                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-9-2004

Fabend v. Rosewood Hotels
Precedential or Non-Precedential: Precedential

Docket No. 03-1119




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Recommended Citation
"Fabend v. Rosewood Hotels" (2004). 2004 Decisions. Paper 285.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/285


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                        PRECEDENTIAL                ___________

 THE UNITED STATES COURT OF                  ARGUED December 9, 2003
APPEALS FOR THE THIRD CIRCUIT
         ___________                    BEFORE: NYGAARD, BECKER, and
                                           STAPLETON, Circuit Judges.
             No. 03-1119
             ___________
                                              (Filed September 9, 2004)
       RICHARD FABEND;                              ___________
       MARGARET FABEND,
               Appellants,             Vincent A. Colianni, II, Esq. (Argued)
                                       Colianni and Colianni
                  vs.                  1138 King Street
                                       Christiansted, St. Croix
    ROSEWOOD HOTELS AND                USVI, 00820
        RESORTS, L.L.C.;                  Counsel for Appellants
    CANEEL BAY, INC; UNITED
      STATES OF AMERICA,
                                       Matthew J. Duensing, Esq. (Argued)
                  vs.                  Michael Fitzsimmons, Esq.
                                       Stryker, Duensing, Casner & Dollison
     ROSEWOOD HOTELS AND               Drakes Passage, 2nd Floor
        RESORTS, L.L.C.;               P.O. Box 6785
       CANEEL BAY, INC.,               Charlotte Amalie, St. Thomas
            Third-Party Plaintiffs     USVI, 00804
                                          Counsel for Appellees
                  vs.
                                                    ___________
   UNITED STATES OF AMERICA
       DEPARTMENT OF THE                     OPINION OF THE COURT
    INTERIOR, NATIONAL PARK                       ___________
            SERVICE,
              Third-Party Defendant.
                                       NYGAARD,           Circuit      Judge.
           ___________
                                          Richard and Margaret Fabend sued
  APPEAL FROM THE DISTRICT
                                       Rosewood Hotels and Resorts, Caneel
 COURT OF THE VIRGIN ISLANDS
                                       Bay, Inc., and the United States
                                       Department of Interior, National Park
          (D.C. No. 99-cv-00155)
                                       Service after Richard was injured while
District Judge: The Honorable
                                       bodysurfing in the Virgin Islands. Fabend
                 Thomas K. Moore
settled the claims against the United              operated by Rosewood Hotels and Resorts.
States, but proceeded in the District Court         Rosewood and Caneel had a limited and
of the Virgin Islands against the remaining        non-exclusive right to operate a
defendants.      Fabend claims that the            campground and related services on
defendants had a duty to warn him of a             national park land adjacent to Cinnamon
dangerous shorebreak condition at the              Bay beach, pursuant to a series of
beach, which created a forceful wave that          concession agreements between Caneel
drove him into the sand and left him a             and the National Park Service. Rosewood
quadriplegic. The District Court granted           also rented cabins and operated a
summary judgment for the appellees.                restaurant, beach store, and watersports
                                                   center.
    The District Court had jurisdiction over
this diversity action under the Revised                The relationship between Rosewood
Organic Act, 48 U.S.C. § 1612(a), and 28           and the National Park Service was
U.S.C. § 1332(a)(1). We have jurisdiction          governed by a Concession Contract, a
to review the summary judgment order               Concessions Operational Plan, and an
pursuant to 28 U.S.C. § 1291, and exercise         additional Operating Plan. Under the
plenary review. Blair v. Scott Specialty           terms of these documents, the National
Gases, 283 F.3d 595, 602-03 (3d Cir.               Park Service retained full access to the
2002). Although we review the facts in             area adjacent to Cinnamon Bay beach,
the light most favorable to Fabend, the            including the right to enter the area at any
central issue, whether appellees had a duty        time; final authority over Rosewood’s
to warn or protect him, is a question of           operations, such as the rates charged and
law. Turbe v. Gov’t of the Virgin Islands,         the dates and hours of campground
938 F.2d 427, 429 (3d Cir. 1991) (“The             operation; and the responsibility for
nature of the legal duty owed by a                 providing protection services for beach
defendant is generally a question of law.”)        visitors, including law enforcement, safety
(citing Restatement (Second) of Torts §            inspections, and lifeguard functions. S.A.
328B(b) (1965)). We hold that the                  at 40-58, 101-09, 114-21. The National
appellees did not exercise sufficient              Park Service has acknowledged that it
control over the beach to create a duty to         maintained physical control over all
warn and will affirm.                              beaches and waters of the Virgin Islands
                                                   National Park, including Cinnamon Bay
                     I.
                                                   beach. The National Park Service also
    Cinnamon Bay beach on St. John, U.S.           produced signs and brochures to warn
Virgin Islands is owned by the United              visitors of dangerous conditions within the
States and is part of the Virgin Islands           park.
National Park. The Fabends were staying
                                                      Although the factual accounts offered
at the Cinnamon Bay Campground, which
                                                   by the District Court and the two parties
was owned by Caneel Bay, Inc. and
                                                   vary in some respects, none of these

                                               2
differences is germane to our decision.            another, even if one realizes that the other
According to his deposition, Fabend was            is at risk of injury. Restatement (Second)
heading back into the ocean from a                 of Torts § 314. There are, however,
successful “bodysurf” when he saw a                special relationships that can give rise to
particularly large wave coming at him. He          such a duty. The only special relationships
decided it was too large to bodysurf and           on which Fabend relies as giving rise to a
attempted instead to dive through it. When         duty to protect are those that exist between
he tried to do this, the wave hit him and          an innkeeper and his guests and between a
smashed him headfirst into the sand,               possessor of land who holds it open to the
breaking his neck.                                 public and members of the public who
                                                   respond to the invitation.
    Fabend claims the accident occurred
because of a dangerous shorebreak                     Section 314A of the Restatement
condition off of Cinnamon Bay beach.1 A            (Second) of Torts provides in relevant
shorebreak exists where the water rapidly          part:
becomes shallow as it approaches the
                                                      (1)   A common carrier is under a duty
shore, resulting in waves that can break
                                                            to its passengers to take
with tremendous force and drive
                                                            reasonable action
swimmers into the sand. Fabend contends
that the potential danger of a shorebreak is                (a)   to protect them against
not observable by the casual and                            unreasonable risk of physical
uninformed swimmer.                                         harm . . .
                    II.                               (2)   An innkeeper is under a similar
                                                            duty to his guests.
   The American Law Institute’s
Restatement of Law provides the rules of              (3)   A possessor of land who holds it
decision for the Virgin Islands “in the                     open to the public is under a
absence of local laws to the contrary.” 1                   similar duty to members of the
V.I.C. § 4.      Because there are no                       public who enter in response to
applicable local laws to the contrary, we                   his invitation.
apply The Restatement (Second) of Torts.
                                                   Id.   Comment c to § 314A further
The general rule is that one owes no duty
                                                   provides:
to protect, and thus no duty to warn,
                                                            The rules stated in this Section
                                                      apply only where the relation exists
1.
 Fabend and his expert witness claim                  between the parties, and the risk of
that many Cinnamon Bay beach guests                   harm, or of further harm, arises in
have fallen victim to this shorebreak and             the course of that relation. A
received serious injuries, although they              carrier is under no duty to one who
only specifically mention and document                has left the vehicle and ceased to be
one such injury.                                      a passenger, nor is an innkeeper

                                               3
      under a duty to a guest who is                 hotel owed a duty to protect a patron from
      injured or endangered while he is              a criminal assault by a third party when the
      away from the premises. Nor is a               patron was just outside the entrance doors
      possessor of land under any such               to the hotel on a public sidewalk. Id. at
      duty to one who has ceased to be an            215. The hotel’s security department had
      invitee.                                       been made aware of reports of a number of
                                                     incidents at the entrance, and the owner of
Id.
                                                     the property had also received a
    As Comment c makes clear, the duty to            recommendation to station a guard at the
protect, and hence the duty to warn, exists          entrance. Id. at 218-19. The property
only where the risk arises from the                  owner contracted with the hotel to hire
relationship, and it is not alone sufficient         men for the purpose of adopting new
that a guest is exposed to a risk during the         security measures in areas outside the
period he remains such.               People         hotel’s premises, including the area where
undoubtedly come to Cinnamon Bay                     the decedent was killed. Id. at 219. When
Campground to engage in numerous                     the decedent’s wife and children sued for
recreational activities on St. John and the          wrongful death, the court concluded that
surrounding waters – hiking, sailing, deep           the hotel’s power to take security measures
sea fishing, snorkeling, and sunbathing, as          put it in sufficient control of the entrance
well as body surfing. This does not mean,            to impose a duty on it to take reasonable
however, that Caneel and Rosewood have               measures to protect its guests from harm
a duty to warn guests of all of the non-             and/or to warn them of dangerous
obvious risks associated with these                  conditions.
activities. A risk arises in the course of the
                                                         Although Banks involves the death of
relationship only if it occurs on the
                                                     a guest from the actions of a third party, it
relevant premises. Id.
                                                     nonetheless states a principle that is
    Our inquiry into whether appellees had           relevant to the question before us, which it
a duty to warn Fabend of the shorebreak              calls the “sphere of control” test. That is
condition begins with the question of                to say, when an innkeeper possesses or
whether Cinnamon Bay beach and the                   exercises sufficient control over the
adjacent bay should be considered part of            property adjacent to his premises, he has
the “premises” of the campground. To                 the power to take protective measures to
answer this question, courts have applied            reduce the risk of injury on that property.
the “sphere of control” concept to                   Having such power, the innkeeper has a
determine whether a duty exists in various           duty to exercise it to the benefit of his
types of innkeeper liability cases.     In           patrons.
Banks v. Hyatt Corp., 722 F.2d 214 (5th
                                                         The specific factual setting of a case
Cir. 1984), for example, the Fifth Circuit
                                                     will ultimately dictate whether a party is in
Court of Appeals applied a sphere of
                                                     the position to control or has the power to
control test when considering whether a

                                                 4
control land adjacent to his property such          Manahan Court adopted the position that
that a duty to protect or warn arises. See          “an innkeeper is not an insurer against all
id. at 227. The “sphere of control” test            risk of injury to its guests, but is obligated
requires that we look at the circumstances          only to take reasonable steps to minimize
of the case to ascertain whether sufficient         risks that are foreseeable to its guests when
control exists over the adjacent premises.          they are reasonably within its sphere of
Relevant indicia of control include who is          control.” 821 F. Supp. at 1109 (emphasis
responsible for the safety of guests, who           added).
has the authority to dictate who may use
                                                        We have, however, used a standard
the property, and whether the guests were
                                                    similar to “sphere of control” in cases
invited by the property owners to use the
                                                    involving railroad-related injuries. For
adjacent land. See Pacheco v. United
                                                    example, in Estate of Zimmerman v.
States, 220 F.3d 1126, 1131-32 (9th Cir.
                                                    SEPTA, we held that a defendant did not
2000). If, for example, an innkeeper
                                                    owe a duty of care to someone injured on
leases property to operate a hotel, but the
                                                    railroad tracks that the defendant neither
government retains control over the land
                                                    owned nor controlled, even though the
for the use of general public, the innkeeper
                                                    defendant might have used the tracks. 168
must only warn guests of dangers on the
                                                    F.3d 680, 685 (3d Cir. 1999). We held
leased property and the ingress or egress
                                                    that “[t]he duty to protect against known
therefrom. See Stedman v. Spiros, 161
                                                    dangerous conditions falls upon the
N.E. 2d 590 (Ill. App. 1959), cited in
                                                    possessor of the land.” Id. at 684.
Banks, 722 F.2d at 223-24; see also Jones
                                                    Quoting the Restatement, we defined a
v. Halekulani Hotel, Inc., 557 F.2d 1308,
                                                    “possessor” of land as someone who
1311 (9th Cir. 1977) (finding that a hotel
                                                    “occupies the land with the intent to
had no duty to protect someone who was
                                                    control it.” Id.
injured diving from a seawall owned by
the hotel but used as a public easement                 Consistent with the approach taken in
“[b]ecause the hotel had no right to control        Banks, Manahan, and Zimmerman, we
the use of the public thoroughfare . . .            hold that defendants only had a duty to
[and] [i]t is inequitable to impose a duty of       warn Fabend if the beach and the adjacent
maintenance on one without authority to             bay were under their “sphere of control.”
control use”).                                      The beach was within their “sphere of
                                                    control” if they had the legal right to
    Though we have never explicitly
                                                    control the conditions and use of the area,
adopted the Banks test, the District Court
                                                    or possessed the area and evidenced an
of the Virgin Islands followed it in an
                                                    intent to control it even absent clear legal
earlier case, which we affirmed without
                                                    authority. In conducting this inquiry, we
opinion. See Manahan v. NWA, 821 F.
                                                    consider who had the legal authority to
Supp. 1105, 1108-09 (D.V.I. 1992)
                                                    control the area, including the right to
(affirmed without opinion at 1993 U.S.
                                                    control access, establish rules for use, and
App. LEXIS 14348 (3d Cir. 1993)). The

                                                5
mitigate or warn of any dangerous                   swimming area and that, accordingly, this
conditions. We also consider the de facto           area must be considered a part of their
control the defendants exercised over the           premises. The problem with this theory is
area, and whether these actions were                that all of the conduct of Caneel and
consistent with the terms of the legal              Rosewood is consistent with their limited
relationship that placed control with the           license and there is no evidence from
National Park Service.                              which a jury could find that they exercised
                                                    control over the swimming area.2
                    III.
                                                         We reject the idea that a jury might
    It is undisputed that the park, including
                                                    find that Caneel and Rosewood exercised
the swimming area, was owned by the
                                                    joint control over the swimming area.
federal government, and that the National
                                                    Fabend asserts that the Appellee’s de facto
Park Service had the right to exercise
                                                    control is evidenced by the facts that (1)
exclusive control over activity in that area.
                                                    Appellees were allowed to post signs, (2)
While the National Park Service had
                                                    there was no National Park Service
granted a license to Caneel and Rosewood,
                                                    regulation prohibiting it from hiring a
that license was limited under the
                                                    lif e gua rd, (3) A p p e l l ee s h a d a
controlling documents to the operation of
                                                    “maintenance crew;” (4) Appellees
cabins and a campground, a gift shop, and
                                                    provided “trash cans as a service to beach
a water sports shop at locations assigned
                                                    users as they would return to the
by the National Park Service, subject to
                                                    campgrou nd;” (5) that Appellees’
certain controls retained by the National
                                                    personnel would at times patrol the beach
Park Service. For present purposes, the
                                                    for campground security purposes, and that
critical fact is that the National Park
                                                    one of its employees acknowledged that he
Service, except to the extent of authorizing
                                                    had “monitored and policed” the
operation of a water sports shop, did not in
                                                    swimming area on occasion; (6) Appellees
those documents surrender any control of
                                                    operated the only amenities on the beach;
the beach to Caneel or Rosewood. It
                                                    (7) Appellees exclude non-guests from the
follows that Caneel and Rosewood had no
actual authority to control the swimming
area where Fabend was injured. The
                                                    2.
National Park Service retained that                  At oral argument we asked the parties to
authority and exercised it by promulgating          indicate the portions of the record that
regulations governing activities there and,         bear on the issue of whether defendants
indeed, publishing warnings of risks to be          would have been allowed to post signs
found there.                                        warning of beach conditions. Regardless
                                                    of whether defendants would have been
   Nevertheless, Fabend suggests that               allowed to post their own signs, however,
Caneel and Rosewood, despite their lack             the point remains that such signs were
of authority to do so, assumed the                  the legal responsibility of the National
responsibility of controlling activity in the       Park Service.

                                                6
beach at times and (8) Appellees suggested        guests returning there, and it is not
in their advertising that the beach belongs       surprising that it did so. None of this is
to them.                                          probative, however, of whether Caneel and
                                                  Rosewood in fact exercised control over
    There is no question that Caneel and
                                                  the swimming area.           The relevant
Rosewood had actual authority to post
                                                  documents do not grant control of the
signs necessary or appropriate to the
                                                  swimming area to Caneel or Rosewood
operation of a campground and the water
                                                  and, indeed, they reserve that control to the
sport shop, but that is of no legal
                                                  National Park Service.4 Accordingly, the
significance here. What is important is
                                                  absence of a regulation prohibiting Caneel
that there is no evidence that they ever
                                                  or Rosewood from hiring a lifeguard is
posted a sign purporting to direct or
                                                  hardly surprising. The relevant fact is that
control activities in the swimming area.
                                                  there is no evidence suggesting that either
Similarly, Rosewood had actual authority
                                                  ever asserted control by engaging the
to have its personnel provide campground
                                                  services of a lifeguard for the swimming
security, 3 as well as trash cans for its
                                                  area.
                                                      Rosewood’s maintenance crew only
3.
 James Bartell, the campground manager            maintained the facilities it was authorized
at Cinnamon Bay Campground, testified             to operate. The only significant testimony
with respect to security was as follows:          with respect to the clean up of the beach

        Q.. . . You said these were
nighttime security [personnel]. Did you           3.
                                                   (...continued)
have any security personnel working               that they would.
during the day?                                           Q.Did they walk the beach as part
        A.We didn’t, no.                          of their security patrol?
        Q. Do you know what time they                     A.I think they could have walked
would come on in the evening?                     out onto the beach just as a precaution to
        A.Generally about five or six             make sure that, you know, our
o’clock in the evening.                           campground was safe.
        Q.Would they patrol the beach
area as well as the area around the               App. IV at 191-92.
cottages?
                                                  4.
        A.Well, their main responsibility          The documents explicitly state that,
was for the area around the cottages.             consistent with 36 C.F.R. § 1.5, the
The cottages are permanent tents and our          National Park Service retains the power
bare ground camping facility. When they           and responsibility to regulate its land for
would look out on the beach to see if             the safety of visitors, and to take action
there was anything out there, I’m sure            — such as beach closures, or use
                             (continued...)       restrictions — to maintain that safety.

                                              7
was the following testimony of Richard                 The only evidence concerning Caneel
Metcalfe, who ran the water sports center.          and Rosewood personnel and the
                                                    swimming area indicated that they would
     Q.Where does he rake the leaves?
                                                    advise people renting boats of the National
    A.Well, the leaves come down, he rake           Park Service rule prohibiting the use of
right around the building to try to keep it         boats in the swimming area and would
clean so we don’t stump our toes on the             secure a commitment that that rule would
tree roots and stuff like that.                     be obeyed.6 This would support a finding
   Q.Does he do any maintenance on the
beach itself; that is, pick up any leaves,          5.
                                                     (...continued)
bottles or anything on the beach?
                                                    beach at Cinnamon Bay. Mr. Varlack,
    A.No, I don’t believe he has ever done          however, did not claim to have observed
that.                                               Caneel or Rosewood personnel cleaning
                                                    the beach, and his understanding of who
     Q.Have you?
                                                    had responsibility for doing so was based
     Did you hear the question?                     on inadmissible hearsay.
     A.I don’t believe he has ever done that.       6.
                                                         Mr. Metcalfe, for example, testified:
     Q.I said have you ever done it?
                                                            Q.Well, I am asking you whether
     A.Yes.                                         once a guest rents a kayak or windsurfer
   Q.Does Devon Boulon ever clean up                or sailboat, do you monitor their
around the beach?                                   activities when they are in the water?
                                                    For example, if you see them going into
    A.I don’t believe he’s ever done that           the swimming area, do you advise them
either.                                             not to do that?
  Q.How about the others who you                            A.We explain it to them
employ?                                             beforehand that park regulations state
                                                    that no hard objects are allowed in the
   A.No, I don’t think they ever cleaned            swimming area. We explain to them
up on the beach.                                    where the swimming area is, and then we
                                                    have them sign-off on the sign-off
                                                    release form that they don’t go into that
S.A. at 80-81.5                                     area. I don’t have the enforcement
                                                    capability.
                                                            Q.In the event that people do
5.
 There is testimony from an NPS                     [wander] into the swim area, do you
employee, Leon Varlack, that NPS did                warn them off?
not have personnel assigned to clean the                    A.No. We would call the ranger
                           (continued...)                                         (continued...)

                                                8
that Caneel and Rosewood exercised                 time of his accident, much less any
control with regard to the equipment they          equipment purchased or rented from the
leased pursuant to their authority to              appellees.      Furthermore, Fabend’s
operate a water sports shop; it would not          contention that defendants “rent the only
support a finding that Caneel or Rosewood          cottages on the beach” is also misleading.
exercised control over the swimming area.          The cottages are not on the beach, but on
The relationship between Caneel and                the campground property adjacent to the
Rosewood and Fabend while he was                   beach, and are part of the concession
swimming was no different from their               contract with the National Park Service.
relationship with their other guests when          Similarly, the appellees do not “exclude
they were hiking, deep sea fishing, or             non-guests from the beach,” but merely
swimming on the other side of St. John.            shut the road to the campground to non-
Under the governing law, that relationship         guests during nighttime hours as is
was insufficient to give rise to a duty to         required by the National Park Service. See
warn on their part.                                36 C.F.R. § 1.5. As the District Court
    The evidence Fabend points to as an            observed, appellees do not attempt to
indication that Rosewood and Caneel                control other methods of accessing the
operated the only amenities on the beach is        beach at night. In fact, by law they would
not probative on the relevant control issue.       be prevented from doing so. See 12 V.I.C.
Fabend was not using any equipment at the          § 402 (guaranteeing public access to the
                                                   shorelines of the Virgin Islands).
                                                       Fabend also asserts that the appellees
6.                                                 made up rules for the beach, such as
 (...continued)
                                                   placing a ban on campfires, and enforced
if they would do something silly. Let the
                                                   rules such as a ban on boats in the
park take care of them.
                                                   designated swimming area. But the record
                    ***
                                                   demonstrates that none of these rules are
          Q.Okay. Mr. Rabsatt testified
                                                   the appellees’ rules: they are rules
that at times you even go out in your boat
                                                   established by the National Park Service
to inform guests that they were deviating
                                                   which appellees merely aided in enforcing.
and going into the swimming area. Is
that true?                                            Finally, Fabends’ argument that
          A.Yes, there have been times that        appellees treat the beach as their property
I have gone out, not into the swimming             when they advertise “our . . . white sandy
area, because I can’t take my boat into the        beach” in their brochures is unpersuasive.
swimming area, and I told people that the          A common phrase does not create a legal
park said that they are not supposed to go         duty. As the District Court observed,
in there. I reminded them but again it’s           rhetoric does not establish control and
really – there is nothing I can do about it.       ownership any more than does an
                                                   invitation to enjoy “our gentle trade
S.A. at 77-78; 78-79.                              winds.”

                                               9
    Because the evidence establishes that
the beach was not within appellees’ sphere
of control, we hold that they did not have
a legal duty to warn swimmers of the
shorebreak danger. As such, the appellees
are not liable for the injuries Fabend
suffered.
                   IV.
   For the above reasons, we will affirm
the District Court’s grant of summary
judgment in favor of the appellees.




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