Case Caption: Polanco v. Southern Holdings, LLC et al.Case Number: SCT-CIV-2021-0103Date: 01/18/2024Author: Hodge, Rhys S. Citation: 2024 VI 8Summary: In a personal injury action, the Superior Court’s September 1, 2021 order entering summary judgment in favor of two defendants solely on the ground that they were not “land possessors” is reversed. Under more than a decade of case law this Court has held that foreseeability is the touchstone for the existence of the duty of reasonable or ordinary care in premises liability actions, and the distinction between invitees, licensees, and trespassers has been abolished in premises liability cases because it is in conflict with this Court's jurisprudence and modern negligence law generally. The soundest common law rule for the Virgin Islands applies the holding that foreseeability of harm is the touchstone of the existence of a land possessor's duty of reasonable or ordinary care—in all premises liability actions. This reasoning compels a rejection of the formalistic distinction between owners who are “land possessors” or “occupiers” and those who are not.  Rather, in all premises liability actions the touchstone is the foreseeability of harm, and not the labels attached to the plaintiff or the defendant. Here, the evidence, when viewed in the light most favorable to the plaintiff, establishes genuine issues of material fact with respect to the elements of her premises liability claim. The defendants’ contention that the sublease agreement precluded them from entering the property or ordering repairs or changes to the vehicle ramp is rejected; its plain text establishes the contrary and the plain language of the sublease agreement expressly granted defendants a virtually unrestricted right to enter the premises to inspect its condition and order any repairs that their lessee failed to make.  Moreover, there is substantial evidence which creates a triable issue of fact as to whether the defendants knew or should have known about the dangerous conditions that caused plaintiff’s injury.  The testimony, when viewed in the light most favorable to plaintiff and considered in conjunction with the terms of the sublease agreement, certainly creates various issues of material fact as to whether defendants (1) were largely absentee landlords who inspected the property very infrequently despite having reserved in the sublease agreement the right to inspect the property at any reasonable hour; (2) knew that their lessee had failed to maintain the property, with the condition of the property deteriorating “year after year after year”;  (3) were aware that at least on some occasions a vehicle ramp not intended for use by pedestrians had been used by pedestrians; and (4) despite having the unrestricted right under the sublease agreement to make repairs to and abate nuisances on the property without the lessee’s consent, elected to not do so, and chose to only ask him to clean the property after each visit, even though these requests were always unsuccessful.  Thus, there are triable issues of fact which preclude the issuance of summary judgment.  The Superior Court erred when it held, at the summary judgment stage, that defendants did not owe a legal duty to plaintiff, and there are material issues of fact as to whether these defendants possessed a legal right to enter the property and make necessary repairs, and knew or should have known of the dangerous condition that caused plaintiff’s injury, yet failed to take any reasonable action to prevent it.  Accordingly, the September 1, 2021 order entering summary judgment in favor of these defendants is reversed, and the case is remanded to the Superior Court for further proceedings consistent with this opinion. Attachment: Open Document or Opinion