S. Ct. Civ. No. 2012-0137

Summary judgment for the defendant in a parking lot trip-and-fall case is reversed because the plaintiff met her burden of demonstrating that genuine issues of material fact exist in this case. According de novo review to the Superior Court's decision in the context of the substantive law governing the cause of action, plaintiff submitted sufficient evidence to create genuine issues of material fact on the foundational elements of negligence-(1) a legal duty of care to the plaintiff, (2) a breach of that duty of care by the defendant (3) constituting the factual and legal cause of (4) damages to the plaintiff. Dividing the legal status of entrants upon land into invitees, licensees, and trespassers to define a land possessor's duty of care in premises liability actions conflicts with this Court's jurisprudence and modern negligence law generally. The soundest common law rule for the Virgin Islands is that the foreseeability of harm is the touchstone of the existence of a land possessor's duty of reasonable or ordinary care. A land possessor does not have strict or limitless liability, and is not an insurer of the visitor's safety. The character and circumstances surrounding an injured person's presence will remain relevant and important in determining the standard of care applicable to the landowner, and where there is no evidence to suggest that the entrant's presence on the property was foreseeable (e.g., an unexpected trespasser)-or that the possessor of land had no reason to anticipate the entrant's injury (such as when there was no notice of a dangerous condition), judgment as a matter of law remains appropriate. Applying this standard here-and viewing the evidence and all inferences in the light most favorable to plaintiff, she met her burden at summary judgment with regard to the defendant's duty of care, and a reasonable jury could conclude that it should have foreseen use of a parking lot's median area and should have taken reasonable steps to prevent patrons from being injured in doing so. Plaintiff met her burden of producing evidence to support a finding that the defendant had actual or constructive notice of a dangerous condition and that its actions caused plaintiff's injuries in failing maintain its sprinkler system in properly functioning order or to warn of sprinkler heads remaining several inches above ground when not in use. Maintaining implied assumption of risk as a complete defense to negligence conflicts with the Legislature's unambiguous directive in 5 V.I.C. § 1451(a) that a plaintiff's fault shall not bar a recovery, but the damages shall be diminished by the trier of fact in proportion to the amount of negligence attributable to the plaintiff. To the extent defendant properly raises this defense and produces evidence that plaintiff was negligent in entering the median to reach her car in the parking lot the jury must apportion fault between the parties under 5 V.I.C. § 1451(a). The Superior Court's November 15, 2012 order granting summary judgment for the defendant is reversed and the case is remanded for further proceedings.