UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 94-2231
JOHN P. COYNE, ET AL.,
Plaintiffs, Appellants,
v.
TABER PARTNERS I, d/b/a
AMBASSADOR PLAZA HOTEL & CASINO, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Justo Arenas, U.S. Magistrate Judge]
Before
Selya, Cyr and Stahl, Circuit Judges.
Mark S. Shuman, with whom Jose L. Rivero Vergne and Moreda &
Moreda were on brief, for appellants.
Maria Soledad Ramirez-Becerra, with whom Mercado & Soto was
on brief, for appellees.
May 4, 1995
SELYA, Circuit Judge. This negligence action perished SELYA, Circuit Judge.
when the lower court granted a motion for summary judgment.
Discerning error, we resuscitate the suit.1
I. BACKGROUND I. BACKGROUND
Consistent with the summary judgment standard, we limn
the material facts in a light that flatters, but does not
impermissibly distort, the plaintiff's claims.
On July 8, 1992, a local union representing taxi
drivers and tour operators frustrated by competition from hotel-
operated taxis and other amateurs declared a strike that
virtually paralyzed transportation services at San Juan's
principal airport. Despite a beefed-up police presence, strikers
congregated at various points, including Baldorioty de Castro
Avenue (the main thoroughfare leading to and from the airport).2
The labor unrest was open and notorious; reports of the strike
appeared, inter alia, in the July 9 edition of a major newspaper,
the San Juan Star.
Carol Coyne, a resident of Massachusetts, blissfully
unaware of the strike, flew into the airport on July 9. Because
1Nominally, there are two plaintiffs Carol Coyne and her husband, John and two remaining defendants Taber Partners I (Taber), proprietor of the Ambassador Plaza Hotel, and its insurer, United Community Insurance Co. Since John Coyne's claims derive from the injuries that his wife sustained, and since the insurer's liability is coextensive with its insured's, under local law, we treat the appeal as if Carol Coyne and Taber were the sole parties in interest.
2The obstructionist tactics met with some degree of success. For example, the record indicates that strikers thwarted at least one effort to usher tourists away from the airport by van.
she had reserved accommodations at the Ambassador Plaza, Taber
dispatched a driver, Angel Marrero, to transport her from the
airport to the hotel. While waiting for Taber's emissary to
arrive, plaintiff witnessed several confrontations between
strikers and motorists.
Following the same practice he had thrice utilized that
day, Marrero crossed the picket line driving a red Ford rented by
the hotel. When he reached the terminal, he refused to alight
from the vehicle and plaintiff noticed that he seemed frightened.
Once he had collected the plaintiff, other prospective guests,
and their luggage, Marrero headed for the hotel. After the Ford
reached Baldorioty de Castro Avenue, a man stepped in front of it
and blocked its path. Other persons began hurling objects at the
car.3 One such projectile shattered a window and injured the
plaintiff. Marrero eventually managed to extricate the vehicle
from this precarious situation and immediately sought medical
attention for plaintiff.
Some time elapsed. Then, plaintiff, striking a blow of
her own, sued Taber in Puerto Rico's federal district court. See
28 U.S.C. 1332 (1988 & Supp.IV 1992) (stating requirements for
diversity jurisdiction). After preliminary skirmishing, not now
relevant, the court, in the person of a magistrate judge, see 28
U.S.C. 636(c) (1988), granted Taber's motion for brevis
disposition. This appeal ensued.
3A rational factfinder could infer that not only the man who blocked the Ford's path but also the rock-throwers were strikers or strike sympathizers.
II. THE SUMMARY JUDGMENT STANDARD II. THE SUMMARY JUDGMENT STANDARD
The Civil Rules empower a court to grant summary
judgment "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Fed. R. Civ. P. 56(c). We have written
prolifically on the nuances and ramifications of this rule, see,
e.g., National Amusements, Inc. v. Town of Dedham, 43 F.3d 731,
735 (1st Cir. 1995), petition for cert. filed, 63 U.S.L.W. 3736
(U.S. Apr. 4, 1995) (No. 94-1630); Vasapolli v. Rostoff, 39 F.3d
27, 32 (1st Cir. 1994); Dow v. United Bhd. of Carpenters, Etc., 1
F.3d 56, 58 (1st Cir. 1993); Pagano v. Frank, 983 F.2d 343, 347
(1st Cir. 1993); Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791,
793-94 (1st Cir. 1992), cert. denied, 113 S. Ct. 1845 (1993);
United States v. One Parcel of Real Property (Great Harbor Neck,
New Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir. 1992); Rivera-
Muriente v. Agosto-Alicea, 959 F.2d 349, 351-52 (1st Cir. 1992);
Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 7-8 (1st
Cir. 1990); Garside v. Osco Drug, Inc., 895 F.2d 46, 48-49 (1st
Cir. 1990), and it would be pleonastic to rehearse that
jurisprudence here.
For present purposes, it suffices to say that "summary
judgment's role is to pierce the boilerplate of the pleadings and
assay the parties' proof in order to determine whether trial is
actually required." Wynne, 976 F.2d at 794. A Rule 56 motion
may well end the case unless the party opposing it demonstrates
the existence of a trialworthy issue as to some material fact.
Exercising de novo review, see Pagano, 983 F.2d at 347, and
taking the facts (including the reasonable inferences therefrom)
in the light most favorable to the plaintiff, see Rivera-
Muriente, 959 F.2d at 352, we conclude that the evidence of
record in this case is "sufficiently open-ended to permit a
rational factfinder to resolve the [liability] issue in favor of
either side," National Amusements, 43 F.3d at 735. Thus, the
court below terminated the suit prematurely.
III. ANALYSIS III. ANALYSIS
In granting summary judgment, the lower court found
plaintiff's claim wanting in two ways. First, the court ruled
that because the rock-throwing incident took place "outside the
[hotel's] premises," Taber did not owe "a duty to protect and
provide reasonable security measures." Second, the court
reasoned that the harm of which plaintiff complained "was not
foreseeable or causally related to any acts or omissions"
attributable to Taber. We examine each theorem separately.
A. Duty. A. Duty.
The substantive law of Puerto Rico governs the issue of
negligence in this diversity suit. See Erie R.R. v. Tompkins,
304 U.S. 64, 78 (1938); Daigle v. Maine Med. Ctr., Inc., 14 F.3d
684, 689 (1st Cir. 1994). Under Puerto Rico law, negligence
actions generally hark back to article 1802 of the Civil Code,
which imposes liability upon a person who "causes damage to
another party through fault or negligence." P.R. Laws Ann. tit.
31, 5141 (1991). In this instance, plaintiff alleges that
article 1057 of the Civil Code, P.R. Laws Ann. tit. 31, 3021
(1991), excerpted in the margin,4 puts a gloss on article 1802.
Taber demurs, asseverating that article 1057 does not apply. We
agree with plaintiff that, here, article 1057 informs the
operation of article 1802. Compare, e.g., Rivera Perez v. Cruz
Corchado, 87 J.T.S. 51 (1987) (Official English Translation: No.
RE-86-18, slip op. at 8) (discussing interface between articles
1057 and 1802).
It brooks no dispute that article 1057 imposes
liability upon certain establishments, such as hotels, schools,
and hospitals, that fail to provide security commensurate with
the circumstances attendant to their operations. See Estremera
v. Inmobiliaria Rac, Inc., 109 P.R.R. 1150, 1154-55 (1980)
(stating that liability can be found when circumstances create a
demand for greater protection, but the establishment nonetheless
neglects to bolster security). The duty to furnish heightened
security is thought to stem from the character of the enterprise
in which the defendant engages and from the special nature of the
4Article 1057 provides in pertinent part:
The fault or negligence of the debtor consists of the omission of the steps which may be required by the character of the obligation and which may pertain to the circumstances of the persons, time, and place . . . .
P.R. Laws Ann. tit. 31, 3021 (1991).
relationship between the defendant and its invitees. See id. at
1154 (noting that a hotel "basically substitutes [for] a home").
On this rationale, the Commonwealth's courts have made pellucid
that the prospect of criminal activity may give rise to the need
for such an establishment to furnish "a wider scope of protection
and security than can be supplied by law-enforcement agencies."
Id.; accord Elba v. Univ. of P.R., 90 J.T.S. 13 (1990) (Official
English Translation: No. RE-86-214, slip op. at 23) (finding that
university's failure to provide adequate security in a high-risk
rape area gave rise to violent assault of female student).
Notwithstanding these general principles, the
magistrate judge, accepting artificial distinctions drawn by
Taber, ruled that article 1057 landed wide of the mark, and that,
on the facts reflected in the summary judgment record, Taber owed
no duty to furnish security for plaintiff's protection. The
magistrate advanced two theories. Neither holds water.
1. Cabdrivers' Liability. Relying primarily on Jacob 1. Cabdrivers' Liability.
v. Eagle Star Ins. Co., 640 F. Supp. 117 (D.P.R. 1986), the
magistrate posited that, as a matter of law, cabdrivers (and,
ergo, their employers) are not liable to passengers for crimes
committed by third persons. Jacob is not a comfortable fit.
In Jacob, an independent cabdriver transporting fares
from the airport to a hotel paused at a red light. Thieves
rushed the car, held the driver at gunpoint, and attempted to rob
the passengers. In the commotion that ensued, a passenger was
shot. See id. at 118. The district court concluded on the
particular facts of the case that a cabdriver had no duty to
guard against third-party criminal activity. See id. at 119. In
reaching its decision the court noted that "[u]nlike a hotel . .
. the nature of [defendant's] business does not demand special
security measures." Id.
Here, however, unlike in Jacob, the defendant is a
hotel, albeit one that is being sued because it elected to
furnish transportation services ancillary to its principal
business. Moreover, unlike in Jacob, where the court emphasized
that the cabdriver was "a public carrier for hire," id., the
operator of the vehicle rented to Taber was not a common carrier
(or even a cabdriver) but an employee of the hotel, performing a
private service for a private purpose. Thus, though Coyne was in
a car, she was just as much a ward of the hotel as if she was in
her suite or in the lobby.
Even assuming, then, that taxicab operators are not
within the reach of article 1057 a matter on which we take no
position we are of the opinion that the defendant here must be
viewed as an innkeeper rather than as a taxicab operator. It
follows, therefore, that the magistrate's reliance on Jacob does
not resonate with the issue of duty in the instant case.
2. Locus. Though Jacob is inapposite, the 2. Locus.
magistrate's opinion raises another question about the existence
of an actionable duty. This question emanates from a dictum in
Chapman v. E.S.J. Towers, Inc., 803 F. Supp. 571 (D.P.R. 1992).
There, the court refused to grant summary judgment, finding the
defendant hotel potentially liable for the injuries sustained by
the plaintiff guest as a result of third-party criminal activity.
See id. at 575. Nevertheless, Judge Perez-Gimenez wrote: "Had
the situs of the crime in this case been a place other than the
hotel premises, the Court might not have been hesitant in
granting the defendants' motions . . . ." Id. Citing this
dictum, the magistrate suggested that, even if Taber owed a duty
to provide heightened security qua transporter, that duty
obtained only as to acts that occurred on the hotel's premises.
We place no weight on this slender reed. It is not the
physical locus of the act, stricto senso, that gives rise to the
hotelier's duty to furnish heightened security. Rather, the
touchstone of the duty consists in roughly equal parts of the
hotel's special relationship with its guests, its knowledge of
incipient peril, and its ability to exercise a meaningful degree
of control over the situation, regardless of the situs.
We think this approach is compelled by the reasoning of
the Puerto Rico Supreme Court in Elba. There, the court anchored
the University's duty to provide adequate security to persons
with whom it had a special relationship (students) in knowledge
the "previous occurrence of similar criminal acts [and] the fact
that university authorities knew or should have known about them"
coupled with the nonperformance of acts within the defendant's
control "the failure to eliminate conditions that may give rise
to sexual assaults; the total absence of a priority system to
protect the students; and lack of adequately trained security
personnel." Elba, supra, slip op. at 16. Though the rape in
Elba occurred on the campus, we believe that the court's
reasoning clearly indicates that the tri-cornered combination of
affinity, knowledge, and control, rather than a one-dimensional
location test, is the key to determining whether a duty to
provide security exists.
So it is here. Affinity is a given; Taber and the
plaintiff were admittedly in a host-guest relationship.
Knowledge exists, at least to the extent that, as we demonstrate
infra, a reasonable jury could find that Taber knew (or should
have known) of the strike and the likelihood of violence that it
portended. Similarly, a jury could find that Taber had the
requisite degree of control; it employed the driver, rented the
car, made the transportation arrangements with newly arriving
guests, honored Coyne's reservation, dispatched the vehicle, and
selected the route. This combination of affinity, knowledge, and
control is sufficient to trigger a legally enforceable duty.
We have said enough on this score. Bearing in mind
"the circumstances of the persons, time, and place," we think a
jury could supportably find that a duty to provide security arose
under P.R. Laws Ann. tit. 31, 3021. See Estremera, 109 P.R.R.
at 1154 (stating that a duty to provide additional security may
arise when the circumstances so warrant); see also Rivera Perez,
supra, slip op. at 8. And since there is no evidence at this
stage that Taber employed any special security precautions, we
believe that a jury, not a judge, ought to say whether Taber
failed to take steps that its duty required.5 See Negron v.
Orozco Rivera, 113 P.R.R. 921, 929 (1983).
B. Foreseeability. B. Foreseeability.
Even if a jury could find that Taber violated a duty
owed to plaintiff, a breach of duty is not actionable absent a
causal relationship between the breach and the ensuing harm. See
Elba, supra, slip op. at 12. "[F]or this causal relation to
exist the damage must have been foreseeable and avoidable had the
omitted action been timely taken." Id.; see also Malave-Felix v.
Volvo Car Corp., 946 F.2d 967, 972 (1st Cir. 1991) (noting that
foreseeability serves as the "linchpin" for establishing tort
liability under Puerto Rico law). In Puerto Rico, "the rule of
foreseeability does not mean that the precise risk or the exact
result which was encountered should have been foreseen. The
essential factor is to be under a duty to foresee, in a general
way, consequences of a particular type." Gines v. Aqueduct &
Sewer Auth., 86 P.R.R. 490, 496 (1962) (citing 2 Harper and
James, The Law of Torts 1147 (1956)) (emphasis supplied).
In most situations, causation questions are both
factbound and case-specific. Thus, such questions ordinarily are
grist for the factfinder's mill. See, e.g., Peckham v.
Continental Cas. Ins. Co., 895 F.2d 830, 837 (1st Cir. 1990);
Swift v. United States, 866 F.2d 507, 510-11 (1st Cir. 1989);
Springer v. Seamen, 821 F.2d 871, 876 (1st Cir. 1987). Puerto
5We do not decide today that Taber could, or should, have taken any particular security precautions. We hold only that it is for the jury, not the judge, to make this determination.
Rico follows this general trend. See, e.g., Quinones-Pacheco v.
American Airlines, Inc., 979 F.2d 1, 5-6 (1st Cir. 1992)
(applying Puerto Rico law); Marshall v. Perez Arzuaga, 828 F.2d
845, 847-48 (1st Cir. 1987) (applying Puerto Rico law), cert.
denied, 484 U.S. 1065 (1988).
This does not mean that foreseeability is always a jury
question. To establish the foreseeable character of an event,
the evidence must be such that the factfinder rationally can
conclude that the risk complained of is among the universe of
risks recognizable by reasonably prudent persons acting with due
diligence under the same or similar circumstances. See Pacheco
v. Puerto Rico Water Resources Auth., 112 D.P.R. 367, 372 (1982);
Jimenez v. Pelegrina, 112 P.R.R. 881, 886 (1982). Because a
defendant "will not be relieved of liability by an intervening
cause which could reasonably have been foreseen, nor by one which
is a normal incident of the risk created," Widow of Andino v.
Puerto Rico Water Resources Auth., 93 P.R.R. 168, 178 (1966),
criminal acts of third parties sometimes can fall within the
ambit of foreseeability. See Chapman, 803 F. Supp. at 573; Elba,
supra, slip op. at 23; Negron, 113 P.R.R. at 927-28; Estremera,
109 P.R.R. at 1157 n.6. Accordingly, the issue we must decide is
whether the facts and circumstances of this case permit a
factfinder plausibly to infer a foreseeable risk of episodic
violence. See Rivera Perez, supra, slip op. at 8 ("If the fault
or negligence on which the liability of 1802 is predicated
consists, pursuant to 1057, in the failure to be diligent
according to particular circumstances, . . . 1802 inevitably
centers around the function of the person's foresight, as [the]
controlling factor of [defendant's] liability. . . .") (quoting
Rivera v. Maryland Cas. Co., 96 P.R.R. 788, 791 (1968)).
The magistrate concluded that violence was not
reasonably foreseeable. Though he may, in the end, prove to be
an accurate prophet as a matter of decided fact only a jury can
answer that question definitively courts are constrained by
Rule 56 to draw all reasonable inferences in the nonmovant's
favor. See National Amusements, 43 F.3d at 735. On this basis,
the current posture of the case demands that we reject the
magistrate's conclusion as a matter of law. We explain briefly.
Both parties place great weight upon the fact that
Marrero drove to and from the airport three times on July 9, in
the same red Ford, transporting other, earlier-arriving hotel
guests without incident. Taber argues that, since the driver had
traversed the route in safety on these previous occasions, it
could not have foreseen the violent reception that awaited the
plaintiff. Coyne parries this thrust by asserting that, in
ordering Marrero to drive through the airport a fourth time in
the same easily recognizable automobile, on the very sort of
errand that prompted the strike, the hotel should have realized
that it was tempting fate. In short, defendant uses the earlier
trips as evidence that peril was not foreseeable, whereas
plaintiff uses them not only as evidence of discernible danger
but also to show that Taber's activity in fact catalyzed the
harm-producing event.
Both of these scenarios are plausible from a factual
standpoint. For present purposes, that ends the inquiry: when
the facts support plausible but conflicting inferences on a
pivotal issue in the case, the judge may not choose between those
inferences at the summary judgment stage. See, e.g., Greenburg
v. Puerto Rico Maritime Shipping Auth., 835 F.2d 932, 937 (1st
Cir. 1987) (explaining that, if the evidence conflicts, "the
ultimate arbiter of the persuasiveness of the proof must be the
factfinder, not the lawgiver").
Taber has a fallback position. It argues that the
incident was not foreseeable because it lacked knowledge of the
strike's explosive nature. This, too, seems sufficiently
factbound to warrant jury consideration. To be sure, the attack
on the Ford may have been the first incident of its kind during
the July strike but that happenstance is not dispositive. If a
dog has vicious propensities, even the first bite may well be
foreseeable. "It is no defense to allege that the precise course
or the full extent of the consequences could not be foreseen, the
consequences being of such kind, which in fact happened." Gines,
86 P.R.R. at 496.
Here, the strike was no secret. The strikers'
propensities were fairly evident. The jury could find that the
article in the San Juan Star furnished constructive notice of the
tense circumstances and the potential for violence.6 The
plaintiff's observation of events at the airport before Marrero
arrived lends some slight support to the inference that the rock-
throwing incident was foreseeable. So does the evidence anent
the driver's demeanor.
Another piece of evidence is potentially significant.
In opposing summary judgment, plaintiff submitted the affidavit
of Capt. Hector Mercado Santini, a security consultant.
Plaintiff's expert noted that violence commonly accompanies labor
disputes in Puerto Rico and that this tendency is well known.
He cited violent incidents that had occurred during earlier
strikes at the airport (including strikes called by the taxi
drivers' union). He expressed the opinion that Taber acted
irresponsibly in thrice sending the same driver in the same car
on the same errand on the same day across the picket line.7
6Taber argues that this article is hearsay evidence that should be excluded from consideration. This argument overlooks that plaintiff did not offer the article for the truth of the matter asserted, but, rather, as tending to establish that the hotel's management knew or should have known of the volatile nature of the labor protest. The proffer was admissible for this purpose. See, e.g., Price v. Rochford, 947 F.2d 829, 833 (7th
Cir. 1991) (deeming newspaper articles admissible because plaintiff "did not offer the articles to prove that he was in bankruptcy, only that he was reported to have been in bankruptcy)
(emphasis in original); see generally Fed. R. Evid. 801(c)
(defining hearsay as "a statement . . . offered in evidence to prove the truth of the matter asserted").
7Citing Casas Office Machs., Inc. v. Mita Copystar, Inc., 42
F.3d 668 (1st Cir. 1994), Taber argues that the expert's affidavit should not be considered. This argument is unconvincing. In Casas, we confirmed that a district court had
discretion to exclude expert opinion testimony based on a speculative foundation. See id. at 681-83. Here, however, the
lower court did not exclude the expert's affidavit. Indeed, it
These items of evidence, taken collectively,
distinguish this case from Rivera Perez, supra, slip op. at 8
(finding wife not liable for ex-husband's attack on house guest
because she lacked knowledge of his criminal predisposition) and
Estremera, 109 P.R.R. at 1158 (finding criminal attack would have
occurred regardless of whether defendant provided stairwell
lighting), and make it more akin to Elba, supra, slip op. at 20
(concluding that circumstances made sexual assault of female
student foreseeable because school officials had knowledge of
high-risk rape area) and Negron, 113 P.R.R. at 928 (holding that
a reasonable person would have foreseen criminal act in police
station, given the known presence of a violent individual).
Taking the facts favorably to the plaintiff, we believe that a
jury reasonably could find that plaintiff's injuries were a
generally foreseeable consequence of Taber's decision repeatedly
to shuttle guests between the airport and the hotel in the same
distinctive private car, chauffeured by the same lone driver, at
the height of the strike, without taking any particular security
precautions. Put another way, the case at hand yields an issue
of foreseeability upon which reasonable minds might differ.
Summary judgment is, therefore, inappropriate.
IV. CONCLUSION IV. CONCLUSION
We need go no further. Viewing the evidence in the
light most congenial to the plaintiff, a rational jury could find
all the elements of a viable cause of action: duty, breach,
never reached the issue.
causation, and foreseeable harm. Thus, the plaintiff is entitled
to present her case at a full-dress trial.
Reversed and remanded for further proceedings. Reversed and remanded for further proceedings.