381 F.3d 152 | 3rd Cir. | 2004
STAPLETON, Circuit Judges.
No. 03-1119 ___________
(Filed September 9, 2004) RICHARD FABEND; ___________
MARGARET FABEND,
Appellants, Vincent A. Colianni, II, Esq. (Argued) Colianni and Colianni vs. 1138 King Street Christiansted, St. Croix
ROSEWOOD HOTELS AND
USVI, 00820 RESORTS, L.L.C.; Counsel for Appellants CANEEL BAY, INC; UNITED STATES OF AMERICA, Matthew J. Duensing, Esq. (Argued) vs. Michael Fitzsimmons, Esq. Stryker, Duensing, Casner & Dollison ROSEWOOD HOTELS AND Drakes Passage, 2nd Floor RESORTS, L.L.C.; P.O. Box 6785 CANEEL BAY, INC., Charlotte Amalie, St. Thomas Third-Party Plaintiffs USVI, 00804 Counsel for Appellees vs. ___________ UNITED STATES OF AMERICA DEPARTMENT OF THE OPINION OF THE COURT INTERIOR, NATIONAL PARK ___________
SERVICE,
Third-Party Defendant. N Y G A A R D , C i r c u i t J u d g e . ___________ Richard and Margaret Fabend sued
APPEAL FROM THE DISTRICT
Rosewood Hotels and Resorts, Caneel
COURT OF THE VIRGIN ISLANDS
Bay, Inc., and the United States Department of Interior, National Park
(D.C. No. 99-cv-00155) Service after Richard was injured while District Judge: The Honorable bodysurfing in the Virgin Islands. Fabend Thomas K. Moore settled the claims against the United operated by Rosewood Hotels and Resorts. States, but proceeded in the District Court Rosewood and Caneel had a limited and of the Virgin Islands against the remaining non-exclusive right to operate a defendants. Fabend claims that the campground and related services on defendants had a duty to warn him of a national park land adjacent to Cinnamon dangerous shorebreak condition at the Bay beach, pursuant to a series of beach, which created a forceful wave that concession agreements between Caneel drove him into the sand and left him a and the National Park Service. Rosewood quadriplegic. The District Court granted also rented cabins and operated a summary judgment for the appellees. restaurant, beach store, and watersports
center. The District Court had jurisdiction over this diversity action under the Revised The relationship between Rosewood Organic Act, 48 U.S.C. § 1612(a), and 28 and the National Park Service was U.S.C. § 1332(a)(1). We have jurisdiction governed by a Concession Contract, a to review the summary judgment order Concessions Operational Plan, and an pursuant to 28 U.S.C. § 1291, and exercise additional Operating Plan. Under the plenary review. Blair v. Scott Specialty terms of these documents, the National Gases , 283 F.3d 595, 602-03 (3d Cir. Park Service retained full access to the 2002). Although we review the facts in area adjacent to Cinnamon Bay beach, the light most favorable to Fabend, the including the right to enter the area at any central issue, whether appellees had a duty time; final authority over Rosewood’s to warn or protect him, is a question of operations, such as the rates charged and law. Turbe v. Gov’t of the Virgin Islands , the dates and hours of campground operation; and the responsibility for 938 F.2d 427, 429 (3d Cir. 1991) (“The nature of the legal duty owed by a providing protection services for beach defendant is generally a question of law.”) visitors, including law enforcement, safety inspections, and lifeguard functions. S.A. (citing Restatement (Second) of Torts § 328B(b) (1965)). We hold that the at 40-58, 101-09, 114-21. The National appellees did not exercise sufficient Park Service has acknowledged that it maintained physical control over all control over the beach to create a duty to warn and will affirm. beaches and waters of the Virgin Islands
National Park, including Cinnamon Bay
I.
beach. The National Park Service also Cinnamon Bay beach on St. John, U.S. produced signs and brochures to warn visitors of dangerous conditions within the Virgin Islands is owned by the United States and is part of the Virgin Islands park. National Park. The Fabends were staying
Although the factual accounts offered at the Cinnamon Bay Campground, which by the District Court and the two parties was owned by Caneel Bay, Inc. and vary in some respects, none of these differences is germane to our decision. another, even if one realizes that the other According to his deposition, Fabend was is at risk of injury. Restatement (Second) heading back into the ocean from a of Torts § 314. There are, however, successful “bodysurf” when he saw a special relationships that can give rise to particularly large wave coming at him. He such a duty. The only special relationships decided it was too large to bodysurf and on which Fabend relies as giving rise to a attempted instead to dive through it. When duty to protect are those that exist between he tried to do this, the wave hit him and an innkeeper and his guests and between a smashed him headfirst into the sand, possessor of land who holds it open to the breaking his neck. public and members of the public who
respond to the invitation. Fabend claims the accident occurred because of a dangerous shorebreak Section 314A of the Restatement condition off of Cinnamon Bay beach. [1] A (Second) of Torts provides in relevant shorebreak exists where the water rapidly part: becomes shallow as it approaches the
(1) A common carrier is under a duty shore, resulting in waves that can break to its passengers to take with tremendous force and drive reasonable action swimmers into the sand. Fabend contends that the potential danger of a shorebreak is (a) to protect them against not observable by the casual and unreasonable risk of physical uninformed swimmer. harm . . .
II. (2) An innkeeper is under a similar duty to his guests. The American Law Institute’s Restatement of Law provides the rules of (3) A possessor of land who holds it decision for the Virgin Islands “in the open to the public is under a absence of local laws to the contrary.” 1 similar duty to members of the V.I.C. § 4. Because there are no public who enter in response to applicable local laws to the contrary, we his invitation. apply The Restatement (Second) of Torts.
Id. Comment c to § 314A further The general rule is that one owes no duty provides: to protect, and thus no duty to warn, The rules stated in this Section apply only where the relation exists between the parties, and the risk of
1. Fabend and his expert witness claim harm, or of further harm, arises in that many Cinnamon Bay beach guests the course of that relation. A have fallen victim to this shorebreak and carrier is under no duty to one who received serious injuries, although they has left the vehicle and ceased to be only specifically mention and document a passenger, nor is an innkeeper one such injury. under a duty to a guest who is hotel owed a duty to protect a patron from injured or endangered while he is a criminal assault by a third party when the away from the premises. Nor is a patron was just outside the entrance doors possessor of land under any such to the hotel on a public sidewalk. Id . at duty to one who has ceased to be an 215. The hotel’s security department had invitee. been made aware of reports of a number of
incidents at the entrance, and the owner of Id. the property had also received a As Comment c makes clear, the duty to recommendation to station a guard at the protect, and hence the duty to warn, exists entrance. Id . at 218-19. The property only where the risk arises from the owner contracted with the hotel to hire relationship, and it is not alone sufficient men for the purpose of adopting new that a guest is exposed to a risk during the security measures in areas outside the period he remains such. People hotel’s premises, including the area where undoubtedly come to Cinnamon Bay the decedent was killed. Id . at 219. When Campground to engage in numerous the decedent’s wife and children sued for recreational activities on St. John and the wrongful death, the court concluded that surrounding waters – hiking, sailing, deep the hotel’s power to take security measures sea fishing, snorkeling, and sunbathing, as put it in sufficient control of the entrance well as body surfing. This does not mean, to impose a duty on it to take reasonable however, that Caneel and Rosewood have measures to protect its guests from harm a duty to warn guests of all of the non- and/or to warn them of dangerous obvious risks associated with these conditions. activities. A risk arises in the course of the
Although Banks involves the death of relationship only if it occurs on the a guest from the actions of a third party, it relevant premises. Id. nonetheless states a principle that is Our inquiry into whether appellees had relevant to the question before us, which it a duty to warn Fabend of the shorebreak calls the “sphere of control” test. That is condition begins with the question of to say, when an innkeeper possesses or whether Cinnamon Bay beach and the exercises sufficient control over the adjacent bay should be considered part of property adjacent to his premises, he has the “premises” of the campground. To the power to take protective measures to answer this question, courts have applied reduce the risk of injury on that property. the “sphere of control” concept to Having such power, the innkeeper has a determine whether a duty exists in various duty to exercise it to the benefit of his types of innkeeper liability cases. In patrons. Banks v. Hyatt Corp., 722 F.2d 214 (5th
The specific factual setting of a case Cir. 1984), for example, the Fifth Circuit will ultimately dictate whether a party is in Court of Appeals applied a sphere of the position to control or has the power to control test when considering whether a control land adjacent to his property such Manahan Court adopted the position that that a duty to protect or warn arises. See “an innkeeper is not an insurer against all id . at 227. The “sphere of control” test risk of injury to its guests, but is obligated requires that we look at the circumstances only to take reasonable steps to minimize of the case to ascertain whether sufficient risks that are foreseeable to its guests when control exists over the adjacent premises. they are reasonably within its sphere of Relevant indicia of control include who is control .” 821 F. Supp. at 1109 (emphasis responsible for the safety of guests, who added). has the authority to dictate who may use
We have, however, used a standard the property, and whether the guests were similar to “sphere of control” in cases invited by the property owners to use the involving railroad-related injuries. For adjacent land. See Pacheco v. United example, in Estate of Zimmerman v. States , 220 F.3d 1126, 1131-32 (9th Cir. SEPTA , we held that a defendant did not 2000). If, for example, an innkeeper owe a duty of care to someone injured on leases property to operate a hotel, but the railroad tracks that the defendant neither government retains control over the land owned nor controlled, even though the for the use of general public, the innkeeper defendant might have used the tracks. 168 must only warn guests of dangers on the F.3d 680, 685 (3d Cir. 1999). We held leased property and the ingress or egress that “[t]he duty to protect against known therefrom. See Stedman v. Spiros , 161 dangerous conditions falls upon the N.E. 2d 590 (Ill. App. 1959), cited in possessor of the land.” Id. at 684. Banks , 722 F.2d at 223-24; see also Jones Quoting the Restatement, we defined a v. Halekulani Hotel, Inc. , 557 F.2d 1308, “possessor” of land as someone who 1311 (9th Cir. 1977) (finding that a hotel “occupies the land with the intent to had no duty to protect someone who was control it.” Id. injured diving from a seawall owned by the hotel but used as a public easement Consistent with the approach taken in “[b]ecause the hotel had no right to control Banks, Manahan, and Zimmerman , we the use of the public thoroughfare . . . hold that defendants only had a duty to [and] [i]t is inequitable to impose a duty of warn Fabend if the beach and the adjacent maintenance on one without authority to bay were under their “sphere of control.” control use”). The beach was within their “sphere of
control” if they had the legal right to Though we have never explicitly control the conditions and use of the area, adopted the Banks test, the District Court or possessed the area and evidenced an of the Virgin Islands followed it in an intent to control it even absent clear legal earlier case, which we affirmed without authority. In conducting this inquiry, we opinion. See Manahan v. NWA , 821 F. consider who had the legal authority to Supp. 1105, 1108-09 (D.V.I. 1992) control the area, including the right to ( affirmed without opinion at 1993 U.S. control access, establish rules for use, and App. LEXIS 14348 (3d Cir. 1993)). The mitigate or warn of any dangerous swimming area and that, accordingly, this conditions. We also consider the de facto area must be considered a part of their control the defendants exercised over the premises. The problem with this theory is area, and whether these actions were that all of the conduct of Caneel and consistent with the terms of the legal Rosewood is consistent with their limited relationship that placed control with the license and there is no evidence from National Park Service. which a jury could find that they exercised
control over the swimming area. [2]
III.
We reject the idea that a jury might It is undisputed that the park, including find that Caneel and Rosewood exercised the swimming area, was owned by the joint control over the swimming area. federal government, and that the National Fabend asserts that the Appellee’s de facto Park Service had the right to exercise control is evidenced by the facts that (1) exclusive control over activity in that area. Appellees were allowed to post signs, (2) While the National Park Service had there was no National Park Service granted a license to Caneel and Rosewood, regulation prohibiting it from hiring a that license was limited under the lif egu ard, (3) A p p e l l ee s h a d a controlling documents to the operation of “maintenance crew;” (4) Appellees cabins and a campground, a gift shop, and provided “trash cans as a service to beach a water sports shop at locations assigned users as they would return to the by the National Park Service, subject to campgrou nd;” (5) that Appellees’ certain controls retained by the National personnel would at times patrol the beach Park Service. For present purposes, the for campground security purposes, and that critical fact is that the National Park one of its employees acknowledged that he Service, except to the extent of authorizing had “monitored and policed” the operation of a water sports shop, did not in swimming area on occasion; (6) Appellees those documents surrender any control of operated the only amenities on the beach; the beach to Caneel or Rosewood. It (7) Appellees exclude non-guests from the follows that Caneel and Rosewood had no actual authority to control the swimming area where Fabend was injured. The
2. At oral argument we asked the parties to National Park Service retained that indicate the portions of the record that authority and exercised it by promulgating bear on the issue of whether defendants regulations governing activities there and, would have been allowed to post signs indeed, publishing warnings of risks to be warning of beach conditions. Regardless found there. of whether defendants would have been Nevertheless, Fabend suggests that allowed to post their own signs, however, Caneel and Rosewood, despite their lack the point remains that such signs were of authority to do so, assumed the the legal responsibility of the National responsibility of controlling activity in the Park Service. beach at times and (8) Appellees suggested guests returning there, and it is not in their advertising that the beach belongs surprising that it did so. None of this is to them. probative, however, of whether Caneel and
Rosewood in fact exercised control over There is no question that Caneel and the swimming area. The relevant Rosewood had actual authority to post documents do not grant control of the signs necessary or appropriate to the swimming area to Caneel or Rosewood operation of a campground and the water and, indeed, they reserve that control to the sport shop, but that is of no legal National Park Service. [4] Accordingly, the significance here. What is important is absence of a regulation prohibiting Caneel that there is no evidence that they ever or Rosewood from hiring a lifeguard is posted a sign purporting to direct or hardly surprising. The relevant fact is that control activities in the swimming area. there is no evidence suggesting that either Similarly, Rosewood had actual authority ever asserted control by engaging the to have its personnel provide campground services of a lifeguard for the swimming security, [3] as well as trash cans for its area. Rosewood’s maintenance crew only maintained the facilities it was authorized 3. James Bartell, the campground manager to operate. The only significant testimony at Cinnamon Bay Campground, testified with respect to the clean up of the beach with respect to security was as follows: Q.. . . You said these were nighttime security [personnel]. Did you 3. (...continued) have any security personnel working that they would. during the day? Q.Did they walk the beach as part A.We didn’t, no. of their security patrol? Q. Do you know what time they A.I think they could have walked would come on in the evening? out onto the beach just as a precaution to A.Generally about five or six make sure that, you know, our o’clock in the evening. campground was safe. Q.Would they patrol the beach area as well as the area around the App. IV at 191-92. cottages? 4. The documents explicitly state that, A.Well, their main responsibility was for the area around the cottages. consistent with 36 C.F.R. § 1.5, the The cottages are permanent tents and our National Park Service retains the power bare ground camping facility. When they and responsibility to regulate its land for would look out on the beach to see if the safety of visitors, and to take action there was anything out there, I’m sure — such as beach closures, or use
(continued...) restrictions — to maintain that safety. was the following testimony of Richard The only evidence concerning Caneel Metcalfe, who ran the water sports center. and Rosewood personnel and the
swimming area indicated that they would Q.Where does he rake the leaves? advise people renting boats of the National A.Well, the leaves come down, he rake Park Service rule prohibiting the use of right around the building to try to keep it boats in the swimming area and would clean so we don’t stump our toes on the secure a commitment that that rule would be obeyed. [6] This would support a finding tree roots and stuff like that.
Q.Does he do any maintenance on the beach itself; that is, pick up any leaves, 5. (...continued) bottles or anything on the beach? beach at Cinnamon Bay. Mr. Varlack, A.No, I don’t believe he has ever done however, did not claim to have observed that. Caneel or Rosewood personnel cleaning the beach, and his understanding of who Q.Have you? had responsibility for doing so was based Did you hear the question? on inadmissible hearsay. A.I don’t believe he has ever done that.
6. Mr. Metcalfe, for example, testified: Q.I said have you ever done it? Q.Well, I am asking you whether A.Yes. once a guest rents a kayak or windsurfer or sailboat, do you monitor their
Q.Does Devon Boulon ever clean up activities when they are in the water? around the beach? For example, if you see them going into A.I don’t believe he’s ever done that the swimming area, do you advise them either. not to do that? A.We explain it to them Q.How about the others who you beforehand that park regulations state employ? that no hard objects are allowed in the A.No, I don’t think they ever cleaned swimming area. We explain to them up on the beach. where the swimming area is, and then we have them sign-off on the sign-off release form that they don’t go into that
S.A. at 80-81. [5] area. I don’t have the enforcement capability. Q.In the event that people do
5. There is testimony from an NPS [wander] into the swim area, do you employee, Leon Varlack, that NPS did warn them off? not have personnel assigned to clean the A.No. We would call the ranger
(continued...) (continued...) that Caneel and Rosewood exercised time of his accident, much less any control with regard to the equipment they equipment purchased or rented from the leased pursuant to their authority to appellees. Furthermore, Fabend’s operate a water sports shop; it would not contention that defendants “rent the only support a finding that Caneel or Rosewood cottages on the beach” is also misleading. exercised control over the swimming area. The cottages are not on the beach, but on The relationship between Caneel and the campground property adjacent to the Rosewood and Fabend while he was beach, and are part of the concession swimming was no different from their contract with the National Park Service. relationship with their other guests when Similarly, the appellees do not “exclude they were hiking, deep sea fishing, or non-guests from the beach,” but merely swimming on the other side of St. John. shut the road to the campground to non- Under the governing law, that relationship guests during nighttime hours as is was insufficient to give rise to a duty to required by the National Park Service. See warn on their part. 36 C.F.R. § 1.5. As the District Court
observed, appellees do not attempt to The evidence Fabend points to as an control other methods of accessing the indication that Rosewood and Caneel beach at night. In fact, by law they would operated the only amenities on the beach is be prevented from doing so. See 12 V.I.C. not probative on the relevant control issue. § 402 (guaranteeing public access to the Fabend was not using any equipment at the shorelines of the Virgin Islands). Fabend also asserts that the appellees made up rules for the beach, such as 6. (...continued) placing a ban on campfires, and enforced if they would do something silly. Let the rules such as a ban on boats in the park take care of them. designated swimming area. But the record * * * demonstrates that none of these rules are Q.Okay. Mr. Rabsatt testified the appellees’ rules: they are rules that at times you even go out in your boat established by the National Park Service to inform guests that they were deviating which appellees merely aided in enforcing. and going into the swimming area. Is Finally, Fabends’ argument that that true? appellees treat the beach as their property A.Yes, there have been times that when they advertise “our . . . white sandy I have gone out, not into the swimming beach” in their brochures is unpersuasive. area, because I can’t take my boat into the A common phrase does not create a legal swimming area, and I told people that the duty. As the District Court observed, park said that they are not supposed to go rhetoric does not establish control and in there. I reminded them but again it’s ownership any more than does an really – there is nothing I can do about it. invitation to enjoy “our gentle trade winds.”
S.A. at 77-78; 78-79. Because the evidence establishes that the beach was not within appellees’ sphere of control, we hold that they did not have a legal duty to warn swimmers of the shorebreak danger. As such, the appellees are not liable for the injuries Fabend suffered.
IV.
For the above reasons, we will affirm the District Court’s grant of summary judgment in favor of the appellees.
