Clarke v. Marriott Int'l, Inc., Civil Action No. 2008-0086
| Decision Date | 16 August 2019 |
| Docket Number | Civil Action No. 2008-0086 |
| Citation | 403 F.Supp.3d 474 |
| Parties | Carmen McAlpin CLARKE, Plaintiff, v. MARRIOTT INTERNATIONAL, INC., Royal St. Kitts Beach Resort, Ltd., and Luxury Hotels International Management St. Kitts, Ltd. f/k/a Marriott St. Kitts Management Company, Inc., Defendants. |
| Court | U.S. District Court — Virgin Islands |
Lee J. Rohn, Esq., Mary Faith Carpenter, Esq., St. Croix, U.S.V.I., For Plaintiff
Andrew C. Simpson, Esq., Emily Shoup, Esq., St. Croix, U.S.V.I., For Defendant Marriott International, Inc.
Michael J. Sanford, Esq., Thomas G. Kraeger, Esq., Bruce D. Specter, Esq., St. Croix, U.S.V.I., For Defendants Luxury Hotels International Management St. Kitts, Ltd. and Royal St. Kitts Beach Resort, Ltd.
THIS MATTER comes before the Court following the Court's May 26, 2017 Order and accompanying Memorandum Opinion (Dkt. Nos. 381, 382) granting Plaintiff Carmen McAlpin Clarke's ("Plaintiff") Motion for Reconsideration (Dkt. No. 355) and vacating the Court's prior Order and accompanying Memorandum Opinion (Dkt. Nos. 352, 353) granting summary judgment in favor of Defendants Marriott International, Inc. ("Marriott"), Royal St. Kitts Beach Resort, Ltd. ("Royal St. Kitts") and Luxury Hotels International Management St. Kitts, Ltd. f/k/a Marriott St. Kitts Management Company, Inc. ("Luxury Hotels") (collectively, "Defendants"). In light of an argument raised by Marriott in response to Plaintiff's Motion for Reconsideration that the law of St. Christopher and Nevis (hereinafter, "St. Kitts")—as opposed to Virgin Islands law—applies in this case, the Court ordered supplemental briefing on the choice of law issue. (Dkt. No. 378). After briefing by the parties (Dkt. Nos. 383, 384, 386, 387), a status conference was held on August 14, 2018.
For the reasons that follow, the Court finds that St. Kitts premises liability law governs this case. The Court further finds that the analysis applied by the Court in its Memorandum Opinion granting summary judgment in favor of Defendants (Dkt. No. 353) remains valid under St. Kitts premises liability standards. Accordingly, the Court will enter summary judgment in favor of Defendants and will dismiss Plaintiff's claims.
This case arises out of a slip and fall incident occurring in a bathtub at the St. Kitts Marriott Resort and Royal Beach Casino on St. Kitts on June 27, 2008. Plaintiff's First Amended Complaint (Dkt. No. 63) brings tort claims in negligence against Defendants. Plaintiff maintains that Defendants breached their duty of care to Plaintiff by negligently failing to have bathmats in the bathtubs at the St. Kitts hotel and by failing to warn Plaintiff about the unsafe condition of the bathtub, resulting in Plaintiff's fall and injuries.
Defendants jointly filed a Motion for Summary Judgment on the merits of Plaintiff's negligence claims (Dkt. No. 234), which the Court granted (Dkt. Nos. 353, 354). The Court concluded that Plaintiff could not establish that Defendants owed her a duty as a matter of law because the slipperiness of a bathtub is a known and obvious danger. (Dkt. No. 353 at 10-13). Although Defendants—as landowners and managers—were liable for injuries caused by hidden and dangerous conditions, they were not liable for physical harm caused by a condition whose danger is known and obvious. Id. at 15.
Plaintiff thereafter filed a Motion for Reconsideration of the Court's decision (Dkt. No. 355), which she subsequently supplemented (Dkt. No. 371). In her supplemental memorandum, Plaintiff argued that the Virgin Islands Supreme Court's opinion in Machado v. Yacht Haven , 61 V.I. 373 (2014), marked an intervening change in the controlling law applicable to Defendants' Motion for Summary Judgment. (Dkt. No. 371 at 1). The Court agreed, finding that the Machado Court had instructed that "the soundest common law rule for the Virgin Islands ... is that the foreseeability of harm ‘is the touchstone of the existence of a land possessor's duty of reasonable ordinary care.’ " (Dkt. No. 382 at 8-9 (quoting Machado , 61 V.I. at 384 )). The Court concluded that—after Machado —the proper inquiry in a negligence case under Virgin Islands law "is whether a reasonable jury could conclude that Defendants should have foreseen that Plaintiff could slip and sustain injuries while using the bathtub and should have taken reasonable steps to prevent such injuries." Id. at 9. Because the Court did not apply the foreseeability test set forth in Machado in ruling on Defendants' Motion for Summary Judgment, but rather concluded that no duty of care existed because the risks associated with the bathtub were open and obvious to Plaintiff, the Court determined that its decision to grant Defendants' Motion for Summary Judgment was incompatible with the new Machado standard. Id. at 9-11. The Court further determined that the Machado decision made clear that the Virgin Islands' comparative negligence statute, 5 V.I.C. § 1451(a), and "its inherent abolition of the implied assumption of risk concept impacts a court's inquiry regarding both breach and duty. " Id. at 14 (emphasis added). Therefore, the Court's decision "[d]ismissing Plaintiff's claim at summary judgment because the bathtub presented an open and obvious risk without evaluating whether Plaintiff's injury was foreseeable ‘inappropriately place[d] the focus of attention on the plaintiff's actions alone’ " in contravention of the dictates of Machado . Id. at 14.
Applying the Machado standard, the Court determined that, when viewed in the light most favorable to Plaintiff, Id. at 16. Accordingly, the Court vacated its earlier decision granting Defendants' motion for summary judgment. Id. at 17.
Because it concluded that further briefing on the issue was necessary, the Court deferred pending further briefing its consideration of an argument raised by Marriott in response to Plaintiff's Motion for Reconsideration that St. Kitts law—as opposed to Virgin Islands law—governs this case. Specifically, Marriott—now joined by all Defendants—argues that Defendants are entitled to summary judgment regardless of the Machado decision because (1) St. Kitts law governs this case; and (2) as was the case under Virgin Islands law before Machado was decided, the occupier of a premises owes no duty to protect against "open and obvious dangers" under St. Kitts law. (Dkt. No. 382 at 17). The parties' briefs have been submitted and the matter is ripe for adjudication.
Before turning to the substantive issues raised by the choice of law question, the Court addresses Plaintiff's argument that Defendants waived or should be estopped from advancing an argument that St. Kitts law applies in this case. The Court disagrees.
Plaintiff argues that Defendants waived their opportunity to argue that St. Kitts law should apply by failing to timely comply with the requirements established by Federal Rule of Civil Procedure 44.1 (" Rule 44.1") where a party intends to rely on foreign law. (Dkt. No. 383 at 2). Plaintiff further argues that Defendants' failure to timely submit an expert report or other evidence to fulfill their burden of proving the foreign law of St. Kitts bars Defendants from arguing that St. Kitts law should apply. Id. at 3. Alternatively, Plaintiff contends that Defendants should be judicially estopped from changing their position at this point in the litigation with respect to whether a conflict exists between Virgin Islands and St. Kitts law, as Defendants acknowledged in their briefing at summary judgment that the law of negligence is the same in the Virgin Islands and St. Kitts. Id. at 5-7.
Rule 44.1 provides:
A party who intends to raise an issue about a foreign country's law must give notice by a pleading or other writing. In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court's determination must be treated as a ruling on a question of law.
FED. R. CIV. P. 44.1. As observed by the Second Circuit, while Rule 44.1 "requires that the parties give notice of the intent to raise foreign law, the Advisory Committee's Notes make clear that Congress deliberately declined to provide ‘any definite limit on the party's time for giving the notice of an issue of foreign law." Rationis Enterprises Inc. of Panama v. Hyundai Mipo Dockyard Co. , 426 F.3d 580, 585 (2d Cir. 2005) (quoting FED. R. CIV. P. 44.1 Advisory Committee's Notes). Indeed, the Advisory Committee's Notes recognize that "in some cases the [foreign law] issue may not become apparent until the trial and notice then given may still be reasonable." FED. R. CIV. P. 44.1, Advisory Committee's Notes. To determine whether a party has given reasonable notice that it intends to raise an issue of foreign law, courts should consider "[t]he stage which the case had reached at the time of the notice, the reason proffered by the party for his failure to give earlier notice, and the importance to the case as a whole of the issue of foreign law sought to be raised[.]" Id.
Defendants first identified their intent to raise an issue of foreign law in their respective Answers to Plaintiff's First Amended Complaint, wherein they each asserted that "[t]he substantive law of St. Kitts-Nevis, West Indies governs this matter." (Dkt. No. 64 at 4, Dkt. No. 95 at 4; Dkt. No. 102 at 4). The Court finds that by including this assertion in their Answers, Defendants satisfied the notice requirement provided by Rule 44.1. See Rationis...
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