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• By SUZANNE CARLSON Daily News Staff
• 15 hrs ago

The V.I. Supreme Court has affirmed a $600,000 jury award for a slip-and-fall case on St. Croix that has been making its way through territorial courts for more than 12 years.

Leonor Mercedes Palermo was shopping with a friend at Pueblo Supermarket in Golden Rock on Sept. 1, 2008, when she slipped in a puddle and fell in the aisle.

It is not uncommon for business customers to trip and file lawsuits, which are typically dismissed if the plaintiff can’t prove that the store was aware of hazardous conditions and failed to correct them.

But the courts have found that in this case, World Fresh Market, LLC, (WFM) which does business under the name Pueblo Supermarket, was fully aware of the danger to its customers.

Five years after the initial lawsuit, Pueblo filed a motion for summary judgement. It took another five years for the court to rule on that motion, which was granted on Aug. 31, 2018.

Four months later, former Superior Court Judge Robert Molloy reversed that order.

“After a more thorough review of the entire record, the court finds that there is sufficient evidence in the record for a reasonable jury to conclude that defendant had notice of the dangerous condition on its premises,” Molloy wrote in an opinion filed Dec. 28, 2018.

“Prior to this incident, the roof to the Pueblo grocery store was compromised, causing it to leak water whenever it rained. WFM knew about this condition since at least August 20, 2008. Instead of closing off the entire aisle, WFM employees placed an ice cooler to catch the water leaking from the roof and placed yellow ‘wet floor’ signs around the cooler. The parties dispute that there were ‘wet floor’ signs on the floor near where Palermo fell,” Molloy wrote.

The order by Molloy, who now serves as judge of the U.S. District Court of the Virgin Islands, paved the way for the case to go to a jury trial. St. Croix attorney Lee Rohn represented Palermo, and Nebraska attorneys Dwyer Arce and Mattea Fosbender, and St. Thomas attorney Michael Sheesley represented Pueblo.

There was an additional layer to the case, however, as Pueblo operates on property leased from PDCM Associates, S.E., and “several years after filing suit, Palermo amended her complaint to name PDCM as a co-defendant,” according to an opinion filed Feb. 4 by V.I. Supreme Court Chief Justice Rhys Hodge.

Palermo eventually entered a settlement agreement with PDCM, and the company was dismissed as a defendant on Feb. 21, 2018.

Legal wrangling continued for 18 months between Palermo and Pueblo over “admissibility of evidence at trial, and “ultimately, the Superior Court granted Palermo’s motion to exclude the settlement agreement and any references to PDCM’s negligence.”

That meant the jury never heard that Palermo had settled with PDCM, and essentially treated Pueblo as the sole defendant in the case during a trial held in Nov. 2019.

While Pueblo argued that jurors should be informed about “apportion liability between it and PDCM,” the Superior Court “strictly enforced its earlier evidentiary rulings” and rejected those requests, Hodge wrote. “Ultimately, the jury found World Fresh Market liable and awarded Palermo $600,000 in compensatory damages, of which $200,000 represented lost future earning capacity.”

Pueblo appealed to the V.I. Supreme Court, which found that while the law requires a jury award to be divided among defendants, it doesn’t specifically say whether a “non-defendant” can also be made to pay, Hodge wrote. “The parties disagree as to the effect of that omission.”

Pueblo argued that the court “is free to create a common law rule extending apportionment to non-defendants.” But Palermo’s attorney argued that “essentially expands the definition of word ‘defendants’ beyond what the Legislature intended,” Hodge wrote. “We agree with Palermo.”

The legislature’s use of the word ‘defendants’ makes it clear lawmakers did not intend for apportionment to apply to anyone else, and the Supreme Court opinion cited a more common scenario as evidence: “If a sign at the entrance to a zoo says ‘Come see the elephant, lion, hippo, and giraffe,’ and a temporary sign is added saying ‘the giraffe is sick,’ you would reasonably assume that the others are in good health.”

In addition, the law provides a procedural mechanism to “prevent the plaintiff from receiving a double recovery,” and Pueblo could have filed a cross-claim or used Rule 14 of the V.I. Rules of Civil Procedure “to return a settling defendant to the case in order to provide for apportionment of liability,” according to the opinion. Pueblo could have taken those steps, “yet made no attempt to do so.”

The justices rejected several other arguments offered by Pueblo, and affirmed the judgement awarding Palermo $600,000, according to the opinion.