Faulknor v. Government of the Virgin Islands

MEMORANDUM OPINION

(February 19, 2014)

Pending before the Court are Defendant’s June 24, 2013, Motion to Dismiss, Defendant’s November 18, 2013 Motion to Dismiss,1 and Plaintiff’s December 10, 2013 Motion to File a Late Claim.2 For the following reasons, Plaintiff’s Motion will be granted and Defendant’s Motions will be granted in part and denied in part.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff filed a Complaint on March 22, 2013, alleging that Ignace J. Gumbs, Sr., an employee of the Government of the Virgin Islands, was driving a Government vehicle on March 29, 2012, within the scope of his employment, when he hit Plaintiff, a pedestrian, while she was crossing the road in a crosswalk at the intersection of Veteran’s Drive and Rue St. Barthelemy in Charlotte Amalie, St. Thomas. Plaintiff alleges that she sustained physical and mental injuries as a result of Gumbs’s negligence and seeks to recover against the Government of the Virgin Islands under the Tort Claims Act.

STANDARDS

I. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b).

Pursuant to FED. R. Crv. P. 12(b)(1) and (4), made applicable to the Virgin Islands Superior Court through Superior Court Rule 7, a defendant may seek dismissal of a case for a lack of subject-matter jurisdiction or insufficient process. Further, under Fed. R. Crv. P. 12(b)(6) a defendant may test the sufficiency of the pleadings by seeking dismissal for the plaintiffs “failure to state a claim upon which relief can be granted.”3 Generally, when considering a motion to dismiss that challenges the sufficiency of the pleadings, the Court must first liberally construe the *71pleadings, to the extent permitted by the pleading requirements of Fed. R. CIV. P. 8,4 and “accept as true all well-pleaded allegations in the complaint” in favor of the plaintiff.5 While “the Court must take all of the factual allegations in the [c]omplaint as true, courts are not bound to accept as true a legal conclusion couched as a factual allegation.”6 Second, once the legal and factual allegations have been distinguished, the Court must decide whether “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,”7 such that the claim is plausible on its face. In other words, “[a] motion to dismiss a complaint should be denied if the factual allegations are ‘enough to raise a right to relief above the speculative level’ ”8 and “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.”9 However, pursuant to Fed R. Civ. P. 12(b)(1), if the motion to dismiss contests the substantive or factual allegations that establish the Court’s jurisdiction, “the factual allegations in the complaint are not controlling and only uncontroverted factual allegations are accepted as true.”10 Further, “the trial judge may be *72authorized to review the evidence!, including extrinsic evidence,] ... [to] resolve the dispute . . . ,”11

II. Waiver of Government of the Virgin Islands Immunity Pursuant to the Virgin Islands Tort Claims Act, 33 V.I.C. § 3408 et seq.

The procedural requirements of the Tort Claims Act 33 V.I.C. § 3408 et seq., establish the Court’s jurisdiction.12 Pursuant to 33 V.I.C. § 3408,

the Government of the Virgin Islands waives its immunity from liability and action and... assumes liability with respect to injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of an employee of the Government of the... Virgin Islands while acting within the scope of his office or employment.

However, 33 V.I.C. § 3409(c) provides that the Government’s waiver is not absolute because a plaintiff may only “recover damages for injuries to property or personal injury caused by the tort of an . . . employee of the Government of the Virgin Islands” if the plaintiff either filed a claim or a “written notice of intention to file a claim” “within ninety days after the accrual of such claim.”13 Notwithstanding, a court has discretion to permit the late filing of a claim within two years of the claim’s accrual date if the claimant establishes by affidavit all of the following:

(1) there is a reasonable excuse for failing to file a notice of intention within the prescribed period;

(2) . . . the Government or its appropriate agency or department had actual knowledge, within the ninety-day statutory period, of the facts constituting the claim;

*73(3) and ... the Government has not been substantially prejudiced by the claimant’s failure to file in a timely manner.14

Courts closely scrutinize compliance with the mandatory procedural requirements of the Tort Claims Act15 because “the [ninety]-day notice requirement embodied in 33 V.I.C. § 3409 expresses the strong policy of this jurisdiction that tort actions against the Government are to be filed promptly and prosecuted diligently.”16

ANALYSIS

I. Insufficient Service of Process Pursuant to Fed. R. Civ. P. 12(b)(4).

As a threshold matter, the Court notes that Defendant filed a Motion to Dismiss on June 24, 2013. While Plaintiff did not respond to Defendant’s Motion, Plaintiff sought leave to file a First Amended Complaint, which was granted by the Court on July 15, 2013, largely resolving Defendant’s June 24, 2013 Motion. Specifically, the First Amended Complaint removed Ignace J. Gumbs, Sr., as an individual Defendant and clarified Plaintiff’s theory of liability against Defendant. But Defendant’s June 24, 2013 Motion to Dismiss also challenged the sufficiency of service of process on Defendant because page four (4) of the Complaint was missing from the service copy. While Defendant did not raise insufficient service of process in its November 18, 2013 Motion to Dismiss, the Court will address the matter here for the sake of completeness.

*74Under FED. R. Civ. R 4(c)(1), “[a] summons must be served with a copy of the complaint.” As a result, service of a partial complaint may be insufficient, particularly where the missing pages do not place a defendant on notice of all allegations against them.17 Once a challenge to service of process is properly made, Plaintiff bears the burden of establishing a prima facie showing that service was perfected.18

Here, only one page, which largely concerned Plaintiff’s theory of negligent entrustment, was missing from the Complaint served on May 9, 2013. Otherwise, the remainder of the Complaint clearly placed Defendant on notice regarding the factual nature of the Complaint as well as Plaintiff’s negligence theory of liability. The complete First Amended Complaint was mailed to Defendant’s counsel on July 15, 2013, placing Defendant on notice of the allegation of negligent entrustment. Defendant also challenged Plaintiff’s allegation of negligent entrustment in its November 18, 2013 Motion to Dismiss but did not raise an objection based on insufficient service of process.

Considering these facts, it appears that Defendant waived its challenge to service of process pursuant to FED. R. Crv. P. 12(h)(1)19 by failing to raise the objection in its November 18, 2013, Motion to Dismiss.20 Assuming arguendo that Defendant did not waive its challenge, Defendant has also failed to assert any actual prejudice caused by the minor defect of the served Complaint, particularly considering that Defendant was subsequently sent a complete copy of the First Amended Complaint on July 15, 2013, to which it responded, suggesting Defendant has actual notice of all allegations against it.21 Nevertheless, Plaintiff has filed no responsive pleadings to Defendant’s service of process challenge. *75As a result, in its discretion and in an abundance of caution, the Court will grant Plaintiff an extension of time to perfect service of process on Defendant.

II. Leave to File a Late Claim Pursuant to 33 V.I.C. § 3409(c).

Before discussing the merits of Plaintiff’s December 10, 2013 Motion for Leave to File a Late Claim, the Court will address the timeliness of Defendant’s response. Pursuant to Loe. R. Civ. P. 7.1(e)(1), made applicable to the Superior Court under Super. Ct. R. 7, Defendant had only fourteen (14) days to file a response to Defendant’s Motion.22 Defendant responded to Plaintiff’s Motion on February 11, 2013, forty-nine days late. Defendant failed to seek an extension of time and filed its response overwhelmingly late with no explanation for its delay. While the Court is strongly inclined to disregard Defendant’s response, in the interest of justice, Defendant’s response will be considered here. However, the Court cautions Defendant’s counsel to strictly adhere to the rules that govern the practice and procedure before this Court. This Court will not tolerate such a flagrant disregard of the rules, and a continued failure to abide by the rules may be a basis for sanctions. The Court will now turn to the merits of Plaintiff’s Motion.

The accident occurred on March 29, 2012, and Plaintiff did not file a notice of intention to file a claim, dated February 14, 2013, until February 20, 2013,23 and the Complaint until March 22, 2013. Plaintiff does not dispute that the notice was not filed within ninety days of the accrual of the claim, but now seeks leave of Court to file a late claim within the two year period permitted by 33 V.I.C. § 3409(c)24 The Court finds it appropriate to grant leave for Plaintiff to file a late claim because (1) Plaintiff has established a reasonable excuse, (2) Defendant had actual knowledge of the facts constituting Plaintiff’s claim within the ninety-day period, and (3) Defendant has not been substantially prejudiced by the delay.

*76A. Reasonable Excuse

Despite the plethora of case law in this jurisdiction, the “reasonable excuse” standard of the Tort Claims Act continues to be elusive because its application is largely dependent on the particularities of each case. Courts have found that ignorance of the law,25 operating under the impression that the issue could be resolved without litigation,26 failure to retain or effectively communicate with counsel,27 counsel’s own negligence or delay in complying with the Tort Claims Act28 ongoing medical treatment29 and injuries that do not hinder the claimant’s ability to communicate with others,30 are not, by themselves, sufficient to support a finding of “reasonable excuse.” Nonetheless, while Defendant *77might argue that an overview of case law suggests a particularly high threshold, the case law largely merely displays examples of the circumstances that do not give rise to a reasonable excuse, providing the Court with minimal guidance in determining which circumstances do.

In fact, omitting the unique cases where a claimant was either a minor or had a legal disability,31 a review of the relevant case law reveals few examples where the Court has found a claimant had established a reasonable excuse. Such a finding has been limited to instances in which a claimant was seriously incapacitated, hospitalized, or under investigation for a committing a crime.32 For instance, in Frett v. Government of the Virgin Islands, the Court found a sufficiently reasonable excuse where the claimant, an inmate who was stabbed several times, was hospitalized for a significant period of time and was “seriously ill” for several weeks after his release from the hospital33 But, in instances involving serious incapacitations that require hospitalization, courts in this jurisdiction often prefer to toll the ninety-day period rather than resort to the analysis required for leave to file a late claim. In Conner v. Government of the Virgin Islands, the Court tolled the ninety-day period during the claimant’s hospitalization although the claimant was still able to communicate with others.34 While noting in Frett that the claimant’s hospitalization tolled the ninety-day period, the Court based its primary holding on a finding of reasonable excuse because it did not know how long the claimant was hospitalized 35 Since serious incapacitation and hospitalization often simply toll the ninety-day period, *78the Court concludes that other, less egregious circumstances must exist that could constitute reasonable excuse.36 Otherwise, the reasonable excuse standard would be meaningless.37

Therefore, the Court is forced to return to the statute for guidance. Although it is clear that the procedural requirements must be strictly followed, a plain language reading of 33 V.I.C. § 3409(c) clearly allows the Court to take the totality of the circumstances into consideration when determining whether Plaintiff has articulated a reasonable excuse. As a result, while the numerous individual reasons for which courts have denied leave to file a late claim may not constitute “reasonable excuse” in and of themselves, under the circumstances of a particular case, they may, in the aggregate, be sufficient to support a finding that a claimant has articulated a reasonable excuse for failing to timely file.

Here, the automobile accident occurred on March 29, 2012, but Plaintiff did not file a notice of intention until February 20, 2013, a period of approximately eight (8) months after the expiration of the ninety-day period. Plaintiff argues that she was unfamiliar with the laws of the Virgin Islands and consequently was unaware she had to file a claim or notice of intention to file a claim within a ninety-day period. While ignorance of the law alone is clearly insufficient to support a finding of reasonable excuse, Plaintiff also relied on the investigating police officer’s statement, clearly memorialized in the police report, that Plaintiff should “obtain a copy of. . . [the police] report and all final medical bills from this incident and to submit [the] same to the Attorney General’s Office, G.E.R.S. building.”38 Unlike Choate v. Skinner, where the claimant was an attorney himself who should have been familiar with the Tort Claims Act, but chose to rely on an informal conversation with another attorney rather *79than perform his own research,39 here, Plaintiff had reason to rely on the apparent authority of the investigating police officer. Further, unlike the claimant in Choate v. Skinner, Plaintiff was only on St. Thomas for one day as a cruise ship passenger when her accident occurred and has no legal background.

In accordance with the investigating officer’s instructions, two weeks after the injury, Plaintiff began attempting to obtain a copy of the police report. Despite diligently following up with the Virgin Island Police Department, Plaintiff was unable to obtain the police report for a period of approximately three (3) months, already near or past the expiration of the ninety-day period.40 Thereafter, Plaintiff sent a registered letter to the Attorney General outlining her injuries on or about October 27, 2012, approximately seven (7) months after the accident and (4) months after the expiration of the ninety-day period.41 The letter reveals that Plaintiff was initially diagnosed with a broken humerus bone and cracked radial bone. She was subsequently hospitalized on several occasions due to complications from her initial injuries.42 Specifically, Plaintiff had surgery on June 1, 2012, to place a steel plate in her arm, after which she developed pulmonary thrombosis. The letter further reveals that Plaintiff was in enormous pain throughout her recovery, struggled with everyday tasks such as getting dressed, and continues to need ongoing medical care. At the time Plaintiff wrote the letter to the Attorney General, Plaintiff expressed hope that by “December 2012” her condition would be improved and that the action could be resolved without litigation. *80However, after the Attorney General failed to respond in December 2012, Plaintiff retained counsel on February 5, 2013, and then she became aware of the procedural requirements of the Tort Claims Act. Plaintiff’s counsel quickly filed a notice of intent to file a claim on February 20, 2013, fifteen (15) days after being retained, and subsequently filed Plaintiffs Complaint on March 22, 2013, both within the two year period following the accident.43

As the court in Virgin Islands Telephone Corp. v. Government of the Virgin Islands points out, while ignorance of the law and an impression that the issue could be resolved without litigation may not be sufficient to establish a reasonable excuse, in the presence of other “surrounding facts or circumstances,” they may be sufficient.44 The Court finds that, in the totality of the circumstances of this case, Plaintiff has articulated a reasonable excuse because she demonstrated serious interference with her ability to timely comply with the provisions of 33 V.I.C. § 3409.45 Specifically, Plaintiff, a layperson cruise passenger *81visiting St. Thomas for the day, reasonably relied on the investigating officer’s statement and the Officer’s apparent knowledge of Virgin Islands law. Further, despite the ongoing medical care, including times of hospitalization, Plaintiff was diligent in her attempts to obtain the police report and subsequently contacted the Attorney General’s office in accordance with the investigating officer’s instructions to do so with “all final medical bills” (emphasis added).46 Once no progress was made with the Attorney General’s Office, Plaintiff quickly consulted an attorney who promptly filed a notice of intention to file a claim and filed the Complaint within the two year period.

B. Actual Knowledge within Ninety-Day Period

Even where the Court finds that Plaintiff has articulated a sufficiently reasonable excuse for the delay in timely filing, Plaintiff also has the burden of demonstrating that “the Virgin Islands or its appropriate department or agency had . . . actual knowledge of the facts constituting [her] claim” within the ninety-day period after the accrual of the claim.47 The purpose behind this strict standard is similar to the requirement for a notice of intention to file a claim:48 to ensure that Defendant had knowledge of the essential facts of the case so that Defendant could conduct a prompt investigation of the incident or injury, preserve valuable discoverable information, and prepare for its possible defense.49 Here, neither Plaintiff’s letter to the Attorney General or her notice of intention to file a claim could constitute actual knowledge because they were both sent well past the expiration of the ninety-day period. The question before the Court then becomes whether the accident itself coupled with the Virgin Island Police Department’s investigation into the accident could provide “actual knowledge.”

*82 In a recent Memorandum Opinion in Young v. Virgin Islands Water and Power Authority, this Court held that a Virgin Islands police report by itself, absent additional evidence, does not give actual knowledge to the “appropriate government agency” pursuant to 33 V.I.C. § 3409(c).50 Similarly, in instances of medical malpractice, courts have held that actual knowledge cannot be established where the hospital was simply in possession of the patient’s medical records.51 Nevertheless, courts have also held in medical malpractice cases that actual knowledge may be inferred when the patient’s hospital records have specific

notations or combination of notations... that might alert defendant to the need to investigate the circumstances surrounding plaintiff’s treatment or otherwise alert defendant to its potential exposure to suit.52

In other words, “where malpractice is apparent from an independent review of the medical records,” the hospital possessed actual knowledge of the facts constituting the claim.53

It logically follows that actual knowledge may exist in a case involving a vehicular accident where, because the circumstances of the accident so clearly implicate negligence or potential liability on the part of the Government of the Virgin Islands, “the employee’s notice [of the essential facts of the accident] to the Government . . . would fulfill the requirements of actual knowledge of the facts constituting the claim.”54 Considering that whether Defendant had actual knowledge of the accident is a factual determination,55 the Court must look to the totality of the circumstances including, but not limited to, (1) whether the claimant’s *83injuries were immediately apparent at the time of the accident; (2) whether it was immediately apparent at the time of the accident that the claimant’s injuries were most likely directly caused by the Government employee’s alleged negligent conduct; (3) whether the employee reported the incident to his employer and the extent of the essential facts reported; and (4) whether any prompt and through investigation into the accident was conducted.

Here, the police report indicates that claimant’s injuries were immediately apparent at the time of the accident since it states that “pedestrian #1 [claimant] sustained injury to the left elbow and left forearm.”56 Even Ignace J. Gumbs Sr., the driver of the Government vehicle, observed that Plaintiff “fell on the pavement and landed on her elbow,” suggesting he was aware that Plaintiff was injured.57 Further, unlike Young where the party responsible for the claimant’s injuries was not immediately apparent at the time the accident occurred, here, there is no question Gumbs was allegedly the sole cause of the accident. Specifically, the police report indicates that at the time the investigating officer arrived the vehicle had not been moved and was still “at the initial point of impact,” six (6) feet and eleven (11) inches from the curb, with the front of the vehicle in the crosswalk 58 As a result, the police cited Gumbs for negligent driving “for failure to yield the right of way to pedestrians at [the] crosswalk.”59 Thus, it was immediately apparent at the time of the accident that the police attributed claimant’s injuries to Gumbs’ alleged negligent conduct and notified Gumbs of their allegation by issuing a citation.60

*84Additionally, Plaintiff argues that Defendant has actual knowledge of the incident because Gumbs reported the incident to his supervisors. Defendant does not refute that Gumbs reported the incident to his employer, but instead argues, rather disingenuously, that Plaintiff is merely speculating because Plaintiff could have no way of knowing whether Gumbs reported the incident. The Court recognizes that, prior to discovery, Plaintiff may not be able determine whether Defendant’s employee reported the incident, and the extent of information reported, since the relevant information is in the sole possession of Defendant. Considering an employee has a duty to report an accident that occurred within the scope of his employment to his employer, Plaintiff logically alleges that Gumbs reported the incident.61 Because this allegation is material to the determination of this Court, the burden shifts to Defendant to respond to Plaintiff’s factual allegation. Here, Defendant conveniently avoids addressing Plaintiff’s allegation without refuting that Gumbs reported the incident to his employer, suggesting to the Court that Gumbs properly reported the incident to his employer. Thus, it appears that Gumbs reported the accident to his employer, the “appropriate department or agency” for the purposes of 33 V.I.C. § 3409(c).

Finally, while it is unclear how much detail Gumbs reported to his employer, the accident was also promptly and thoroughly investigated by the police immediately following the accident. The essential facts of the accident were memorialized in a police report,62 which Defendant could easily obtain. It is the experience of the Court that traffic officers routinely advise those involved in accidents how to obtain a copy of the officer’s report. Further, since Gumbs was cited for negligent driving and appeared in Traffic Court on July 18, 2012, Defendant also had access to additional information regarding the essential facts of the case, particularly because Gumbs testified and the record of proceedings is an easily accessible *85public record. Thus, considering all the foregoing considerations, the Court finds that Defendant had actual knowledge of the essential facts of the case within the ninety-day period.

C. Prejudice to Defendant

The Court recognizes that the Plaintiff did not file a notice of intention to file a claim for approximately eight (8) months following the expiration of the ninety-day period.63 Plaintiff argues that Defendant has not been substantially prejudiced because Defendant had “actual knowledge” of the essential facts of this case and no evidence exists demonstrating that Defendant would be hindered in its defense due to any other factors such as the unavailability of witnesses. The Court agrees. Despite the lengthy delay, the Court finds that Defendant is not substantially prejudiced because it had actual knowledge of the claim and could have properly conducted its own investigation upon Gumbs’s report of the accident to his employer. Even if Defendant failed to investigate the accident itself, the Virgin Islands Police Department thoroughly investigated the incident promptly and memorialized the essential facts of the case in a police report.

Defendant has not articulated any persuasive argument that it has been substantially prejudiced. First, Defendant argues that it will be substantially prejudiced because “the Government will have to continue to expend time, money, and other resources in defending claims that under Virgin Islands law should be dismissed.”64 The general allegation that the Government will have to expend resources to defend against this action is insufficient to establish prejudice. Substantial prejudice occurs most often when the Government is impaired in the preparation of its defense due to the delay in filing.65 Here, Defendant has presented no evidence that any *86essential witnesses or otherwise valuable discoverable information has not been preserved due to the length of delay.

Second, Defendant repeatedly relies on the Superior Court of the Virgin Islands Traffic Court’s finding that Gumbs was found “not guilty” of negligent driving to support the contention that Defendant is substantially prejudiced in having to defend this action because Defendant is not liable. This argument is entirely without merit because it requests the Court to determine the liability of Defendant, as an employer of Gumbs, an issue not properly before this Court at this time. Further, the Traffic Court’s record of proceedings does not provide the Court with any specific information as to the factual or legal determinations upon which the Traffic Court based its ruling. Thus, while the record of proceedings may be material at a later point of this litigation, it has no bearing on whether Defendant is substantially prejudiced in its ability to defend against Plaintiff’s action.

Finally, Defendant argues that the Government is substantially prejudiced because “allowing these late claims would only serve to thwart the intention of the statute ... to ensure that ‘tort actions against the Government are filed promptly and prosecuted diligently.’ ”66 While the Court agrees that an overall purpose of the Tort Claims Act is to ensure that “tort actions against the Government are filed promptly and prosecuted diligently,” Defendant’s argument completely ignores the fact that 33 V.I.C. § 3409(c) allows the filing of late claims where Plaintiff has articulated a “reasonable excuse,” the “appropriate government agency” had “actual knowledge” of the claim within the ninety-day statutory period, and the Government is not substantially prejudiced in its defense of the action. The Court stresses that the holding in this case in no way abrogates the essential purpose of the Tort Claims Act nor abrogates a claimant’s burden to strictly adhere to the mandatory procedural requirements of the Tort Claims Act.67 Rather, based on a plain language reading of 33 V.I.C. § 3409(c), this holding reiterates the importance of the statute’s intention to permit the Court, in its discretion, to evaluate the totality of the circumstances of each case to determine whether Plaintiff *87has met the mandatory requirements in order to be granted leave to file a late claim within the two year statutory period.

III. Failure to State a claim for Negligent Entrustment

Defendant argues that Plaintiff has failed to state a claim of negligent entrustment pursuant to Restatement (Second) OF Torts § 390. In Banks v. Int’l Rental & Leasing Corp.68 the Supreme Court of the Virgin Islands held that, while the Restatements may be persuasive authority in determining the common law, they “no longer constitute binding legal authority in this jurisdiction” pursuant to 1 V.I.C. § 4.69 As such, in the absence of local law to the contrary or precedent from the Supreme Court of the Virgin Islands on the particular matter,70 the Superior Court must conduct a “Banks analysis” as required by the Supreme Court of the Virgin Island’s holding in Simon v. Joseph71 to determine the applicable common law.72 A Banks analysis consists of a balancing of the following “three non-dispositive factors”:

*88(1) whether any Virgin Islands courts have previously adopted a particular rule;

(2) the position taken by a majority of courts from other jurisdictions; and

(3) most importantly, which approach represents the soundest rule for the Virgin Islands.73

No local statute addresses negligent entrustment, and it also appears that the Supreme Court of the Virgin Islands is yet to adopt a rule that reflects the common law regarding negligent entrustment in this jurisdiction.

Here, it appears a Banks analysis may not be necessary because the Appellate Division of the District Court of the Virgin Islands, a binding authority on this Court absent Supreme Court of the Virgin Islands precedent to the contrary,74 adopted the Restatement (Second) OF Torts § 390 in Baron v. Rosario without predicating its adoption of the Restatement solely on 1 V.I.C. § 4.75 However, even absent Baron, applying a Banks analysis, the Court finds that Restatement (Second) OF TORTS § 390 reflects the common law of this jurisdiction. Restatement (Second) of Torts § 390 provides that

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner *89involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

Specifically, the Baron Court based its adoption of the RESTATEMENT (SECond) of Torts § 390 on a 1984 decision ofthe Territorial Court of the Virgin Islands, Hanley v. Jones76 Since that time, the Superior Court of the Virgin Islands77 and the District Court of the Virgin Islands78 have relied on Restatement (Second) of Torts § 390, demonstrating that the longstanding application of the Restatement (Second) of Torts § 390 has become a reflection of the common law of the Virgin Islands. Second, a review of the case citations listed in the RESTATEMENT (SECOND) OF TORTS § 390 suggests that a majority of jurisdictions have adopted a similar rule to the Restatement (Second) of Torts § 390.79 Finally, considering the longstanding application of the Restatement (Second) ofTorts § 390 in this jurisdiction and the apparent widespread application of this rule in a majority of jurisdictions, the Court finds that the RESTATEMENT (SECOND) OF Torts § 390 represents the soundest rule for the Virgin Islands and is in accord with local public policy.

Here, the Court finds that even when construing the pleadings liberally, Plaintiff has failed to allege sufficient facts to support a plausible claim of negligent entrustment. Specifically, Plaintiff alleges that “Defendant. . . through its agents and employees knew or was reckless in not knowing that Gumbs was reckless and/or an incompetent driver such that it was unsafe to allow him to operate the defendant’s vehicle.”80 The assertion that Gumbs was “reckless” or “incompetent” is a legal assertion couched as a factual allegation. Further, while Plaintiff may attempt to prove that Gumbs was “reckless” or “incompetent” based in part on the factual allegations regarding the March 29, 2012 accident, this one instance is insufficient to establish that Plaintiff knew or should have *90known that Defendant was a “reckless” or “incompetent” driver prior to the accident. Further, Plaintiff has failed to allege “that there was anything about Defendant^ such as poor vision or a history of automobile accidents,] . . . that would cause a reasonable person to believe that entrusting a vehicle to Defendant.. . would result in an unreasonable risk of an accident.”81 Accordingly, the Court will grant Defendant’s Motion to Dismiss Plaintiff’s claim for negligent entrustment and shall strike paragraphs 19 to 21 of the Complaint.

IV. Trial by Jury

Defendant also argues, and Plaintiff concedes, that Plaintiff is not entitled to a trial by jury pursuant to the Tort Claims Act. Accordingly, Plaintiff’s request for a trial by jury shall be stricken.

CONCLUSION

For the foregoing reasons, Defendant’s June 24, 2013 Motion to Dismiss and Defendant’s November 18, 2013 Motion to Dismiss will be granted in part and denied in part. Plaintiff’s December 10, 2013 Motion to File a Late Claim will be granted. An Order consistent with this Opinion shall follow.