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In a ruling that adopts the “sphere of control” test in premises liability cases, the 3rd U.S. Circuit 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 him 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 5th 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, U.S. Circuit Judge Richard L. Nygaard found that plaintiff Richard Fabend’s claims were properly dismissed by Virgin Islands U.S. District Judge Thomas K. 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. Fabend’s lawyer, Vincent A. Colianni of Christiansted, St. Croix, argued in court papers that the accident occurred because of a dangerous “shorebreak” condition off Cinnamon Bay beach. According to court papers, a shorebreak exists where water rapidly becomes shallow as it approaches a shore, resulting in waves that can break with tremendous force and drive swimmers into the sand. Colianni argued that the potential danger of a shorebreak is not observable by a casual and uninformed swimmer. Originally named as defendants in the suit were Rosewood Hotels & Resorts and Caneel Bay Inc., as well as the U.S. Department of Interior and the National Park Service. Fabend settled his claims against the United States, but Rosewood and Caneel moved for summary judgment. The courts focused on the precise contours of the relationships between the government and the private defendants. Cinnamon Bay beach is owned by the United States and is part of the Virgin Islands National Park. Fabend and his wife were staying at the Cinnamon Bay Campground, which was owned by Caneel and operated by Rosewood. According to court papers, Rosewood and Caneel were granted the rights to operate a campground in the national park in a series of “concession contracts.” Nygaard found that, under the terms of the contract, the park service retained final authority over Rosewood’s operations, such as the rates charged and the dates and hours of campground operation. Nygaard found that the park service also had responsibility for providing protection services for beach visitors, including law enforcement, safety inspections and lifeguard functions. Under the Restatement (Second) of Torts, Nygaard found that the “general rule” is that “one owes no duty to protect, and thus no duty to warn, another, even if one realizes that the other is at risk of injury.” But Fabend’s lawyer argued that the restatement recognizes an exception for the special relationships that exist between an innkeeper and guests, as well as land owners and invited members of the public. Nygaard agreed, but found that such special relationships create only limited duties. “The duty to protect, and hence the duty to warn, exists only where the risk arises from the relationship,” Nygaard wrote in an opinion joined by Senior U.S. Circuit Judges Edward R. Becker and Walter K. Stapleton. “People undoubtedly come to Cinnamon Bay Campground to engage in numerous recreational activities on St. John and the surrounding waters — hiking, sailing, deep-sea fishing, snorkeling and sunbathing, as well as body surfing. This does not mean, however, that Caneel and Rosewood have a duty to warn guests of all of the non-obvious risks associated with these activities,” Nygaard wrote. Ordinarily, Nygaard said, a risk arises in the course of the relationship “only if it occurs on the relevant premises.” The question in Fabend’s case, Nygaard said, was “whether Cinnamon Bay beach and the adjacent bay should be considered part of the ‘premises’ of the campground.” Nygaard found that the 5th Circuit’s 1984 decision in Banks v. Hyatt Corp. answered a similar question by applying the “sphere of control” test. In Banks, the 5th Circuit held that a hotel owed a duty to protect a patron from a criminal assault by a third party when the patron was just outside the entrance doors to the hotel on a public sidewalk because the hotel’s security was aware of numerous incidents at the entrance, and the owner of the property had received a recommendation to station a guard there. The court concluded that the hotel’s power to take security measures put it in sufficient control of the entrance to impose a duty on it to take reasonable measures to protect its guests from harm and to warn them of dangerous conditions. Nygaard found that the 3rd Circuit has never “explicitly adopted” the Banks test, but has upheld a lower court’s decision that applied it. Now, in Fabend’s case, the 3rd Circuit has officially adopted the test, holding that “when an innkeeper possesses or exercises sufficient control over the property adjacent to his premises, he has the power to take protective measures to reduce the risk of injury on that property. Having such power, the innkeeper has a duty to exercise it to the benefit of his patrons.” Applying the test, Nygaard found that Fabend’s claim failed. “The critical fact is that the National Park Service … did not … surrender any control of the beach to Caneel or Rosewood,” Nygaard wrote. “It follows that Caneel and Rosewood had no actual authority to control the swimming area where Fabend was injured,” Nygaard wrote.

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