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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br>                      ____________________ <br> <br>No. 98-1409 <br> <br>              FLORENCE SAMMARTANO and RICHARD UHL, <br>                                 <br>                    Plaintiffs, Appellants, <br>                                 <br>                               v. <br>                                 <br>                PALMAS DEL MAR PROPERTIES, INC., <br>                                 <br>                      Defendant, Appellee. <br>                                 <br>                      ____________________ <br>                                 <br>                                 <br>          APPEAL FROM THE UNITED STATES DISTRICT COURT <br>                                 <br>                FOR THE DISTRICT OF PUERTO RICO <br>                                 <br>       [Hon. Juan M. Prez-Gimnez, U.S. District Judge] <br>                                 <br>                      ____________________ <br>                                 <br>                             Before <br>                                 <br>                     Lynch, Circuit Judge, <br>                   Cyr, Senior Circuit Judge, <br>                   and Lipez, Circuit Judge. <br>                                 <br>                      ____________________ <br>                                 <br>  Gabriel I. Peagarcano for appellants. <br>         David W. Romn, with whom Brown & Ubarri was on brief, <br>for appellee.      <br>    <br>     <br>                      ____________________ <br>                                 <br>                        December 3, 1998 <br>                                 <br>____________________       <br> <br>

  LYNCH, Circuit Judge.  Plaintiff Florence Sammartano <br>brought a negligence claim against Palmas del Mar Properties, Inc., <br>the owner of the Puerto Rico resort where she was staying, after <br>she fell while crossing a road from the resort parking lot to the <br>building where her room was located.  Co-plaintiff Richard Uhl, her <br>companion, brought a derivative claim for "mental and moral <br>damages."  Applying Puerto Rico law, the district court granted the <br>defendant's motion for summary judgment, holding that plaintiffs <br>had not demonstrated that defendant "had the duty to act to avoid <br>the harm" because they had not come forward with any evidence that <br>"the road was under the custody and control of Palmas de[l] Mar" or <br>that "Palmas del Mar [was] responsible for the upkeep" of the road.  <br>Finding that plaintiffs waived the only argument raised in their <br>appeal, we affirm. <br>  Plaintiffs argue that even if the district court ruled <br>correctly on the question of whether there was evidence that <br>defendant had custody or control of the road, there is an <br>alternative theory of duty on which they should have been permitted <br>to proceed, a theory that is within the broad parameters of <br>plaintiffs' notice pleading in the case.  The alternative theory is <br>that a property owner has a duty to provide safe access to the <br>property and that the owner may therefore be liable for failing to <br>remedy hazardous conditions in areas that are owned and maintained <br>by someone else.  For this theory, plaintiffs rely almost <br>exclusively on cases interpreting the law of jurisdictions other <br>than Puerto Rico, pointing to a handful of factually <br>distinguishable Puerto Rico cases only for the general proposition <br>that duty may be dictated by specific circumstances.  SeeAppellant's Brief at 9 (citing Sociedad de Gananciales v. Gonzalez <br>Padin Co., 17 P.R. Offic. Trans. 111 (1986) (finding a department <br>store liable for the distress caused to a customer who set off the <br>store alarm when a clerk forgot to remove a sensor and discussing <br>an owner's liability for damages that his acts and omissions may <br>cause to third parties inside his property); Rivera v. Maryland <br>Casualty Co., 96 P.R.R. 788 (1968) (finding a property owner liable <br>where a guest walked into a glass door on the property that was not <br>marked); Rodrguez Ramrez v. Franqui Viera, 86 P.R.R. 727 (1962) <br>(finding a driver negligent where a child playing with friends was <br>pushed into the driver's truck on a narrow bridge and stating that <br>"[i]f a specific dangerous conduct may be anticipated, this gives <br>rise to the duty of acting carefully" (internal quotation marks <br>omitted)); Ramos v. Carlo, 85 P.R.R. 337 (1962) (finding a <br>defendant liable for the affirmative act of leaving metal straps on <br>the sidewalk in front of his store)). <br>     In its brief, the defendant essentially ignores <br>plaintiffs' alternative theory and continues to insist, as it did <br>before the district court, that plaintiffs' claims were based <br>solely on the theory that defendant exercised custody or control <br>over the road.  Defendant also urges us to examine the summary <br>judgment papers submitted to the district court and asserts that <br>plaintiffs "utterly failed . . . to present a specific opposition <br>to [the] well-documented motion for summary judgment."  At oral <br>argument, defendant more directly stated that plaintiffs waived <br>the alternative theory by not raising it before the district court.  <br>We take this waiver issue seriously, because important <br>considerations of equity and judicial efficiency animate our well- <br>established rule that arguments may not be raised for the first <br>time on appeal.  See, e.g., United States v. Slade, 980 F.2d 27, 31 <br>(1st Cir. 1992) ("Were the rule otherwise, little would be resolved <br>in the trial courts."); McPhail v. Municipality of Culebra, 598 <br>F.2d 603, 607 (1st Cir. 1979) ("A party may not 'sandbag' his case <br>by presenting one theory to the trial court and then arguing for <br>another on appeal."). <br>     The essential first question, then, is whether the trial <br>judge was fairly apprised of the plaintiffs' alternative theory.  <br>See Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir. <br>1995) ("If a party fails to assert a legal reason why summary <br>judgment should not be granted, that ground is waived and cannot be <br>considered or raised on appeal.  This is because an appellate <br>court, in reviewing a summary judgment order, can only consider <br>those matters presented to the district court."  (citations and <br>internal quotation marks omitted)); Slade, 980 F.2d at 31 ("Judges <br>are not obliged to do a movant's homework, searching sua sponte for <br>issues that may be lurking in the penumbra of the motion papers. . <br>. . Phrased another way, a party is not at liberty to articulate <br>specific arguments for the first time on appeal simply because the <br>general issue was before the district court."); McCoy v. MIT, 950 <br>F.2d 13, 22 (1st Cir. 1991) ("It is hornbook law that theories not <br>raised squarely in the district court cannot be surfaced for the <br>first time on appeal. . . . Overburdened trial judges cannot be <br>expected to be mind readers.  If claims are merely insinuated <br>rather than actually articulated in the trial court, we will <br>ordinarily refuse to deem them preserved for appellate review.").  <br>We think that the court was not fairly apprised, and so we do not <br>reach the question of whether plaintiffs' alternative theory is <br>viable on these facts under Puerto Rico law. <br>     Plaintiffs' complaint alleged that defendant had been <br>negligent.  See P.R. Laws Ann. tit. 31,  5141 ("A person who by an <br>act or omission causes damage to another through fault or <br>negligence shall be obliged to repair the damage so done.").  In <br>response to this broad allegation, defendants answered and <br>affirmatively pled, inter alia, that "the area or place where <br>plaintiff fell and injured her wrist was not owned or controlled by <br>the appearing defendant" and that "the alleged injury resulted as <br>a consequence of the exclusive or concurrent negligence of third <br>parties, for which the appearing defendant is not liable."  In the <br>face of these affirmative defenses, plaintiffs in their proposed <br>pretrial order repeated the broad claims in the complaint and <br>contended that "[d]efendant[] [is] liable for the damages suffered <br>. . . owing to the unsafe condition in which it maintained the <br>area" where Sammartano fell.  Defendant's proposed pretrial order <br>repeated that it neither owned nor maintained the road and so could <br>not be liable. <br>     Defendant then moved for summary judgment on precisely <br>these grounds.  Plaintiffs' response did not assert, as they do on <br>appeal, that defendant had a legal duty to provide safe ingress to <br>and egress from its property.  Nor did plaintiffs cite to the <br>district court the non-Puerto Rico cases on which they now rely -- <br>or, for that matter, any authority at all (plaintiffs did cross- <br>reference the court to an unadorned list of general Puerto Rico <br>tort cases contained in their proposed pretrial order, none of <br>which set forth plaintiffs' current argument).  Although in <br>hindsight a few of plaintiffs' assertions about why the road was <br>allegedly unsafe may seem to support a safe access argument, <br>plaintiffs never put that argument forward except perhaps in "the <br>most skeletal way."  United States v. Cardoza, 129 F.3d 6, 19 (1st <br>Cir. 1997) (internal quotation marks omitted).  The clear thrust of <br>plaintiffs' opposition was the flawed contention that defendant had <br>the burden to prove that it was not responsible for the <br>construction, maintenance, and lighting of the road.  Defendant <br>obviously interpreted plaintiffs' arguments in just this fashion, <br>filing a proposed reply that asserted that plaintiffs based their <br>"entire theory of liability in this case on the question of who had <br>. . . custody and control" over the road and that plaintiffs had a <br>responsibility to come forward with some evidence on that theory.  <br>     The district court accordingly ruled on the only theory <br>that had been clearly presented:  that defendant's liability <br>stemmed from its alleged ownership and maintenance of the road.  <br>The court's ruling on this theory was plainly correct, and <br>plaintiffs do not contest it.  See generally Morris v. Government <br>Dev. Bank, 27 F.3d 746, 748 (1st Cir. 1994); Medina-Munoz v. R.J. <br>Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).  If plaintiffs <br>believed that they had put before the district court a different <br>theory of duty that the court had somehow mistakenly failed to <br>address, the most natural course would have been to move for <br>reconsideration.  See Grenier, 70 F.3d at 678; cf. Jackson v. <br>United States, 156 F.3d 230, 234 (1st Cir. 1998); VanHaaren v. <br>State Farm Mut. Auto. Ins. Co., 989 F.2d 1, 4-5 (1st Cir. 1993).  <br>Such a motion was never filed. <br>     Sometimes, rarely, parties are saved from the <br>consequences of their waiver.  See Slade, 980 F.2d at 31 <br>("[A]ppellate courts retain the power to dispense with the raise- <br>or-waive rule in order to avoid a gross miscarriage of justice.  <br>However, this power should be exercised sparingly.  It is reserved <br>for exceptional cases in which the previously omitted ground is so <br>compelling as virtually to insure appellant's success."  (citations <br>and internal quotation marks omitted)); see also United States v. <br>La Guardia, 902 F.2d 1010, 1013 (1st Cir. 1990); United States v. <br>Krynicki, 689 F.2d 289, 291-92 (1st Cir. 1982).  Whether Puerto <br>Rico law accepts plaintiffs' new theory may be an open question; <br>our review of the cases suggests that none has flatly done so to <br>date.  That numerous state jurisdictions have done so, see, e.g., <br>Goger, Annotation, Liability of Operator of Business Premises to <br>Patron Injured By Condition of Adjacent Property, 39 A.L.R.3d 579 <br>(1972 & Supp. 1998) (collecting cases), may lead Puerto Rico to do <br>so as well, see Guevara v. Dorsey Lab., Div. of Sandoz, Inc., 845 <br>F.2d 364, 366 (1st Cir. 1988) ("The Supreme Court of Puerto Rico <br>has made clear that the common law of the United States is not <br>controlling, when filling gaps in the civil law system.  At the <br>same time, however, when faced with a lack of authority, it may be <br>appropriate to search for relevant principles in the common law."  <br>(citation omitted)).  But we cannot say that plaintiffs have <br>demonstrated that the issue is "so compelling as virtually to <br>insure [their] success" and therefore cannot find that there would <br>plainly be a miscarriage of justice unless we reached the issue. <br>     The judgment of the district court is therefore affirmed.  <br>Costs to defendant.</pre>

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