Brunn v. Dowdye

OPINION OF THE COURT

(October 11, 2013)

Caroley Brunn appeals from the Superior Court’s October 20, 2009 Opinion and Order, which sua sponte dismissed her claims against the Government of the Virgin Islands. For the reasons that follow, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In a May 9, 2008 Judgment and Commitment, the Superior Court adjudicated Joel Dowdye guilty of first-degree murder and numerous other charges stemming from the March 25, 2006, shooting death of his ex-girlfriend, Sherett James. At the time of the shooting, the Virgin Islands Police Department had employed Dowdye as a detective. On June 20, 2006, Brunn — James’s mother — sent notice to the Government of her intention to bring suit for its “negligent selection” of Dowdye as a police officer, and its “negligent failure to provide the proper training and supervision” to Dowdye. (J.A. 79); see V.I. Code Ann. tit. 33, § 3409(b). On October 31, 2007, Brunn filed a three-count complaint in the Superior Court, suing Dowdye for wrongful death and the Government for negligent hiring and retention, as well as the negligent training and supervision of Dowdye and other police officers.

The Government filed a motion for summary judgment on June 9, 2009, on the ground that the claims were barred by the Virgin Islands Tort Claims Act (“VITCA”). See 33 V.I.C. §§ 3401-3417. In this motion, the Government alleged that Brunn provided insufficient notice of her claim under 33 V.I.C. § 3409(b)-(c), and maintained that in any event the VITCA mandated dismissal of all claims against the Government because *902its waiver of sovereign immunity1 did not extend to an intentional killing, which it contended was outside the scope of Dowdye’s employment. See 33 V.I.C. § 3408(a) (“the Government . . . hereby waives its immunity from 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... while acting within the scope of his office or employment”). In an August 14, 2009 Opinion and Order2 that primarily addressed the Government’s notice argument, the Superior Court dismissed Brunn’s claims to the extent they related to the hiring, training, or retention of police officers other than Dowdye, on the grounds that the Government did not receive requisite notice of such claims under the VITCA, but allowed the claims to proceed as they related to the hiring, retention, training, and supervision of Dowdye himself.

On August 28, 2009, the Government filed a motion, for reconsideration, arguing that the Superior Court misapprehended the law when it rejected its section 3408(a) argument. The Superior Court, in an October 20, 2009 Opinion and Order,3 denied the motion for reconsideration as untimely,4 but held that the requirements of the VITCA *903are jurisdictional, and could be raised by the Superior Court sua sponte. The Superior Court reasoned that Dowdye had acted outside the scope of his employment when he killed James and, relying on case law interpreting the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680, held that Brunn had failed to identify “negligence on the part of Dowdye’s supervisors independent of their employment relationship with Dowdye” in her initial notice, denying the court of subject matter jurisdiction. (J.A. 108.)

Brunn filed a notice of appeal on November 5, 2009, which this Court docketed as S. Ct. Civ. No. 2010-0038. However, this Court, in a November 5, 2010 Order, dismissed that appeal for lack of jurisdiction because the wrongful death claim against Dowdye remained pending in the Superior Court. See Brunn v. Dowdye, S. Ct. Civ. No. 2010-0038, slip op. at 2 (V.I. Nov. 5, 2010). Ultimately, the Superior Court entered a default judgment against Dowdye on September 10, 2011.5 On September 20, 2011, Brunn timely filed a second notice of appeal.

II. JURISDICTION

“The Supreme Court [has] jurisdiction over all appeals arising from final judgments, final decrees or final orders of the Superior Court, or as otherwise provided by law.” 4 V.I.C. § 32(a). Because the Superior Court’s September 10,2011 Default Judgment resolved the last remaining claims between the parties, it constitutes a final judgment, and this Court now has jurisdiction to consider Brunn’s appeal of the October 20, 2009 Opinion and Order.

III. DISCUSSION

Brunn argues that the Superior Court erred in holding that Dowdye was not acting within the scope of his employment with the Virgin Islands *904Police Department at the time of James’s murder. She further asserts that her June 20, 2006 notice to the Government complied with the requirements of the VITCA, and therefore the Superior Court erred in holding that it lacked subject matter jurisdiction over her negligent retention and supervision claims. We apply plenary review to the Superior Court’s application of law, while the trial court’s findings of fact are reviewed for clear error. St. Thomas-St. John Bd. of Elections v. Daniel, 49 V.I. 322, 329 (V.I. 2007). Moreover, this Court exercises plenary review over questions relating to the Superior Court’s subject matter jurisdiction. Judi’s of St. Croix Car Rental v. Weston, 49 V.I. 396, 399 (V.I. 2008).

A. Scope of Employment

Brunn, as her first issue on appeal, challenges the Superior Court’s holding that Dowdye did not act within the scope of his employment when he murdered James. According to Brunn, the Superior Court erred by resolving this issue without providing her with “the opportunity to prove to the trier of facts whether Dowdye was acting within the scope of his employment” or to “put on evidence that this type of conduct is [commonplace].” (Appellant’s Br. 15-16.) While Brunn seems to have misinterpreted the October 20, 2009 Opinion as granting summary judgment to the Government rather than dismissing her claims for lack of jurisdiction, we construe her claims as an argument that the Superior Court should have provided her with an opportunity to introduce evidence that Dowdye acted within the scope of his employment, rather than sua sponte raising and adjudicating the issue in the October 20, 2009 Opinion.

Prior to considering the merits of a matter before it, a court is obligated to examine whether it has subject matter jurisdiction over the dispute. V.I. Gov’t Hosp. & Health Facilities Corp. v. Gov’t of the V.I., 50 V.I. 276, 279 (V.I. 2008). Assuming —without deciding — that the pertinent provisions of the VITCA are jurisdictional, the Superior Court correctly questioned whether the statute’s requirements were satisfied. However, the Superior Court was also required to provide Brunn with an opportunity to respond to its concerns about its subject matter jurisdiction — including addressing whether these provisions even impose limits on *905its subject matter jurisdiction.6 Since the Superior Court sua sponte raised and adjudicated this issue in its October 20, 2009 Opinion, it committed error by depriving Brunn of her right to be heard. Mendez v. Gov’t of the V.I., 56 V.I. 194, 205 (V.I. 2012).

Nevertheless, the Superior Court’s actions do not establish grounds for reversal. As we held in Mendez, the denial of the right to be heard in a civil case is subject to harmless error review. Id. at 205-06. First, we note that Brunn received an opportunity to respond to the Government’s June 9, 2009 motion for summary judgment and August 28, 2009 motion for reconsideration, both of which asserted the same argument the Superior Court ultimately relied on to dismiss her complaint: that committing premeditated murder is outside the scope of a police officer’s employment. While the question of whether an employee acted within the scope of employment is typically one of fact, “it becomes a question of law . . . when the facts are undisputed.” Lisa M. v. Henry Mayo Newhall Mem’l Hosp., 12 Cal. 4th 291, 48 Cal. Rptr. 2d 510, 907 P.2d 358, 362 (Cal. 1995) (holding that sexual assault was not within *906scope of employment as a matter of law) (internal quotation marks and citation omitted); see also Dora v. Achey, 300 F. App’x 550, 551 (9th Cir. 2008) (“scope of employment determinations involve questions of fact; [but] when material facts are undisputed, . . . courts may decide scope of employment questions as a matter of law”) (applying Arizona law). As the Government noted in its August 28, 2009 motion, Brunn states in her complaint that Dowdye (1) “repeatedly and in cold blood fired several shots into Sherett James’ head, killing her,” (2) “was found guilty of [her] murder,” and (3) “acted with oppression and/or malice” when he “intentionally” shot her. (J.A. 2,4.) And even if Brunn had not made these admissions in her complaint, the Superior Court could take judicial notice of the May 9, 2008 Judgment and Commitment, adjudicating Dowdye guilty of first-degree murder. Mendez, 56 V.I. at 205. Given these undisputed facts, Dowdye, as a matter of law, could not have acted within the scope of his employment when he killed James.7 See, e.g., Kyreacos v. Smith, 89 Wn.2d 425, 572 P.2d 723, 724-25 (Wash. 1977) (holding that a police detective’s first-degree murder conviction precluded any possibility of finding, in a subsequent civil case brought against the detective and the government, that the detective was acting within the scope of his employment); Sandage v. Bd. of Com’rs of Vanderburgh Cnty., 897 N.E.2d 507, 514-15 (Ind. Ct. App. 2008) (holding that a murder committed by an inmate in a work-release program was not within the scope of employment because it was not in furtherance of any business interest of the employer); Olson v. B&S Caring Associates, Inc., 271 A.D.2d 588, 706 N.Y.S.2d 440, 442 (App. Div. 2000) (“in committing the murder the aide acted outside the scope of his employment”); see also Restatement (Third) of Agency § 7.07(2) (“An employee’s act is not *907within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.”). Accordingly, the Superior Court did not err in holding that Dowdye’s intentional murder of James was outside of the scope of his employment as a matter of law and dismissing Brunn’s claim against the Government based on respondeat superior.

B. Negligent Hiring, Retention, Supervision, and Training

Brunn also contends that the Superior Court should have permitted her to proceed under the alternate theory that Dowdye’s supervisors acted within their scope of employment when they purportedly negligently hired, supervised, trained, and retained Dowdye. In dismissing this count, the Superior Court held that Brunn had failed to invoke the Government’s waiver of sovereign immunity because she failed to “allege negligence on the part of a government supervisor independent of said supervisor’s relationship with his tort-committing subordinate.” (J.A. 107-08.)

In its holding, the Superior Court relied on the reasoning of the United States Court of Appeals for the Third Circuit in CNA v. United States, 535 F.3d 132, 149 (3d Cir. 2008). The Superior Court found that CNA — which interpreted the FTCA— was persuasive authority because the YITCA and the FTCA are “analogous.” (J.A. 108); see People v. Pratt, 50 V.I. 318, 322 (V.I. 2008) (stating that when a local statute is known to be modeled after a federal statute, federal case law may be instructive when interpreting the local law). But the Third Circuit’s reasoning in CNA relied entirely on Sheridan v. United States, 487 U.S. 392, 401, 108 S. Ct. 2449, 101 L. Ed. 2d 352 (1988), which in turn was an interpretation of the intentional tort exclusion to sovereign immunity contained in 28 U.S.C. § 2680(h). See CNA, 535 F.3d at 148-49 (quoting Sheridan, 487 U.S. at 401, in dismissing a negligent supervision claim for failing to allege negligence “entirely independent” of employment status). While the waiver of sovereign immunity found in 33 V.I.C. § 3408(a) is substantially identical to 28 U.S.C. § 1346(b),8 see McBean v. Gov’t of *908the V.I., 19 V.I. 383, 386 & n.1 (V.I. Terr. Ct. 1983) (indicating that most of the VITCA is modeled after a New York statute, but that section 3408 is based on the FTCA), 28 U.S.C. § 2680(h) limits the scope of section 1346(b) by excluding “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights” from the waiver of immunity. 28 U.S.C. § 2680(h). No such intentional tort exclusion limits the extent of the Virgin Islands Government’s waiver of immunity in section 3408(a), and therefore the Sheridan and CNA line of cases interpreting the scope of this exclusion are wholly inapplicable to our interpretation of the VITCA. Therefore, the Superior Court committed legal error in holding that Brunn’s notice was insufficient to invoke the Government’s waiver of sovereign immunity because it failed to allege “ ‘independent negligence’ on the part of the employee’s supervisor irrespective of their employment relationship.” (J.A. 105.)

Despite this error, we may still affirm the Superior Court’s dismissal of Brunn’s negligence claims if this error was ultimately harmless. See generally Brady v. Cintron, 55 V.I. 802, 824-25 (V.I. 2011). In other words, we may affirm if Brunn’s June 20, 2006 notice to the Government otherwise failed to comply with the requirements of the VITCA. The VITCA provides that “[n]o judgment shall be granted” in favor of “an executor or administrator of a decedent. . . survived by] . . . next of kin, for damages for a wrongful act, neglect or default, on the part of the Government by which the decedent’s death was caused” unless the claimant files a claim, or gives written notice to the Government of her intention to file a claim, within ninety days of the appointment of an administrator or executor. 33 V.I.C. § 3409(b). This notice “shall state the time when and the place where such claim arose, the nature of same,” and “shall be verified.” 33 V.I.C. § 3410. Once the notice provisions are *909satisfied, “the claim shall be filed within two years after the death of the decedent.” 33 V.I.C. § 3409(b).

Brunn’s notice to the Government stated in relevant part:

NATURE OF CLAIM:

On March 25,2006, Joel Dowdye murdered Sherett James by shooting her, execution style, in the head. At the time of the murder, Joel Dowdye was employed by the Virgin Islands Police Department. As a result of this senseless tragedy, Caroley Brunn and [J.V.] has suffered and continue to suffer physical and emotional damages.

Accordingly, the purpose of this notice is to notify the Government of the Virgin Islands of my intention to file a claim against the Virgin Islands Police Department for its negligent selection of Joel Dowdye as a police officer for that Department as well as the Department’s negligent failure to provide the proper training and supervision to Joel Dowdye.

(J.A. 79.) The Government argues that this was deficient because it did not state the nature of the claim, failing to “inform [the Government] of who is alleged to have negligently trained or supervised Dowdye, or how such neglect, if true, proximately resulted in James’ death by Dowdye’s intentional criminal act.” (Appellee’s Br. 16.)

The Legislature enacted section 3410 in 1971, modeling it after section 11(b) of the New York Court of Claims Act.9 When the Legislature borrows a statute from another jurisdiction, the local enactment is construed to mean what the highest court of that jurisdiction construed it to mean before the Legislature adopted it. Tyson v. People, 59 V.I. 391, 406 (V.I. July 18, 2013) (citing Chinnery v. People, 55 V.I. 508, 519 n.6 (V.I. 2011)). While there is little useful pre-1971 case law *910from the New York Court of Appeals interpreting that state’s statute, New York’s intermediate appellate court has explained that the notice requirements are “not to hamper and harass the claimant but to give the officers of the State prompt notice of the damages or injuries and the surrounding circumstances in order that the matter might be investigated and the State’s liability determined.” Harvey Chalmers & Son v. State, 271 A.D. 699, 68 N.Y.S.2d 827, 830 (App. Div.), aff’d, 297 N.Y. 690, 77 N.E.2d 8 (1947) (affirming without opinion). The statute “does not require absolute exactness of expression but simply a statement of the matter referred to with sufficient definiteness to enable the State officials to make an investigation in order to determine if the claim should be adjusted without suit.” Id. Furthermore, a “substantial compliance with the statute is all that is required. If the [notice] is sufficiently definite to inform the officers of the state of the time and cause of claimant’s injuries or damages, it should be upheld.” Pickering v. Gov’t of the V.I., 19 V.I. 271, 277 (D.V.I. 1982) (quoting Anrad Construction Corp. v. State, 47 Misc. 2d 998, 263 N.Y.S.2d 454, 458 (Ct. Cl. 1965)) (internal quotation marks omitted).

Here, Brunn’s notice failed to satisfy even this minimal standard. While it was not necessary for Brunn 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] nor 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.” Gonzalez v. Stevens, 19 V.I. 515, 518-19 (D.V.I. 1983). Brunn’s notice stated her intention to bring a claim for negligent hiring, retention, supervision, and training, but it did not state a single action or omission by Dowdye’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.” Epps v. State, 199 A.D.2d 914, 606 N.Y.S.2d 64, 65 (App. Div. 1993); see also Morra v. State, 107 A.D.3d 1115, 967 N.Y.S.2d 169, 171 (App. Div. 2013) (the Government “is not required to ferret out or assemble information that [the notice provision] obligates the claimant to allege” (internal quotation marks and citation omitted)); 62A N.Y. JUR. 2D Government Tort Liability § 295 (“a notice of intention . . . must contain some meaningful reference to the defect or wrongful actions by State officials that will allegedly give rise to liability”). In her complaint, Brunn alleged that the *911Government negligently retained Dowdye after he was involved in a domestic violence incident in which he assaulted James. And while this allegation may support her negligence action,10 Brunn did not indicate in her notice that this incident was the underlying factual basis of her claim. This failure to make any reference, let alone any meaningful reference, to the allegedly negligent actions of the Government did not afford the Government an opportunity to “make an investigation in order to determine if the claims should be settled without suit.”11 Abdallah v. Callender, 1 F.3d 141, 148, 28 V.I. 416 (3d Cir. 1993) (quoting McBean, 19 V.I. at 388) (internal quotation marks omitted).

Accordingly, despite the Superior Court’s error in holding that Brunn’s notice was deficient because it failed to allege “negligence on the part of Dowdye’s supervisors independent of the[] employment relationship,” this error was harmless due to Brunn’s failure to allege any negligent action on the part of Dowdye’s supervisors. Therefore, we affirm the Superior Court’s dismissal under this theory of liability as well.

*912IV. CONCLUSION

For the foregoing reasons, we affirm the Superior Court’s October 20, 2009 Order dismissing Brunn’s complaint against the Government with prejudice.