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
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 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
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.
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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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