IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. THOMAS AND ST. JOHN



KREKKKKRKEKEK

ERMINIE C. MATHAVIOUS, ) CIVIL NO. ST-09-CV-326

)

Plaintiff, ) ACTION FOR DAMAGES

)

vs. )

)

VIRGIN ISLANDS PORT AUTHORITY, )

)

Defendant. )

)

MEMORANDUM OPINION



Plaintiff Erminie C. Mathavious has filed a Motion to Supplement Complaint, seeking

leave of Court to file and serve a supplemental complaint which adds a second cause of action to

the original complaint filed in this case.! For the reasons stated therein, the Court will grant the

Motion and will direct Defendant Virgin Islands Port Authority (““VIPA”) to respond to the

Supplemental Complaint.



DISCUSSION



I. RULE15(d) OF THE FEDERAL RULES OF CIVIL PROCEDURE STANDARD



The Court, in addressing the Motion to Supplement Complaint, is guided by Rule 15(d)

of the Federal Rules of Civil Procedure.? Rule 15(d) allows the Court, “[o]n motion and

reasonable notice . . . [and] on just terms, [to] permit a party to serve a supplemental pleading

setting out any transaction, occurrence, or event that happened after the date of the pleading to be

supplemented.” Generally, courts grant such motions when the supplemental pleadings will not

unfairly prejudice other parties.°



Il. THe Court Finps THat VIPA HAD REASONABLE NOTICE OF _ THE

SUPPLEMENTAL PLEADING AND WILL SUFFER NO PREJUDICE.



In support of the Motion to Supplement Complaint, Mathavious states that on September

3, 2010, she fell and injured herself a second time on VIPA’s property. Further, Mathavious



George Marshall Miller, Esq., appeared on behalf of Plaintiff Erminie C. Mathavious. Carl Zucconi, Esq.,

appeared on behalf of Defendant Virgin Islands Port Authority.

2 The Federal Rules of Civil Procedure apply to matters before this Court whenever they are not inconsistent with

the Superior Court Rules. SUPER. CT. R. 7.

3 See, e.g, Quaratino v. Tiffany & CO., 71 F.3d 58, 66 (2d Cir. 1995) (“Leave is normally granted, especially when

the opposing party is not prejudiced.”).

Erminie C. Mathavious v. Virgin Islands Port Authority

Civil No. ST-09-CV-326



Order



Page 2 of 4



asserts that during discovery in this matter, she stated, under oath, that she had sustained injuries

during the subsequent fall.’



In opposition, VIPA states that the length of time, over two years, between the incidents,

the likelihood of jury confusion, prejudice to the Defendant, and the delay in the resolution of

this case that will be caused by the Motion to Supplement are grounds to deny the same.

Furthermore, VIPA contends that the facts in the proposed Supplemental Complaint are not well

pleaded, as required by relevant case law,” and thus, futile.



The Court finds that VIPA had notice of the subsequent fall and potential claim during

discovery, on June 7, 2011 when Mathavious provided her responses to VIPA’s ‘initial

interrogatories. The second cause of action is related to the claim in the original complaint

because it, too, asserts a negligence claim against VIPA. Further, since Mathavious alleges that

the subsequent fall occurred on September 3, 2010, she is well within her right, under the statute

of limitations,° to prosecute her second cause of action in this matter or in a separate proceeding.

Thus, the Court concludes that VIPA will not be prejudiced by the supplemental complaint. The

Court will, therefore, grant the Motion to Supplement Complaint.



Ill. SUFFICIENCY OF THE PROPOSED SUPPLEMENTAL COMPLAINT



VIPA has also raised the sufficiency of the proposed Supplemental Complaint as grounds

for denying Mathavious’s Motion. Thus, the Court will address this issue. Rule 8 of the Federal

Rules of Civil Procedure’ requires a pleading that contains “a short and plain statement of the

claim showing that the pleader is entitled to relief.”® All material allegations in the complaint are

taken as true, and the Court must construe all facts in a light most favorable to the non-moving

party.” However, a plaintiff is obliged to provide “more than labels and conclusions.”!” To

survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, “a

complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is

plausible on its face.”'' Determining whether a complaint states a plausible claim for relief” is

“a context-specific task that requires the reviewing court to draw on its judicial experience and

common sense.””? In making the plausibility determination, the Court must first separate the

factual and legal elements of the claim and “must then determine whether the facts alleged in the



* Mot. Supplement Compl., Ex. A.



> See, e.g. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009).



® See V.I. CODE ANN. tit. 5, § 31(5)(A).



7 See SUPER. CT. R. 7 (“The practice and procedure in the Superior Court shall be governed by the Rules of the

Superior Court and, to the extent not inconsistent therewith ... the Federal Rules of Civil Procedure... .”).



* Fep. R. CIv. P. 8(a)(2).



° Christopher v. Harbury, 536 U.S. 403, 406 (2002).



'0 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).



"" Ashcroft v. Iqbal, _U.S.__, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570); see also Brady v.

Cintron, S.Ct. Civ. No. 2010-0014, 2011 WL 4543906, at *10 (V.I. Sept. 27, 2010); Jones v. L.S. Holdings, Inc., 53

V.I. 48, 53 (Super. Ct. 2010).



2 Iqbal, 129 S.Ct. at 1950.

Erminie C. Mathavious v. Virgin Islands Port Authority

Civil No. ST-09-CV-326



Order



Page 3 of 4



complaint are sufficient to show that the plaintiff has a plausible claim for relief.”'> “But where

the well-pleaded facts do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged-but it has not ‘show[n]—‘that the pleader is entitled to

relief.””"*



IV. NEGLIGENCE



The second cause of action in Mathavious’s proposed Supplemental Complaint, asserts a

claim for negligence. The Court notes that “[t]he mere fact that an accident occurred does not

give rise to an inference that the injured person was the victim of negligence.” Nonetheless, to

state a claim for negligence, a plaintiff must allege: (1) a duty; (2) a breach of that duty; (3)

causation; and (4) damages.



Mathavious claims that, on September 3, 2010, she “disembarked at the Wilmoth Blyden

Termination in Charlotte Amalie. As Mathavious exited the United States Immigration and

Custom Building and walked towards the parking lot, she tripped on a hole in the concrete

surface owned and/or maintained by VIPA and injured her knee and shoulder.”'’ Mathavious

alleges that VIPA had an obligation to maintain the pavement in a safe condition and her

accident was foreseeable, thus VIPA failed to exercise its duty of care. Further, Mathavious

asserts that her injury was the direct and proximate cause of VIPA’s negligence in failing to

maintain the walkway in a safe manner, give reasonable notice of the hole in the concrete, failed

to make adequate repairs in a timely and reasonable manner. Mathavious also states that she is

neither partly nor wholly responsible for the injuries she suffered from the fall.



It is well known that a landowner owes a duty to protect invitees from a dangerous

condition on his land only if he: “(a) knows or by the exercise of reasonable care would discover

the condition, and should realize that it involves an unreasonable risk of harm to such invitee,

and (b) should expect that they will not discover or realize the danger, or will fail to protect

themselves against it, and (c) failed to exercise reasonable care to protect them against the

danger.”'® Specifically, to establish duty and breach in a premises liability case, “a plaintiff must

[first] establish that the business had actual or constructive notice of the dangerous condition and

[then establish that the defendant] failed to eliminate or warn of the condition.”



The Court notes that the proposed Supplemental Complaint does not state facts showing

that VIPA knew or by exercise of reasonable care would have discovered the hole in the



3° Fowler vy. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).



‘4 Iqbal, 129 S.Ct. at 1950 (quoting FED. R. CIV. P. 8(a)(2)).



'5 Joseph v. Speedy Gas, Inc., D.C. Civ.App. No. 2007-0008, 2011 WL 6181205 (D.V.I. Dec. 12, 2011) (quoting

Tameru v. W-Franklin, L.P., 350 Fed. App’x. 737, 739 (3d Cir. 2009)).



‘6 Charleswell v. Chase Manhattan Bank, N.A., 308 F. Supp. 2d 545, 571 (D.V.I. 2004); see also RESTATEMENT

(SECOND) OF TORTS § 281.



'” (Proposed Supplemental Compl. { 12.)



'8 RESTATEMENT (SECOND) OF TORTS § 343.



'° Saldana v. K-Mart Corp., 260 F.3d 228, 232 (3d Cir. 2001).

ESTYSO



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Court Clerk Supervisor



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ATTEST:. VEN

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BY:



Erminie C. Mathavious v. Virgin Islands Port Authority

Civil No. ST-09-CV-326



Order



Page 4 of 4



concrete. The Court must, however, evaluate the cumulative effect of the factual allegations.””

The plausibility requirement under a motion to dismiss “simply calls for enough facts to raise a

reasonable expectation that discovery will reveal evidence that the [defendant had actual or

constructive of the dangerous condition].”*’ The Court opines that Mathavious does not know

whether or not VIPA knew or should have known of the dangerous condition. Hence,

Mathavious pleading, in the proposed Supplemental Complaint, that VIPA has failed to maintain

its walkway in a safe manner, failed to give reasonable notice of the hole, and failed to make

adequate repairs in a timely manner is appropriate. In addition, the Court finds that the facts

alleged support a plausible inference of a breach, thereby satisfying this element of negligence.



The Court will now turn to causation, which is found when a defendant’s negligent

conduct is a substantial factor in bringing about the specific harm incurred.”” Moreover, “{iJ]n

order for the negligent [conduct] to be regarded as the cause of the injury, it must be shown that

the injury would not have occurred but for that [conduct].*? Mathavious claims that she tripped

on a hole in the concrete surface and as a result, injured her knee and shoulder. In addition,

Mathavious has pleaded that her injuries are not attributed to her own conduct. The Court,

therefore, finds that Mathavious has shown that her injuries from the fall were the directly and

proximately caused by VIPA’s alleged conduct.



CONCLUSION



Having reviewed Mathavious’s Motion to Supplement Complaint under Rule 15 of the

Federal Rules of Civil Procedure and having determined the sufficiency of the proposed

Supplemental Complaint, the Court will grant the same. ,



DATED: March } , 2012



JAMES S. LL Il

Judge of the Superior Court

of the Virgin Islands



20 Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 13 (st Cir. 2011).



21 Id at 17 (quoting Twombly, 550 U.S. at 556); see also Morris v. Philadelphia Hous. Auth., No.10-5431, 2011

WL 1661506, at * 5 (E.D. Pa. Apr. 28, 2011) (citing Jgbal, 129 S.Ct. at 1949). See generally Boykin v. KeyCorp.,

§21 F.3d 202 (2d Cir. 2008) (discussing, in the context of a claim for discrimination, that it was not fatal that a

complaint did not state a specific instance of a defendant’s preferential treatment to non-minority customers. The

court reasoned that the names and records of customers who were not members of the protected classes and were

more favorably treated in the loan application process are information particularly within Defendant’s knowledge

and control. Thus, complaint’s allegations may be based on “information and belief when facts are peculiarly within

the opposing party’s knowledge.”).



22 Rabutino v. Freedom State Realty Co., Inc., 809 A.2d 933, 941 (Pa. Super. 2002); see also Buskirk vy, Carey

Candadian Mines, Ltd., 760 F.2d 481 (3d Cir. 1985) (causation is defined “as a substantial contributing factor in

bringing about the harm in question.”); see also RESTATEMENT (SECOND) OF TORTS § 431.



3 Cintron, 2011 WL 4543906, at *9.