Grant v. Aptim Envtl. & Infrastructure, Inc.
| Decision Date | 28 May 2021 |
| Docket Number | Civil Action No. 2019-0025 |
| Parties | KEVONGH J. GRANT Plaintiff, v. APTIM ENVIRONMENTAL AND INFRASTRUCTURE, INC. and WITT O'BRIEN, LLC, Defendants. |
| Court | U.S. District Court — Virgin Islands |
Appearances:
Kevongh J. Grant
St. Croix, U.S.V.I.
St. Thomas, U.S.V.I.
St. Thomas, U.S.V.I.
For Defendant Aptim Environmental and Infrastructure, Inc.
THIS MATTER comes before the Court on the "Motion to Dismiss for Failure to State a Claim" ("Motion to Dismiss") (Dkt. No. 3), filed by Defendant Witt O'Brien, LLC1 ("DefendantWOB"), seeking to dismiss with prejudice all claims asserted against Defendant WOB in Plaintiff Kevongh Grant's ("Plaintiff") Complaint. For the reasons discussed below, the Court will grant Defendant WOB's Motion to Dismiss, except to the extent that it seeks dismissal of Plaintiff's claims with prejudice. Instead, the Court will grant Plaintiff leave to amend his Complaint.
Plaintiff filed the instant Complaint in the Superior Court of the Virgin Islands on April 4, 2019. (Compl. at 7). In his Complaint, Plaintiff alleges that Defendant WOB and Defendant APTIM Environmental and Infrastructure, Inc. ("Defendant APTIM") are liable for damages he sustained when his automobile was struck by another car. Id. at ¶¶ 16-17. Plaintiff alleges that the car that struck him was driven by Nathan McCann and Andrew McCann ("the McCanns"), who at the time of the collision were driving at a high rate of speed and on the wrong side of the road. Id. at ¶¶ 11, 15-16.
According to the Complaint, Defendant WOB contracted with the Virgin Islands Housing and Finance Authority to oversee a roofing project. Id. at ¶ 5. Plaintiff alleges that, during the course of the project, Defendant WOB "hired negligent and nefarious contractors without experience as to how to hire employees and retain crews to perform the work," and "had knowledge that such contractors were hiring inappropriate employees, who should not be allowed to operate vehicles in the Virgin Islands due to drinking problems, inability [sic] to operate a vehicle safely." Id. at ¶¶ 6-7. Plaintiff alleges further that Defendant APTIM, "on behalf of" Defendant WOB, would represent that the employees of the contractors worked for Defendant APTIM, and would assign these employees their job assignments. Id. at ¶ 10. Plaintiff claims that the McCanns were such employees, and at the time of the vehicle collision they were operating their vehicle "in the course and scope of their employment with Defendants." Id. at ¶¶ 11, 15.
Plaintiff also alleges that at the time of the accident, the McCanns were driving an unregistered and uninsured vehicle. Id. at ¶ 15. According to the Complaint, Defendant WOB "aided and abetted" its contractors "to illegally bring in vehicles and fail to register the same and fail to insure the same in the Virgin Islands," and Defendant APTIM conspired and aided Defendant WOB in this scheme. Id. at ¶¶ 8-9. Plaintiff maintains that Defendants should have registered and insured these vehicles, failed to do so, and then negligently entrusted these vehicles to the McCanns. Id. at ¶¶ 13-14.
Defendant WOB removed this case to federal court (Dkt. No. 1), and then filed the instant Motion to Dismiss (Dkt. No. 3) and accompanying Memorandum of Law (Dkt. No. 4). In its Motion to Dismiss, Defendant WOB moves pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the Complaint with prejudice for failure to state a claim. (Dkt. Nos. 3 at 1; 4 at 1). Plaintiff opposes the Motion. (Dkt. No. 7).2
Federal Rule of Civil Procedure 12(b)(6) calls for dismissal of a complaint if it "fail[s] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "The plausibility standard is not akin to a'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556). The Third Circuit, as articulated in Connelly v. Lane Const. Corp., employs a three-step process in applying the analysis established by the Supreme Court in Bell Atlantic v. Twombly and Ashcroft v. Iqbal:
Under the pleading regime established by Twombly and Iqbal, a court reviewing the sufficiency of a complaint must take three steps. First, it must "tak[e] note of the elements [the] plaintiff must plead to state a claim." Second, it should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Finally, "[w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief."
Connelly, 809 F.3d 780, 787 (3d Cir. 2016) (quoting Ashcroft, 556 U.S. at 675, 679) (internal citations omitted); see also Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) .
At the Rule 12(b)(6) stage, "courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record." Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
Defendant WOB argues that Plaintiff has not alleged sufficient facts to support a claim of negligent hiring and retention of an independent contractor or an independent contractor's employee. (Dkt. No. 4 at 3). Defendant WOB states that, while the Virgin Islands Supreme Courthas not yet conducted a Banks analysis3 on the legal standard for a claim of negligent hiring and retention under Virgin Islands law, the Superior Court has applied a five-factor test, which requires the party seeking relief to show:
(1) the existence of an employment relationship; (2) the employee's incompetence; (3) the employer's actual or constructive knowledge of such incompetence; (4) the employee's act or omission causing plaintiffs [sic] injuries; and (5) the employer's negligence in hiring or retaining the employee was the proximate cause of the plaintiff's injuries.
(Dkt. No. 4 at 3-4) (citing Bell v. Radcliffe, No. ST-13-CV-392, 2015 WL 5773561, at *11 (V.I. Super. Ct. Apr. 30, 2015) and Canton v. Gov't of Virgin Islands, No. SX-13-CV-42, 2016 WL 9454118, at *5 (V.I. Super. Ct. Apr. 4, 2016)). Defendant WOB argues that Plaintiff has not pleaded sufficient facts to state a claim for negligent hiring and retention under this standard. (Dkt. No. 4 at 5).
Plaintiff disputes the five-factor test put forth by Defendant WOB and instead argues that the proper rule to apply for negligent hiring and retention is the Restatement (Second) of Torts § 414. (Dkt. No. 7 at 4-6). Plaintiff asserts that under this section of the Restatement, he need only plead the elements of a claim for negligence. Id. at 7.4
The Restatement (Second) of Torts § 409 states that: "[e]xcept as stated in §§ 410-429, the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants." Section 414, in turn, states:
One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.
The Restatement is organized so that Section 409 "recites the general rule of non-liability . . . [while] sections 410 through 415 describe those situations in which an employer may nevertheless be liable for injuries to others caused by the contractor." Figueroa v. Hess Oil Virgin Islands Corp., 198 F. Supp. 2d 632, 637 (D.V.I. App. Div. 2002).5
In arguing about the proper standard to apply for a claim of negligent hiring and retention, the parties focus on two slightly different—albeit similar—torts that are forms of negligence liability: negligent hiring and retention and negligence in exercising retained control. See Figueroa, 198 F. Supp. 2d at 635 (); compare Restatement (Second) of Torts § 411 (Negligence in Selection of Contractor) with Restatement (Second) of Torts § 414 (Negligence in Exercising Control Retained by Employer). Common law principles allow employers to be held liable in various ways for their own negligence for injuries caused by their independent contractors. See Joseph v. Hess Oil Virgin Islands Corp., 54 V.I. 657, 665 (2011) ; Figueroa, 198 F. Supp. 2d at 638 ().
To establish liability under Section 414,6 a plaintiff must show that "[the employer] had such control over how [the independent contractor] performed his work that it had a duty to exercise its control with due care." Joseph, 54 V.I. at 665; Gass v. V.I. Tel. Corp., 311 F.3d 237, 240 n.3 (3d Cir. 2002...
To continue reading
Request your trial