Kalloo v. Englerth

• Decision Date: 06 June 1977
• Docket Number: Civ. No. 1976/342.
• Citation: 433 F. Supp. 504
• Parties: Adam KALLOO and Kamla Kalloo for themselves, on behalf and as parents and guardians of Chandranath Vickey Kalloo, Plaintiffs, v. Fred ENGLERTH, M.D., and Government of the Virgin Islands, Defendants.
• Court: U.S. District Court — Virgin Islands

433 F. Supp. 504

Adam KALLOO and Kamla Kalloo for themselves, on behalf and as parents and guardians of Chandranath Vickey Kalloo, Plaintiffs, v. Fred ENGLERTH, M.D., and Government of the Virgin Islands, Defendants.

Civ. No. 1976/342.

District Court, Virgin Islands, D. St. Croix.

June 6, 1977.

COPYRIGHT MATERIAL OMITTED

Jean-Robert Alfred, Christiansted, St. Croix, V. I., for plaintiffs.

Derek M. Hodge, Hodge & Sheen, Christiansted, St. Croix, V. I., for defendant, Fred Englerth, M.D.

Peter A. Martin, Asst. Atty. Gen., Charlotte Amalie, St. Thomas, V. I. for defendant, Government of the Virgin Islands.

WARREN H. YOUNG, District Judge.

I

In this personal injury action plaintiffs seek compensatory damages in the amount of $1,500,000 for injuries allegedly sustained by Chandranath Kalloo. The complaint avers that on August 27, 1974, while undergoing eye surgery under the care of Dr. Englerth and other employees of the Charles Harwood Memorial Hospital, which at all material times herein was owned and operated by the Government of the Virgin Islands, Chandranath Kalloo suffered a cardiac arrest resulting in permanent physical injuries as a consequence of the negligence of the named defendants. Dr. Englerth has moved to dismiss the complaint insofar as it pertains to him, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, 5 App. I V.I.C. R. 12(b)(6), on the ground that § 2(b) of the Revised Organic Act of 1954, 48 U.S.C. § 1541(b), renders him immune from suit. In the alternative, Dr. Englerth moves the Court to enter summary judgment in his favor, pursuant to F.R.C.P. 56, 5 App. I V.I.C. R. 56, on the ground that his position as a government employee, coupled with the discretionary nature of his acts herein, render him immune from tort liability to plaintiffs. For the reasons set forth below, both motions will be denied.

II STATUTORY IMMUNITY UNDER SECTION (b) OF THE REVISED ORGANIC ACT OF 1954

In support of his motion to dismiss, defendant contends that § 2(b) of the Revised Organic Act of 1954¹ renders officers and employees of the government immune from personal tort liability for acts performed by them within the course and scope of their employ. Defendant further contends that the Virgin Islands Tort Claims Act,² while waiving the immunity of the government from tort liability, (left intact) the immunity of government officers and employees conferred by the Revised Organic Act. In support of his proposition, defendant cites the case of Ocasio v. Bryan, 374 F.2d 11 (3rd Cir. 1967) and Camacho v. Knud-Hansen Hospital, D.V.I., Div. St. Thomas and St. John, Civ. No. 1969/279 (opinion filed October 17, 1974).

In Mathurin v. Government of the Virgin Islands, 398 F.Supp. 110 (D.V.I.1975), I held that officers and employees of the government do not enjoy immunity from suit in tort for all acts performed within the scope of their employment, overruling my prior decisions to the contrary.³ My reasoning in making the change was that to afford government employees with immunity for acts which were ministerial in nature was to ignore the policy considerations underlying the doctrine of official immunity. In holding that immunity would adhere only to those acts which involved the exercise of discretionary authority, I stated:

However difficult a case-by-case application of the discretionary/ministerial dichotomy may prove to be, that distinction must be read into Section 2(b) of the Organic Act in order to give credence to the historical justification for the immunity doctrine. A rule which purports to shield all governmental employees from liability for their transgressions merely on a showing that said acts were done in their official capacity creates immunity not only for the department head who makes an erroneous policy decision, but also the sanitation truck driver who negligently misses a stop sign and injures a pedestrian. To afford the latter governmental immunity clearly constitutes an aberrational application of the doctrine.

398 F.Supp. at 114.

In Dennis v. College of the Virgin Islands, 398 F.Supp. 1317 (D.V.I.1975), two college administrators named as defendants moved to dismiss that portion of the complaint based upon the tort of false arrest on the ground that § 2(b) of the Revised Organic Act rendered them immune from suit. Although the Court found that defendants were protected by official immunity, it must be noted that their motion was granted not because they were government officials, per se, but rather, under the test enunciated in Mathurin, because they were government officials performing the type of discretionary acts which warranted the protective aegis of the common law defense of official immunity. 398 F.Supp. at 1318.

Mathurin and Dennis constitute a sufficient basis for denying defendant's motion to dismiss.⁴ Although the factual settings in said cases involved intentional torts, the contraction of statutory immunity effectuated therein clearly enveloped negligent as well as intentional misfeasance. Mathurin and Dennis, however, acknowledged that § 2(b) of the Revised Organic Act encompassed the personal liability in tort of government personnel. Upon examining the policy considerations underlying the immunity doctrine, this Court therein deemed it necessary to read into § 2(b) the common law discretionary/ministerial test. However, a re-examination of the legislative history of the Revised Organic Act, as well as the germane ensuing case law, compels this Court to conclude that § 2(b) does not in any manner address the personal liability in tort of government officers and employees, and that any resort to the common law discretionary/ministerial dichotomy is a function, not merely of policy considerations, but of practical necessity. Some perspective is needed.

The Organic Act of 1936 provided in section 3:

The inhabitants of the municipality of Saint Croix and of the municipality of Saint Thomas and Saint John are hereby constituted into bodies politic and juridic, under the present name of each such municipality, and as such bodies they shall have perpetual succession and power ... (b) to sue and in cases arising out of contract to be sued ...

49 Stat. 1807. That Congress had not seen fit to endow the municipalities of the Virgin Islands with the capacity to be sued in tort was not surprising inasmuch as in 1936 the United States itself had consented to be sued only in cases of contract.

In Harris v. Municipality of St. Thomas and St. John, 212 F.2d 323 (3rd Cir. 1954), the Third Circuit interpreted section 3 of the 1936 Organic Act as it pertained to suits against the government. Plaintiff had brought a contract action⁵ against the municipality for damages arising from injuries allegedly sustained due to a loose steel plate designed to cover a salt water main. The court held that the municipality had not been endowed with the capacity to be sued in tort, and that, although so endowed with respect to contract actions, was not subject to suit in contract by virtue of the Organic Act. Relying upon the reasoning employed in People of Porto Rico v. Rosaly y Castillo, 227 U.S. 270, 33 S.Ct. 352, 57 L.Ed. 507 (1913) and Puerto Rico v. Shell Co., 302 U.S. 253, 58 S.Ct. 167, 82 L.Ed. 235 (1937)⁶ the court concluded that Section 3 meant no more than that the municipality had the capacity to be sued in contract to the extent that it so consented by act of its legislative body. There having been no such consent by the legislature, the court held that the municipality could not be subjected to suit either in tort or in contract.

The above-described factual setting reappeared before the Third Circuit in Harris v. Boreham, 233 F.2d 110 (3rd Cir. 1956). Therein plaintiff sought, inter alia, to hold the Superintendent of Public Works personally liable for the injuries sustained on the ground that a public officer is personally liable for injuries resulting from negligence in the performance of ministerial duties as such an officer. The court conceded the validity of said proposition but affirmed the district court's finding that there was no negligence attributable to the named defendant. 233 F.2d at 116-17. Harris v. Boreham accordingly interpreted the Organic Act of 1936 as having in no manner addressed the immunity of government personnel from suit in tort actions, and under said act Virgin Islands government personnel could be held personally liable for injuries sustained as a consequence of tortious performance of ministerial duties.

The language of § 2(b) of the Revised Organic Act of 1954 manifested the Congressional intent to subject the government of the Virgin Islands to suit in contract, notwithstanding the absence of an express waiver of immunity as to such by the local legislature. Section 2(b) employed the same language of § 3 of the 1936 Act, supplementing it with the proviso that no tort action be brought against the government or against any government personnel in their official capacity without the consent of the legislature of the Virgin Islands.⁷ That the government was subject to suit in contract without having first expressly consented thereto was acknowledged by Judge Maris in Felix v. Government of the Virgin Islands, 167 F.Supp. 702 (D.V.I.1958), thereby implicitly rejecting the rationale employed in Harris v. Municipality of St. Thomas and St. John, 212 F.2d 323, 326 (3rd Cir. 1954). Additionally, the court in Felix construed § 2(b) as having left unchanged the necessity of a waiver by the government of its immunity as a condition to maintenance of a suit in tort against the government. 167 F.Supp. at 706.

But what of the personal liability of government officers and employees? Did Congress intend, via § 2(b) of the Revised Organic Act, to shield government personnel from personal liability in tort? Or did the language "or against any officer or employee thereof in his official capacity" constitute added protection of the government...