IN THE TERRITORIAL COURT OF THE VIRGIN ASLANDS

DIVISION OF ST. THOMAS AND ST. JOHN



=Q=



CHERYL POTTER, Individually and

as Parent and Guardian of 3 [

KYLE POTTER, 7



Plaintiff : CIVIL NO. 231/1983



ae ; ACTION FOR DAMAGES



FRANK B. MORSE and CARIBBEAN :

JEEP and CAR RENTAL, INC., :

Defendants :



LEONARD B. FRANCIS, ESQ.

P, O. Box 8838



St. Thomas, Virgin Islands

(Attorney for Plaintiff)



RICHARD H. HUNTER, ESQ.



Isherwood, Hunter & Colianni



46 King Street



Christiansted, St. Croix, V. I.



(Attorney for Defendant Caribbean Jeep

and Car Rental, Inc.)



MEMORANDUM OPINION

(August 2g , 1986) |



FEUERZEIG, J.



The court must determine whether a car rental agency's vio-

lation of the statutorily imposed record keeping and insurance

provisions provides a basis for recovery by a plaintiff who was

involved in an accident with a renter of an agency vehicle.



Defendant Caribbean Jeep and Car Rental, Inc. ("Caribbean

Jeep") has moved for summary judgment and dismissal of the com-

plaint. Defendant's motion, accompanied by a sworn deposition,

is premised on the proposition that an owner or bailor of a motor



vehicle is not liable for the negligence of a bailee in the

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absence of a negligent entrustment or an employment relationship. |

The plaintiff argues, however, that Caribbean Jeep's failure to |

comply with its statutory obligation of keeping records is neg lie.|

gence per se. The court is of the opinion that there is no

genuine issue as to any material fact and will grant Caribbean

Jeep's motion. F.R.Civ.P. 56.

I



Caribbean Jeep on or about August 13, 1982, rented a vehicle

to the co-defendant Frank Morse. On or about the same date, Morse

allegedly collided his rental vehicle with a car driven by the

plaintiff. The plaintiff subsequently filed this suit for

damages against both Morse and Caribbean Jeep. Plaintiff's

efforts to locate Morse for service, however, were futile. Con-

sequently, service was made on the Office of the Lieutenant

Governor pursuant to 20 V.I.C. §543 (1976). The plaintiff's sub-

sequent failure to make timely efforts at giving notice of the

proceeding to Morse, as section 543 requires, resulted in the

dismissal of this action as to Morse. |



II



Plaintiff's amended complaint asserts two alternative bases

for Caribbean Jeep's liability: (1) negligent entrustment of

defendant's vehicle to Morse and (2) Caribbean Jeep's failure to

obtain a complete and accurate address for Morse, i, violation

of 20 V.1.C. §417 (1976). The defendant's motion for summary

judgment, supported by the deposition of its manager, correctly



argues that in the Virgin Islands _an owner of a vehicle is not



1 the address obtained by Caribbean Jeep from Morse was:

Frank B. Morse - 18 Ballard Ln. - Marblehead.

relationship with the bailee. See Smith v. Hertz Rent-a-Car,

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liable for the negligence of a bailee unless the owner negligent-



ly entrusted the vehicle to the bailee or the owner has an agency



a



6 V.I. 235, 262 F.Supp. 431 (D.V.I. 1966), aff'd, 377 F.2d 885



(3d Cir. 1967); Estaphane v. Hobson, 18 V.I. 396 (D.V.I. 1981).



Defendant contends that it had no reason to foresee that Morse

might use defendant's vehicle in a dangerous manner because Morse

previously had rented vehicles from the defendant without inci-

dent. Additionally, the defendant urges that it had no agency

relationship with Morse at any time relevant to his accident with

the plaintiff.



The plaintiff concedes that the defendant has correctly

stated the two established bases for imposing liability on the

theory of negligent entrustment, and does not contest that

Caribbean Jeep previously rented vehicles to Morse without any

problems. The plaintiff also does not assert that there was an

agency relationship between Caribbean Jeep and Morse at the time

of the accident in question. Clearly, then, there is no genuine

issue as to Caribbean Jeep's lack of knowledge that Morse would

be likely to use its vehicle in a manner involving unreasonable

risk of harm to others or as to the absence of an agency rela-

tionship between Caribbean Jeep and Morse at the time of the

accident. Finally, there is no evidence before the court that

Morse even was driving the vehicle at the time of the accident.



Accordingly, summary judgment will enter in favor of Caribbean



Jeep on the issue of negligent entrustment.

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III



The plaintiff, however, argues that Caribbean Jeep's alleged



violation of 20 V.I.C. §417 is negligence per se. Although the

plaintiff inexplicably attempts to interweave the theories of

negligent entrustment and negligence per se, the court will

address them as the distinct issues that they are.



For the purposes of the present motion, the court will

assume that the address 2/ obtained by Caribbean Jeep from Morse

at the time it rented its vehicle to him did not satisfy the re-

quirements of section 417 oy Whether this statutory violation

amounts to negligence per se, though, hinges on a finding that

(1) the statute is designed to protect the class of persons in

which the plaintiff is included and (2) the statute is intended

to protect the plaintiff against the risk of the type of harm

that has in fact occurred as a result of its violation. See

Restatement (Second) of Torts, §§286-288 (1965); William L.

Prosser, Law of Torts, 4th Ed. at 200 (1979). This essentially

4/



is a question of legislative intent. =



“’'See supra n. 1.



3/ The determination as to whether a person's act or failure

to act meets the statutory standard of a reasonable person is

properly a function of the jury or finder of fact. See, e.g.,

Marks v. Mobil Oil Corp., 562 F.Supp. 759, 768 (E.D. Pa. 1983);

Springer v. Joseph Schlitz Brewing Co., 510 F.2d 468, 473 (4th

Cir. 1975).



2/ Application of the neligence per se doctrine is very

closely related to the process for determining whether a private

cause of action is available for a statutory violation. "Both



. address the question of whether the policy behind the

legislative enactment will be appropriately served by using it to

impose ahd measure civil damage liability." Frederick v. Thomas,

578 F.2a@ 513, 517 n. 8 (3d Cir. 1978). The doctrine of negli-

gence per se is concerned with "determining whether a statute

supplies the standard of conduct of a reasonable man." Swanston

v. Government of the Virgin Islands, 17 V.I. 158, 162 (D.V.I.

1980).



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5.

Section 417 was enacted on January 3, 1968, along with the

remainder of Chapter 38. 5/ As is clear from the language of the



statute, it requires a renter of vehicles to keep a wide variety

of information about its vehicles and their registration as well

as information about the person renting the vehicle, including

his permanent address. As a result, the relevant questions are

why is a renter of vehicles required to keep this information and

for whose benefit?



The last line of section 417 provides that the required in-

formation "shall always be open to inspection by the Commissioner

{of Public Safety] or his designee." It would appear, therefore,

that at least one purpose behind section 417 is to ensure that

the Department of Public Safety has a complete record of all

persons driving rental vehicles on public roads. Section 418 of

Title 20 provides that all renters of vehicles must ensure that

all rental vehicles have liability insurance, "whereby the

insurer agrees to pay .. . on behalf of the driver... all

sums which such driver shall become legally obligated to pay as



damages . . . caused by accident." Subsection (b) provides that



5/ Section 417 provides:



No licensee may rent a drive~yourself car to another

person until he shall have examined such other person's

driving license and verified that such other person is

legally authorized to operate a motor vehicle in the Virgin

Islands. Every licensee shal] keep a register containing

the number of the registration license and license plates of

the rented vehicle, and the name, the local address, and the

permanent address of the person renting the vehicle. Such

register shall also contain the pertinent information,

including the number and the issuance and expiration dates,

the person's Virgin Islands driving license and the person's

foreign driving license in any case where the person's

Virgin Islands license is a temporary permit. Such register



shall always be open to inspection by the Commissioner or

his designee.



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6.

it is the renter of the motor vehicle who will be liable to any

party injured by the driver of a rental vehicle that is for any

reason uninsured. Section 418 thus requires liability insurance |

or, in its absence, imputes liability for damage caused by the

driver of a rental vehicle to the renter of the vehicle.



The “obvious purpose of section 418 is to ensure that persons



wrongfully injured by drivers of rental vehicles will have re-



course to a source of funds to compensate them. Continental



Insurance Co. v. Bodie, 18 V.I. 76, 83 (D.V.I. 1984). There is



no evidence that Caribbean Jeep did not insure the vehicle. To

the contary, it represents that the vehicle was insured at the

time of the accident.



When the information keeping requirements of section 417 are

examined in conjunction with the imputed liability of section

418, it appears that another purpose of section 417 is to enable |

anyone who must pay for damage caused by the driver of a rental

vehicle to locate that driver.© Indeed, section 419 provides |

that a party injured by the driver of a rental vehicle may

enforce his judgment against the driver "directly against the



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insurer," and section 419(b) provides that nothing in the imputed |

liability and mandatory insurance sections shall affect any

rights the insurer or renter of the vehicle "may have to proceed,

by subrogation or otherwise, against any person whose negligent



or reckless use or operation of a drive-yourself car was the



& This purpose is made more apparent by a review of the

legislative history of the bill that included sections 417 and

418. See Leg. Debate on Bill 3478, 7th Spec. Sess., 7th Leg.

Sess. of the V.I., December 18, 1967, at 14-58.

>



proximate cause of personal or property damage." There is

nothing in the language of section 417, or anywhere else in



Chapter 38, that suggests that section 417 is intended to protect |



+



persons in the plaintiff's position.



The court's conclusion also is supported by the fact that

Chapter 38 includes a specific penalty for violations of any pro-

vision of the chapter or any rule or regulation issued pursuant

to it. Section 423(b) specifically subjects any violator of

Chapter 38 to a fine of not more than $500 or revocation of the

licensee's business license.



Finally, the conclusion that section 417 is not intended

to protect persons injured by drivers of rental vehicles is

bolstered by the fact that 20 V.1.C. §543(a)(1976) expressly pro-



vides:



"Any non-resident who operates a motor vehicle in the Virgin

Islands . .. shall be deemed to have appointed the Govern-

ment Secretary of the Virgin Islands as his agent upon whom

may be served the process in any action against him arising

out of any accident or collision occurring within the Virgin

Islands. . . . (ce) The provisions of this section shall also

apply to a resident . . . who departs from the Virgin

Islands after the accident, and who remains absent therefrom

continuously for a period of 30 days after the accident,

whether such absence is intended to be temporary or perma-

nent."



Section 543, then, by specifically addressing the harm that the

plaintiff asserts section 417 is intended to protect against--

inability to locate a defendant for service of process--is per-

suasive evidence that the Legislature did not enact section 417 |



for that purpose.



In fact, it is the plaintiff's own failure to comply with |



the service requirements of section 543 that has resulted in her

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present predicament. The plaintiff filed this suit on March 22,

1983. A copy of the summons and complaint were served on the

Lieutenant Governor on April 12, 1983, pursuant to 20 V.I.C, §543



Despite the mandate of section 543(b) that the plaintiff send the



' defendant driver notice of the action "not later than the day



following commencement of the action," the plaintiff waited until

September 23, 1983, and October 18, 1983, to send two different

certified letters to Morse to give him notice of the proceedings.

Both were returned because the address did not exist, but the

plaintiff never notified the court of her failure to notify

Morse, nor did she seek a court order for "such additional notice

» . « aS justice may require." 20 V.1I.C. §543(b). She also

failed to resort to substituted service under the Virgin Islands

Long Arm Statute, 5 V.I.C. §4901 et seq. (1967). Instead, the

plaintiff moved for entry of default against Morse in March of

1985. This court, though, by order of the Honorable Ishmael A.

Meyers on April 12, 1985, found, in view of the 120-day require-

ment for service imposed by Rule 4(j), Fed.R.Civ.P., that "[i]t

was incumbent on plaintiff's attorney to file the appropriate

motion for substituted service or for an extension of time

pursuant to Rule 6(b), Fed.R.Civ.P., on or before July 20, 1983."

Having failed to take such action, the complaint against Morse

was dismissed, pursuant to Fed.R.Civ.P. 12(b)(2), for lack of

jurisdiction over the person.



Firially, the plaintiff's claim that she has been injured by



Caribbean Jeep's failure to comply with section 417, even

assuming that the plaintiff had been able to establish I SH



per se, must fail for lack of causation. "Not every breach of a



legal duty is actionable in tort." Iron Mountain Security v.



American Specialty Foods, Inc., 457 F.Supp. 1159, 1166 (E.D. Pa.



1978). Once a plaintiff has shown that the doctrine of negli-

gence per se is applicable, to "hold the [defendant] liable, its

conduct .. . must still be a legal cause of harm to the plain-



tiff." Swanston v. Government, supra at 167. Here, it is the



plaintiff's failure to satisfy section 543, and not Caribbean



Jeep's failure to comply with section 417, that is the cause of



the plaintiff's inability to obtain judgment against Morse. There



being no genuine issue as to any material fact and no basis in

law for denying the defendant's motion for summary judgment, it



will accordingly be granted.



YoL,

Judge of the Territorial Court



ATTEST:



VIOLA E. - SMITH

oe oe cof the Court