De-Jesus-Adorno v. Browning Ferries

• Court: Court of Appeals for the First Circuit
• Decided: November 30, 1998
• Docket: 98-1247
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-1247



              JOSE ENRIQUE DE-JESUS-ADORNO, ET AL.,



                     Plaintiffs, Appellants,



                                v.



     BROWNING FERRIS INDUSTRIES OF PUERTO RICO, INC., ET AL.,



                      Defendants, Appellees.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                 FOR THE DISTRICT OF PUERTO RICO



       [Hon. Jaime Pieras, Jr., Senior U.S. District Judge]


Before



                      Stahl, Circuit Judge,

                     Lipez, Circuit Judge, 

              and Reavley,* Senior Circuit Judge.


Jaime F. Agrait-Llado with whom Francisco Agrait-Oliveras and

Agrait-Llado Law Offices were on brief for appellants.

     Roberto Marquez-Sanchez with whom Law Offices of Benjamin

Acosta, Jr. was on brief for appellees.


November 25, 1998


_____________________

*Of the Fifth Circuit, sitting by designation.

  STAHL, Circuit Judge.  Plaintiff-appellant Jose Enrique

De Jesus Adorno, an employee of Condominium Sky Towers III

("Condominium"), brought this diversity action under Article 1802

of the Civil Code of Puerto Rico, P.R. Laws Ann. tit. 31,  5141

(1991), seeking damages for injuries sustained while attempting to

deposit dirt in a trash container located on the Condominium's

property and serviced by defendant-appellee Browning Ferris

Industries of Puerto Rico, Inc. ("BFI").   Plaintiff appeals from

the district court's decision granting BFI's motion for summary

judgment.  See Adorno v. Browning Ferris Industries of Puerto Rico,

Inc., 992 F. Supp. 121 (D.P.R. 1998).  We affirm.

                         I.  Background

  Consistent with the summary judgment standard, we review

the evidence in the light most favorable to plaintiff.  See Coynev. Taber Partners I, 53 F.3d 454, 457 (1st Cir. 1995).  At all

relevant times, BFI provided garbage disposal services to the

Condominium.  The trash container at the Condominium was located on

a cement platform enclosed on three sides by concrete walls.  The

platform is built into the slope of a small knoll, and the

surrounding walls serve as retaining walls for the soil of the

hill.

  In August 1990, a BFI truck driver hit the back wall

above the cement platform.  As a result of the impact, part of the

wall and some of the soil behind the wall fell into the area of the

platform.  At the Condominium's request, BFI paid for the damage to

the wall, and within a few weeks the wall was repaired.  The person

whom BFI paid to make the repairs failed, however, to adequately

fix a hole in the ground behind the back wall of the trash

container platform, created when the retained soil fell into the

platform area.

     Since late 1990, the Condominium knew of the existence of

the hole.  On July 11, 1991, nearly one year after the wall was

damaged, a resident of the Condominium, Hada Gonzalez, was injured

when her foot slid into the hole as she attempted to dump garbage

into the trash container from behind the wall.   On January 23,

1992, Gonzalez filed a complaint against the Condominium and BFI,

alleging that BFI had created the hole behind the trash container

platform and that her foot slid into that hole, resulting in her

accident.  In October 1993, BFI and the Condominium each agreed to

pay half of Gonzalez's damages, and the suit was settled out of

court.  No action was taken to address the danger created by the

hole. 

     On October 29, 1995, plaintiff, a maintenance employee

for the Condominium, fell into the hole and was injured as he

attempted to deposit a heavy bag of dirt into the trash container. 

On January 27, 1997, plaintiff sued BFI in district court.  

Plaintiff claimed extracontractual negligence under article 1802 of

the Civil Code, and sought relief for physical, economic, and

emotional damages.  Upon the close of discovery, the parties filed

cross-motions for summary judgment.

     On January 8, 1998, the district court granted BFI's

motion for summary judgment and denied plaintiff's motion.  Taking

the facts in the light most favorable to plaintiff, the court ruled

that BFI had no duty to repair the hole that caused plaintiff's

injury, and could not be held liable in negligence for his injury. 

See Adorno, 992 F. Supp. at 125.  This appeal followed.

                    II.  Standard of Review

     Summary judgment is appropriate when the record shows 

"that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law."  Fed.

R. Civ. P. 56(c); see also Coyne, 53 F.3d at 457.  The purpose

underlying summary judgment is "to pierce the pleadings to assess

the proof in order to see whether there is a genuine need for a

trial."  Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.

1990).  A trialworthy issue exists if the evidence is such that

there is a factual controversy pertaining to an issue that may

affect the outcome of the litigation under the governing law, and

the evidence is "sufficiently open-ended to permit a rational

factfinder to resolve the issue in favor of either side."  National

Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.

1995); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

     Appellate review of an order granting summary judgment is

plenary.  See Woods-Leber v. Hyatt Hotels of Puerto Rico, Inc., 124

F.3d 47, 50 (1st Cir. 1997).  In exercising such review, we examine

the record in the light most favorable to the nonmovant, and

indulge all reasonable inferences favorable to that party.  See

id.; Garside, 895 F.2d at 48.  Yet we may "affirm a judgment on any

independently sufficient ground" made manifest by the record. 

Polyplastics, Inc. v. Transconex, Inc., 827 F.2d 859, 860-61 (1stCir. 1987).

                         III.  Analysis

     Plaintiff raises essentially one claim of error on

appeal: that he presented sufficient evidence to support his claim

that BFI was liable on a theory of negligence.  Plaintiff asserts

that BFI was negligent in leaving the hole it created unrepaired. 

BFI counters that it had no duty to repair the hole.   We agree

with BFI that it had no such duty.

     Article 1802 of the Civil Code of Puerto Rico imposes

liability on any person or entity who by an act or omission causes

damage to another through fault or negligence.  See P.R. Laws Ann.

tit. 31,  5141; Valle v. American Int'l Ins. Co., 8 P.R. Offic.

Trans. 735, 738, 108 P.R. Dec. 692 (1979).   "Negligence has been

defined by the Commonwealth courts as the failure to exercise due

diligence to avoid foreseeable risks."  Malave-Felix v. Volvo Car

Corp., 946 F.2d 967, 971 (1st Cir. 1991).  A plaintiff suing for

personal injuries on a negligence theory "under Article 1802 must

establish (1) a duty requiring the defendant to conform to a

certain standard of conduct, (2) a breach of that duty, (3) proof

of damage, and (4) a causal connection between the damage and the

tortious conduct."  Wood-Leber, 124 F.3d at 50; see also Sociedad

de Grananciales v. Gonzalez Padin, 17 P.R. Offic. Trans. 111, 125,

117 P.R. Dec. 94, 105 (1986).      

     In this case, where the allegation is that BFI failed to

repair the hole, we are concerned with an omission.  An omission

gives rise to a cause of action only in cases where there is a

legal duty to act.  See Muniz v. National Can Corp., 737 F.2d 145,

148 (1st Cir. 1984); Zabala Clemente v. United States, 567 F.2d

1140, 1142 (1st Cir. 1977) (applying Puerto Rico law).  Under Puerto

Rico law, a legal duty arises in one of three ways: (1) by a

statute, regulation, ordinance, bylaw or contract; (2) as the

result of  a special relationship between the parties that has

arisen through custom; or (3) as the result of a traditionally

recognized duty of care particular to the situation.  See Saraccov. Consejo de Titulares Del Condominio Coral Beach, No. CIV.91-

2632(JAF), 1993 WL 99274, at *3 (D.P.R. Mar. 18, 1993).  

     Plaintiff's argument is that BFI had a "traditionally

recognized duty" to repair the hole because its negligent act

created the dangerous condition and the negligence of the person

whom BFI paid to make the repairs left the dangerous condition

uncorrected.   We find that the duty of ordinary care required BFI

to compensate the Condominium for the damage to the wall, but did

not vest BFI with a perpetual legal duty to maintain the safety of

the Condominium's property.  We hold that BFI satisfied its duty

when it paid for the damage that its driver's negligence caused,

and that it cannot be held liable, as a matter of law, for

plaintiff's damages.  We explain briefly.

       BFI breached its duty of ordinary care when its driver

damaged the retaining wall.  See P.R. Laws Ann. tit. 31,  5141;

Rivera v. Maryland Cas. Co., 96 P.R. Dec. 600 (1968). This breach

obligated BFI to notify the property owner of the damage and any

attendant dangerous conditions, and to pay for the damage caused by

its driver's negligence.  See P.R. Laws Ann. tit. 31,  5141

(requiring a person who causes damage to another through fault or

negligence to repair the damage).  BFI satisfied its obligation

when it notified the Condominium of the damage and paid for its

repair. 

     At this point, the only duty that remained was the

Condominium's nondelegable duty to maintain its premises in a

reasonably safe condition.  See  Colmenares Vivas v. Sun Alliance

Ins. Co., 807 F.2d 1102, 1107 (1st Cir. 1986); Paredes v. Hilton

Int'l of Puerto Rico, 896 F. Supp. 223, 229 (D.P.R. 1995).  Unlike

the Condominium, once BFI fulfilled its duty of ordinary care it

had no continuing legal duty to ensure the safety of the premises. 

Indeed, BFI could not ensure such safety because it did not have a

continuing right to enter the Condominium's property in order to

effectuate further repairs to the premises.  See Restatement

(Second) of Torts  158 cmt. c, 169 (1965); W. Page Keeton et al.,

Prosser and Keeton on the Law of Torts  13 (5th ed. 1984).  The

Condominium had a duty, instead, to inspect the original repair to

ensure that its premises were reasonably safe.  See Paredes, 896 F.

Supp at 229; Restatement (Second) of Property  17.5 cmt. c, 19.1

cmts. a, b (1977).  If the Condominium was dissatisfied with the

original repair, it should have requested either that BFI

adequately remedy the situation or that BFI compensate it for its

remedial costs.  

     In sum, because BFI had no continuing duty to maintain

the safety of the Condominium's property after it fulfilled its

ordinary duty of care, its failure to repair the hole was not a

negligent omission actionable under Puerto Rico law.IV.  Conclusion

     For the reasons stated above, we affirm the district

court's entry of summary judgment in favor of the defendant. 

     Affirmed.  Costs to appellees.