Elizabeth Service v. Isidor Paiewonsky Associates, Inc.

• Court: Superior Court of The Virgin Islands
• Decided: January 20, 2022
• Docket: ST-16-CV-597
• Status: Unpublished

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN

FLIZABETH SERVICE ) CASE NO ST 2016 CV 00597 ) Plaintiff ) ACTION FOR DAMAGES vs ) ) IURY TRIAL DEMANDED ISIDOR PAIEWONSKY ASSOCIATES INC ) ) Defendant )

Cite as 2022 VI Super 8U

MEMORANDUM OPINION AND ORDER

1 INTRODUCTION

10 THIS MATTER is before the Court on the following

1 Elder Paiewonsky 5 Motion for Summary Judgment filed on January 31 2020

2 Plaintiff 5 Opposition to Defendant s Renewed Rule 56 Motion filed on February 4 2020

3 Isidor Paiewonsky 5 Reply to Plaintiff‘s Response in Opposition to Defendant s Renewed Motion for Summary Judgment filed on February 18 2020

4 Plaintiffs Supplemental Request Re Summary Judgment filed on April 26 2021

5 Plaintiff 3 Second Supplemental Request for Ruling Re Summary Judgment filed on August 9 2021 and

6 Plaintiff‘s Third Request for Ruling Re Summary Judgment filed on Octobcr 15 2021 112 Viewing all reasonable inferences drawn from the cvidence provided in a light most favorable to Plaintiff Elizabeth Service ( Service ) as the non moving party and taking all properly supported allegations as tme the Court finds that there exist genuine issues as to material facts which requircs denial of Defendant Isidor Paiewonsky [Assouiates Inc ]’S Motion for Summary ludgment Elizabeth Service v Imlur Pmewnmky Assacmlas Inc 2022 V1 Super 8U Case No ST 2016 CV 00597 Memorandum Opinion and Order Page 2 of 13

II FACTUAL AND PROCFDURAL BACKGROUND

1T3 This case presents claims of negligence and premises liability by Service, a former store manager for Little Switzerland against the store 5 landlord Isidor Paiewonsky Associates Inc ( IPA ) Service alleges that on March 10 2016 while preparing to open the store she raised an awning by flipping it out and secured the latch, but as she walked inside to tie the rope the awning fell and hit her in the back of the head ' Service sought medical attention as a result of this incident and she was subsequently diagnosed as suffering from a very serious permanent and marked impairment and brain damage ’2 IPA claims that “[p]ursuant to its Lease Agreement with I ittle Switzerland [it] owed no legal duty to the Plaintiff to maintain and repair the subject store awning[J 3 and therefore should not be held liable

$14 On December 23 200‘) Little Switzerland and IPA entered into a Lease which provided in relevant part responsibilities of IPA as Landlord with respect to the Demised Premises in question

12 LIABILITY

A The Landlord assumes no liability or responsibility whatsoever with respect to the conduct and operation of the business to be conducted in the Demised Premises The Landlord shall not be liable for any accident to or injury to any person or persons or property in OI about the Demised Premises which are caused by the conduct and operation at said business or by virtue of equipment or property ot the Tenant in said premises

D The Landlurd shall not be liable to the Tenant its members employees, agents representatives, invitees, licensees, or guests for (i) any damage, compensation or claim arising from the necessity ofrepairing any portion ofthe Dcmised Premises, (ii) any interruption in the use of the Demised Premises, (iii) any injury or damage resulting from the use or operation (by the i andlord, the Tenant or any other person) of the cooling electrical or plumbing systems or equipment

19 REPAIR AND MAINTENANCE 01* DEMISED PREMISES

A The Landlord shall at its expense maintain and perform any repairs necessary to keep the roof foundation exterior walls and othei structural components at the Building in structurally sound condition

'Def 5M0! tor Summ J at4 PI sOpp m Der Rule56 Mot at7(referemmg Ex 4) ‘Def sMot tor Summ J atZ Ellzalu'lh Service v [Ht]!!! PtllEWUHSky Associates, [m 2022 V1 Super 8U Case No ST 2016 CV 00597 Memorandum Opinion and Order Page 3 or 13

C The Tenant covenants and agrees that in all other respects the exterior and interior ofthe Demised Premises, including, without limitation painting, windows doors ceilings floors walls attachments fixtures electrical plumbing air conditioning and all other systems and equipment shall be maintained repaired and kept in good order and condition, 0] replaced if necessary, at the expense of Tenant If any systems or equipment are designed to serve the Demised Premises and other premises in the Building I andlord shall cause any repairs maintenance and/or replacements thereof to [b]e made and within ten (10) days after demand theretor Tenant shall pay to I andlord its proportionate share of the cost of any such work If the I and101d deems that any maintenance or repairs are necessary or that Tenant has failed to perform its obligations under this Paragraph I andlord may demand that the Ienant make the same and if the Tenant refuses or fails to do so within ten (10) days after demand theretor the Landlord may make or cause to be made such maintenance or repairs and shall not be responsible to the Tenant for any loss or damage If the Landlord makes or causes to be made such repairs the Tenant shall pay to the Landlord the cost thexeof 4

1I5 In the same I ease, the parties also agreed to a modification that would commence no earlier than May I 2010 and no later than June 30 2010 that reduced the size of the Demised Premises

C Modification 0f Premises Landlord and Tenant agree that the Denliied Plemises shall be modified to reduce the si7e 0f the Demised Premises to approximately 1 888 square feet uhieh shall include approximately 1 818 square feet 0fretail space [ ]’

{[6 In its Motion for Summary Judgment IPA argues that the Lease unambiguously imposes the duty to repair the awnings on Little Switzerland[ ] 6 therefore it owed no legal duty to the Plaintitt to maintain and repair the subject store awning 7 and should not be held liable Conversely Service claims that IPA did have a duty to make sure the awnings were safe and that [t]here are material issues offaet in dispute as to whether Paiewonsky had notice of the dangerous eundition ofthe awning “3

1W According to IPA [t]he awning in question was attached by a hinge to a metal frame inside the store 9 Its claim that the hinge was located inside the store is not Supported by the diagram that depicts the dimensions at the Demised Premises Aceurding to IPA “[W]hen opening the store [Service] would allow the awning to swing out from the inside of the store so that it Lould be latched onto the exterior of the building '0 The parties agree that the awning in question

‘Def sMot ferSumm J Ex B 5 Def 5M0! for Summ J Ex B “Def 5M0! for Summ J at8 7Def 5 Mot for Summ J at2 a Fl 5 Opp to Defs Renewed Men For Summ I at 1.: 9Def sMot tor Summ J at4 “' Id Elizabeth Same v 1mm Palewvns/g Amunm, Inc 2022 v1 Super 8U Case No ST 2016 CV 00597 Memurandum Opinion and Order Page 4 nf13

was required to open and had to be latched t0 the outside ofthe building ” However the parties disagree as to whether the latch of the awning itself was located within the interior or exterior of the building (i e within the Demised Premises) The photos below depict where the awning latch was located

/ ’ s k

I t I I

I / /

I /P' t r’ f I t! 5% I

' 1 {Eff 4mg. ‘ t te 3 t

e 3” m, ‘ .t - ~ ,. , *1

118 Prior to the March 10 2016 incident Service made two reports to little Switzerland management that the awning was not working properly ‘2 In its Motion for Summary Judgment IPA argues that [tjhesc reports were never forwarded to [it] and therefore [it] was entirely unaware that the awning [was] not working properly '3 In response Service claims that not only did IPA have a duty of care to maintain the awning it knew or should have known of the dangerous condition of the awing [ttc] and taken steps to address it” H IPA’s “President and Director at Real Estate James Eilen admitted seeing persons like Ms Service opening the

” Fl 5 Opp to Def 5 Renewed Rule 56 Mot at 3 ' Sec Ex A of Dep ufEliZabeth Service 34 [A 17 ” Def 3 Mot fur Summ J at4 (referencing Janus Ellen deposition 14 25 15 1 4) ” Pl 5 Opp to Bet 5 Rule 56 Mot at l; Elizabeth Strung v luan Paiewunslry Achmlm, lm. 2022 VI Super 8U Case No ST 2016 CV 00597 Memorandum Opinion and Order Page 5 01‘ 13

awnings by themselves, WltiLh he said was unsate[,]”" yet took no action to stop the dangerous practice

“I LEGAL STANDARDS

3 Summary Judgment

1P) Virgin Islands Rule of Civil Procedure 56 provides that [a] party may move tor summary judgment, identifying each claim or defenseAQr the part of each claim or defense on which summary judgment is suught '6 The party moving for summary judgment bears the burden of demonstrating that there is no genuine issue of any material fact and that it is entitled to judgment as a matter of law ‘7 This bu1den may be met by pointing out that there is an absence of evidence to support a particular element ofthe nonmoving party 5 case '3

1110 Ones the moving party makes its showing the opposing party must make a showing sufficient to establish existence of [every] element essential to that party 5 case and on which that party will bear the buiden ofproofat trial ‘9 The opposing party may not rest on mere allegations but must present actual evidence showing a genuine issue for trial 2” 1'he patty opposing summary judgment shall affix to [its brief] copies of and cite to the precise ponions ofthc record relied upon as evidence of each material fact 2‘ The opposing party must provide more than a scintilla at supporting evidence to survive a motion for summary judgment 22 A fact is material where it might affect the outcome of the suit under the governing law[j 23 Further because summaryjudgment is a drastic remedy the grant of a motion for summaryjuclgmcnt is allowed only where the moving party shows that the pleadings the discovery and disclosure materials on file and any affidavits, show there is no genuine issue as to any material tact "’24 [A]single nonconclusory affidavit or witness s testimony when based on personal knowledge and directed at a material issue is sufficient to defeat summaryjudgment orjudgment as a matter of law 2’

" Pl 5 Mat [110pp n to Bets Renewed Mot For Summ J at 13 "’V1 R Civ P 56(a) '7 [d '3 Williams» UmmdLor/J 50VI 191 19; 93 (VI 2008) "’ Chapman 1 Cornwall 58 V1 431 436 (V [ 2013) ° William; 50 v1 at 194 ‘Bmic Yam Inc v Govt oflhe I I 71 V l 652 658 59 (2019) (citing Willmrm v Untzedflmp 50 VI 191 194 (VI 2008)) ” Andelsan v Am den 0/ Teacher; 67 V I 777 788 89 [20”) (citing Para 1/ R11 Curlmn(V1rgmlrIamIs) [m 59 V1 522 527 28 (V1 20l8)) 3W1111nmsv Ummde 50v1 191 194(v1 2008)quoting Andersonv Lthcuylabby Inc 47711 5 242 243 (1986) ‘ Basic Saws [m v Cat I uf/hz P I 71 V1 652 658 59(2019)(c1[mg Wzlhalm v UnrledLorp 50 VI 19] [94 (VI 2008)) 5 Cappuccm v [rune Capital Fundmg LLC 649 1' 3d 180 |89 90 (3d Cir 2011)(cmng Kzrleu v Dickn McCumey & Chtlmle I’ C 560 F 3d [56 |6|$3 (3d C1: 2009)) Elizabeth smug v km», Palewlmsky Assaciales Inc 2022 V1 Super 8U Case No 5T 2016 CV 00597 Memorandum Opinion and Order Page 6 of 1.3

1111 In considering the evidence provided by both parties, the Court is required to view all inferences to be drawn from that evidence in a light most favorable to the nonmoving patty betore ruling M

b Negligence and Premises Liability

1112 It is well established that the elements Ufa negligence cause of action are (1) a legal duty of care to the plaintiff (2) defendants breach of that duty of care (3) factual and legal causation and (4) damages 27 Proximate cause is established where the party who bears the burden shows that an original act is wrongful or negligent and in a natural and continuous sequence produees a result which would not have taken place withaut the act H To detelmine whether a duty exists the court must consider the tollowing factors (1) the reasonable foreseeability 0f the injury (2) the likelihood of injury (3) the magnitude of the burden of guarding against the injury and (4) the consequences 01 placing that burden on defendant ’29

{[13 The Supreme Court ofthe Virgin Islands has “recognized foreseeability as the touchstone ofpremises liability because foreseeability permeates every element 01a negligence claim ’30 In Aubain v Kan Foodx 0/th V] [m the Court explained that in the context 0t aptemises liability action a plaintiff must establish breach of duty by showing that the defendant had actual or constructive notice at the dangerous condition ”31 further ‘while foreseeability ofharm and notice of a dangerous condition share a certain conceptual overlap [][n]otice requires a far more concrete inquin into the partiLular cause of injury ”32 Aubum reasoned that ‘[e]ven in the absence 0f direct evidence establishing the precise length of time a dangerous condition existed, a plaintiff may satisfy the constructive notice requirement by introduting evidence tending to show that the defendant tailed to conduct reasonably frequent and thorough inspections of the premises ”H

1114 Furthermore in Perez, ‘[1]iability for foreseeable harm is based on the possessor’s superior knowledge of the property as the possessor is in the best position to know at potentially dangerous conditions on the property 34 In Machado the Supreme Court of the Virgin Islands used foreseeability of harm to ascertain a land possessor’s duty of reasonable or ordinary care in premises liability actions

5111llmmv v Ummdtorp 50 V1 191 194(VI 2003) 7 Comm] 4!: Tramp v Ray,» 64 VI 649 651 (VI 2016) 92¢ alto Mmhacla v 1’11th Hm en US! I LLL 61 v1 373 380 (V1 2014) ’“ 9ealeychmzmn t Yunny Isle Shopping Lemar IIIL, 52 v I 410 (VI 2009), overruled 0n whey glollnds by Mnchadu 61 V [ 31385 86 2 Auburn v K0 (Faadr 0/ V I [m 70 V1 943 950 (2019)(quolmg Bodkin v :40] 8‘ P [m 768 N E 2d 194 20; (111 App Ct 2002) 0 Id ' Id (referencing Pm 59 VI at 529 30) Id 1 Id ‘ Pare V R12 (urban (Vngm [rlundy Inc 59 VI at 5;; (V I 2018)) 51mm”. smug v Isldall’mewamky Aswuatev, Inc 2022 v1 Suer w Case No ST 2016 CV 00597 Memorandum Opinion and Order Page 7 of 13

Characteri7ati0n of an entrant as an invitee, licensee, or trespasaet has no bearing on the possessor s superior knowledge of the property and to allow summary judgment where there is evidence that a plaintiffs injury was toteseeable try a land possessor yet the possessor did not take reasonable action to prevent that injury inappropriately places the focus of attention on the plaintiff s actions alone 3‘

1115 Manhado explained that in the absence of actual notice evidence that the owner should have dlseovered the danger and taken >teps to remedy it can establish constructive notice 3" Additionally the Court recognized that one way that notice of a dangerous Londition can he imputed to a land possessor is through evidence that the condition persisted over a long enough period of time that the ownet should have become aware at it through the existence of reasonable care ’37 Nevertheless, the constructive notice requirement will not be satisfied when a defendant introduces uncontroverted evidence showing that the defect could not have been discovered even through reasonable inspection 3"

IV ANALYSIS

$116 At issue in the instant Motion for Summary Judgment is whether IPA owed a duty to maintain and repair the awning that injured Service Upon review ofthe parties’ pleadings relevant testimony and all other reasonable inferences from the evidence in the light most favorable to Service, the Court finds that there exists a genuine dispute as to certain material facts concerning (1) respensibility to repair and maintain the awning in question and (2) whether at a minimum IPA had constructive notice of the danger of the awning causing injury

A The Court finds that the awning and its supporting mechaniwms were located on exterior walls that were the responsibility of Isidore Paiewonsky Associates, Inc

fl” lhe Court finds that the parties modification to the I ease reduced the Demised Premises to an area within the walls of the building owned by IPA and that the awning and its supporting mechanisms were located on exterior walls that were the responsibility of [PA

$118 Paragraph 19 0f the Lease governs the applicable landlord and tenant duties to repair and maintain the Demiscd Premises In pertinent part the landlord (ie IPA) shall maintain and perform any repairs necessary to keep the roof foundation exterior walls and other stmctural components ofthe Building in structurally sound condition ” It further states, in all other respects the exterior and interior 0fthe Demised Premises shall he maintained, repaired and kept in good order and condition or replaced it necessary at the expense ot the Tenant ‘9 Subsection C indicates that the tenant (i e , I ittle Switzerland) is responsible for maintaining and repairing ‘ all other respects [of] the exterior and interior of the Demised Premises including attachments and fixtures

’5 MHthZdt) at )86 “ MHLhfldt) 61 V] at 392 J9.) (quonng WIIIIaIm 50 V I at 195 196) 71d at :9; "Auburn am 2 ‘7 Def Mot fol Summaly Judgment E\ 2 Elizabeth Strung v lsldar Palewnuslry Anaemia, Inc 2022 V1 Super 8U Case No ST 2016 CV 00597 Memorandum Opinion and Order Page 8 of 13

$119 IPA argues in its Motion that it did not possess a duty to maintain and repair the awning First it claims that [t]he duty to protect others from injury resulting from a dangerous Londition on a premises does not rest on tegal ownership of the dangerous area but on the right to control access by third parties 40 Second IPA Claims that the Lease unambiguously imposes the duty to repair the awnings on Little Switzerland 4' In support it argues that Plaintiff‘s Complaint is devoid ofany allegation that the building was structurally unsound [and] [i]n the absence ofany such allegation the duty to repair would default to little Switzerland through the catch ail language in the Lease 4’ Further IPA argues that the awning in ordinary use should be considered an attachment or fixture which [is] Little Switzeiland S responsibility to repair 4} Lastly IPA argues should the Court choose to consider extrinsic eVidence the conduct between the parties to the Lease reinfortes Little Switzerland s responsibility to maintain and repair the awnings ‘4 $20 In nontrast Service asserts in her Opposition that the Lease did not include the entire building but only a ponion 0f the interior 01 the building’ 4‘ and the “awnings in question were attauhed to the portion ofthe plemises retained by the I andlord Paiewonsky Which was expressly excluded from the Demised Premise "45 Service further states that the Lease agreement ‘ marks the interior of the store area as being 49 11 3/4 by 47 11 1/2 which makes it even clearer that the parties carefully excluded the doorway sections from the lease ‘7 Funhermore Service claims that the awnings were on the building before the lease even started [so] theie can be [10 dispute that Paiewonsky owned them ‘8 Service contends that the tact that the tenant attempted to repair the awnings does not relieve the landlord of its separate duty to make its retained portion of the premises safe to invitees such as Service as the duty to maintain one s premises in a reasonably safe condition is a non delegable duty ‘9

1121 Generally Courts in the Virgin Islands decline to consider extrinsic evidence when the written terms of a contract appear unambiguous ”’0 However ‘[b]efore making a finding concerning the existence or absence of an ambiguity [the Court will] consider the contract language and the extrinsic evidence offered in support ofcach interpretation ’ rather than simply determine whether the language is clear from the Court’s point of V1LW 3‘ ‘ Ordinaxily when the terms of a comma are unambiguous the Superier Court treats the issue at the meaning of those terms as a question of law, but if the terms are ambiguous the issue of the meaning ofthe terms

4” Def 3 M01 for Summ J at 7 “ Def :Mot for Summ J atS ’7 Def 5 Mat for Summ J at 8 ’3 Def 5 Mat fur Summ J at8 “ Def sMut fur Summ J at IO ‘5 Pl 5 Opp Iu DLf : Rule 56 Mot at 2 ‘6 Pl 5 Opp m Def : Rule 56 Mot at 10 ‘7 Pl 3 Opp to Def : Rule 56 Mot 21111 ‘8 Pl 5 Opp to Def : Rule 56 Mot at 11 ”Pl 5 Opp to Def 5 Rule 56 Mot at 12 (referencing Machada at 394) 5" White v Spemelev Realty LLC 53 V I 666 678 (2010) 5' Id bllzubetli Service v hid!” PIIIEWHHYk} Asxucitlles, Inc 2022 VI Super 8U Case No ST 2016 CV 00597 Memorandum Opinion and Order Page 9 of 13

becomes a question of tact ”2

Extrinsic etidence may inelude the conduct of the panies that reflects their understanding of the contract’s meaning, Nevertheless, a finding that extrinsic evidenLe tenders a contract latently ambiguous will typically defeat a motion tor summary judgment and necessitate that the trier of tact resolve the ambiguity in light of the extrinsic evidence Appellate LOLlrIS however have held that notwithstanding a latent ambiguity it the court finds that a contract is ambiguous and that the extlinsie evidence is undisputed then the interpretation of the contract remains a question of law fox the noun to decide” at the summary judgment stage ‘3

$122 Here IPA argues that the Court should consider extrinsic evidence that Little Switzerland used their own maintenance worker to make awning repairs prior to the incident in question “ However the mere tact that the tenant made prior repairs to the awning does not relieve [PA of its duty to maintain the premise in a reasonably safe condition 5 Therefore the Court finds that the diagrams and language of the Lease unambiguously show that the exterior walls of the building to which the awnings were attached are not part at the Demised Premises as shown in Fxhibit B

.r / fl \ A A v V j 4‘ XI,

I l ‘1 t i 1 w a . '‘ it r . :1 t1 3 ~ tg 31 z V : g '5 ~ i , z I ' t

m I -. ‘lr , “ i‘ t i meant e?“ a It" ‘ r I

1B4 In accardance With Paragraph 19 01 the Lease, IPA is responsible for maintaining any repairs netessary to keep the exterior walls and othei structural components at the building in sound condition The depiction above shows that the area Where the awnings were latched to the exterior wall is not within the Demised Premises Further the Court finds that the measurements

5 UWIILdLUV‘p v TumPurltLtd 55 VI 702 707 (2011) White v Spencelcy Rum} LLL 53 V I 666 678 79 (V I 2010) (citin Teami/eri Indus Emplayee: thfme Fund v Rail: Rune Molar (.11) Y Inc 989 F 2d 132 135 (Jul Cir [993» (citations omitted) and In re Lolumbm (rm 3) slam [m 50 F 3d 2.).) 241 (3d Cir 1995) (citations omitted» ‘Def sMot for Summ J at 10 >‘ See 2 g Machado (maintaining its property in a reasonably safe condition is the very essence of duty of care) Elizabeth Service v 1mm Patewunsky Axxuclares, 1m 2022 v1 Super 8U Case No ST 2016 CV 00597 Memorandum Opinion and Order Page 10 11le

for the interior ofthe store as found in the Lease agreement being 49 11 3/4 by 47’11 1/2 clearly omits the doorway settions from the Demised Premises

{l25 Although IPA argues that the awning was not its responsibility because it was attached to the exterior portion of the Demised Premises the Court finds that the area in Whth the latch was located according to the plain language of the Lease would not be consideted part of the Demised Premises Because the aming latch is located within an area ietained by IPA and not included in the description of the Demised Premises 0fthe Lease IPA has failed to meet its butden of proof that it did not owe a duty to maintain and repair the awning

1126 The Court finds that IPA s characterization or description of the awning its operational and support mechanisms are not supported by references to the record Further Section 12 at the l ease agreement relied upon by IPA does not address the awning and does not absolve IPA of liability with respect to the failure at the awning to remain in place

B The Court finds that there are genuine issues of material fan as to whether Paiewonsky had constructive notice of the dangerous condition of the awning

1R7 In cases of premises liability in the Virgin Islands a plaintift may show a breach 0t duty by establishing that the defendant had aetual or constructive notice of the dangerous condition 5" Evidence that the dangerous condition persisted for many months prior to the incident sufficiently creates ajury question of notice ‘7

{[28 Here Service claims that [bJased on this record the evidence clearly supports a ituy (inding that Paiewonsky knew or should have known about the problems with the awning because at the multiple emails that were sent prior to the incident , the near misses that other employees ofLittle Switzerland will testify about and the testimony of Mr Ellen that he knew the opetation ofthe awning was a two personjob yet he did not alert anyone to this danger ’8 In sum Service 5 Opposition sets forth that a jury could reasonably conclude that this defective awning condition persisted for a sufficient amount of time such that Paiewonsky knew or should have known about it breaching its duty to correct this dangerous condition “’

$129 In contrast IPA relies upon the evidence that Serviee and others had reported problems with the awnings directly to Little Switzerland and not to IPA {‘0 Service 5 response is that having never seen the Lease she did not realize that she should have sent her emails to IPA Given that Service was operating the awning in her capacity as store manager its is not unreasonable for her to report problems to her superiors and not to her employer 5 landlord

‘5 Auburn at 950 (referencing Pare 59 v l at 529 30) "See MaLhuda (referencing Daughter) v City 27me Yurk 524 N Y 5 2d 703 706 (N Y App Div 1933)) SEPl sOpp m m s RuleSfi Mot £1115 ”PI sOpp to Def 5 Rule 56 Mot at 16 5“ Det 5 Reply to Pl 5 Resp in Opp t0 Def 5 Renewed Mot for Summ J 6 (referencing Exhibits G and H from Service tol ittle Switzerland attached to Def 5 Mot fur Summ Jud) Elizabeth Senate v Ind», Palzwnnxk} Assocmlm, [m 2022 VI Super 8U Case No ST 2016 cv 00597 Memorandum Opinion and Order Page 11 of 13

1110 IPA relies upon testimony that in response to Service 5 reports about the Ewing I ittle Switzerland used their own maintenance worker to change the latches and drill new holes 6‘ IPA additionally argues that on another occasion Service reported her March 10 2016 injuries to Little Switzerland and submitted a corresponding Work oxder to fix the awning [but] Little Switzerland neither notified Isidor Paiewonsky of the Plaintist incident nor submitted any related maintenance requests for the awnings "(‘2 IPA cites to the Affidavits of Little Swit7erland’s employees to support its argument that there was a mutual understanding between Little Switzerland and Isidor Paiewonsky that Little Switzerland Was responsible tor the awnings attached to its storefmnt ‘3 The alleged mutual understanding as to responsibility for repait of the awning is undermined by the I ease agreement 5 section 25 1‘ entitled Entire Agreement Modification that provides this Lease may not be modified changed or terminated in whole or in part in any manner other than by an agreement in writing signed by all parties hereto The Court fu11her finds that IPA s reliance upon prior problems with the awnings that were reported prior to the March 10 2016 incident also supports the argument that the IPA had ample time and 0pp01tunity to inspect and discovet problems with the awning’s defective latch mechanism As a result the Court finds there exists a genuine dispute as to whether IPA had constructive knovtledge ofthe awning’s dangeious condition 1130 Machado prevides that evidence that a dangerous eonditivn persisted for many months prior to the incident is sufficient to create a jury question ofnotice 5‘ In this case Service emailed her supervisor and building superintendent, Dilip Wadhwani on June 17, 2015, stating‘ my front door awning is rubbing during opening and closing and it s becoming damaged Additionally on November 2 2015 Service emailed management of Little Switzerland Sophia Rosario stating that the “awnings are rubbing wall and tearing Paint is rubbed away in main entrance due to awning issue ”‘73

{[31 The Court agrees that IPA 5 President and Director of Real Estate James Eilen s admission or observation that it was unsafe 101' a single person to open the awnings supports a finding that IPA had constructive notice it not actual notice at the awning 5 potential dangers 1n the absence of actual notice evidence that the owner should have discovered the danger and taken steps to remedy it can establish constructive notice ”('5 Machado explained that one ‘way that notiee Ufa dangerous condition can be imputed to a land possessor is through evidence that the condition persisted over a long enough period 0ftime that the owner should hate became aware ofit through the existence of reasonable care ’ 67

“ Pl Mot for Summ J S (referencing P] s Resp to Bet s Interrog 9 attached as EX D) 5 Pl 5 Opp t0 Def 5 Rule 56 Mot at 15 (referencmg Eilen Dept) 14 23 15 l 4) 5‘ Def 5 Mot {01 Summ J at 12 [utmg Ex land] Dilip Wadhwani Little Switzerland 3 Director ufUperations and Sophia Rosario Little Switzerland 5 Project Manager) 6‘ Maahuda at 39; (refermcmg Daughtyv Cu; ofNew York 524 N Y 5 2d 703 706 [N Y App Div 1988) M 11/51) Burthulamet v Casey 651 A 2d 908 919 20 (Md Ct Spec App 1994)( evidence ot a constant state ufdisrepair for one manth was sufficient to create aju1y question as to notice ) “5 EX 5 of P1 Opp “6 Muchudu 61 V l at 293 395 (quoting WllIlanS 50 V 1 at 195 196) "7 Id at 393 Elizabeth ServiLe v Imlor Palewansky Assauutes, Inc 2022 V1 Super 8U Case No ST 2016 CV 00597 Memorandum Opinion and Order Page 12 of13

$132 Additionally in Auhm'n the Supreme Lourt of the Virgin Islands opined that constructive knowledge may be presumed from prior reoceun’ing conditions

We have prevlnusly recognized that one way that notice of a dangerous Londition can be imputed to a land possessor is through evidence that the Londition pelsisted over a long enough period of time that the owner should have become aware at it through the exercise of reasonable eare But in order to establish notice through a recurring condition the recurring condition must occur prior to the incident at issue 63

1133 The Court finds Service sufficiently established that the problem with the awning persisted tor a significant enough period of time that IPA was put on constructive notice and should have become aware of it through the exercise of reasonable caie The conflicting testimonies in the record and the terms of the Lease agreement itself show that IPA has not met its burden of demonstrating that there is no genuine issue of any material fact and that it is entitled tojudgment d3 a matter of law (’9 IPA did not sufficiently introduce uncontroverted evidence that the defect could not have been discovered even through reasonable inspection ”7" Given its circumstances, the instant case presents a perfect example of what the Supreme Court of the Virgin Islands has opined as one in which the determination of negligence should be made by a jury instead of a single judge at summary judgment 7‘

V CONCLUSION

1134 Upon review at the patties pleadings exhibits and all other reasonable inferences from the evidence in the light most favorable to Service the Court finds that there exists a genuine dispute as to certain material facts concerning (1) responsibility to repair and maintain the awning in question and (2) whether IPA had Constructive notice 0fthe awning s dangerous condition

Aeeordingly it is hereby

ORDERED that Isidor Paiewonsky 5 Motion for Summary Judgment which was filed on lanuary 11 2020 is DENIED and it is further

ORDERED that Plaintiff‘s Second Supplemental Request for Ruling Re Summary Judgment filed on August 9 2021 is DENIED as moot and it is further

ORDERED that Plaintiff‘s Third Request for Ruling Re Summary Judgment filed on October 15 2021 is DFNIED as moot and it is further

“X Auburn at 952 (citing Muham'y v JC Penna} (a 377 P 2d 66.: 673 (NM 1962) Muchada 1t 39: (citations omitted) “" I11 7" Aubum at n 2 7' Rvmer v Kmart tarp 68 VI 571 576 (V l 2018) Elizabeth Service v Isidnr P{uewmlsky ASMIL'HIEY, Inc 2022 VI Super 8U Case No ST 2016 CV 00597 Memorandum Opinion and Order Page 13 0113

ORDERED that a copy of this Memmandum Opinion and Order shall directed to counsel of record

7 DATED January 28 2022 DWW 22% W0 DENISE M RANCOIS Judge of the Superior Court 01 the Virgin Islands

ATTEST

TAMARA CHARLFS Clerk ofthe Court

BY %M\0u&§ m £213, QM LAT CAMACHO Conn Clerk Supervisor / /