Torchin v. Blue Shore Grill, LLC
| Decision Date | 30 August 2012 |
| Docket Number | Civil No. 2011-115 |
| Parties | LAURA TORCHIN and BRIAN TORCHIN, Plaintiffs, v. BLUE SHORE GRILL, LLC, d/b/a HAVANA BLUE, MARRIOTT INTERNATIONAL, INC., DIAMOND ROCK HOSPITALITY CO., FRENCHMAN'S REEF & MORNING STAR BEACH RESORT, DARYL (a/k/a ELVIS) D. CHRISTOPHER, JORGE D. GARCIA, and XYZ CORPORATION, Defendants. |
| Court | U.S. District Court — Virgin Islands |
ATTORNEYS:
Jason R. Margulies, Esq.
Lipcon, Margulies, Alsina & Winkleman
Miami, FL
J.R. Pate, PC - Law Office
St. Thomas, U.S.V.I.
Dudley Topper & Feuerzeig
St. Thomas, U.S.V.I.
For Blue Shore Grill LLC d/b/a Havana Blue, Marriott
International Inc., DiamondRock Hospitality Co.,
Garcia, DiamondRock Frenchmans Owner, Inc. d/b/a Frenchmans
Law Offices of Robert L. King
St. Thomas, U.S.V.I.
Before the Court are motions filed by the defendants to dismiss and for summary judgment.
On or about December 15, 2009, Laura Torchin was a patron at the Havana Blue Restaurant. While at the restaurant, Laura Torchin and her cousin, Carolyn McGrath ("McGrath"), were served alcoholic beverages by Jorge Garcia ("Garcia"). At that time, Garcia was an employee of Blue Shore Grill, LLC, Marriott International, Inc., Diamond Rock Hospitality, Co., and Frenchman's Reef & Morning Star Beach.
Thereafter, Laura Torchin and McGrath were driven by Garcia to his rented residence at 4A Estate Tabor & Harmony in St. Thomas, U.S. Virgin Islands ("the residence").2 As she attempted to exit the vehicle at the residence, Laura Torchin fell from an elevated driveway and was injured.
Laura Torchin and her husband, Brian Torchin, then filed this seven count complaint. In Count One, Laura Torchin alleges negligence against Blue Shore Grill, LLC, d/b/a Havana Blue under various theories of liability. In Count Two, Laura Torchin alleges negligence against Marriott International, Inc., Diamond Rock Hospitality, Co., and Frenchman's Reef & Morning Star Beach Resort under various theories of liability. In Count Three, Laura Torchin alleges negligence against Garcia and the Christophers under a theory of premises liability. In Count Four, Laura Torchin alleges negligence per se against Daryl "Elvis" Christopher and Doreen E. Christopher (collectively referred to as "the Christophers") under "the 2009 International Building Code." (Compl. ¶ 52, ECF No. 1). In Count Five, Laura Torchin alleges negligence against Marriott International, Inc., Diamond Rock Hospitality Co., and Frenchman's Reef & Morningstar Beach Resort under an apparent agency theory of liability. In Count Six, Laura Torchin alleges negligence against Marriott International, Inc., Diamond Rock Hospitality, Co., Frenchman's Reef & Morningstar Beach Resort, and Blue Shore Grill, LLC, under a joint venture theory of liability. In Count Seven, Brian Torchin seeks damages for loss of consortium from each of thedefendants. The plaintiffs also seek punitive damages from Blue Shore Grill, LLC, Marriott International, Inc., Diamond Rock Hospitality, Co., Frenchman's Reef & Morning Star Beach Resort, and the Christophers.
Blue Shore Grill, LLC, d/b/a Havana Blue (hereinafter, "Havana Blue"), Marriott International, Inc. (hereinafter, "Marriott"), and DiamondRock Frenchman's Owner, Inc., d/b/a Frenchman's Reef & Morningstar Marriott Beach Resort (hereinafter, "DiamondRock"), now separately move to dismiss the counts against them pursuant to Federal Rule of Civil Procedure 12(b)(6). Garcia moves for summary judgment. The Christophers have answered but have not filed any dispositive motions.
In order to survive a motion to dismiss, a plaintiff must offer "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A court must ask whether the complaint "contain[s] either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 550 U.S. at 562 (emphasis in original) (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do." Id. at 555 (internal citations omitted). Thus, "[t]o survive a motion to dismiss, a . . . plaintiff must allege facts that 'raise a right to relief above the speculative level on the assumption that the allegations in the complaint are true (even if doubtful in fact).'" Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Twombly, 550 U.S. at 555).
Summary judgment is appropriate if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Hersh v. Allen Products Co., 789 F.2d 230, 232 (3d Cir. 1986).
The movant has the initial burden of showing there is no genuine issue of material fact, but once this burden is met it shifts to the non-moving party to establish specific facts showing there is a genuine issue for trial. Gans v. Mundy, 762F.2d 338, 342 (3d Cir. 1985). The non-moving party "may not rest upon mere allegations, general denials, or . . . vague statements . . . ." Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991). "[T]here is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249 (1986).
"[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. In making this determination, this Court draws all reasonable inferences in favor of the non-moving party. See Bd. of Educ. v. Earls, 536 U.S. 822, 850 (2002); see also Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994).
Havana Blue makes three primary arguments in its motion to dismiss. First, it argues that "[t]he complaint must be dismissed because plaintiffs' claims are based solely on allegations that Havana Blue overserved alcoholic beverages." (Havana Blue Mot. Dismiss 3, ECF No. 10). Specifically, it avers that "[t]he U.S. Virgin Islands has not enacted a liquor liability statute." Id. at 4. It also avers that "[t]he commonlaw does not recognize a cause of action for negligence in providing alcoholic beverages." Id. at 5. Next, Havana Blue argues that the plaintiffs have failed to state a cause of action for loss of consortium. Finally, it argues that the plaintiffs have failed to state a claim for punitive damages.
Marriott and DiamondRock make the same arguments as does Havana Blue in their motions to dismiss. Additionally, they argue that the "[p]laintiffs have failed to state a plausible claim that Marriott [and DiamondRock] had a 'joint venture' and/or 'apparent agency' relationship with Havana Blue." (Marriott's Mem. in Supp. of Mot. Dismiss 4, ECF No. 32); (DiamondRock's Mem. in Supp. of Mot. Dismiss 3, ECF No. 78).
. . . . Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010)(quoting Ashcroft v. Iqbal, 556 U.S. 662, 881 (2009)).
To state a claim for negligence in the Virgin Islands, a plaintiff must allege (1) a duty; (2) a breach of that duty; (3) causation; and (4) damages. Matos v. Nextran, Inc., 2009 WL 2477516, at *5 (D.V.I. Aug. 10, 2009)(citations omitted); see also Restatement (Second) of Torts § 281 (1965) ().
In support of her claims for negligence against Havana Blue, Marriott, and DiamondRock, Laura Torchin avers in Counts One and Two that Havana Blue, Marriott, and DiamondRock owed her a duty of care. (Compl. ¶¶ 3, 19-27, 31, 32-40, ECF No. 1). She concedes that the U.S. Virgin Islands legislature has not enacted a liquor liability statute. (Pls.' Opp'n to Havana Blue's Mot. Dismiss 4, ECF No. 17) ("There is no precedent from the U.S.V.I. that speaks to the liability of tavern keepers for the over-service of alcohol.") She also concedes that the Restatement (Second) of Torts and the Restatement (Third) of Torts do not recognize a cause of action for negligent service of alcohol. (Pls.' Opp'n to Havana Blue's Mot. Dismiss 4, ECF No. 17) ("In such situations as these Virgin Islands Courts should look to the Restatement of Torts for guidance, however the issue is not addressed therein either.")
The plaintiffs argue, however, that a majority of states have recognized "some form of a common law cause of action for the over-service of alcohol to a clearly intoxicated person," in the absence of a dram shop act or Restatement provision. (Opp'n 5, ECF No. 17).
Indeed, numerous states have recognized such a cause of action in...
To continue reading
Request your trial