Turbe v. Government of Virgin Islands

• Citation: 938 F.2d 427
• Decision Date: 11 July 1991
• Docket Number: No. 90-3843,90-3843
• Parties: Roger TURBE, Appellant, v. GOVERNMENT OF THE VIRGIN ISLANDS, Virgin Islands Water and Power Authority.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 427

938 F.2d 427

Roger TURBE, Appellant, v. GOVERNMENT OF THE VIRGIN ISLANDS, Virgin Islands Water and Power Authority.

No. 90-3843.

United States Court of Appeals, Third Circuit.

Argued April 23, 1991.

Decided July 11, 1991.

Desmond L. Maynard (argued), Charlotte Amalie, St. Thomas, U.S.V.I., for appellant.

Rhys S. Hodge, (argued), Barbara J. Twine-Thomas, Charlotte Amalie, St. Thomas, U.S.V.I., for appellee Virgin Islands Water and Power Authority.

Before BECKER, SCIRICA and ALITO, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

In this case from the District Court of the Virgin Islands, plaintiff Roger Turbe challenges a judgment on the pleadings entered in favor of the Virgin Islands Water and Power Authority ("WAPA"). Turbe alleged that WAPA's negligent failure to repair street lights was the proximate cause of a criminal assault against him. We will affirm because we believe WAPA was under no legal duty to protect Turbe from criminal attack.

I.

Turbe alleges that on July 6, 1986, at approximately 11:15 P.M., he was attacked near his home by a naked man wielding a machete. He suffered various injuries and filed suit against WAPA and the Government of the Virgin Islands. Turbe alleged that his injuries resulted from defendants' negligent failure to repair the street lights in the area of the attack, despite knowing that they were broken. According to the complaint, Turbe "would have been able to see this assailant and avoid his violent attack if the street lights directly overhead and in the vicinity had been lit. They, however, were not working and had not been working for some time, despite numerous complaints by local residents."

After both defendants filed answers to the complaint, the Government moved for judgment on the pleadings under Fed.R.Civ.P. 12(c). Turbe did not respond to this motion, and the district court entered judgment in favor of the Government. Turbe has not appealed from that judgment. WAPA then filed a motion for judgment on the pleadings, asserting that the complaint failed to state a claim upon which relief could be granted. The district court granted WAPA's motion without opinion, and this appeal followed. The district court had jurisdiction under V.I.Code Ann. tit. 4, Sec. 32(a) (Supp.1990). We have jurisdiction under 28 U.S.C. Sec. 1291 (1988).

WAPA styled its motion as one for a "Judgment on the Pleadings dismissing the Complaint" pursuant to both Rule 12(b) and Rule 12(c). A Rule 12(b) motion to dismiss a complaint must be filed before any responsive pleading. A Rule 12(c) motion for judgment on the pleadings may be filed after the pleadings are closed. Consequently, because WAPA filed its motion after it had already filed an answer, the motion must be considered a Rule 12(c) motion. Nevertheless, Rule 12(h)(2) provides that a defense of failure to state a claim upon which relief can be granted may also be made by a motion for judgment on the pleadings. In this situation, we apply the same standards as under Rule 12(b)(6). See, e.g., Ad-Hoc Committee of Baruch Black and Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir.1987); Morgan v. Church's Fried Chicken, 829 F.2d 10, 11 (6th Cir.1987); Republic Steel Corp. v. Pennsylvania Eng'g Corp., 785 F.2d 174, 182 (7th Cir.1986); Slotnick v. Garfinkle, 632 F.2d 163, 165 (1st Cir.1980); 5A C. Wright & A. Miller, Federal Practice and Procedure Sec. 1367, at 515 (1990).

Therefore, we must accept the allegations in the complaint as true, and draw all reasonable factual inferences in favor of the plaintiff. We can affirm the district court only if no relief could be granted under any set of facts that could be proved. Unger v. National Residents Matching Program, 928 F.2d 1392, 1394-95 (3d Cir.1991). Our review is plenary. Id. at 1394.

II.

In the absence of local laws to the contrary, the American Law Institute's various Restatements of the Law are the rules of decision in the Virgin Islands. V.I.Code Ann. tit. 1, Sec. 4 (1967). If the Restatement does not govern, we look to the common law "as generally understood and applied in the United States." Id. In order to establish a claim of negligence, the plaintiff must demonstrate that the defendant owed the plaintiff a legal duty, that the defendant was negligent, and that the defendant's actions were the legal cause of the plaintiff's injury. See Restatement (Second) of Torts Secs. 281, 328 A (1965).

WAPA maintains that it owed no legal duty to plaintiff, and that its failure to repair the street lights cannot be considered the proximate cause of Turbe's injuries. We will affirm because on the facts alleged in this complaint, WAPA did not owe Turbe a duty to repair the street lights at issue. Consequently, we do not reach any questions regarding the foreseeability of the attack, or the degree to which WAPA's actions might have been a causal factor.

The nature of the legal duty owed by a defendant is generally a question of law. See Restatement Sec. 328B(b). In this case, we must decide whether WAPA can be liable when the failure to repair street lights may have been a factor leading to a criminal attack upon a pedestrian. WAPA first contends that it can never be sued for the negligent operation of street lights. It asserts that its decisions whether or not to repair broken lights are completely discretionary and can never subject it to tort liability. WAPA points to statutory authorization providing that it has "the power to determine the character of and necessity for all its expenditures and the manner in which they shall be incurred, allowed and paid, and such determinations shall be final and conclusive for all purposes." V.I.Code Ann. tit. 30, Sec. 105(a)(13) (1975). WAPA contends that this provision relieves it of all liability for negligence in its operation of street lights.

Although we believe WAPA owes no duty on the facts alleged in this case, we do not adopt its broad position. We do not believe this general statement of WAPA's power was intended to immunize it from all tort liability arising from the failure to keep its facilities and equipment in working order. Lawsuits against WAPA are expressly authorized by statute. See V.I.Code Ann. tit. 30, Sec. 105(a)(4) (1975) (WAPA has capacity to "sue and be sued"). WAPA has a limited form of immunity--it may be sued, but a victorious plaintiff cannot force it to pay any judgment entered. The Virgin Islands Code provides that:

All property including funds of the Authority shall be exempt from levy and sale by virtue of an execution, and no execution or other judicial process shall issue against the same nor shall any judgment against the Authority be a charge or lien upon its property.

V.I.Code Ann. tit. 30, Sec. 111(a) (1975).

We have interpreted Sec. 111(a) as permitting WAPA to refuse to pay judgments entered against it. Concepcion v. Soto, 519 F.2d 405 (3d Cir.1975). But this provision does not grant full immunity to WAPA. Thus, a plaintiff may be able to satisfy a judgment against WAPA by relying on WAPA's liability insurance, if any exists. Id. at 406. Absent explicit statutory exclusions, we decline to afford WAPA complete immunity for failure to repair its equipment.

Although we reject WAPA's broad claims of immunity, we find that Turbe has not stated a claim upon which relief can be granted. WAPA can be held liable in this case only if it owed a legal duty to Turbe on the facts alleged in the complaint. Turbe points to no explicit statutory provision requiring WAPA to repair broken street lights. Instead, he relies on common law duties as set forth in the Restatement. In the absence of immunity, WAPA can be subjected to common law liability. However, Turbe has sued WAPA for failing to provide sufficient lighting on a particular street. Ordinarily, mere failure to provide protective services does not lead to common law tort liability. See Restatement Sec. 314 ("The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action.").

The Restatement provides several exceptions to this rule. Affirmative duties to aid or protect can be imposed if the defendant has a "special relationship" with the plaintiff. See Restatement Sec. 314A (duty to aid or protect); Sec. 314B (duty to protect endangered or hurt employee); Secs. 315-320 (duty to control the conduct of third persons), Sec. 344 (duty of possessor of land held open to the public). For example, we have recognized that under Pennsylvania's application of Sec. 344, a possessor of land holding it open to the public can be liable when inadequate lighting is the proximate cause of a foreseeable criminal attack. See Kenny v. Southeastern Pennsylvania Transportation Authority, 581 F.2d 351 (3d Cir.1978), cert. denied, 439 U.S. 1073, 99 S.Ct. 845, 59 L.Ed.2d 39 (1979). In that case, a public transportation system was held liable when inadequate lighting on a subway platform was a substantial causal factor in the rape of a patron. In this case, though, Turbe has not alleged any "special relationship" with WAPA that would impose a similar duty of protection.

Rather, Turbe relies on Sec. 323 of the Restatement. This section, sometimes referred to as the "Good Samaritan" provision, provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other's reliance upon the undertaking.

This provision restates the traditional rule that "[o]ne who assumes to act, even though gratuitously, may thereby become subject to the duty of...