Case Caption: David Aubain v. Kazi Foods of the V.I., Inc. D/B/A Pizza Hut St. ThomasCase Number: S. Ct. Civ. No. 2016-0051Date: 03/26/2019Author: Cabret, Maria M. Citation: 2019 VI 11Summary: In a personal injury, premises liability action, the Superior Court erred in granting summary judgment in favor of the defendant because the plaintiff demonstrated the existence of a genuine issue of material fact as to whether the defendant had constructive notice of the dangerous condition of a wooden bench on the premises. Summary judgment is a drastic remedy and should not be used to short-circuit litigation by deciding disputed facts without permitting the parties to reach a trial on the merits. The burden is on the moving party to identify those portions of the record that demonstrate the absence of a genuine issue of material fact, at which point the burden shifts to the non-moving party to present affirmative evidence from which a jury might reasonably return a verdict in his favor. Here the Superior Court did not err in treating plaintiff’s arguments regarding foreseeability of the incident as addressing the question of defendant’s notice of a dangerous condition. To establish that the defendant breached its duty, plaintiff must show that it had actual or constructive notice of the condition, not merely that the incident was foreseeable. Here, however, the plaintiff – in responding to the motion – identified conflicting testimony of the defendant’s employees about the frequency and the reasonable nature of its inspections of the benches, and thus demonstrated the existence of a triable issue concerning whether the defendant had constructive notice of the defect. As a result, the defendant failed to establish that it was entitled to the drastic remedy of summary judgment, and the Superior Court erred in granting that motion. The judgment is reversed.Attachment: Open Document or Opinion