S. Ct. Civ. No. 2011-0085

The Superior Court's order dismissing a plaintiff's complaint against the Government under the Virgin Islands Tort Claims Act, 33 V.I.C. §§ 3401-17, is affirmed. In this suit for wrongful death and other claims against a police detective and the Government arising out of a shooting death, the Superior Court correctly questioned whether the statute's requirements were satisfied. Since it raised and adjudicated this issue sua sponte, it committed error by depriving plaintiff of her right to be heard, but such error was harmless here. Plaintiff received an opportunity to respond to the Government's motions for summary judgment and for reconsideration, both of which asserted the same argument the Superior Court ultimately relied on in dismissing her complaint: that committing premeditated murder is outside the scope of a police officer's employment. Given admissions in plaintiffs' complaint as to the nature of the detective's conduct, and taking judicial notice of his first-degree murder conviction, as a matter of law the detective could not have acted within the scope of his employment when he killed the victim. Accordingly, it was not error to hold that this intentional murder was outside of the scope of the detective's employment as a matter of law, with dismissal of plaintiffs' claim against the Government based on respondeat superior. Given the absence of an intentional tort exclusion limiting the extent of the Virgin Islands Government's waiver of immunity in § 3408(a), the Superior Court also committed legal error in holding that plaintiffs' claim notice was insufficient in failing to allege independent negligence on the part of the employee's supervisor irrespective of their employment relationship, but its dismissal of the negligence claims on this basis was also harmless error since plaintiff's notice to the Government failed to comply with basic requirements of the VITCA in 33 V.I.C. § 3409(b). While it was not necessary to allege each of the elements necessary to survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure or to provide a precise legal theory upon which recovery is sought, her notice was required to set forth more than mere conclusory allegations of the Government's liability. Here the notice stated plaintiff's intention to bring a claim for negligent hiring, retention, supervision, and training, but it did not state a single action or omission by the detective's supervisors that gave rise to this claim. At the very least, the notice must provide a description of the particular manner in which the Government was allegedly negligent. Therefore, the Superior Court's dismissal under this theory of liability was also not reversible error. The Superior Court's October 20, 2009 Order dismissing this complaint against the Government with prejudice is affirmed.