DIVISION OF ST CROIX
CARRIE SNOOK AND RONNIE SNOOK
PLAINTIFFS,
Civil No SX 2020 CV 547
v
ACTION FOR DAMAGES
INDIVIDUALLY AND AS TRUSTEES OF THE
ROY FRN AND SUSAN KUZENSKI FERN
LIVING TRUST DATED SEPTEMBER 21
2011
CITE AS 2021 VI SUPER 85 M
DEFENDANTS
Appearances
Nathan J Mirocha, Esq
MirochaLaw LLC
St Croix, U S Virgin Islands
For Plamnffs
Sharmane Davis Brathwaite, Esq
Brathwaite Law LLC
St Thomas, U S Virgin Islands
For Defendants
MEMORANDUM OPINION AND ORDER
WILLOCKS Presiding Judge
THIS MATTER came before the Court on Plaintiff Carrie Snook (hereinafter “Carrie”)
and Plaintiff Ronnie Snook’s (hereinafter “Ronnie” and together with Cam'e, “P1aintiffs”) motion
for leave to file first amended complaint, filed on June 9, 2021 In response, Defendant Roy Fem
(hereinafter “Roy”), individually, and Defendant Susan Kuzenski Fern (hereinafter “Susan”),
individually, filed a joint opposition and Plaintiffs filed a reply thereafter
BACKGROUND
On May 13 2020 Plaintiffs filed a complaint against Defendant Roy and Defendant Susan
individually and as trustees of the Roy Fern and Susan Kuzenski Fem Living Trust Dated
September 21, 2011
in connection with dog bites Plaintiff Carrie sustained on April 25, 2020
Plaintiffs alleged inter alia, that
[o]n April 25 2020
[Plaintiff Carrie] was walking along the
roadways in the area of Estate Mon Bijou and Estate Little Fountain
that
[a]t the aforesaid time
and place, the pit bull owned by [Defendant Roy] and [Defendant Susan] was uncaged, unleashed
and unrestrained in any manner,
that ‘ [a]t the aforesaid time and pace, the pit bull owned by
[Defendant Roy] and [Defendant Susan] chased and attacked [Plaintiff Carrie] as she was walking
through the Estate Mon Bijou and Estate Little Fountain area ’ that
[a]t the aforesaid time and
place the pit bull owned by [Defendant Roy] and [Defendant Susan] chased [Plaintiff Carrie] into
a tree and hit her left leg and calf ’ that
[Plaintiff Carrie ’ was lawfully on the roadway when she
was chased and attacked by the pit bull owned by [Defendant Roy] and [Defendant Susan] on
April 25 2020,
and that
[Plaintiff Carrie] was injured and suffered damages as a result of the
bites inflicted on her by the pit bull owned by [Defendant Roy] and [Defendant Susan]
(Compl
‘|[‘][8 11
l3 l4 ) The following counts were included in the complaint Count I Animal Protection
and Control Act (Plaintiff Carrie’s claim against Defendant Roy individually), Count II Animal
Protection and Control Act (Plaintiff Carrie 5 against Defendant Susan, individually) Count 111
Negligence (Plaintiff Carrie 5 claim against Defendant Roy and Defendant Susan
as trustees),
Count [V Negligence (Plaintiff Carrie 3 claim against Defendant Roy
individually) Count V
Negligence (Plaintiff Carrie s claim against Defendant Susan, individually) Count VI Negligence
(Plaintiff Ronnie 5 claim against Defendant Roy, individually) Count VII Negligence (Plaintiff
Carrie 8 claim against Defendant Roy, individually)
Count IX Punitive Damages (Plaintiff
Carrie 5 claim against Defendant Susan, individually) and Count X Punitive Damages (Plaintiff
Carrie 5 claim against Defendant Roy and Defendant Susan, as trustees)
On June 23, 2020 Defendant Roy, individually and Defendant Susan, individually filed
a joint answer to Plaintiffs
complaint On that same date, Defendant Roy
as trustee
and
Defendant Susan
as trustee
filed a joint answer to Plaintiffs
complaint
Subsequently
a
scheduling order was entered and the parties proceeded with discovery
On June 10 2021
Plaintiffs filed this instant motion for leave to file first amended
complaint
STANDARD OF REVIEW
Rule 15 of Virgin Islands Rules of Civil Procedure provides that aside from amending its
pleading once as a matter of course
aparty may amend its pleading only with the opposing party 5
written consent or the court 8 leave
and that ‘ [t]he court should freely give leave when justice so
requires
VI
R
CIV
P
15(a)(2)
Rule
[5
l of Virgin Islands Rules of Civil Procedure
(hereinafter “Rule
15 1’) requires “[a] party moving to amend a pleading
[to]
attach a
complete
and properly signed—copy of the proposed amended pleading to the motion papers
and
must reproduce the entire pleading as amended specifically delineating the changes or
additions and may not incorporate any prior pleading by reference
VI R CIV P
15 1(a)
Furthermore
[a] proffered amended pleading must note prominently on the first page the
numbered
amendment
it
represents
e g
FIRST AMENDED COMPLAINT
SECOND
AMENDED COMPLAINT FIRST AMENDED ANSWER etc
VI R Cw P 15 I(b)
DISCUSSION
1
Motion to Amend
In their motion, Plaintiffs sought
to amend the Complaint on the basis of Defendants
testimony that one of the dogs that attacked Plaintiff Carrie [] was owned by Onaje Jackson
a
neighbor of the Defendants
and “to amend the Complaint to conform to the testimony elicited
from [Defendant Roy] and [Defendant Susan] thus far, and by two witnesses that have testified
(Motion p
1) A redline copy of the proposed first amended complaint reflecting the changes made
to the initial complaint was attached to Plaintiffs’ motion
'
In their joint opposition Defendant Roy, individually and Defendant Susan, individually
argued that the Court should deny Plaintiffs
motion
Defendant Roy and Defendant Susan
individually, made the following assertions in support of their argument
(i)
[t]he proposed
amendment to add a new defendant is futile
it will cause a misjoinder,
(ii)
Plaintiffs did not
include a fully executed First Amended Complaint with their motion
(iii) ‘ [t]he Court
may
deny a request to amend so long as it articulates a sound justification ”° (iv)
[t]he claims against
' The following counts were included in the proposed first amended complaint Count] Animal Protection and Control
Act (Plaintiff Carrie 5 claim against Defendant Roy
individually)
Count [1 Animal Protection and Control Act
(Plaintitt Carrie 5 against Detendant Susan
individually), Count [II Negligence (Plaintiff Carrie’s claim against
Defendant Roy and Defendant Susan as trustees) Count IV Negligence (Plaintiff Carrie’s claim against Defendant
Roy individually) Count V Negligence (Plaintift Carrie’s claim against Defendant Susan individually) Count VI
Negligence (Plaintitt Ronnie sclaim against Defendant Roy individually) Count VII Negligence (Plaintiff Ronnie 5
claim against Defendant Susan
individually)
Count VIII Punitive Damages (Plaintiff Carrie’s claim against
Defendant Roy, individually)
Count IX Punitive Damages (Plaintitf Carrie 5 claim against Defendant Susan
individually), Count X Punitive Damages (Plaintiff Carrie 5 claim against Defendant Roy and Detendant Susan
as
trustees) Count XI Animal Protection and Control Act (Plaintitf Carrie 5 claim against Detendant Onaje Jackson)
Count XII Negligence (Plaintitharrie 3 claim against Detendant Onaje Jackson) and Count XIII Punitive Damages
(Plaintiff Carrie 5 claim against Defendant Onaje Jackson)
1DelendantRoy individually and DetendantSusan individually reterenced Basicst GVI 20019Vl2l fil26(20l9)
(citing Reynolds 1 Rain: 20 VI 8 ‘l 25 (V I 2019) ( Appropriate justifications [for deviating from the norm 0t treely
granting leave to amend] include but are not limited to
undue delay bad faith or dilatory motive on the part of the
movant repeated tailure to cure deficiencies by amendments previously allowed undue prejudice to the opposing party
[Onaje Jackson] are separately delineated in three (3) new counts numbered XI XIII and based on
him owning a dog, black in color that was harbored at his residence and that
[i]t is not enough
that these claims allege the same type of violations that Plaintiffs are currently pursuing against
Defendants his joinder must be based on the same set of facts such that he and Defendants would
be jointly, severally or in the alternative responsible for Plaintiffs’ damages
1 (v)
‘[t]he
circumstances as proposed by Plaintiffs will require an analysis of Mr Jackson s responsibility
based on different facts, whether his dog harbored at a separate residence bit Plaintiff Carrie Snook
on April 25, 2020
and (vi) ‘ [b]ecause the statute of limitations has not expired Plaintiffs
tort
claim the Court’s denial of Plaintiffs motion will not result in any harm
(Opp
pp 2 3 )
In their reply Plaintiffs argued that the Court should grant their motion to amend Plaintiffs
made the following assertions in support of their argument (i)
PlaintiffCarrie Snook was attacked
by four dogs while walking in the roadway on April 25, 2020
and ‘[0]ne of those dogs is now
known to be owned by Onaje Jackson the proposed additional defendant ’
(ii)
each Defendant
was also able to provide relevant information that Sunshine was wilfully allowed on the
Defendants
property at 409 Mon Bijou and was also periodically harbored inside Defendants
house at the same location ’
(iii) Defendant Susan ‘was able to identify all of the dogs that she
saw by Carrie Snook including Duke Casha Hoover and Sunshine
and (iv)
it is clear that
the proposed claims as alleged against Onaje Jackson are based on the same set of facts such that
Mr Jackson and Defendants would be jointly and/or severally liable for Plaintiffs
damages
(Reply pp
1 3)
3 Defendant Roy, individually and Detendant Susan
individually, referenced VI R Civ P
20(a)(2); Brown v
Underwriters at Lloyd 5 er a1
202l VI SUPER 6] (court finding Rule 20 not satisfied when Plaintiffs did not assert
any right to reliet against all three Detendants jointly severally or arising from the same transaction occurrence or
A
Joinder
Rule 20 of the Virgin Islands Rules of Civil Procedure (hereinafter “Rule 20 ) governs
permissive joinder of parties Under Rule 20,
[p]ersons
as well as a vessel cargo or other
property subject to admiralty process in rem
may be joined in one action as defendants if (A)
any right to relief is asserted against them jointly severally, or in the alternative with respect to or
arising out of the same transaction occurrence, or series of transactions or occurrences and (B)
any question of law or fact common to all defendants will arise in the action
VI R Civ P
20(a)(2) The reporter 5 notes to Rule 20 state that
multiple defendants may be joined if any right
to relief is asserted against them jointly, severally, or in the alternative with respect to or arising
out of the same transaction and at least one question of law or fact common to all defendants will
arise in the action
V I R Civ P 20 (rptr 5 note)
Here although Plaintiffs argued in their reply brief that
that Mr Jackson and Defendants
would be jointly and/or severally liable for Plaintiffs damages
(Reply p 3) Plaintiffs did not
allege in their proposed first amended complaint that the right to relief is asserted against all the
defendants jointly or severally Nevertheless based on the allegations set forth in the proposed
first amended complaint the right to relief is with respect to the same transaction and occurrence
to wit on April 25 2020 Plaintiff Carrie was walking through Estate Mon Bijou and Estate Little
Fountain when she was bit by dogs owned by either Defendant Roy and Defendant Susan or Onaje
Jackson ‘ Furthermore based on the allegations set forth in the proposed first amended complaint,
there is at least one question of law or fact common to Defendant Roy, Defendant Susan and Onaje
Waintiff Carrie According to the complaint Plaintiff Carrie was bit by one dog
a
pit bull (Compl 3|
I I ) according to the proposed first amended complaint Plaintiff Carrie was by dogs (Proposed
Jackson, e g , the analysis for the following questions will be based on the same set of facts which
dog(s) bit Plaintiff Carrie on April 25, 2020, who is the owner ofthe dog(s) that bit Plaintiff Carrie
on April 25, 2020, and where was Plaintiff Carrie when she was bit by the dogs In other words,
the same facts that give rise to the action against Defendant Ray and Defendant Susan are part “of
the same transaction, occurrence, or series of transactions or occurrences” as the facts that give
rise to the action against Onaje Jackson and “any question oflaw or fact common to all defendants
will arise in the action ” As such, the Court finds that the requirements under Rule 20 have been
satisfied and joinder of Onaje Jackson as a defendant in this matter is proper VI R Civ P
20(a)(2) (“Persons
may bejoined in one action as defendants if (A) any right to reliefis asserted
against them
with respect to or arising out of the same transaction, occurrence, or series of
transactions or occurrences, and (B) any question of law or fact common to all defendants will
arise in the action ”) Thus, the Court is inclined to grant Plaintiff‘s motion for leave to file first
amended complaint However, Plaintiffs’ motion was not filed in compliance with Rule 15 1 First,
Plaintiffs failed to include a clean copy of the proposed first amended complaint as required under
Rule 15 1(a) See V I R CIV P 15 1(a) (‘attach a complete
and properly signed—copy of the
proposed amended pleading to the motion papers”) Second, the proposed first amended complaint,
based on the redline copy, did not “note prominently on the first page the numbered amendment it
represents ——e g FIRST AMENDED COMPLAINT—as required under Rule 15 1 V I R CIv
P
15 1(b)
Nevertheless, these defects are not fatal and the Court will give Plaintiffs the
opportunity to file a new proposed first amended complaint in compliance with Rule 15 l
2
Other Issues
Additionally, upon review of Plaintiffs’ initial complaint and proposed first amended
complaint, several issues have come to the Court’s attention The Court will address them in turn
It is for the benefit of everyone involved
the plaintiffs the defendants the Court
to have the
claims clarified as the parties engage in the discovery process and motion practice See Arno v
Hess Corp
71 V I 463 499 (V I Super Ct Oct 17 2019) ( the law favors clarity and precision
especially in pleadings
)
A
Statutory Claims Versus Common Law Claims
In the initial complaint and the proposed first amended complaint Plaintiff Connie alleged
both statutory claims‘ under Title 19 V I C § 26126 and common law claims7 under the negligence
theory for the dog bite she sustained However, this raises the question of whether, by enacting a
statute Title 19 V I C § 2612 that imposes strict liability upon the owners of the dogs that bit a
5 In their initial complaint, Plaintiffs alleged Count I Animal Protection and Control Act (Plaintiff Carrie 5 claim
against Defendant Roy, individually) and Count [1 Animal Protection and Control Act (Plaintiff Carrie 5 against
Detendant Susan individually)
In their proposed first amended complaint Plaintiffs alleged Count I Animal ProteLtion and Control Act (Plaintift
Carrie 5 claim against Defendant Roy individually) Count 11 Animal Protection and Control Act (Plaintiff Carrie 5
against Defendant Susan
individually) and Count XI Animal Protection and Control Act (Plaintift Carrie 5 claim
against Defendant Onaje Jackson)
6 Title l9 V I C §26l2 provides
(a) Owners of dogs shall be liable for any damage done by their dogs
(b) The owners of any dogs which shall bite any person while such person is on or in a publit. place or
lawtully on or in a private piece including the place of the owner of such dogs shall be liable for such
damages as may be suffered by persons bitten, regardless of the former viciousness of such dog or the
owners knowledge of such viciousness A person is lawfully upon private property 0t such owner within
the meaning 0! this section when he is on such property in the pertormanee 0t any duty imposed by the
laws of the Virgin Islands or by the laws or regulations of the United States or when he is on such
property upon invitation expressed or implied oi the owner thereot provided however, no owner of
any dog shall be liable
for any damages to any person or his property when such person shall
mischievoust or carelessly provoke or aggravate the dog inflicting such damages nor shall any such
owner be so liable it at the time of any such injury he had displayed in a prominent place on his premises
a sign easily readable including the words Bad Dog ’ 0r Beware of Dog
7 In their initial complaint Plaintiffs alleged Count [II Negligence (Plaintift Carrie 5 claim against Defendant Roy
and Defendant Susan
as trustees) and Count IV Negligence (Plaintift Carrie 5 claim against Detendant Roy
individually) Count V Negligence (Plaintiff Carrie 5 claim against Defendant Susan individually)
In their proposed first amended complaint Plaintifts alleged Count [II Negligence (Plaintiff Carrie 5 claim against
Defendant Roy and Defendant Susan as trustees) Count IV Negligence (Plaintiff Carrie 5 claim against Deiendant
Roy, individually) Count V Negligence (Plaintifi Carrie‘s claim against Defendant Susan individually) and Count
person, the Legislature abrogated the common law claim for dog bites See Defoe v Phillip 56
V I
109
121
(2012)
(internal
quotations and
citation
omitted)
(
It
is
well
established
that a statute should not be considered in derogation of the common law unless it expressly so
states or the result is imperativer required from the nature of the enactment
) If the answer is
yes then Plaintiff Connie is required to proceed with only the statutory claims On the other hand
if the answer is no, then Plaintiff Connie is permitted to proceed under both theories of liability
See V I R Civ P 8(d)(3) ( A party may state as many separate claims or defenses as it has
regardless of consistency
), accord Mztchell v General Engineering Corporation 67 V I 271,
285 n 7 (VI Super Ct 2017)( [A] plaintiff may plead different even inconsistent claims in the
alternative and also pursue alternate theories of relief
) The Court will give Plaintiff Connie
Defendant Roy and Defendant Susan the opportunity to brief the issue of whether by enacting a
statute Title 19 V IC § 2612 that imposes strict liability upon the owners of the dogs that bit a
person the Legislature abrogated the common law claim for dog bites
B
Punitive Damages
In the initial complaint and the proposed first amended complaint, Plaintiff Connie alleged
punitive damages as independent causes of action 8 In Bertrand v Mystzc Granite & Marble Inc ,
the Virgin Islands Supreme Court affirmed the Superior Court 5 ruling that
a request for punitive
damages is not an independent cause of action
63 V I 772, 784 n 6 (V I 2015) see also Der
Weer v Hess 011 VI Corp
60 VI 91
95 n 1 (VI Super Ct 2014) ( Although labeled as a
g In theirinitialeomplaint Plaintiffs alleged Count VIII Punitive Damages (Plaintift Carrie sclalm against Defendant
Roy individually) Count IX Punitiwe Damages (Plaintiff Carrie sclaim against Defendant Susan individually) and
Count X Punitive Damages (Plaintiff Carrie 5 claim against Defendant Roy and Defendant Susan as trustees)
In their proposed first amended complaint, Plaintiffs alleged Count VIII Punitive Damages (Plaintiff Carrie 5 claim
against Detendant Roy individually), Count IX Punitive Damages (Plaintiff Carrie 5 claim against Delendant Susan
individually) Count X Punitive Damages (Plaintiff Carrie 5 claim against Defendant Roy and Defendant Susan as
claim’ for punitive damages in the complaint punitive damages is not a separate cause of action
but rather a demand for a certain type of damages
) As such Plaintiff Carrie 5 claims for punitive
damages as independent causes of action cannot proceed
C
Loss of Consortium
1n the initial complaint and the proposed first amended complaint Plaintiff Ronnie alleged
that he
suffer[ed] the loss of consortium, companionship
security and society of his wife
[Plaintiff Carrie]
as the result of the acts and/or omissions of Defendant Roy and Defendant
Susan (Compl M 120 144) (Proposed FAC ‘|[‘][ 131
142 )Although labeled as negligence claims 9
Plaintiff Ronnie is actually making a claim for a personal injury that relates to the loss of spousal
relationships due to Defendant Roy and Defendant Susan s alleged tonious conduct Thus
Plaintiff Ronnie’s negligence claims against Defendant Roy and Defendant Susan are actually loss
of consortium claims and should be relabeled as loss of consortium claims However
‘Virgin
Islands courts have not decided whether to recognize [the loss of consortium] claim yet” and
[a]
Banks analysis would be required
Martme
v Hess 011 VI Corp
69 V I 519, 534 n 5 (V I
Super Ct 2018) see also McKen 1e v Hess 011 VI Corp
70 V I 210 220 21 n 5 (V I Super
Ct 2019) (internal citations omitted) (noting that the Virgin Islands has not considered the issue
of whether to recognize loss of consortium as a derivative claim or a stand alone claim and that ‘ a
Banks analysis would entail deciding first, whether to recognize loss of consortium claims and
then whether to recognize loss of consortium as a derivative claim or a stand alone claim
) The
Wk proposed first amended complaint, Plaintiffs alleged Count VI Negligence
(Plaintitf Ronnie 5 claim against Defendant Roy
individually) and Count VII Negligence (Plaintiff Ronnie 5 claim
Court will give Plaintiff Ronnie Defendant Roy and Defendant Susan the opportunity to brief the
issue of whether the Virgin Islands courts should recognize the loss of consortium claim
CONCLUSION
Based on the foregoing the Court will give the parties the opportunity to file supplemental
briefs to address the issues mentioned above Upon receipt of the parties supplemental briefs the
Court will determine what causes of action can proceed and then give Plaintiffs the opportunity to
file a new proposed first amended complaint in compliance with the Court’s ruling and Rule 15
1 At this time the Court will reserve ruling on Plaintiffs motion for leave to file first amended
complaint Accordingly
it is hereby
ORDERED that within thirty (30) days from the date of entry of this Memorandum
Opinion and Order, Plaintiff Carrie
Defendant Roy, and Defendant Susan shall file their
respective supplemental briefs regarding the issue of whether by enacting a statute Title 19 V I C
§ 2612 that imposes strict liability upon the owners of the dogs that bit a person the Legislature
abrogated the common law claim for dog bites
It is further
ORDERED that within thirty (30) days from the date of entry of this Memorandum
Opinion and Order, Plaintiff Ronnie Defendant Roy and Defendant Susan shall file their
respective supplemental brief regarding the issue of whether the Virgin Islands courts should
recognize the loss of consortium claim It is further
ORDERED that the parties shall support the arguments in their respective supplemental
briefs with proper briefing including but not limited to citing the proper legal authority statute
and/or rule and conducting a Banks analysis when necessary And it is further
ORDERED that the Court will reserve ruling on Plaintiffs motion for leave to file first
x25“
DONE and ORDERED this
day of August 2021
ATTEST
i ;é Wei
; éflfl
Tamara Charles
HAROLD W L WILLOCKS
Clerk of the Court
PreSIding Judge of the Superior Court
curt Clerk Supervisor
Dated
8’
2292/1 %011