

                  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 &amp; 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 &amp;                                                                           
Moreda were on brief, for appellants.                
     Maria Soledad Ramirez-Becerra, with  whom Mercado &amp; 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.

                                2

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 &amp; 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.

                                3

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                                     

                                4

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

                                5

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).

                                6

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                                                                           

                                7

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

                                8

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

                                9

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

                                10

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  &amp;                                                                           

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.

                                11

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

                                12

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

                                13

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                                      

                                14

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

                                15

          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.

                                16

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.                                                       

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