Third Circuit disposition — 03-1119

PRECEDENTIAL
THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
___________
No. 03-1119
___________
RICHARD FABEND;
MARGARET FABEND,
Appellants,
vs.
ROSEWOOD HOTELS AND
RESORTS, L.L.C.;
CANEEL BAY, INC; UNITED
STATES OF AMERICA,
vs.
ROSEWOOD HOTELS AND
RESORTS, L.L.C.;
CANEEL BAY, INC.,
Third-Party Plaintiffs
vs.
UNITED STATES OF AMERICA
DEPARTMENT OF THE
INTERIOR, NATIONAL PARK
SERVICE,
Third-Party Defendant.
___________
APPEAL FROM THE DISTRICT
COURT OF THE VIRGIN ISLANDS
(D.C. No. 99-cv-00155)
District Judge: The Honorable
Thomas K. Moore
___________
ARGUED December 9, 2003
BEFORE: NYGAARD, BECKER, and
STAPLETON, Circuit Judges.
(Filed September 9, 2004)
___________
Vincent A. Colianni, II, Esq. (Argued)
Colianni and Colianni
1138 King Street
Christiansted, St. Croix
USVI, 00820
Counsel for Appellants
Matthew J. Duensing, Esq. (Argued)
Michael Fitzsimmons, Esq.
Stryker, Duensing, Casner & Dollison
Drakes Passage, 2nd Floor
P.O. Box 6785
Charlotte Amalie, St. Thomas
USVI, 00804
Counsel for Appellees
___________
OPINION OF THE COURT
___________
N Y G A A R D , C i r c u i t J u d g e .
Richard and Margaret Fabend sued
Rosewood Hotels and Resorts, Caneel
Bay, Inc., and the United States
Department of Interior, National Park
Service after Richard was injured while
bodysurfing in the Virgin Islands. Fabend

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settled the claims against the United
States, but proceeded in the District Court
of the Virgin Islands against the remaining
defendants. Fabend claims that the
defendants had a duty to warn him of a
dangerous shorebreak condition at the
beach, which created a forceful wave that
drove him into the sand and left him a
quadriplegic. The District Court granted
summary judgment for the appellees.
The District Court had jurisdiction over
this diversity action under the Revised
Organic Act, 48 U.S.C. § 1612(a), and 28
U.S.C. § 1332(a)(1). We have jurisdiction
to review the summary judgment order
pursuant to 28 U.S.C. § 1291, and exercise
plenary review. Blair v. Scott Specialty
Gases, 283 F.3d 595, 602-03 (3d Cir.
2002). Although we review the facts in
the light most favorable to Fabend, the
central issue, whether appellees had a duty
to warn or protect him, is a question of
law. Turbe v. Gov’t of the Virgin Islands,
938 F.2d 427, 429 (3d Cir. 1991) (“The
nature of the legal duty owed by a
defendant is generally a question of law.”)
(citing Restatement (Second) of Torts §
328B(b) (1965)). We hold that the
appellees did not exercise sufficient
control over the beach to create a duty to
warn and will affirm.
I.
Cinnamon Bay beach on St. John, U.S.
Virgin Islands is owned by the United
States and is part of the Virgin Islands
National Park. The Fabends were staying
at the Cinnamon Bay Campground, which
was owned by Caneel Bay, Inc. and
operated by Rosewood Hotels and Resorts.
Rosewood and Caneel had a limited and
non-exclusive right to operate a
campground and related services on
national park land adjacent to Cinnamon
Bay beach, pursuant to a series of
concession agreements between Caneel
and the National Park Service. Rosewood
also rented cabins and operated a
restaurant, beach store, and watersports
center.
The relationship between Rosewood
and the National Park Service was
governed by a Concession Contract, a
Concessions Operational Plan, and an
additional Operating Plan. Under the
terms of these documents, the National
Park Service retained full access to the
area adjacent to Cinnamon Bay beach,
including the right to enter the area at any
time; final authority over Rosewood’s
operations, such as the rates charged and
the dates and hours of campground
operation; and the responsibility for
providing protection services for beach
visitors, including law enforcement, safety
inspections, and lifeguard functions. S.A.
at 40-58, 101-09, 114-21. The National
Park Service has acknowledged that it
maintained physical control over all
beaches and waters of the Virgin Islands
National Park, including Cinnamon Bay
beach. The National Park Service also
produced signs and brochures to warn
visitors of dangerous conditions within the
park.
Although the factual accounts offered
by the District Court and the two parties
vary in some respects, none of these

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differences is germane to our decision.
According to his deposition, Fabend was
heading back into the ocean from a
successful “bodysurf” when he saw a
particularly large wave coming at him. He
decided it was too large to bodysurf and
attempted instead to dive through it. When
he tried to do this, the wave hit him and
smashed him headfirst into the sand,
breaking his neck.
Fabend claims the accident occurred
because of a dangerous shorebreak
condition off of Cinnamon Bay beach.1 A
shorebreak exists where the water rapidly
becomes shallow as it approaches the
shore, resulting in waves that can break
with tremendous force and drive
swimmers into the sand. Fabend contends
that the potential danger of a shorebreak is
not observable by the casual and
uninformed swimmer.
II.
The American Law Institute’s
Restatement of Law provides the rules of
decision for the Virgin Islands “in the
absence of local laws to the contrary.” 1
V.I.C. § 4. Because there are no
applicable local laws to the contrary, we
apply The Restatement (Second) of Torts.
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. Restatement (Second)
of Torts § 314. There are, however,
special relationships that can give rise to
such a duty. The only special relationships
on which Fabend relies as giving rise to a
duty to protect are those that exist between
an innkeeper and his guests and between a
possessor of land who holds it open to the
public and members of the public who
respond to the invitation.
Section 314A of the Restatement
(Second) of Torts provides in relevant
part:
(1) A common carrier is under a duty
to its passengers to take
reasonable action
(a) to protect them against
unreasonable risk of physical
harm . . .
(2) An innkeeper is under a similar
duty to his guests.
(3) A possessor of land who holds it
open to the public is under a
similar duty to members of the
public who enter in response to
his invitation.
Id. Comment c to § 314A further
provides:
The rules stated in this Section
apply only where the relation exists
between the parties, and the risk of
harm, or of further harm, arises in
the course of that relation. A
carrier is under no duty to one who
has left the vehicle and ceased to be
a passenger, nor is an innkeeper
1.Fabend and his expert witness claim
that many Cinnamon Bay beach guests
have fallen victim to this shorebreak and
received serious injuries, although they
only specifically mention and document
one such injury.

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under a duty to a guest who is
injured or endangered while he is
away from the premises. Nor is a
possessor of land under any such
duty to one who has ceased to be an
invitee.
Id.
As Comment c makes clear, the duty to
protect, and hence the duty to warn, exists
only where the risk arises from the
relationship, and it is not alone sufficient
that a guest is exposed to a risk during the
period he remains such. 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. A risk arises in the course of the
relationship only if it occurs on the
relevant premises. Id.
Our inquiry into whether appellees had
a duty to warn Fabend of the shorebreak
condition begins with the question of
whether Cinnamon Bay beach and the
adjacent bay should be considered part of
the “premises” of the campground. To
answer this question, courts have applied
the “sphere of control” concept to
determine whether a duty exists in various
types of innkeeper liability cases. In
Banks v. Hyatt Corp., 722 F.2d 214 (5th
Cir. 1984), for example, the Fifth Circuit
Court of Appeals applied a sphere of
control test when considering whether 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. Id. at
215. The hotel’s security department had
been made aware of reports of a number of
incidents at the entrance, and the owner of
the property had also received a
recommendation to station a guard at the
entrance. Id. at 218-19. The property
owner contracted with the hotel to hire
men for the purpose of adopting new
security measures in areas outside the
hotel’s premises, including the area where
the decedent was killed. Id. at 219. When
the decedent’s wife and children sued for
wrongful death, 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/or to warn them of dangerous
conditions.
Although Banks involves the death of
a guest from the actions of a third party, it
nonetheless states a principle that is
relevant to the question before us, which it
calls the “sphere of control” test. That is
to say, 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.
The specific factual setting of a case
will ultimately dictate whether a party is in
the position to control or has the power to

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control land adjacent to his property such
that a duty to protect or warn arises. See
id. at 227. The “sphere of control” test
requires that we look at the circumstances
of the case to ascertain whether sufficient
control exists over the adjacent premises.
Relevant indicia of control include who is
responsible for the safety of guests, who
has the authority to dictate who may use
the property, and whether the guests were
invited by the property owners to use the
adjacent land. See Pacheco v. United
States, 220 F.3d 1126, 1131-32 (9th Cir.
2000). If, for example, an innkeeper
leases property to operate a hotel, but the
government retains control over the land
for the use of general public, the innkeeper
must only warn guests of dangers on the
leased property and the ingress or egress
therefrom. See Stedman v. Spiros, 161
N.E. 2d 590 (Ill. App. 1959), cited in
Banks, 722 F.2d at 223-24; see also Jones
v. Halekulani Hotel, Inc., 557 F.2d 1308,
1311 (9th Cir. 1977) (finding that a hotel
had no duty to protect someone who was
injured diving from a seawall owned by
the hotel but used as a public easement
“[b]ecause the hotel had no right to control
the use of the public thoroughfare . . .
[and] [i]t is inequitable to impose a duty of
maintenance on one without authority to
control use”).
Though we have never explicitly
adopted the Banks test, the District Court
of the Virgin Islands followed it in an
earlier case, which we affirmed without
opinion. See Manahan v. NWA, 821 F.
Supp. 1105, 1108-09 (D.V.I. 1992)
(affirmed without opinion at 1993 U.S.
App. LEXIS 14348 (3d Cir. 1993)). The
Manahan Court adopted the position that
“an innkeeper is not an insurer against all
risk of injury to its guests, but is obligated
only to take reasonable steps to minimize
risks that are foreseeable to its guests when
they are reasonably within its sphere of
control.” 821 F. Supp. at 1109 (emphasis
added).
We have, however, used a standard
similar to “sphere of control” in cases
involving railroad-related injuries. For
example, in Estate of Zimmerman v.
SEPTA, we held that a defendant did not
owe a duty of care to someone injured on
railroad tracks that the defendant neither
owned nor controlled, even though the
defendant might have used the tracks. 168
F.3d 680, 685 (3d Cir. 1999). We held
that “[t]he duty to protect against known
dangerous conditions falls upon the
possessor of the land.” Id. at 684.
Quoting the Restatement, we defined a
“possessor” of land as someone who
“occupies the land with the intent to
control it.” Id.
Consistent with the approach taken in
Banks, Manahan, and Zimmerman, we
hold that defendants only had a duty to
warn Fabend if the beach and the adjacent
bay were under their “sphere of control.”
The beach was within their “sphere of
control” if they had the legal right to
control the conditions and use of the area,
or possessed the area and evidenced an
intent to control it even absent clear legal
authority. In conducting this inquiry, we
consider who had the legal authority to
control the area, including the right to
control access, establish rules for use, and

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mitigate or warn of any dangerous
conditions. We also consider the de facto
control the defendants exercised over the
area, and whether these actions were
consistent with the terms of the legal
relationship that placed control with the
National Park Service.
III.
It is undisputed that the park, including
the swimming area, was owned by the
federal government, and that the National
Park Service had the right to exercise
exclusive control over activity in that area.
While the National Park Service had
granted a license to Caneel and Rosewood,
that license was limited under the
controlling documents to the operation of
cabins and a campground, a gift shop, and
a water sports shop at locations assigned
by the National Park Service, subject to
certain controls retained by the National
Park Service. For present purposes, the
critical fact is that the National Park
Service, except to the extent of authorizing
operation of a water sports shop, did not in
those documents surrender any control of
the beach to Caneel or Rosewood. It
follows that Caneel and Rosewood had no
actual authority to control the swimming
area where Fabend was injured. The
National Park Service retained that
authority and exercised it by promulgating
regulations governing activities there and,
indeed, publishing warnings of risks to be
found there.
Nevertheless, Fabend suggests that
Caneel and Rosewood, despite their lack
of authority to do so, assumed the
responsibility of controlling activity in the
swimming area and that, accordingly, this
area must be considered a part of their
premises. The problem with this theory is
that all of the conduct of Caneel and
Rosewood is consistent with their limited
license and there is no evidence from
which a jury could find that they exercised
control over the swimming area.2
We reject the idea that a jury might
find that Caneel and Rosewood exercised
joint control over the swimming area.
Fabend asserts that the Appellee’s de facto
control is evidenced by the facts that (1)
Appellees were allowed to post signs, (2)
there was no National Park Service
regulation prohibiting it from hiring a
lifeguard, (3) A p p e l l ee s h a d a
“maintenance crew;” (4) Appellees
provided “trash cans as a service to beach
users as they would return to the
campgrou nd;” (5) that Appellees’
personnel would at times patrol the beach
for campground security purposes, and that
one of its employees acknowledged that he
had “monitored and policed” the
swimming area on occasion; (6) Appellees
operated the only amenities on the beach;
(7) Appellees exclude non-guests from the
2.At oral argument we asked the parties to
indicate the portions of the record that
bear on the issue of whether defendants
would have been allowed to post signs
warning of beach conditions. Regardless
of whether defendants would have been
allowed to post their own signs, however,
the point remains that such signs were
the legal responsibility of the National
Park Service.

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beach at times and (8) Appellees suggested
in their advertising that the beach belongs
to them.
There is no question that Caneel and
Rosewood had actual authority to post
signs necessary or appropriate to the
operation of a campground and the water
sport shop, but that is of no legal
significance here. What is important is
that there is no evidence that they ever
posted a sign purporting to direct or
control activities in the swimming area.
Similarly, Rosewood had actual authority
to have its personnel provide campground
security,3 as well as trash cans for its
guests returning there, and it is not
surprising that it did so. None of this is
probative, however, of whether Caneel and
Rosewood in fact exercised control over
the swimming area. The relevant
documents do not grant control of the
swimming area to Caneel or Rosewood
and, indeed, they reserve that control to the
National Park Service.4 Accordingly, the
absence of a regulation prohibiting Caneel
or Rosewood from hiring a lifeguard is
hardly surprising. The relevant fact is that
there is no evidence suggesting that either
ever asserted control by engaging the
services of a lifeguard for the swimming
area.
Rosewood’s maintenance crew only
maintained the facilities it was authorized
to operate. The only significant testimony
with respect to the clean up of the beach
3.James Bartell, the campground manager
at Cinnamon Bay Campground, testified
with respect to security was as follows:
Q.. . . You said these were
nighttime security [personnel]. Did you
have any security personnel working
during the day?
A.We didn’t, no.
Q. Do you know what time they
would come on in the evening?
A.Generally about five or six
o’clock in the evening.
Q.Would they patrol the beach
area as well as the area around the
cottages?
A.Well, their main responsibility
was for the area around the cottages.
The cottages are permanent tents and our
bare ground camping facility. When they
would look out on the beach to see if
there was anything out there, I’m sure
(continued...)
3.(...continued)
that they would.
Q.Did they walk the beach as part
of their security patrol?
A.I think they could have walked
out onto the beach just as a precaution to
make sure that, you know, our
campground was safe.
App. IV at 191-92.
4.The documents explicitly state that,
consistent with 36 C.F.R. § 1.5, the
National Park Service retains the power
and responsibility to regulate its land for
the safety of visitors, and to take action
— such as beach closures, or use
restrictions — to maintain that safety.

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was the following testimony of Richard
Metcalfe, who ran the water sports center.
Q.Where does he rake the leaves?
A.Well, the leaves come down, he rake
right around the building to try to keep it
clean so we don’t stump our toes on the
tree roots and stuff like that.
Q.Does he do any maintenance on the
beach itself; that is, pick up any leaves,
bottles or anything on the beach?
A.No, I don’t believe he has ever done
that.
Q.Have you?
Did you hear the question?
A.I don’t believe he has ever done that.
Q.I said have you ever done it?
A.Yes.
Q.Does Devon Boulon ever clean up
around the beach?
A.I don’t believe he’s ever done that
either.
Q.How about the others who you
employ?
A.No, I don’t think they ever cleaned
up on the beach.
S.A. at 80-81.5
The only evidence concerning Caneel
and Rosewood personnel and the
swimming area indicated that they would
advise people renting boats of the National
Park Service rule prohibiting the use of
boats in the swimming area and would
secure a commitment that that rule would
be obeyed.6 This would support a finding
5.There is testimony from an NPS
employee, Leon Varlack, that NPS did
not have personnel assigned to clean the
(continued...)
5.(...continued)
beach at Cinnamon Bay. Mr. Varlack,
however, did not claim to have observed
Caneel or Rosewood personnel cleaning
the beach, and his understanding of who
had responsibility for doing so was based
on inadmissible hearsay.
6.Mr. Metcalfe, for example, testified:
Q.Well, I am asking you whether
once a guest rents a kayak or windsurfer
or sailboat, do you monitor their
activities when they are in the water?
For example, if you see them going into
the swimming area, do you advise them
not to do that?
A.We explain it to them
beforehand that park regulations state
that no hard objects are allowed in the
swimming area. We explain to them
where the swimming area is, and then we
have them sign-off on the sign-off
release form that they don’t go into that
area. I don’t have the enforcement
capability.
Q.In the event that people do
[wander] into the swim area, do you
warn them off?
A.No. We would call the ranger
(continued...)

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that Caneel and Rosewood exercised
control with regard to the equipment they
leased pursuant to their authority to
operate a water sports shop; it would not
support a finding that Caneel or Rosewood
exercised control over the swimming area.
The relationship between Caneel and
Rosewood and Fabend while he was
swimming was no different from their
relationship with their other guests when
they were hiking, deep sea fishing, or
swimming on the other side of St. John.
Under the governing law, that relationship
was insufficient to give rise to a duty to
warn on their part.
The evidence Fabend points to as an
indication that Rosewood and Caneel
operated the only amenities on the beach is
not probative on the relevant control issue.
Fabend was not using any equipment at the
time of his accident, much less any
equipment purchased or rented from the
appellees. Furthermore, Fabend’s
contention that defendants “rent the only
cottages on the beach” is also misleading.
The cottages are not on the beach, but on
the campground property adjacent to the
beach, and are part of the concession
contract with the National Park Service.
Similarly, the appellees do not “exclude
non-guests from the beach,” but merely
shut the road to the campground to non-
guests during nighttime hours as is
required by the National Park Service. See
36 C.F.R. § 1.5. As the District Court
observed, appellees do not attempt to
control other methods of accessing the
beach at night. In fact, by law they would
be prevented from doing so. See 12 V.I.C.
§ 402 (guaranteeing public access to the
shorelines of the Virgin Islands).
Fabend also asserts that the appellees
made up rules for the beach, such as
placing a ban on campfires, and enforced
rules such as a ban on boats in the
designated swimming area. But the record
demonstrates that none of these rules are
the appellees’ rules: they are rules
established by the National Park Service
which appellees merely aided in enforcing.
Finally, Fabends’ argument that
appellees treat the beach as their property
when they advertise “our . . . white sandy
beach” in their brochures is unpersuasive.
A common phrase does not create a legal
duty. As the District Court observed,
rhetoric does not establish control and
ownership any more than does an
invitation to enjoy “our gentle trade
winds.”
6.(...continued)
if they would do something silly. Let the
park take care of them.
* * *
Q.Okay. Mr. Rabsatt testified
that at times you even go out in your boat
to inform guests that they were deviating
and going into the swimming area. Is
that true?
A.Yes, there have been times that
I have gone out, not into the swimming
area, because I can’t take my boat into the
swimming area, and I told people that the
park said that they are not supposed to go
in there. I reminded them but again it’s
really – there is nothing I can do about it.
S.A. at 77-78; 78-79.

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Because the evidence establishes that
the beach was not within appellees’ sphere
of control, we hold that they did not have
a legal duty to warn swimmers of the
shorebreak danger. As such, the appellees
are not liable for the injuries Fabend
suffered.
IV.
For the above reasons, we will affirm
the District Court’s grant of summary
judgment in favor of the appellees.

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