On Appeal from the District Court for the Virgin Islands, Division of St. Thomas and St. John, D.C. Civ. No. 83-0314.
Greenberg, Scirica, and Weis, Circuit Judges.
GREENBERG, Circuit Judge.
Defendant, Government of the Virgin Islands, appeals from the district court's judgment of October 23, 1987 awarding damages of $17,500 to plaintiff Alphonso Chinnery. We have jurisdiction under 28 U.S.C. § 1291. While the judgment from which the Government appeals was rendered after a nonjury trial, the facts in this case are not in dispute. Thus, we are concerned only with the interpretation and application of legal precepts and our review is plenary. United States v. Adams, 759 F.2d 1099, 1106 (3d Cir.), cert. denied, 474 U.S. 906, 971, 106 S. Ct. 275, 336, 88 L. Ed. 2d 236 (1985).
The facts are as follows. On May 13, 1983, Chinnery, a truck driver employed by the Government in the Division of Solid Waste of the Department of Public Works, was driving a garbage truck accompanied by his daughter. He had completed one run to pick up garbage. At that time Chinnery was stopped by his supervisor, Roan Creque,*fn1 who told him to go to another place to pick up other garbage. Creque then verbally reprimanded him for violating a departmental rule against allowing unauthorized riders in garbage trucks, and for being out of uniform. As Chinnery drove away, Creque slipped into the street gutter, perhaps after being struck by the side mirror of the truck. After Chinnery stopped the truck, Creque approached it, struck Chinnery several times, apparently through the open driver's side window, and, when Chinnery alighted from the truck, threatened to shoot him with a pistol which he had drawn.*fn2
As a result of Creque's assault, Chinnery suffered a cerebral concussion, headaches, dizziness, lacerations, and bruises, as well as a nervous disorder. Consequently, he missed one week of work and also allegedly retired approximately one-half year earlier than he had planned.*fn3
On November 22, 1983, Chinnery filed a complaint against the Government under the Virgin Islands Tort Claims Act, V.I. Code Ann. tit. 33, §§ 3401-16 (1967 & supp. 1987). He alleged that the Government was "grossly negligent" in recruiting, hiring and training Creque and permitting him to work for the Government, since it "knew, should have known, or was negligent for not knowing of [Creque's] violent and dangerous temperament," and that the Government's "various negligent acts" resulted in Chinnery's alleged injuries, which were directly caused by Creque's "wanton and malicious conduct." On April 27, 1985, the Government filed a motion to dismiss, or, in the alternative, for summary judgment, based primarily on the exclusive remedy provision, § 284(a), of the Virgin Islands Workmen's Compensation Act, V.I. Code Ann. tit. 24, §§ 251-85, (1970 & Supp. 1987) [hereinafter WCA], and also on the fellow servant rule. The exclusive remedy provision is as follows:
[w]hen an employer is insured under this chapter, the right herein established to obtain compensation shall be the only remedy against the employer; but in case of accident to, or disease or death of, an employee not entitled to compensation under this chapter, the liability of the employer is, and shall continue to be the same as if this chapter did not exist.
This motion was denied by the district court in an order of September 12, 1985.
At the trial only Chinnery called witnesses. In its Memorandum and Order, dated October 23, 1987, deciding the case following the trial, the district court rejected Chinnery's negligent recruitment, hiring and training claims, but found that the Government had negligently retained Creque "after learning of his violent disposition." The court held that Chinnery could not recover under the WCA for injuries he suffered as a result of this negligent retention but that he was entitled to a recovery under the Tort Claims Act. Damages were fixed at $17,500.
The Government has appealed. While it does not contend that it was not negligent in retaining Creque, it urges that the judgment of the district court should be reversed and the complaint dismissed as WCA § 284(a) provided the exclusive remedy to Chinnery for his injuries. We have concluded, that the Government is ...