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Mark S. Shuman, with whom Jose L. Rivero Vergne and Moreda &
______________
_____________________
________
Moreda were on brief, for appellants.
______
_________________________
May 4, 1995
_________________________
the lower
court
granted a
motion
for summary
judgment.
BACKGROUND
BACKGROUND
Consistent with the summary judgment standard, we
the
material
facts
in a
light
that
flatters,
but does
limn
not
July
8,
1992,
taxis
and
other
a local
union
representing
taxi
declared
strike
that
virtually
paralyzed
principal airport.
congregated at
transportation
services
San
Juan's
various points,
including
at
Baldorioty de
Castro
of the strike
Coyne, a
resident of
Massachusetts, blissfully
9.
Because
____________________
she had
reserved accommodations
dispatched a
driver, Angel
airport
to the
hotel.
arrive,
plaintiff
at the Ambassador
Marrero, to
While waiting
witnessed
Plaza, Taber
transport her
for Taber's
several
from the
emissary to
confrontations
between
day, Marrero crossed the picket line driving a red Ford rented by
the hotel.
When he reached
to alight
had collected
prospective guests,
hotel.
One
such projectile
plaintiff.
from
this precarious
situation and
and injured
the
immediately sought
medical
U.S.C.
diversity jurisdiction).
See
___
636(c)
disposition.
(1988),
granted
motion
for
brevis
______
____________________
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.
3
II.
II.
judgment
Civil
"if
the
interrogatories,
and
Rules
empower
pleadings,
admissions
a court
to
grant
depositions,
on
file,
summary
answers
together
with
to
the
law."
Fed.
R. Civ. P. 56(c).
written
We have
v. Town of Dedham, 43
______________
F.3d 731,
U.S.L.W. 3736
(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);
1992); Rivera_______
1990),
it
would
be
7-8 (1st
pleonastic
to
rehearse
that
jurisprudence here.
For present purposes, it
at 794.
trial is
Rule 56 motion
existence of a trialworthy
issue as to
it demonstrates
Exercising
de
__
novo review,
____
see Pagano,
___ ______
983
the
light
Muriente,
________
record
most
959
in
rational
favorable
F.2d at
this case
to
352, we
is
F.2d at
347, and
inferences therefrom)
the plaintiff,
conclude
see
___
that the
"sufficiently open-ended
Rivera_______
evidence of
to
permit a
F.3d at 735.
Thus,
the
ANALYSIS
ANALYSIS
In
granting summary
plaintiff's
that because
reasonable
reasoned that
foreseeable
ways.
the lower
First,
judgment,
security
the harm
or
did not
of which plaintiff
causally
attributable to Taber.
related
to
any
measures."
court found
to protect
Second,
the
complained "was
acts
or
and
court
not
omissions"
Duty.
Duty.
____
689 (1st
Cir. 1994).
Under
Puerto Rico
law, negligence
actions
which imposes
liability
article 1802 of
upon a
person
who "causes
damage
to
another
31,
(1991).
article 1057
In this
instance, plaintiff
alleges that
31,
3021
article 1802.
Taber
agree
with
plaintiff
that,
here,
article
1057
informs
op. at 8) (discussing
the
v. Cruz
____
We
No.
brooks
no
dispute
that
article
liability upon
and hospitals,
that fail
the circumstances
v.
Inmobiliaria
to provide security
Inc.,
109 P.R.R.
imposes
as hotels, schools,
commensurate with
1057
1150,
See Estremera
___ _________
1154-55
(1980)
________________________
(stating that liability can be found
demand for greater protection, but
neglects to
security
bolster security).
furnish heightened
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).
6
relationship
See id. at
___ ___
and security
Id.; accord
___ ______
by law-enforcement agencies."
judge,
these
accepting
general
principles,
artificial distinctions
the
drawn
by
Taber, ruled that article 1057 landed wide of the mark, and that,
to furnish
security for
640 F.
posited that,
ergo, their
the airport
_____
Supp.
117 (D.P.R.
of law,
1986), the
cabdrivers (and,
liable to passengers
for crimes
to a
The
as a matter
protection.
Cabdrivers' Liability.
Cabdrivers' Liability.
______________________
magistrate
plaintiff's
hotel paused
at a
red light.
fares
Thieves
rushed the car, held the driver at gunpoint, and attempted to rob
the
shot.
passengers.
See
___
In the
id. at
___
118.
a passenger was
court concluded
on the
__ ___
particular facts
__________ _____
of the
__ ___
case that a
____
cabdriver had
no duty
to
In
of [defendant's] business
security measures."
Here,
hotel,
furnish
business.
that
that
transportation
in
is being
services
Moreover, unlike in
the cabdriver
special
Id.
___
however, unlike
albeit one
a hotel . .
was "a
Jacob, the
_____
sued
defendant is
__
because it
ancillary
to
elected
its
to
principal
public carrier
for hire,"
id., the
___
a car, she was just as much a ward of the hotel as if she was
in
assuming, then,
we are of the
1057
that taxicab
operators are
a matter on which
not
we take no
viewed as
an innkeeper rather
than as
a taxicab operator.
It
Locus.
Locus.
_____
Though
is
inapposite,
an actionable duty.
This question
the
_____
Jacob
(D.P.R. 1992).
finding the
premises,
granting
dictum,
the
the defendants'
might
motions .
not
. .
have been
."
Id.
___
"Had
in
Citing this
to
provide
heightened
security
qua
___
transporter,
that
duty
duty to
touchstone of the
hotel's special
incipient peril,
furnish
It is not the
heightened security.
duty consists
in roughly equal
relationship with
Rather,
the
parts of
the
knowledge of
University's duty
to provide
adequate security
to persons
the fact
to sexual assaults;
protect
the total
the students;
absence of a
and lack
priority system
of adequately
9
to
trained security
personnel."
Elba
____
Elba,
____
occurred
on
the
campus,
at 16.
we
believe
the
key to
the
in
court's
tri-cornered combination of
determining
whether a
duty
to
is here.
Affinity
is a given;
in
host-guest
were
Knowledge
Similarly, a
find
that Taber
had the
transportation arrangements
relationship.
jury could
degree of control; it
made the
the
plaintiff
infra,
_____
admittedly
Taber and
with
newly arriving
enough on
this score.
Bearing in
mind
think a
3021.
security may
op. at 8.
stage that
believe
And since
Taber employed
that a
jury, not
there is no
evidence at this
to say
precautions, we
whether Taber
10
failed to
take steps
required.5
See Negron
___ ______
v.
Foreseeability.
Foreseeability.
______________
if a jury could
plaintiff, a breach of
violated a duty
absent a
slip op.
at 12.
"[F]or this
causal relation
See
___
to
exist the damage must have been foreseeable and avoidable had the
omitted action been timely taken."
Volvo Car Corp., 946 F.2d 967,
that
_______________
foreseeability serves
as
the "linchpin"
Rico law).
was
way, consequences of
___
Sewer Auth.,
____________
In Puerto
have been
to be under a duty to
a particular
86 P.R.R.
490, 496
tort
encountered should
essential factor is
for establishing
the exact
foreseen.
The
foresee, in a general
____________
type."
Gines
_____
v. Aqueduct &
___________
(1962)
(citing 2
Harper and
most
situations,
for
the
mill.
questions
are
both
factfinder's
causation
See,
___
e.g.,
____
Peckham
_______
v.
(1st Cir.
1990);
(1st Cir.
1989);
Cir. 1987).
Puerto
____________________
979
1,
845, 847-48
(1st Cir.
1987) (applying
5-6
(1st
Cir.
v.
1992)
cert.
_____
To
evidence must
be such
that
risk complained
character of an
the factfinder
of is among
event,
rationally can
the universe
of
See Pacheco
___ _______
v. Puerto Rico Water Resources Auth., 112 D.P.R. 367, 372 (1982);
_________________________________
Jimenez
_______
defendant
v. Pelegrina,
_________
"will not be
112 P.R.R.
881, 886
(1982).
relieved of liability
Because a
by an intervening
cause which could reasonably have been foreseen, nor by one which
is a
normal incident of
the risk
acts of
third parties
sometimes can
168, 178
(1966),
fall within
the
ambit of foreseeability.
supra, slip op. at
_____
927-28; Estremera,
_________
whether
circumstances
the
factfinder
violence.
or
facts and
plausibly to
which the
pursuant
to
this
a foreseeable
negligence on
consists,
infer
of
permit
risk of
episodic
liability of
1057, in
case
the
1802
is predicated
failure to
be diligent
12
. .
1802 inevitably
foresight, as [the]
controlling factor
of [defendant's] liability. .
. .") (quoting
magistrate
foreseeable.
concluded
that
Though he may,
violence
that question
definitively
not
was
courts are
constrained by
Rule
56 to
favor.
the
draw all
reasonable inferences
current posture
of
the case
demands
Both
parties place
Ford, transporting
could not
the
errand
recognizable
evidence
this
also to
that
that
9, in
hotel
previous occasions,
thrust by
asserting
the airport a
peril
that, in
fourth time in
the very
sort of
was
not
foreseeable,
evidence of discernible
Taber's activity
13
it
awaited the
not only as
show that
other, earlier-arriving
automobile, on
as
the fact
We explain briefly.
weight upon
safety on these
Coyne parries
same easily
the
plaintiff.
ordering
route in
reject
great
nonmovant's
On this basis,
that we
the
in the
in fact
earlier
whereas
danger
catalyzed the
harm-producing event.
Both of
standpoint.
the
these scenarios
For present
facts
a factual
support plausible
but
conflicting
when
inferences on
pivotal issue in the case, the judge may not choose between those
inferences at the summary
v.
Cir.
judgment stage.
See, e.g.,
___ ____
that,
if the
Greenburg
_________
evidence conflicts,
"the
be the
has a
fallback position.
factbound
too,
seems
sufficiently
the
foreseeable.
This,
argues that
strike's
on the Ford
nature.
It
If a
may well
be
Gines,
_____
86 P.R.R. at 496.
Here,
the
strike
was
no
secret.
The
strikers'
that the
14
tense
circumstances
and
plaintiff's observation
the
potential
of events at the
for
violence.6
The
arrived lends some slight support to the inference that the rockthrowing incident was
foreseeable.
So
anent
of evidence is
Capt.
Hector
Mercado
potentially significant.
security
affidavit
consultant.
cited
strikes
drivers'
and
violent incidents
at the
airport
union).
He
had
occurred during
(including strikes
expressed
the opinion
called by
that
known.
earlier
the taxi
Taber acted
same car
on the same errand on the same day across the picket line.7
____________________
6Taber
argues that
this article
is hearsay
evidence that
These
items
of
evidence,
taken
collectively,
op. at
_________
occurred
regardless
lighting),
that circumstances
foreseeable because
high-risk
Taking
jury
defendant
provided
stairwell
made
sexual
assault of
school officials
female
had knowledge
of
a reasonable
station,
whether
(concluding
student
of
given
the known
presence
could find
distinctive
that
plaintiff's
individual).
believe that a
injuries were
in the same
a violent
the plaintiff, we
of
in police
Put
of foreseeability
which
reasonable
minds
yields an issue
might
differ.
CONCLUSION
CONCLUSION
We need go
no further.
Viewing the
evidence in
the
the elements of
a viable
cause of
____________________
never reached the issue.
16
action:
duty, breach,
17