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Turbe v. Government of Virgin Islands

argued: April 23, 1991.

ROGER TURBE, APPELLANT
v.
GOVERNMENT OF THE VIRGIN ISLANDS, VIRGIN ISLANDS WATER AND POWER AUTHORITY



On Appeal from the District Court of the Virgin Islands; D.C. Civil Action No. 87-00390.

Becker, Scirica and Alito, Circuit Judges.

Author: Scirica

Opinion OF THE COURT

SCIRICA, Circuit Judge

In this case from the District Court of the Virgin Islands, plaintiff Roger Turbe challenges a judgment on the pleadings entered in favor of the Virgin Islands Water and Power Authority ("WAPA"). Turbe alleged that WAPA's negligent failure to repair street lights was the proximate cause of a criminal assault against him. We will affirm because we believe WAPA was under no legal duty to protect Turbe from criminal attack.

I.

Turbe alleges that on July 6, 1986, at approximately 11:15 P.M., he was attacked near his home by a naked man wielding a machete. He suffered various injuries and filed suit against WAPA and the Government of the Virgin Islands. Turbe alleged that his injuries resulted from defendants' negligent failure to repair the street lights in the area of the attack, despite knowing that they were broken. According to the complaint, Turbe "would have been able to see this assailant and avoid his violent attack if the street lights directly overhead and in the vicinity had been lit. They, however, were not working and had not been working for some time, despite numerous complaints by local residents."

After both defendants filed answers to the complaint, the Government moved for judgment on the pleadings under Fed. R. Civ. P. 12(c). Turbe did not respond to this motion, and the district court entered judgment in favor of the Government. Turbe has not appealed from that judgment. WAPA then filed a motion for judgment on the pleadings, asserting that the complaint failed to state a claim upon which relief could be granted. The district court granted WAPA's motion without opinion, and this appeal followed. The district court had jurisdiction under V.I. Code Ann. tit. 4, § 32(a) (Supp. 1990). We have jurisdiction under 28 U.S.C. § 1291 (1988).

WAPA styled its motion as one for a "Judgment on the Pleadings dismissing the Complaint" pursuant to both Rule 12(b) and Rule 12(c). A Rule 12(b) motion to dismiss a complaint must be filed before any responsive pleading. A Rule 12(c) motion for judgment on the pleadings may be filed after the pleadings are closed. Consequently, because WAPA filed its motion after it had already filed an answer, the motion must be considered a Rule 12(c) motion. Nevertheless, Rule 12(h)(2) provides that a defense of failure to state a claim upon which relief can be granted may also be made by a motion for judgment on the pleadings. In this situation, we apply the same standards as under Rule 12(b)(6). See, e.g., Ad-Hoc Committee of Baruch Black and Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir. 1987); Morgan v. Church's Fried Chicken, 829 F.2d 10, 11 (6th Cir. 1987); Republic Steel Corp. v. Pennsylvania Eng'g Corp., 785 F.2d 174, 182 (7th Cir. 1986); Slotnick v. Garfinkle, 632 F.2d 163, 165 (1st Cir. 1980); 5A C. Wright & A. Miller, Federal Practice and Procedure § 1367, at 515 (1990).

Therefore, we must accept the allegations in the complaint as true, and draw all reasonable factual inferences in favor of the plaintiff. We can affirm the district court only if no relief could be granted under any set of facts that could be proved. Unger v. National Residents Matching Program, 928 F.2d 1392, 1394-95 (3d Cir. 1991). Our review is plenary. Id. at 1394.

II.

In the absence of local laws to the contrary, the American Law Institute's various Restatements of the Law are the rules of decision in the Virgin Islands. V.I. Code Ann. tit. 1, § 4 (1967). If the Restatement does not govern, we look to the common law "as generally understood and applied in the United States." Id. In order to establish a claim of negligence, the plaintiff must demonstrate that the defendant owed the plaintiff a legal duty, that the defendant was negligent, and that the defendant's actions were the legal cause of the plaintiff's injury. See Restatement (Second) of Torts §§ 281, 328 A (1965).

WAPA maintains that it owed no legal duty to plaintiff, and that its failure to repair the street lights cannot be considered the proximate cause of Turbe's injuries. We will affirm because on the facts alleged in this complaint, WAPA did not owe Turbe a duty to repair the street lights at issue. Consequently, we do not reach any questions regarding the foreseeability of the attack, or the degree to which WAPA's actions might have been a causal factor.

The nature of the legal duty owed by a defendant is generally a question of law. See Restatement § 328B(b). In this case, we must decide whether WAPA can be liable when the failure to repair street lights may have been a factor leading to a criminal attack upon a pedestrian. WAPA first contends that it can never be sued for the negligent operation of street lights. It asserts that its decisions whether or not to repair broken lights are completely discretionary and can never subject it to tort liability. WAPA points to statutory authorization providing that it has "the power to determine the character of and necessity for all its expenditures and the manner in which they shall be incurred, allowed and paid, and such determinations shall be final ...


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