IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
NOLANA FRANKLIN
Plaintiff
CASE NO. SX-08-CV-0000378
ACTION FOR:
DAMAGES - CIVIL
Vs.
VIRGIN PETROLEUM DIAMOND,
INC.
Defendant
NOTICE OF ENTRY OF
MEMORANDUM OPINION
AND JUDGMENT
TO:
VINCENT A. COLIANNI, ESQ.
T, BOOK, LIBRARY
JUDGES OF THE SUPERIOR COURT
MAGISTRATES
LAW CLERKS
CLERK OF THE
COURT
Please take notice that on May 06, 2010 a(n) MEMORANDUM OPINION
AND JUDGMENT dated April 27, 2010
was entered by the Clerk in the
above-entitled matter.
Dated: May 06, 2010
ja H. Velazquez, Esq.
Clerk of the Court
SHARLENETURNBULL
COURT CLERK SUPERVISOR
FOR PUBLICATION
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
Nolana Franklin,
J
Plaintiff,
SX-08-CV-378
v.
DAMAGES
Virgin Petroleum Diamond, Inc.,
Defendant.
COUNSEL:
VINCENT COLIANNI, II, ESQ.
Colianni & Colianni
1138 King Street
Christiansted, St. Croix VI00820
Attorneyfor Plaintiff
Ross, Edgar D., Senior Sitting Judge
MEMORANDUM OPINION
(Filed: April 27, 2010)
THIS MATTER came before the Court for a default judgment hearing on January 4,
2010.1
FACTS
On June 21, 2008, Plaintifffiled a Complaint against Defendant, alleging that onor about
August 1, 2007, while walking into Defendant's store at Sunny Isle, St. Croix, she slipped and
fell on the wet floor that was recently mopped by Defendant's employee. Plaintiff alleges that
the accident was caused by Defendant's negligence in failing to inspect and maintain the
premises ina safe condition for its customers, and infailing to warn customers ofthe dangerous
condition created by the wet floor. As a result of Defendant's negligence, Plaintiff sustained a
head injury, was prevented from otherwise transacting her business, suffered great pain of body
1Personal service was attempted on the resident agent ofDefendant, but he was unable to be located. The Court
granted Plaintiffs Motion for Service by Publication; Plaintiff published the Summons in the St. Croix Avis
newspaper, oncea week for fourconsecutive weeks. Defendant failed to plead or otherwise defend within the 20
days allowed by the Federal Rule ofCivil Procedure 12(a). On April 23, 2009, an Entry of Default was entered by
the Clerk oftheCourt ofthe Superior Court. On October 1, 2009, the Court granted Plaintiffs Motion for Default
Judgment and scheduled a default judgment hearing onJanuary 4, 2009.
Nolana Franklin v. Virgin Petroleum Diamond, Inc.
SX-08-CV-378
Memorandum Opinion
Page 2
and mind, incurred medical expenses, lost income, and lost future earning capacity, all ofwhich
will continue into the foreseeable future. Plaintiff demands judgment against Defendant in an
amount within the jurisdictional limits ofthe Court, plus costs.
Plaintiff appeared with her attorney at the default judgment hearing and made an oral
Motion for Appropriate and Fair Reward. Defendant failed to appear. Plaintiff testified to the
details ofthe accident,2 the injury she sustained as aresult and the impact ofthe accident on her
life. The only other witness that testified was Plaintiffs fiance, Elvis Trevor Roper. Mr. Roper
testified tohis observation ofPlaintiffsinjuries and impeded daily activities.
STANDARD OF REVIEW
Absent contrary local laws, the United States Virgin Islands apply the rules of the
common law as expressed in the restatements of the law.
1 V.l.C. § 4. The Restatement
(Second) ofTorts (hereinafter, "Restatement") § 912 provides,
One to whom another has tortiously caused harm is entitled to compensatory
damages fortheharm if,butonly if, he establishes byprooftheextent oftheharm
and the amount of money representing adequate compensation with as much
certainty asthe nature of thetortandthecircumstances permit.
Comment b states that, "...certain pecuniary harms such as loss of earnings may result
from harm to the body and that as to these reasonable certainty ofproofofthe extent ofdamage
is required." Restatement § 912.
DISCUSSION
In Santana v. Mack, a personal injury action, the District Court of the Virgin Islands
(hereinafter, "District Court") confirmed the territorial court's finding that plaintiff failed to
Plaintiff: "I walked in the gas station and Inoticed the floor was slippery like inarestaurant, and Itold the
attendant they needed to mop the floor. He told me that is what he was doing. Isaid you need to mop itagain or
something. Iwent to get inthe line and I fell backwards and hit myhead and pass out for alittle while, and Iwoke
up and came to."
Nolana Franklin v. Virgin Petroleum Diamond, Inc.
SX-08-CV-378
Memorandum Opinion
Page 3
submit sufficient proof of damages and denied plaintiffs request for damages as speculative.3
889 F.Supp. 223. Citing Connolly v. Chardon, theSantana Court stated thefollowing:
The judge concluded that appellant had failed to produce proof, in addition to his own
testimony, sufficient to allow the determination of damages to a "reasonable certainty.
The court ruled that "[a]n award for loss income requires corroboration of plaintiffs
testimony.
Such award cannot be based on conjecture and must be supported by
something more than plaintiffs own self-serving statements. Emphasis added. 1978
StX.Supp. 372 (D.V.I.App. 1978).
In Connolly, the District Court also noted that, although "[a]s a general rule, lay
testimony is sufficient to support a finding of proximate cause..., c[e]xpert evidence is often
required to establish the causal connection between the accident and some item of physical or
mental injury unless the connection is a kind which would be obvious to laymen, such as a
broken legfrom being struck byanautomobile.'" 1978 St.X.Supp. at 377.
Whether Further Corroboration Was Required to Sustain
an Award of Damages in a Personal Injury Case
Similar to the plaintiffin Santana, Plaintiffdid not have any expert witness testify on her
behalf. At the default judgment hearing, only Plaintiffand her fiance testified to her accident,
theresulting injury andtheimpact it had on herlife. Consequently, theonlyproofthe Court has
in regard to the nature and extent of Plaintiffs injuries is her and her fiance's testimonies
Following the reasoning of Connolly and Santana, Plaintiffs claims need to be "supported by
something more than plaintiffs own self-serving statements."
Additionally, in this case,
Plaintiff is not claiming a physical or mental injury caused by an accident that is inherently
obvious to laymen. At the default judgment hearing, Plaintiff testified to suffering from, inter
alia, numbness, nerve problems, headaches, backaches, shoulder aches, hard time focusing and
problem with memory. However, Plaintiff never provided the Court with any documentation of
her test results, treatment or medical receipts. Similarly, the only evidence of Plaintiffs annual
InSantana, the appellant's only proofofthe nature andextentofhis injuries presented and admitted attrial were
his own testimony and some medical receipts.
Nolana Franklin v. Virgin Petroleum Diamond, Inc.
SX-08-CV-378
Memorandum Opinion
Page 4
income was Plaintiffs own testimony that she was earning thirty-three thousand dollars
($33,000.00) a year at the Golden Grove Correction Facility for the past three and a half year. At
this juncture, the Court does not find that Plaintiff provided enough evidence to establish her
injuries and damages with the requisite certainty.
CONCLUSION
Restatement § 912 requires a reasonable certainty of proof for certain pecuniary harms
that may have resulted from harm to the body.
The Court finds that Plaintiff have failed to
produce proof, in addition to her and her fiance's testimonies,
sufficient to allow the
determination of most of the claimed damages to a reasonable certainty. Accordingly, the Court
will enter a default judgment in favor of Plaintiff and grant Plaintiffs Motion for Appropriate
and Fair Reward in the amount consistent with the proof.
DATE: April 27, 2010
ATT1
Venatia^rlatvey-Velazquez
Clerk/0fthe Court
Dated:
EDGAR D. ROSS
Senior Sitting Judge
CERWED TOfeAJRUE CGrOf
VENETjIA rt VELAZQUEZ, ESQ.
CLEF^OFTHBCQ^T
^J^U/mU^-O^'....Court Clerk
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
Nolana Franklin,
Plaintiff,
Virgin Petroleum Diamond, Inc.,
Defendant.
SX-08-CV-378
DAMAGES
JUDGMENT
THIS MATTER came before the Court for a default judgment hearing on January 4,
2010. Plaintiffmade an oral Motion for Appropriate and Fair Reward. In accordance with the
Memorandum Opinion, it is hereby:
Ordered thata Default Judgment in favor of Plaintiffis Granted. It is further:
Ordered that the Appropriate and Fair Reward in the amount of fifteen thousand dollars
($15,000.00) for Plaintiffs head injury and pain and suffering isawarded to Plaintiff.
DONE and soORDERED this 23rd day of April, 201(
Dated:
arvey-Velazquez
leCourt ^
I/hjiP ^Ji/mil
Clerk
-fiOVt'l
EDGAR D. ROSS
Senior Sitting Judge
CERTlfJED TO gEAJRUE C9/T
ThisJ^day ofi^^20£i-
VENETJA H. VELAZQUEZ, ESQ.
CLEFf'OF THE£OUfiT
Py-f^fUMiU^r court Clerk