Mas v. U.S.

• Court: Court of Appeals for the First Circuit
• Decided: January 28, 1993
• Docket: 92-1392
• Status: Published

Opinion

USCA1 Opinion

January 28, 1993
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

          No. 92-1392

                                    ISABELITA MAS,

                                Plaintiff, Appellant,

                                          v.

                          UNITED STATES OF AMERICA, ET AL.,

                                Defendants, Appellees.

                                 ___________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                       [Hon. Gene Carter, U.S. District Judge]
                                          ___________________

                                 ____________________

                                        Before

                              Torruella, Circuit Judge,
                                         _____________

                           Campbell, Senior Circuit Judge,
                                     ____________________

                              Skinner,* District Judge.
                                        ______________

                                 ____________________

                Jos  A. Fuentes-Agostini, with whom Dom nguez & Totti, were
                ________________________            _________________
          on brief for appellant.
                Fidel  A.   Sevillano-Del  R o,  Assistant   United  States
                ______________________________
          Attorney, with whom Daniel F. L pez-Romo, United States Attorney,
                              ____________________
          was on brief for appellee United States of America.

                                 ____________________

____________________
                              
          ____________________

          *  Of the District of Massachusetts, sitting by designation.

TORRUELLA, Circuit  Judge.  This appeal  requires us to
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          delve  into the  tort law  of Puerto  Rico.   Appellant  sued the

          United  States pursuant to the Federal  Tort Claims Act ("FTCA"),

          28 U.S.C.   2671 et seq., for damages arising out  of a slip-and-
                           _______

          fall accident.    The district  court judge  dismissed the  suit,

          finding that appellant failed to establish any negligence leading

          to  the  accident.   Appellant contends  that the  district court

          judge  incorrectly construed  Puerto Rico  law in  requiring that

          showing.  We disagree with appellant and thus affirm.

                                      THE FACTS
                                      THE FACTS
                                      _________

                    The facts are rather simple.  Appellant was shopping at

          the  army commissary in Fort Buchanan,  Puerto Rico.  Approaching

          the checkout counter with her groceries, she slipped on some milk

          and sustained  serious  injuries.   Several  people came  to  her

          assistance,  including  a  commissary  employee.    According  to

          appellant, the employee  indicated that she  knew about the  milk

          prior to the accident and expressed regret at not  cleaning it up

          earlier.     The  employee,  Ms.  Toledo,   denies  making  these

          statements or to having any knowledge  of the spilt milk prior to

          the accident.  

                    Appellant filed an FTCA  claim against United States in

          the  District  Court of  Puerto Rico.   As  the FTCA  directs the

          district court  to  employ local  tort  law, the  district  court

          applied the laws of Puerto Rico.    The district court judge thus

          found that appellant  was a  business invitee  at the  commissary

          because she was a  shopper.  The district court  judge also found

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that  local   law  required  appellant  to   establish  that  the

          commissary was  negligent before  the commissary could  be liable

          for her injuries.  Specifically, the district court judge imposed

          upon the plaintiff the burden of showing that the store owner had

          actual or constructive notice of the dangerous condition and time

          to cure it.

                    After hearing  from the  witnesses at the  bench trial,

          the district  court judge determined that  there was insufficient

          evidence  to show  negligence by  the commissary.   The  district

          court  judge found the testimony of Ms. Toledo more credible than

          the testimony of appellant  as to whether the commissary  knew of

          the milk.   Lacking such  evidence, the district  court dismissed

          appellant's claim.

                                    LEGAL ANALYSIS
                                    LEGAL ANALYSIS
                                    ______________

                    The  issue in  this  case is  whether  Puerto Rico  law

          imposes a burden upon business invitees  who suffered a slip-and-

          fall  to  show  that the  store  owner  possessed  notice and  an

          opportunity to cure.  Puerto  Rico law is unclear on  this point.

          We therefore trace the  development of Puerto Rico law  to divine

          the  result that the Puerto Rico Supreme Court would have reached

          in this case.  

                    Our analysis  begins with  the Puerto Rico  civil code.

          Section 5141 provides that "[a] person who by an act or  omission

          causes  damage to  another through  fault or negligence  shall be

          obliged to repair the  damage so done.  Concurrent  imprudence of

          the party aggrieved does not exempt from liability, but entails a

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reduction of  the indemnity."   P.R. Laws  Ann. tit.  31,    5141

          (1991).   The statute does not define  "fault or negligence" in a

          business  invitee  slip-and-fall situation,  but the  Puerto Rico

          Supreme Court has addressed this issue on several occasions.  The

          Court's pronouncements, however, have  been inconsistent.  We are

          required to analyze the cases in an attempt to  reach the correct

          result in this case.  We proceed in chronological order.

                    We  begin with Guti rrez v. Bahr, 78 D.P.R. 473, 474-75
                                   _________    ____

          (1955), in which  a man was injured  in a watch repair  shop by a

          fan.    From  these  facts  the Court  set  forth  the  two basic

          principles  behind     5141.     First,  as  a  "universal  legal

          principle,"  store owners  must  maintain their  store in  a safe
                                     ____

          condition for any person induced to enter.  Id. at  474.  Second,
                                                      ___

          the  duty only extends  to acts or omissions  caused by "fault or

          negligence."  Id.   In Guti rrez, the Court found  that the store
                        ___      _________

          owner  was negligent in maintaining the fan, as the fan presented

          an unreasonable  risk  of danger  to  invitees.   While  shedding

          little   light  on  the   instant  slip-and-fall  situation,  the

          underpinning  of     5141  set  forth  in  Guti rrez  has  guided
                                                     _________

          subsequent decisions on business invitee torts by the Puerto Rico

          Court.  

                    The  Court followed  the  instruction  of Guti rrez  in
                                                              _________

          Goose v. Hilton Hotels,  79 D.P.R. 523  (1956).  In Goose,  hotel
          _____    _____________                              _____

          guests  wearing bathing  suits  were required  to  use a  certain

          elevator  and stairway to go to the  pool.  The stairway was wide

          and slippery, but equipped with only one railing.  Because of the

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stairway's  condition, a hotel guest fell.  Focussing on the fact

          that the stairs should  have had more than one railing, the Court

          found the  stairway unreasonably and forseeably  dangerous.  From

          this  finding,  the Court  determined  that  the hotel  possessed

          constructive knowledge of the  danger.  As the requirements  of  

          5141 were  satisfied, the Court imposed liability upon the hotel.

          The  Court also  noted that  store customers  "generally expect[]

          that the aisles and passage ways  open to customers are free from

          . . . slippery spots."  Id. at 530 n.2.
                                  ___

                    In Aponte v. Mel ndez, 87 P.R.R. 619 (1963), the  Court
                       ______    ________

          revised its views on  the requirements of   5141 and  the lessons

          of Goose.  There, a shopper at  a food store slipped on a  banana
             _____

          peel.    The  shopper sued  under     5141, but  the  trial Court

          rejected her claim because she failed to show  that the store had

          constructive  knowledge of  the banana  peel on  the floor.   The

          Puerto  Rico Supreme  Court reversed,  however, finding  that the

          defense  of a lack of constructive  knowledge was not viable in  

          5141  cases.   The  Court cited  Goose  for the  proposition that
                                           _____

          shopowners must keep public areas free of "slippery spots," while

          ignoring the language in  Goose concerning actual or constructive
                                    _____

          knowledge. 

                    By doing  away with  the knowledge  element of    5141,

          Aponte imposed a strict  liability or, as the Puerto  Rico courts
          ______

          sometimes say, a res ipsa loquitur standard upon store owners, in
                           _________________

          which a dangerous condition in the store led to a  per se finding

          of negligence.  Cf.  Dopico-Fern ndez v. Grand Union Supermarket,
                          ___  ________________    _______________________

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841 F.2d 11, 15 (1st Cir. 1988) (citing Aponte and Goose:  "[t]he
                                                  ______     _____

          clear rule in Puerto Rico is that an owner of an establishment is

          potentially  liable for all injuries occurring  in areas where he
                                  ___

          has retained  control") (emphasis  added).   In the cases  before

          Aponte, the Court  discussed    5141 in terms  of negligence;  in
          ______

          Aponte the Court switched to res ipsa loquitur liability.
          ______                       _________________

                    The Puerto  Rico Supreme Court followed the instruction

          of the Aponte case in  a line of cases imposing liability  on the
                 ______

          store  owner  when  a  dangerous  condition  existed,  without  a

          specific  finding  of knowledge  of  the condition.    See, e.g.,
                                                                 ___  ____

          Feliciano v. Escuela  de Enfermeras,  94 P.R.R. 509  (1967).   In
          _________    ______________________

          Feliciano,  plaintiff alleged that some water  caused her to slip
          _________

          on  defendant's  steps.     The  Court   disregarded  plaintiff's

          allegation, but  imposed liability anyway because  even when dry,

          the steps were smooth  and "at times" slippery.   See also Rivera
                                                            ________ ______

          v. Supermercados Amigo, Inc., 106 D.P.R. 657 (1977) (store owners
             _________________________

          must keep inside of their stores in safe condition,  but they owe

          lower level of duty as to parking lots).

                    Notably, in the Feliciano  case four justices joined in
                                    _________

          a  vigorous  dissent.1   The  dissenters  argued that  the  Court

          imposed liability  without any showing of  actual or constructive

          knowledge  of  water, or  any  other  dangerous condition,  which

          caused plaintiff  to  slip.   The dissenters  concluded that  the

          majority had imposed a res ipsa loquitur standard on the property
                                 _________________

____________________

          1  A total of nine Justices  sat on the Puerto Rico Supreme Court
          when Feliciano was decided.
               _________

                                         -6-

owner:  because a slip-and-fall occurred, the Court presumed that

          the owner  was negligent.   The  dissenters found  the majority's

          holding contrary to the weight of Puerto Rico negligence law, but

          failed to acknowledge Aponte.
                                ______

                    In seeming response to the  concerns of the dissent  in

          Feliciano,  the  Court   incorporated  language  of   actual  and
          _________

          constructive knowledge  in its  opinion in Cotto  v. Consolidated
                                                     _____     ____________

          Mutual Insurance Co., 116 D.P.R. 644 (1985).  In Cotto, a shopper
          ____________________                             _____

          fell while she was walking to an escalator at a department store.

          She sued,  alleging that  the floor was  slippery.  She  did not,

          however, allege that any  foreign matter on the floor  caused the

          slipperiness.  

                    The  Court  disallowed  her  claim,  finding  her  bare

          allegation  that the  floor was  slippery insufficient  to impose

          liability.  The Court  stated that its previous cases,  including

          Guti rrez, Goose, and Aponte, "imposed liability when [the cases]
          _________  _____      ______

          involved  existing  dangerous  conditions  within   the  business
                    _______________________________

          premises in question,  which conditions were known  to the owners
                                                       ____________________

          or should have been known to them."  Id. at 650.  Thus, actual or
          _________________________________    ___

          constructive knowledge of the hazard was an element of the tort. 

                    The  Court went on, however, to base its holding on the

          lack of a  dangerous condition in  the store.   This holding  was

          consistent  with the Aponte line  of cases, in  which the inquiry
                               ______

          focussed  on the existence of  a dangerous condition.   The Cotto
                                                                      _____

          language on actual or constructive knowledge,  on the other hand,

          was  not consistent with those  cases.  Indeed,  a cite to Aponte
                                                                     ______

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for the proposition that knowledge of the hazard is an element of

          the tort was incorrect.

                    This  leaves  us  in  the   uncomfortable  position  of

          choosing whether to  follow the  Aponte line of  cases, in  which
                                           ______

          actual or constructive knowledge  is not an element of  the tort,

          or  whether to follow Cotto and  the cases prior to Aponte, under
                                _____                         ______

          which such knowledge is an element of the tort.

                    We believe that Cotto and the cases prior to Aponte are
                                    _____                        ______

          more consistent with the language of   5141, and thus contain the

          correct  result in this case.  Those  cases give effect to all of

          the language  of the  statute, including the  language concerning

          fault and  negligence.    In  contrast, Aponte  and  its  progeny
                                                  ______

          virtually  deleted those  words from  the statute.   Furthermore,

          Cotto, as the most recent  case, provides the most  authoritative
          _____

          description of the current state of  the law.  To the extent that

          its language is inconsistent  with Aponte and its  progeny, Cotto
                                             ______                   _____

          represents an  evolving understanding  of   5141.   To  disregard

          Cotto thus would require us to select potentially outdated law.
          _____

                    As  we find Cotto to  reflect the current  state of the
                                _____

          law in  Puerto Rico,  we  agree with  the district  court on  the

          result of this  case.  Section 5141  requires, as an  element, an

          affirmative  showing  by the  plaintiff  that  the defendant  was

          negligent.  This showing, in turn, requires  a demonstration that

          the defendant  has either actual  or constructive knowledge  of a

          dangerous  condition.    As the  plaintiff  failed  to meet  this

          burden, the district court properly dismissed the case.

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Affirmed.
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