Moore v. A.H. Ruse Gift Shops, Civil No. 1985/19
| Decision Date | 04 May 1987 |
| Docket Number | Civil No. 1985/19 |
| Citation | 23 V.I. 227 |
| Parties | CAROL MOORE, Plaintiff v. A. H. RUSE GIFT SHOPS and REVLON (PUERTO RICO), INC., Defendants |
| Court | U.S. District Court — Virgin Islands |
Motion for summary judgment in a case alleging personal injury, wrongful discharge, and breach of contract. The District Court, Brotman, J., denied the motion, holding, inter alia, that a cause of action for wrongful discharge does exist in the Virgin Islands, and that an employer must give notice of knowledge of a hazardous condition even if he does not control the premises.DESMOND L. MAYNARD, ESQ., by: BENNETT CHAN, ESQ., St. Thomas, V.I., for plaintiff
R. ERIC MOORE, ESQ., St. Croix, V.I., for defendant A. H. Riise
RITA J. DIEHL, ESQ. (LAW OFFICES OF JOEL W. MARSH) St. Thomas, V.The master's duty as to wI., for defendant Revlon (Puerto Rico), Inc.
OPINION
Plaintiff Carol Moore brought this action for recovery for personal injury, wrongful discharge, and breach of contract against A. H. Riise Gift Shops ("Riise") and Revlon (Puerto Rico), Inc. ("Revlon"). Presently before the court is a motion by Revlon for summary judgment.
Moore began working for Riise in 1978 and was assigned to the counter selling Revlon cosmetics. She received a salary from Riise and a three percent commission from Revlon. On September 1, 1981, Moore was officially hired by Revlon as a "Beauty Advisor." There was no written contract of employment between plaintiff and Revlon setting forth any term with respect to the duration of her employment. See Deposition of Carol Moore at 65, 89, 90. Her job duties when she became employed by Revlon were essentially the same as those she performed as an employee of Riise. See Affidavit of Renaldo A. Zamparelli at ¶4.
Revlon contends that beginning in 1981, sales of Revlon products at Riise decreased. "The annual volume of sales of Revlon products at the Riise store declined from $99,319.00 in 1981 to $90,431.45 in 1983 to $79,777.19 in 1984." Revlon discharged ten of its seventeen Beauty Advisors in Puerto Rico effective July 27, 1984,and in September 1984, Revlon and Riise agreed to consolidate the two counters selling Revlon products due to the decreased level of sales activity. Id. at ¶¶20, 21, 22; Defendant's Exhibit B.
Regarding Moore's knowledge of these developments, Revlon informed Moore by letter dated January 12, 1983, that company-wide austerity measures were required because of economic conditions and that her salary increase would be delayed and reduced. See Defendant's Exhibit A. In addition, Moore's commissions decreased as Revlon's sales at Riise declined because her commissions were a percentage of gross sales. See Zamparelli Affidavit at ¶20.
On May 16, 1984, during the course of her employment, plaintiff fell and injured herself in the stockroom area of the Riise store. She contends that she tripped and fell on carpeting that was not properly tacked down on an inclined passageway between the packing room and the perfume storeroom. The accident occurred when Moore was obtaining stock for her cosmetic counter.
By letter dated September 24, 1984, Revlon informed Moore that Riise and Revlon had decided to consolidate the Ultima counter and Fragrances counter because of the decreasing sales trends. The letter stated that as a result of this reorganization, Moore's services were no longer required. See Defendant's Exhibit C. At the time Moore was discharged, she still had not returned to work since her May injury. From May through September 1984, plaintiff had continued to receive her full salary. See Moore Deposition at 45.
Moore filed a Workmen's Compensation claim but was refused coverage because Revlon had not paid its premiums. Revlon was notified of the deficiency and on July 20, 1984, paid the amount past due, $559.44, to the Virgin Islands' Commissioner of Finance. See Defendant's Exhibit D. Moore states that the government continued to deny coverage and advised her in October 1984 that because of Revlon's uninsured status at the time of the accident, she could elect to sue Revlon directly or receive Workmen's Compensation through the Uninsured-Employer Fund, 24 V.I.C. § 261(a)(1). See Moore Deposition at 15, 116, 117, 95; 24 V.I.C. § 261(b)(1); Vanterpool v. Hess, 766 F.2d 117 (3d Cir. 1985), cert, denied, 106 S.Ct. 801 (1986).
Plaintiff's action asserts the following claims. Count I claims that Revlon and Riise negligently maintained the premises at Riise that resulted in personal injury to her. Count II states that Revlon was not insured under the Virgin Islands Workmen's Compensation law at the time of her injury. In Count III, Moore alleges that heremployment with Revlon was terminated while she was recovering from her injuries for no "legal or justifiable reason." Count IV also alleges wrongful discharge in violation of the public policy of the Virgin Islands but adds that such termination "inflicted emotional distress upon Plaintiff." Count V asserts a breach of contract claim, alleging that the Virgin Islands statute requiring an employer to enroll in the Workmen's Compensation system is an implied term of an employment contract between Moore and Revlon. Count VI alleges generally "intentional culpable conduct."
[1] The standard for granting summary judgment is a stringent one. Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Hersh v. Allen Prod. Co., Inc., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Ins. Co., 721 F.2d 118 (3d Cir. 1983). In deciding whether an issue of material fact does exist, the court is required to view all doubt in favor of the nonmoving party. See Meyer v. Riegel Prod. Corp., 720 F.2d 303, 307 (3d Cir. 1983); Knoll v. Springfield Township School District, 699 F.2d 137, 145 (3d Cir. 1983); Smith v. Pittsburgh Gage and Supply Co., 464 F.2d 870, 874 (3d Cir. 1972).
In Count I, Moore alleges that Revlon negligently maintained the premises at Riise where the accident occurred. Revlon responds that first, it had no control over the area in question, and second, that Revlon's duty to provide safe working conditions does not extend to the condition of premises not in its control.
Revlon correctly cited the relevant law on this issue. The common law of the Virgin Islands is that contained in the Restatement. See 1 V.I.C. § 4. The law as stated in the Restatement governs the Virgin Islands unless preempted by the Virgin Islands law. The Restatement (Second) of Agency § 504 states as follows;
The master's duty as to working conditions does not extend to the condition of premises not in his control, or to the conduct of third persons with whom the servants are to be brought into contact during the course of the work, except that he has a duty to disclose dangerous conditions of which he should know.
The court must deny defendant's motion for summary judgment on this Count because there is an issue of material fact in dispute. Even if Revlon had no control over the area in which the accident occurred, it had a duty to warn employees of dangerous conditions of which it knew or should have known. Restatement (Second) of Agency § 504. Plaintiff testified that at a time immediately preceding her accident, the area supervisor of Revlon was in the storeroom to which plaintiff was heading when she fell. See Moore Deposition at 79. She argues that the Revlon supervisor must have travelled over the hazardous area and should have disclosed its presence to Moore. Id. at 79. The Complaint states that "Defendants knew or should have known that, prior to the incident herein complained of, other persons were caused to stumble and/or fall on the said carpeting where Plaintiff was injured." Complaint at ¶8. Defendant argues that plaintiff herself was "not aware" of any problem with the carpeting. Moore Deposition at 79. Revlon has submitted no affidavit stating that it did not know or should not have known of the hazardous condition. Defendant merely states in its brief that "there is no evidence that Revlon had such notice." Defendant's Memorandum at 14. Such a statement is an insufficient basis on which to grant summary judgment.
Furthermore, whether Revlon knew or should have known of the alleged hazard is a question for the jury. In Butz v. Union Pac. R. Co., 120 Utah 185, 233 P.2d 332, 335-36 (1951), the court, citing the Restatement of Agency § 504, held that whether the railroad should have reasonably foreseen the likelihood of injury and whether additional precautions should have been taken by the railroad to provide the switchman with a safe place to work were questions for the jury.
[2] As there is a genuine issue of material fact in dispute as to whether Revlon knew or should have known of the alleged hazard, the court must deny summary judgment regarding Count I.
[3] Count II states that Revlon was not insured under the Virgin Islands Workmen's Compensation law at the time of plaintiff's injury. In this Count, plaintiff merely asserts that because of Revlon's uninsured status, she is "empowered to file this action" by the Virgin Islands Code. The statute allows an employee of an uninsured employer to elect between receiving compensation under the Workmen's Compensation statute or bringing suit against theemployer. Moore has elected to sue her employer. Count II merely asserts that plaintiff has the statutory right to bring this action, see 24 V.I.C. § 261(a)(1), it does not state a separate claim against defendants. Plaintiff does not respond to Revlon's argument regarding Count II. Count II will be dismissed without prejudice under Fed. R. Civ. P. 12(b)(6) as not stating a claim upon which relief can be granted.
Counts III and IV assert claims for wrongful...
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