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THIRD CIRCUIT ADOPTS ‘SPHERE OF CONTROL’ TEST PHILADELPHIA — In a ruling that adopts the “sphere of control” test in premises liability cases, the Third Circuit U.S. Court of Appeals has upheld the dismissal of a suit brought by a man who was rendered quadriplegic when he was knocked over by a powerful wave while bodysurfing in the Virgin Islands. In its 10-page decision in Fabend v. Rosewood Hotels & Resorts, a unanimous three-judge panel held that property owners have a duty to warn about unsafe conditions beyond their premises only if the location is under their “sphere of control.” Under the sphere of control test, first articulated by the Fifth Circuit, the plaintiff must have proof either that the owner had the legal right to control the area or evidence of an intent to control it. Applying the test, Third Circuit Judge Richard Nygaard found that plaintiff Richard Fabend’s claims were properly dismissed by Virgin Islands U.S. District Judge Thomas Moore because he failed to muster evidence that either of the two defendants exercised enough control over the beach and bay where he was injured to trigger any duty to warn swimmers of any dangers. In the suit, Fabend claims he was injured while staying at a campground near Cinnamon Bay beach on the island of St. John. In his deposition, Fabend testified that he was heading back into the ocean from a successful bodysurf when he saw a particularly large wave coming at him. He said he decided it was too large to bodysurf and attempted instead to dive through it. But the dive led to a catastrophe, he said, because the wave hit him with so much force that he was smashed headfirst into the sand, breaking his neck and rendering him quadriplegic. — The Legal Intelligencer

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