Banks analysis in Virgin Islands

2023In one case, the court performed a Banks analysis, see Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967, 984 (V.I. 2011), and concluded that: A defendant will be liable to a plaintiff for trespass if the defendant: (1) intentionally enters onto the plaintiff’s property without the plaintiff’s permission; (2) remains on plaintiff’s property without plaintiffs permission; (3) places something on the plaintiff’s property without the plaintiff’s permission; or (4) removes something from the plaintiff’s property without the plaintiff’s permission.

2023In other words, a Banks analysis “involves more than simply the rote counting of judicial decisions,” id. at ¶ 29, but rather comprehends a “holistic” consideration of the aim served by each factor.9 ¶ 15 With respect to the first factor—the adoption of a particular rule by other Virgin Islands courts—we seek “to determine the extent, if any, that the legal community and the public have grown to rely upon and potentially shape their conduct by a given rule.” Robertson, 2023 VI at ¶ 30 (citing Banks, 55 V.I. at 985 & n.10).

2023“The second step — determining the position taken by a majority of courts from other jurisdictions — directs the Superior Court to consider all potential sides of an issue by viewing the potentially different ways that other states and territories have resolved a particular question. . . .Finally, the third step in the Banks analysis — identifying the best rule for the Virgin Islands — mandates that the Superior Court weigh all persuasive authority both within and outside the Virgin Islands and determine the appropriate common law rule based on the unique characteristics and needs of the Virgi

2023“The second step — determining the position taken by a majority of courts from other jurisdictions — directs the Superior Court to consider all potential sides of an issue by viewing the potentially different ways that other states and territories have resolved a particular question. . . .Finally, the third step in the Banks analysis — identifying the best rule for the Virgin Islands — mandates that the Superior Court weigh all persuasive authority both within and outside the Virgin Islands and determine the appropriate common law rule based on the unique characteristics and needs of the Virgi

2016But, before we do so, because the jury was instructed on the doctrine of res ipsa loquitur using the word-for-word language of the Restatement of Torts’ doctrine of res ipsa loquitur 7 and in the interest of judicial economy, we consider whether the doctrine represents the soundest rule for the Virgin Islands. 8 Simon v. Joseph, 59 V.I. 611, 622 (V.I. 2013) (citing Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967, 979 (V.I. 2011) (outlining the three-factor analysis to determine sound Virgin Islands’ common law)); Gov’t of the V.I. v. Connor, 60 V.I. 597, 603 (V.I. 2014) (determining that th

2016But, before we do so, because the jury was instructed on the doctrine of res ipsa loquitur using the word-for-word language of the Restatement of Torts’ doctrine of res ipsa loquitur 7 and in the interest of judicial economy, we consider whether the doctrine represents the soundest rule for the Virgin Islands. 8 Simon v. Joseph, 59 V.I. 611, 622 (V.I. 2013) (citing Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967, 979 (V.I. 2011) (outlining the three-factor analysis to determine sound Virgin Islands’ common law)); Gov’t of the V.I. v. Connor, 60 V.I. 597, 603 (V.I. 2014) (determining that th

2014Therefore, to determine the appropriate common law rule, we must perform a Banks analysis, in which we consider “three non-dispositive factors: (1) whether any Virgin Islands courts have previously adopted a particular rule; (2) the position taken by a majority of courts from other jurisdictions; and (3) most importantly, which approach represents the soundest rule for the Virgin Islands.” Simon v. Joseph, 59 V.I. 611, 623 (V.I. 2013) (citing Matthew v. Herman, 56 V.I. 674, 680-81 (V.I. 2012)).

2014Therefore, to determine the appropriate common law rule, we must perform a Banks analysis, in which we consider “three non-dispositive factors: (1) whether any Virgin Islands courts have previously adopted a particular rule; (2) the position taken by a majority of courts from other jurisdictions; and (3) most importantly, which approach represents the soundest rule for the Virgin Islands.” Simon v. Joseph, 59 V.I. 611, 623 (V.I. 2013) (citing Matthew v. Herman, 56 V.I. 674, 680-81 (V.I. 2012)).

2015To perform a Banks analysis, the Court first “examines] which common law rule Virgin Islands courts have applied in the past; next identifies] the rule adopted by a majority of courts of other jurisdictions; and then finally — but most importantly — determines] which common law rule is soundest for the Virgin Islands.” Id.

2015To perform a Banks analysis, the Court first “examines] which common law rule Virgin Islands courts have applied in the past; next identifies] the rule adopted by a majority of courts of other jurisdictions; and then finally — but most importantly — determines] which common law rule is soundest for the Virgin Islands.” Id.

2025Wilkinson v. Wilkinson, 70 V.I. 901 , 907 (V.I. 2019) (observing that “[w]hen addressing issues of Virgin Islands common law that this Court has yet to address using the Banks framework, the Superior Court must engage in the three-factor analysis outlined in Banks,” and that “the Superior Court err[s] in relying on [case law] without conducting a Banks analysis”) (citing King v. Appleton, 61 V.I. 339, 349 (V.I. 2014) and Better Bldg.

2025Wilkinson v. Wilkinson, 70 V.I. 901 , 907 (V.I. 2019) (observing that “[w]hen addressing issues of Virgin Islands common law that this Court has yet to address using the Banks framework, the Superior Court must engage in the three-factor analysis outlined in Banks,” and that “the Superior Court err[s] in relying on [case law] without conducting a Banks analysis”) (citing King v. Appleton, 61 V.I. 339, 349 (V.I. 2014) and Better Bldg.

2025Machado, 61 V.I. at 379 (noting that a Banks analysis is not necessary because the definition of consideration is widely accepted).

2025Machado, 61 V.I. at 379 (noting that a Banks analysis is not necessary because the definition of consideration is widely accepted).

2023See, e.g., Donastorg v. Daily News Publ'g Co., Inc., 63 V.I. 196, 329-30 (Super.

2023See, e.g., Donastorg v. Daily News Publ'g Co., Inc., 63 V.I. 196, 329-30 (Super.

2023Accord, Browne v. Gore, 57 V.I. 445 , 453 n.5 (V.I. 2012) (the Supreme Court “could, in the interests of judicial economy, exercise [its] discretion to address [an] issue as part of [an] appeal, as [has been] done in other cases in which [the] Court applies the same legal standard as a Superior Court judge”) (collecting cases). ¶ 14 To ascertain the elements of trespass, we must—as with every other common law rule— consider and weigh the three Banks factors: “(1) whether any Virgin Islands courts have previously 8 We acknowledge that performing a Banks analysis—or considering any issue of firs

2023Accord, Browne v. Gore, 57 V.I. 445 , 453 n.5 (V.I. 2012) (the Supreme Court “could, in the interests of judicial economy, exercise [its] discretion to address [an] issue as part of [an] appeal, as [has been] done in other cases in which [the] Court applies the same legal standard as a Superior Court judge”) (collecting cases). ¶ 14 To ascertain the elements of trespass, we must—as with every other common law rule— consider and weigh the three Banks factors: “(1) whether any Virgin Islands courts have previously 8 We acknowledge that performing a Banks analysis—or considering any issue of firs

2023See Carty, 679 F.2d at 1065 (“Thus, we hold that when a commercial entity sues for tortious injury to its physical property, the ‘injury’ takes place for jurisdictional purposes where the property has been damaged.”) Here, neither side addressed where an economic injury to a corporation occurs, which would require a separate Banks analysis if the District Court is correct that there are majority and minority approaches.

2023See Carty, 679 F.2d at 1065 (“Thus, we hold that when a commercial entity sues for tortious injury to its physical property, the ‘injury’ takes place for jurisdictional purposes where the property has been damaged.”) Here, neither side addressed where an economic injury to a corporation occurs, which would require a separate Banks analysis if the District Court is correct that there are majority and minority approaches.

2023The court then pointed out that a Banks analysis was necessary, see id. at 426-27 , but in a footnote—the footnote the PIMCO Defendants cite—the court criticized the parties for failing to conduct a Banks analysis.

2023The court then pointed out that a Banks analysis was necessary, see id. at 426-27 , but in a footnote—the footnote the PIMCO Defendants cite—the court criticized the parties for failing to conduct a Banks analysis.

2023Nevertheless, this Court, exercising its discretion in the interest of judicial economy, has overlooked that error and, after conducting the required Banks analysis, reaffirms that the approach first announced in Hodge v. McGowan, 50 V.I. 296, 306 (V.I. 2008), adopting the factors identified in the Restatement (Second) of Torts § 158 (1965), is the soundest rule for the Virgin Islands.

2014See, e.g., Matthew, 56 V.I. at 681-84 (performing such an analysis on appeal when Superior Court opinion pre-dated Banks); accord Browne v. Gore, 57 V.I. 445 , 453 n.5 (V.I. 2012) (the Supreme Court “could, in the interests of judicial economy, exercise [its] discretion to address [an] issue as part of [an] appeal, as [has been] done in other cases in which [the] Court applies the same legal standard as a Superior Court judge”) (citing United Corp. v. Tutu Park Ltd., 55 V.I. 702 , 708 n.3 (V.I. 2011), Martin v. Martin, 54 V.I. 379, 385 (V.I. 2010), and Hodge v. McGowan, 50 V.I. 296, 310-11 (V.

2023Mgmt., Inc., et al., Case No. SX-2018-CV-0014 2023 VI Super 75 Memorandum Opinion Page 147 of 186 by a party to be estopped.”); see Sarauw v. Fawkes, 66 V.I. 253, 260-65 (2017) (conducting a Banks analysis on judicial estoppel); see also 3RC & Co. v. Boynes Trucking Sys., 63 V.I. 544, 551-52 (2015) (conducting a Banks analysis to determine the proper injunction standard).

2023Mgmt., Inc., et al., Case No. SX-2018-CV-0014 2023 VI Super 75 Memorandum Opinion Page 147 of 186 by a party to be estopped.”); see Sarauw v. Fawkes, 66 V.I. 253, 260-65 (2017) (conducting a Banks analysis on judicial estoppel); see also 3RC & Co. v. Boynes Trucking Sys., 63 V.I. 544, 551-52 (2015) (conducting a Banks analysis to determine the proper injunction standard).

2023Mgmt., Inc., et al., Case No. SX-2018-CV-0014 2023 VI Super 75 Memorandum Opinion Page 147 of 186 by a party to be estopped.”); see Sarauw v. Fawkes, 66 V.I. 253, 260-65 (2017) (conducting a Banks analysis on judicial estoppel); see also 3RC & Co. v. Boynes Trucking Sys., 63 V.I. 544, 551-52 (2015) (conducting a Banks analysis to determine the proper injunction standard).

2023Mgmt., Inc., et al., Case No. SX-2018-CV-0014 2023 VI Super 75 Memorandum Opinion Page 147 of 186 by a party to be estopped.”); see Sarauw v. Fawkes, 66 V.I. 253, 260-65 (2017) (conducting a Banks analysis on judicial estoppel); see also 3RC & Co. v. Boynes Trucking Sys., 63 V.I. 544, 551-52 (2015) (conducting a Banks analysis to determine the proper injunction standard).

2023The first Virgin Islands case to address civil conspiracy was Cooper v. Vitraco, Inc., 8 V.I. 112, 120 (D.V.I. 1970), in which the District Court denied a motion to dismiss, explaining that “[c]ivil conspiracy consists of an agreement or combination to perform a wrongful act that results in damage to the plaintiff.” The court relied partly on the Restatement (First) of Torts.

2023The first Virgin Islands case to address civil conspiracy was Cooper v. Vitraco, Inc., 8 V.I. 112, 120 (D.V.I. 1970), in which the District Court denied a motion to dismiss, explaining that “[c]ivil conspiracy consists of an agreement or combination to perform a wrongful act that results in damage to the plaintiff.” The court relied partly on the Restatement (First) of Torts.

2016The majority of jurisdictions still consider pension or retirement benefits earned during the marriage to be marital property subject to division by the court in a divorce action. 11 In addition, there are a number of states that explicitly define retirement or pension benefits as marital property via statute. 12 While case law from jurisdictions that rely on statutes to define pensions or retirement benefits as marital property is not applicable in a Banks analysis, see Malloy, 61 V.I. 163 , cases decided prior to the enactment of a statute defining pension or retirement benefits as marital p

2016The majority of jurisdictions still consider pension or retirement benefits earned during the marriage to be marital property subject to division by the court in a divorce action. 11 In addition, there are a number of states that explicitly define retirement or pension benefits as marital property via statute. 12 While case law from jurisdictions that rely on statutes to define pensions or retirement benefits as marital property is not applicable in a Banks analysis, see Malloy, 61 V.I. 163 , cases decided prior to the enactment of a statute defining pension or retirement benefits as marital p

2016The Court need not conduct the three factor analysis required by Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967 (V.I. 2011) because the issue presented here involves the interpretation of a Virgin Islands statute. “[W]hen dealing with the interpretation of a Virgin Islands statute, courts must utilize the canons of statutory construction defined by this Court and the Virgin Islands Code in order to determine the intent of the Legislature — which must control over any common-law authority that would be the focus of a Banks analysis.” In re L.O.F., 62 V.I. 655 , 661 n.6 (V.I. 2015) (citing B

2016The Court need not conduct the three factor analysis required by Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967 (V.I. 2011) because the issue presented here involves the interpretation of a Virgin Islands statute. “[W]hen dealing with the interpretation of a Virgin Islands statute, courts must utilize the canons of statutory construction defined by this Court and the Virgin Islands Code in order to determine the intent of the Legislature — which must control over any common-law authority that would be the focus of a Banks analysis.” In re L.O.F., 62 V.I. 655 , 661 n.6 (V.I. 2015) (citing B

2024Inniss v. Inniss, 65 V.I. 270 , 280 n.7 (V.I. 2016). ¶ 21 In conducting a Banks analysis, a court must “consider three non-dispositive factors: (1) Mosler et al. v. Gerace et al. 2024 VI 1 S. Ct. Civ.

2024Inniss v. Inniss, 65 V.I. 270 , 280 n.7 (V.I. 2016). ¶ 21 In conducting a Banks analysis, a court must “consider three non-dispositive factors: (1) Mosler et al. v. Gerace et al. 2024 VI 1 S. Ct. Civ.

2017It concluded that the best rule for the Virgin Islands was to continue following the Territorial Court’s decision in Fuentes v. Fuentes. 38 V.I. 29, 40 (V.I.

2017It concluded that the best rule for the Virgin Islands was to continue following the Territorial Court’s decision in Fuentes v. Fuentes. 38 V.I. 29, 40 (V.I.

2015See King v. Appleton, 61 V.I. 339, 349 (V.I. 2014) (explaining that, “because [the Supreme Court] has yet to determine the elements of an express trust at common law under the appropriate analysis, the Superior Court erred in applying a common law rule without examining the Banks factors”). 58 V.I. 431 (V.I. 2013).

2015See King v. Appleton, 61 V.I. 339, 349 (V.I. 2014) (explaining that, “because [the Supreme Court] has yet to determine the elements of an express trust at common law under the appropriate analysis, the Superior Court erred in applying a common law rule without examining the Banks factors”). 58 V.I. 431 (V.I. 2013).

2014See, e.g., Perez v. Ritz-Carlton (V.I.), Inc., 59 V.I. 522 , 529 n.5 (V.I. 2013) (noting thatpre-Banfa decision adopting Restatement (Second) OF Torts § 343 had relied on 1 V.I.C. § 4 and may require reconsideration in a future case); Joseph v. Daily News Publishing Co., 57 V.I. 566 , 585 n. 10 (V.I. 2012) (considering Banks factors with respect to whether to continue to follow pre-Banks decision that had adopted Restatement (Second) of Torts § 558 based solely on 1 V.I.C. § 4).

2014See, e.g., Perez v. Ritz-Carlton (V.I.), Inc., 59 V.I. 522 , 529 n.5 (V.I. 2013) (noting thatpre-Banfa decision adopting Restatement (Second) OF Torts § 343 had relied on 1 V.I.C. § 4 and may require reconsideration in a future case); Joseph v. Daily News Publishing Co., 57 V.I. 566 , 585 n. 10 (V.I. 2012) (considering Banks factors with respect to whether to continue to follow pre-Banks decision that had adopted Restatement (Second) of Torts § 558 based solely on 1 V.I.C. § 4).

2026Comm’n of the U.S.V.I., 56 V.I. 391, n. 8 (V.I. 2012) (deeming a one- sentence argument as waived); Constr.

2025John Owners’ Ass'n, 71 V.1. 1119, 1127 (V.1 2019) (citing Beachside Assocs., LLC v. Fishman, 53 V.I. 700, 713 (V.I. 2010)).

2025John Owners’ Ass'n, 71 V.1. 1119, 1127 (V.1 2019) (citing Beachside Assocs., LLC v. Fishman, 53 V.I. 700, 713 (V.I. 2010)).

2025Therefore, generally, agency law bars personal liability on the basis that the agent delegated the duty failed to maintain a safe workplace on behalf of the employer See Simmons, 498 S.E.2d at 412 (‘The real effect of finding a duty to be nondelegable is to render not the duty, but the liability, not delegable.”).