the land for physical harm caused by any dangerous condition, whether



natural or artificial, which existed when the lessee took possession.” Restatement

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ST-09-CV-619



- Memorandum Opinion, December 1, 2011



Page 4 of 15



(Second) of Torts § 356. Under sections 359 and 356, a transfer of possession of the



property from the lessor to the lessee is involved. A possessor of land is defined as:

(a) a person who is in occupation of the land with intent to control it or (b)

a person who has been in occupation of land with intent to control it, if no

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).



Restatement (Second) of Torts § 328E.



As a manager of the property, McLaughlin was obligated to “arrange and oversee,

as required by Owner, periodic inspection of the Property.” (emphasis added). (/d., at

page 3). The owner was obligated to “pay all costs and charges for maintenance, goods,

replacement, and repairs and/or services provided to the Property.” Id. The Rental

Management Agreement lists Defendant as one of the “travel wholesalers & major

companies presently working directly with McLaughlin.” (Vacation Rental Management

Agreement, Addendum A). Defendant’s representative Michael Bowers indicated that

“wholesalers are a group of distribution partners for hotels, cruise lines, villa

companies ... who market to the travel agency community.” (Bowers deposition, at page

26). In exchange for their services, wholesalers get a “wholesale commission.” /d.



The terms of the agreement do not indicate that the owner of the property had

relinquished complete control of the property to McLaughlin. Assuming, arguendo, that

the owner effectively transferred possession and control of the property to McLaughlin so

that McLaughlin would qualify as a possessor of the property, there is no indication that



McLaughlin in turn transferred possession and control of the property to Defendant.



Plaintiffs have only presented invoices from Defendant stating that Bernice Young had a

Richard Shealy, et al. v. West Indies Management Company, Inc.

ST-09-CV-619



. Memorandum Opinion, December 1, 2011



Page 5 of 15



reservation with WIMCO/McLaughlin Anderson Villas and have provided testimony that

Defendant’s employees inspected the property on two occasions. Plaintiffs have

presented no evidence that Defendant had the ability to invite or exclude people,

including Plaintiffs, from the premises, two essential rights that reflect control and

possession of property. Rather, Defendant contacted McLaughlin to request a reservation

for the property, which suggests McLaughlin, not Defendant, controlled the property.

(Nancy Anderson affidavit, at page 2). In this sense, Defendant acted as a middleman

between McLaughlin, the property manager, and AWT, the travel agent. Defendant

received payment for the vacation trip, arranged transportation for Plaintiffs, and

recommended chefs to Plaintiffs, among other things. (Richard Shealy affidavit, at page

3). Construing the facts in the light most favorable to Plaintiffs, there is no evidence that

Defendant possessed the property, and the Court finds that Defendant did not owe

Plaintiffs a duty of care under Restatement (Second) of Torts § 359.



Plaintiffs also assert Defendant is subject to liability under Restatement (Second)



of Torts § 383. Pursuant to that section:



one who does an act or carries on an activity upon land on behalf of the

possessor is subject to the same liability, and enjoys the same freedom

from liability, for physical harm caused thereby to others upon and outside

of the land as though he were the possessor of the land.

An agent must “exercise reasonable care to avoid injuring persons whom the possessor

has, without his knowledge, invited or permitted to enter if the place in which he carries



on his activities is one to which the possessor is likely to admit licensees and the activity



is carried on at a time during which it is likely that licensees will be admitted.” /d.,



comment b.

Richard Shealy, et al. v. West Indies Management Company, Inc.

ST-09-CV-619

-* Memorandum Opinion, December 1, 2011

Page 6 of 15



Young’s reservation with WIMCO/McLaughlin Anderson Villas and the

Agreement listing Defendant as a wholesaler suggest an agency relationship between

Defendant and McLaughlin. A mere agency relationship between McLaughlin and

Defendant, however, does not subject Defendant to liability under Restatement (Second)

of Torts § 383. See Schwartz v. Hilton Hotels Corp., 639 F.Supp.2d 467, 473 (D.N.J.

2009) (an agent is not “subject to liability for torts committed by the agent's principal that

do not implicate the agent’s own conduct; there is no principle of ‘respondeat inferior’”).



Section 383 only applies “to harm done by some act done or activity carried on

upon the land.” Jd., comment c. There is no evidence that Defendant collected rental fees

from Plaintiff, arranged transportation for Plaintiffs, or recommended chefs to Plaintiffs

while on the premises, nor could have those activities created the dangerous condition

that caused Plaintiffs’ injuries. The record reflects that the only activities Defendant

carried out on the property were visits on two occasions to familiarize its employees with

the layout and amenities of the villa. Plaintiffs argue that Defendant’s visits were

inspection visits, and Defendant's failure to discover any dangerous conditions in the

villa’s deck constitutes negligence.



In this instance, Esposito v. Emery’ is instructive. In that case, a student was

injured when a bank of lockers fell on him while on school premises. The court found

that the school’s principal and head custodian did not have a duty to inspect the lockers



reasoning that the maintenance supervisor and the supervising principal of the school



district were the people tasked with discovering and correcting dangerous conditions on



7966 F.Supp.219 (E.D.Pa. 1967) aff'd 402 F.2d 878 (3d Cir. 1968).

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ST-09-CV-619



- Memorandum Opinion, December 1, 2011



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the school premises. The Court noted that the functions of the school principal and head

custodian were to “administer the teaching program” and to “keep the premises clean,”

respectively. Id., at 222. Therefore, despite their managerial positions at the school, the

school principal and head custodian had functions separate and distinct from the

functions of the maintenance supervisor and the supervising principal. Moreover, the

court found there was no evidence that the maintenance supervisor and supervising

principal delegated their authority to inspect and maintain the school premises to the

school principal or head custodian or sought advice or information from them with

respect to maintenance issues. /d., at 221.



There is no evidence that either McLaughlin or the owner of the property

delegated to Defendant its authority to inspect and maintain the property or that either

entity relied on Defendant to notice dangerous structural conditions on the premises when

Defendant visited the property on two occasions. Instead, the record reflects that

Defendant occupied a marketing or travel agent role on the premises. Accordingly,

Defendant did not owe Plaintiffs a duty of care under Restatement (Second) of Torts §

383.



Plaintiffs also contend Defendant is subject to liability under Restatement (Second)

of Torts § 324A, which indicates that:



one who undertakes, gratuitously or for consideration, to render services to

another which he should recognize as necessary for the protection of a

third person or his things, is subject to liability to the third person for

physical harm resulting from his failure to exercise reasonable care to

protect his undertaking, if (a) his failure to exercise reasonable care

increases the risk of such harm, or (b) he has undertaken to perform a duty



owed by the other to the third person, or (c) the harm is suffered because

of reliance of the other or the third person upon the undertaking.

Richard Shealy, et al. v. West Indies Management Company, Inc.

; ST-09-CV-619

‘Memorandum Opinion, December 1, 2011

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The Third Circuit has determined that Restatement (Second) of Torts § 324A(a) requires

a showing of a “sin of commission” rather than a “sin of omission.” Turbe v. Government

of the Virgin Islands, 938 F.2d 427, 432 (3d Cir. 1991). In Turbe, the Court found that the

Virgin Islands Water and Power Authority’s failure to inspect and repair a street light did

not increase the risk of harm to the victim because the risk of harm would have been the

same if WAPA had not provided the street light to begin with. Similarly, Defendant,

during its visits to the property, did not increase Plaintiffs’ risk of harm through its failure

to discover the dangerous condition of the deck. Accordingly, Plaintiffs have not

presented evidence showing there is a genuine issue of material fact as to a duty

Defendant purportedly owed to them under Restatement (Second) of Torts § 324A(a).*

When interpreting Restatement (Second) of Torts § 323(b), a companion section

to Restatement (Second) of Torts § 324A(c), the Turbe court also determined that a

plaintiff must show actual reliance on a defendant’s actions and an indication that the

plaintiff forewent other protective measures in response to the defendant’s actions. T. urbe,

supra, at 431. The Court noted that in “suits alleging negligent inspection by public

entities ‘[rJeliance on the inspection in general is not sufficient. Instead, the reasonable

reliance must be based on specific actions or representations which cause the persons to



forego other alternatives of protecting themselves.’” Id., (quoting Cracraft v. City of St.



Louis Park, 279 N.W.2d 801, 807 (Minn. 1979)).



8 Although representations could be considered “sins of commission” as they are affirmative acts, it appears

that the Restatement (Second) of Torts § 324A does not treat representations as undertakings that, if

negligently performed, increase a risk of harm to a third person. Instead, Restatement (Second) of Torts §

324A(c) specifically covers representations in circumstances where reliance is induced.

Richard Shealy, et al. v. West Indies Management Company, Inc.

ST-09-CV-619

- Memorandum Opinion, December 1, 2011

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Plaintiff Richard Shealy asserts that the “leasing agents told” Plaintiffs that the

“Villas held 24 people.” (Richard Shealy affidavit, at page 1). He also asserts that the

reservation for Plaintiffs’ trip “stated the capacity of the listed property on the reservation

had a maximum capacity of 24 guests.” (/d., at 4). The invoice itself lists “Coral Gardens

Beach Estate + Secret Gardens” as having a maximum capacity of twenty-four people.

(Plaintiffs’ opposition, exhibit 10). AWT employee Marrilee Foukal submits an affidavit

indicating Defendant told her that the properties were “suitable” for fifteen people.



(Foukal affidavit, at page 2). Shealy also points out that Defendant’s website indicates



that Defendant’s “inspection process of visiting and evaluating each villa guarantees that



4 match is made for each client’s expectation of value.” (Richard Shealy affidavit, exhibit

1). The website also indicates that “as well as providing accommodation and destination

information, [Defendant] can tailor make the villa holidays to suit each client’s need.”

(Id.). A USA Today review of Defendant listed on Defendant’s website also states that

Defendant’s “customer support includes agents who help make the right villa match,

inspectors who make sure each villa is up to snuff and on-island personnel who are

available for help during a rental.” (Richard Shealy affidavit, exhibit 2).



Plaintiffs have not alleged or provided evidence that they forewent other

protective measures in response to Defendant’s representations. Accordingly, Plaintiffs

have not raised a genuine issue of material fact concerning a duty owed to them by

Defendant under Restatement (Second) of Torts § 324A(c).



Plaintiffs may establish a prima case of liability under Restatement (Second) of



Torts § 324A(b) by showing:

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ST-09-CV-619

‘Memorandum Opinion, December 1, 2011

Page 10 of 15

(1) that defendant ... affirmatively undertook to render services for [a

third party], which [the third party] was required to perform for [plaintiff];

(2) that [defendant] should have recognized that these services were

necessary for the protection of [plaintiff]; (3) that [defendant] failed to

exercise reasonable care in performing these services; and (4) that this

failure caused physical harm to [plaintiff].

Thompson v. Hanna Mining Co., Inc., Civ. A. No. 86-5726, 1987 WL 10123, at *1 (E.D.

Pa. 1987).



Without a showing that Defendant assumed McLaughlin and/or the owner of the

property’s duty to maintain the premises, or that Defendant was delegated that authority,

Plaintiffs cannot recover under Restatement (Second) of Torts § 324A(b). See West v.

U.S., 361 U.S. 118, 123 (1959) (“[iJt appears manifestly unfair to apply the requirement

of a safe place to work to [a party who] has no control over the [premises] or the repairs”).

Construing the facts in the light most favorable to Plaintiffs, Defendant’s representations

on its website only indicate that Defendant’s inspection process was done for the purpose

of meeting a “client’s expectation of value.” Granted, a client’s expectation of value

could include the expectation that the premises are safe. A vacation villa that is unsafe is

arguably worthless despite all of its luxurious amenities. Nevertheless, Plaintiffs have not

presented prima facie evidence showing that Defendant inspected the premises for the

benefit of the possessor of the property, McLaughlin and/or the owner of the property,

who is obligated to ensure the premises are properly maintained. As a result, there is no

genuine issue of material fact concerning Defendant’s purported duty to Plaintiffs under

Restatement (Second) of Torts § 324A(b).



Finally, Plaintiffs argue that Defendant owed them a duty under Restatement



(Second) of Torts § 552(1), which provides that a person who:

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ST-09-CV-619



‘Memorandum Opinion, December 1, 2011



Page 11 of 15

in the course of his business, profession or employment, or in any other

transaction in which he has a pecuniary interest, supplies false information

for the guidance of others in their business transactions, is subject to

liability for pecuniary loss caused to them by their justifiable reliance

upon the information, if he fails to exercise reasonable care or competence

in obtaining or communicating the information.



Restatement (Second) of Torts § 552 is a “restricted rule of liability” applicable in



situations when “the harm that is caused is only pecuniary loss.” Jd., comment a.



Restatement (Second) of Torts § 525 indicates that Chapter 22 of the Second Restatement,



which includes both sections 525 and 552, only applies to:



pecuniary loss resulting from a fraudulent misrepresentation, and not

physical harm resulting from the misrepresentation. As to the latter, see §

557A, which also covers economic loss deriving from the physical harm.



Id, comment h. Considering that Plaintiffs are seeking economic damages deriving from

physical harm, Plaintiffs cannot recover under Restatement (Second) of Torts § 552(1).

Assuming, arguendo, that Plaintiffs were mistaken in their reliance on

Restatement (Second) of Torts § 552(1) and intended to rely on Restatement (Second) of

Torts § 557A in support of their theory of liability, section 557A provides that a person



who:



by a fraudulent misrepresentation or nondisclosure of a fact that it is his

duty to disclose causes physical harm to the person or to the land or chattel

of another who justifiably relies upon the misrepresentation, is subject to

liability to the other.



Comment a to Section 557A indicates that the rule for fraudulent misrepresentation is

more particularly described in Restatement (Second) of Torts § 310. Section 310 provides



that:



an actor who makes a misrepresentation is subject to liability to another

for physical harm which results from an act done by the other or a third

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ST-09-CV-619



‘Memorandum Opinion, December 1, 2011



Page 12 of 15

person in reliance upon the truth of the representation, if the actor (a)

intends his statement to induce or should realize that it is likely to induce

action by the other, or a third person, which involves an unreasonable risk

of physical harm to the other, and (b) knows (i) that the statement is false,

or (ii) that he has not the knowledge which he professes.



Construing the facts in the light most favorable to Plaintiffs, the Court finds that

Plaintiffs have not presented prima facie evidence that Defendant is subject to liability

under Restatement (Second) of Torts § 557A. As described with more particularity with

respect to Plaintiffs’ argument under Restatement (Second) of Torts § 324A(c), the chief

representations Defendant made were that the properties had a maximum capacity of

twenty-four guests, that the properties were suitable for fifteen people, that Defendant

inspected each property for value, and that Defendant makes sure each villa is “up to

snuff.” Plaintiffs have not presented any evidence that Defendant had actual knowledge

that the Coral Gardens deck would likely collapse if fourteen people stood on it. In

addition, no reasonable jury could conclude that Defendant should have known that its

statements “involved an unreasonable risk of harm or that the physical safety of others

depended on the accuracy of the information [Defendant] gave.” Lempert v. Singer, 766

F.Supp. 1356, 1367 (D.V.I. 1991). A statement about the maximum number of people

permitted on the premises is not, in and of itself, a statement that expresses knowledge of

the safety of the premises. See Jd., at 1367 (“misrepresentations concerning the

condition ... of a piece of real property, without more, are not the sort that ordinarily

involve an unreasonable risk of bodily harm”). Had Defendant certified that the deck



could withstand the weight of a specific number of people, this type of statement could be



considered a misrepresentation if Defendant did not have knowledge of the statement

Richard Shealy, et al. v. West Indies Management Company, Inc.



ST-09-CV-619



- Memorandum Opinion, December 1, 2011



Page 13 of 15



expressed. However, in this case, the representations Defendant made about the number

of people on the property related to the entire property and were not certifications that

each portion of the property, no matter how small, could accommodate and withstand the

weight of fifteen to twenty-four people.



Similarly, had Defendant specifically represented that the property was safe,

Defendant could be subject to liability under Restatement (Second) of Torts § 557A for

professing knowledge it did not have. Here, however, Defendant’s statements about the

inspections on the property relate to a client’s “expectation of value” and do not express

knowledge about the safety of the premises. Defendant’s statements, when combined,

also cannot be construed to express knowledge of the safety of the premises.



Defendant could also be subject to liability under Restatement (Second) of Torts §

557A if Defendant did not disclose a fact which Defendant had a duty to disclose. In

order to show that Defendant is liable under this portion of section 557A, Plaintiffs

needed to present prima facie evidence showing that Defendant knew the deck was

structurally impaired but did not disclose this information, which Plaintiffs have failed to

do.



Construing the facts in the light most favorable to Plaintiffs, Plaintiffs have not

presented prima facie evidence indicating that Defendant is subject to liability under



Restatement (Second) of Torts §§ 359, 383, 324A, 552(1) and 557A. As a result,



Defendant is entitled to judgment as a matter of law with respect to Counts I, II, III and



IV of Plaintiffs’ Complaint.

Richard Shealy, et al. v. West Indies Management Company, Inc.

ST-09-CV-619



_ Memorandum Opinion, December 1, 2011



Page 14 of 15



In Count V, Plaintiffs brought a claim for breach of contract. In order to prevail

on a claim for breach of contract, a plaintiff must establish: “(1) the existence of a

contract between the parties; (2) that the defendant breached a material duty imposed by

that contract; and (3) that damages resulted from the breach.” George v. V.1. Lottery

Comm'n, S.Ct. Civ. No. 2009-0066, 2010 WL 5156652, at *3 (V.I. 2010).



Plaintiffs assert that confirmation letters addressed to Bernice Young’ constitute a

contract between Defendant and Young of which Plaintiffs were third party beneficiaries.

Assuming, arguendo, that the letters created a valid contract, the letters do not contain

any contractual provisions that would obligate Defendant to inspect and maintain the

Coral Gardens villa. Although Plaintiffs rely on statements on Defendant’s website as

evidence of a duty to inspect and maintain the premises, these statements are not

incorporated by reference into the letters. “With a contract, the document to be

incorporated must be referred to and described in the contract in such a way that the

document's identity is clear beyond doubt.” TDY Industries, Inc. v. National Freight

Transp., Inc., Civ. No. 07-984, 2009 WL 691947, at *20 (W.D. Pa. 2009) (quoting

Black's Law Dictionary (8th ed. 2004)). In addition, even if the Court were to assume that

the confirmation email!® is a document that is part of the agreement between Defendant

and Young, the “24 guest max” language in the email is not an ambiguous statement that

would require the Court to look beyond the four corners of the contract and review other



extrinsic material, such as the contents of the website. See Elbrecht v. Carambola



Partners, LLC, Civ. No. 1:08-cv-00021, 2010 WL 2813614, at *4 (D.V.I. 2010) (“[i]t is



° Exhibit 2 to Nancy Anderson’s affidavit.

10 Exhibit 1 to Nancy Anderson’s affidavit. The email does not indicate who sent the email and who



received the email.

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ST-09-CV-619



-. Memorandum Opinion, December 1, 2011



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axiomatic that where the language of a contract is clear and unambiguous, it must be

given its plain meaning”). The plain meaning of the “24 guest max” phrase does not

impose a contractual duty upon Defendant to maintain the premises. Accordingly,

Plaintiffs have not presented any evidence of breach of contract, and Count V must be

dismissed on this ground.



In addition, Count V is barred by the gist of the action doctrine, which

“maintain[s] the barrier between tort and contract claims.” DiPietro v. Glidewell

Laboratories, Civil No. 1:CV-07-1591, 2011 WL 5403568, at *2 (M.D. Pa. 2011). See

also Craig v. Amateur Softball Ass'n of America, 951 A.2d 372, 377 (Pa. Super. Ct. 2008)

(applying the gist of action doctrine to a situation where a party was recasting his

negligence claim as a contract claim); Kerlinsky v. Main Line Hospitals, Inc., Civ. No.

10-04404, 2011 WL 3497303, at *3 (E.D. Pa. 2011) (“where an implied contract claim

duplicates the negligence claim in a medical-malpractice case, the court must strike the

contract action”). Plaintiffs’ attempt to re-characterize their negligence claims as a

contract claim “does not, in of itself, create a genuine issue of material fact appropriate

for a jury's consideration.” Craig, 951 A.2d at 377. Accordingly, Defendant is entitled to

judgment as a matter of law on Count V.



An Order consistent with this Opinion shall follow.



Dated: December 5 , 2011 ~— = 5

N.



HON. MICHAEE-C-BUNSTON

tia H. Velazquez, Esq. JUDGE OF THE SUPERIOR COURT

/ OF THE VIRGIN ISLANDS



ATTEST:

Clerk of Court



by:

onna D. Dénovan / /' haf

SUPERIOR COURT OF THE VIRGIN ISLANDS



DIVISION OF ST. THOMAS AND ST. JOHN



RICHARD SHEALY, SHERRY SHEALY, LAUREN _)

SHEALY, EMILY SHEALY, and ASHLEY TURNER, )



)



Plaintiffs, )



)



VS. ) CASE NO. ST-09-CV-619



)



WEST INDIES MANAGEMENT CO., INC. d/b/a )

WIMCO, McANDERSON REAL ESTATE INC. d/b/a _)

McLAUGHLIN ANDERSON LUXURY VILLAS, )

ALABAMA WORLD TRAVEL INC., CORAL )

GARDENS LLC, VILLA CORAL GARDENS LLC, _)

SANZABAL LLC, JOHN DOE 3, JOHN DOE 4, )

)



Defendants. )



)



ORDER



Upon consideration of the premises, it is hereby



ORDERED that Defendant West Indies Management Company, Inc.’s renewed

motion for summary judgment is GRANTED; and it is



ORDERED that the parties shall advise the Court in writing of any other issues

outstanding in this matter by December 16, 2011, failing which this case is dismissed

with prejudice; and it is



ORDERED that copies of this Order shall be directed to counsel of record.



Dated: December: 201 1 cf)



HON. MIGHAEL C, DUNSFON

JUDGE OF THE SUPERIOR COURT

OF THE VIRGIN ISLANDS