

                  UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT

                                             

No. 97-1269

               LYNNE WOODS-LEBER AND ANTHONY LEBER,

                     Plaintiffs, Appellants,

                                v.

             HYATT HOTELS OF PUERTO RICO, INC., ETC.,

                       Defendant, Appellee.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

     [Hon. Daniel R. Dominguez, United States District Judge]                                                                      

                                             

                              Before

                      Selya, Circuit Judge,                                                    

                  Gibson,* Senior Circuit Judge,                                                         

                    and Lynch, Circuit Judge.                                                      

                                             

     Iv n D az-L pez and  Gerardo A. Quir s-L pez, with  whom Law                                                                           
Offices  of Gerardo A.  Quir s-L pez, P.S.C., were  on brief, for                                                      
appellants.
     Hector F. Oliveras, with whom Luis Ram n Ortiz-Segura was on                                                                    
brief, for appellee.

                                             

                         August 26, 1997
                                             

               
*Hon.  John  R.  Gibson,  of  the  Eighth   Circuit,  sitting  by
designation.

          SELYA, Circuit  Judge.   This appeal  arises out  of an                    SELYA, Circuit  Judge.                                         

unwanted intrusion by a rabid mongoose into the  opulent environs

of a posh  luxury hotel.   During its sojourn,  the animal bit  a

guest.   The guest  sued, but  to no  avail;  the district  court

entered  summary judgment  in the  hotelier's favor.   See Woods-                                                                           

Leber v. Hyatt Hotels  of P.R., Inc.,  951 F. Supp. 1028  (D.P.R.                                              

1996).  We affirm.

I.  THE MONGOOSE ATTACK AND ITS SEQUELAE          I.  THE MONGOOSE ATTACK AND ITS SEQUELAE

          Defendant-appellee Hyatt  Hotels of  Puerto Rico,  Inc.

(Hyatt) owns and operates the Cerromar Beach Hotel (the hotel) in

Dorado, Puerto Rico.  The hotel occupies a picturesque oceanfront

setting.   Its  verdant grounds  are bordered  on  the west  by a

mangrove   swamp   which   is  under   the   protection   of  the

Commonwealth's Department  of Natural Resources.  On the far side

of  the swamp  lies Lakeside  Villas,  a residential  subdivision

which was being built at the time material hereto.  Hyatt  has no

financial or other proprietary interest in the development of the

subdivision.

          On   April  10,  1995,   at  approximately  5:00  p.m.,

plaintiff-appellant Lynne  Woods-Leber, a  guest, was  sunbathing

near the  hotel's  pool.   Suddenly  (and  without  any  apparent

provocation) a wild mongoose scurried  into the pool area and bit

her.   Because the mongoose carried rabies, Woods-Leber underwent

a series of painful inoculations.

          A few  days  after  the  attack,  the  hotel  hired  an

exterminator, Pest Management International (PMI), to implement a

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mongoose  control program.    PMI set  several  baited traps  and

captured fifteen mongooses in a week's time.1  PMI concluded that

the   most  likely  explanation  for  the  infestation  was  that

mongooses living in  the mangrove swamp had been disturbed by the

construction  activity  at  Lakeside  Villas  and   had  migrated

eastward onto the hotel's grounds.  The traps were left in  place

on the premises.

          In   due   season,    Woods-Leber   invoked   diversity

jurisdiction,  28  U.S.C.    1332(a)  (1994), and  sued  Hyatt in

Puerto Rico's federal  district court.2  Her  suit sought damages

for   personal  injuries   under  local   law.     Hyatt   denied

responsibility  and, following a  period of discovery,  moved for

brevis  disposition, supporting  its  motion  with  a  number  of                

affidavits  and declarations.   The plaintiff opposed  the motion

but made only one evidentiary proffer:   her husband's conclusory

recitation of his suspicion that a temporary food preparation and

storage area which had been installed near the pool functioned as

                                                  

     1The  plural of  "mongoose" is  a matter  of some  debate in
lexicographic circles.  See, e.g., Webster's Ninth New Collegiate                                                                           
Dictionary  767 (1989)  ("mongoose .  .  . n,  pl mongooses  also                                                                           
mongeese . . . .").  Having noted the debate, however,  we choose
not  to  enter  it.   Thus,  while we  use  the  term "mongooses"
throughout,  we express  no  opinion  on  which  plural  noun  is
linguistically preferable.

     2Woods-Leber's husband,  Anthony  Leber,  joined  as  a  co-
plaintiff.   Inasmuch as  his claim is  derivative, we  treat the
appeal  as if Woods-Leber were  the sole plaintiff and appellant.
Of  course, our  decision disposes  of Anthony  Leber's claim  as
well.

                                3

a mongoose magnet.3

          On  December  30,  1996,  the  district  court  granted

Hyatt's motion.   The court concluded,  in substance, that  Hyatt

could not be  held strictly liable because it had not exerted any

control over the mongoose,  and that it could not be  held liable

in negligence because it could not  reasonably have been expected

to foresee the mongoose attack.  See Woods-Leber, 951 F. Supp. at                                                          

1039.  This appeal followed.

II.  THE SUMMARY JUDGMENT STANDARD          II.  THE SUMMARY JUDGMENT STANDARD

          Summary judgment  is appropriate when the  record shows

"no genuine issue as  to any material fact and  . . . the  moving

party is  entitled to a  judgment as a  matter of law."   Fed. R.

Civ. P 56(c); see also Anderson  v. Liberty Lobby, Inc., 477 U.S.                                                                 

242, 247  (1986).  The  genuineness requirement signifies  that a

factual  controversy "must be sufficiently open-ended to permit a

rational factfinder  to  resolve the  issue  in favor  of  either

side."  National Amusements, Inc. v. Town of Dedham, 43 F.3d 731,                                                             

735 (1st Cir. 1995).  The materiality requirement signifies  that

the factual  controversy must  pertain to  an issue  which "might

affect  the outcome of the suit under the governing law."  Morris                                                                           

v. Government Dev. Bank, 27 F.3d 746, 748 (1st Cir. 1994).                                 

          Like the nisi prius court, we must evaluate the summary

judgment record  in the light  most flattering to  the nonmovant,

drawing all reasonable  inferences in  that party's  favor.   See                                                                           

                                                  

     3The gist of Leber's statement  is reprinted in the district
court's opinion.  See Woods-Leber, 951 F. Supp. at 1033.                                           

                                4

Coyne v.  Taber Partners  I, 53  F.3d 454, 457  (1st Cir.  1995).                                     

Despite  this  advantage,  however, the  party  opposing  summary

judgment   cannot   simply  rest   on   "conclusory  allegations,

improbable  inferences, and  unsupported  speculation."   Medina-                                                                           

Munoz  v. R.  J. Reynolds Tobacco  Co., 896  F.2d 5, 8  (1st Cir.                                                

1990).  To the contrary, at least with respect to issues on which

she  bears  the burden  of  proof,  the  nonmovant must  identify

properly  substantiated   facts   sufficient   to   establish   a

trialworthy issue.  See  Morris, 27 F.3d at 748;  Kelly v. United                                                                           

States, 924 F.2d 355, 358 (1st Cir. 1991).                

          Appellate review of an order  granting summary judgment

is plenary.  See Coyne, 53 F.3d at 457; Morris, 27 F.3d at 748.                                                        

III.  ANALYSIS          III.  ANALYSIS

          The  substantive  law   of  Puerto  Rico   governs  the

liability question in  this diversity action.  See  Erie R.R. Co.                                                                           

v. Tompkins, 304 U.S.  64, 78 (1938); Daigle v. Maine  Med. Ctr.,                                                                           

Inc. 14 F.3d 684, 689 (1st  Cir. 1994).  The plaintiff makes  two              

claims under that law.  We consider them sequentially.

                   A.  The Article 1805 Claim.                             A.  The Article 1805 Claim.                                                       

          Article 1805 of the Civil Code, P.R. Laws Ann. tit. 31,

  5144 (1992), imposes strict  liability on the possessor or user

of  an animal  for  any damages  which  the animal  causes.   See                                                                           

Serrano v. Lopez, 79 P.R.R. 922, 927 (1957).  In order to prevail                          

on  an Article  1805  claim, a  plaintiff must  show,  at a  bare

minimum,  that the defendant  owned, possessed, or  used the wild

animal.    See Ferrer  v.  Rivera,  56  P.R.R. 480,  482  (1940);                                           

                                5

Redinger v. Crespo, 18 P.R.R.  106, 111 (1912).  This customarily                            

involves a showing that the defendant exercised control  over the

animal.  See P.R. Laws Ann. tit. 31,   1480 (1993).                      

          The  district  court ordered  summary judgment  on this

count,  holding that Woods-Leber  failed to present  any evidence

tending to  show that Hyatt  controlled the rabid mongoose.   See                                                                           

Woods-Leber, 951 F.  Supp. at 1035.   We agree.  A  person cannot                     

control an animal of which  he is completely unaware.  Here,  the

uncontradicted  evidence indicates that  Hyatt had no  inkling of

the mongoose's existence, had no reason to suspect that mongooses

were lurking nearby, and received as jolting a surprise as Woods-

Leber when  the mongoose  struck.   In the utter  absence of  any

evidence  of  either  knowledge or  control,  the  district court

properly entered summary judgment on the Article 1805 claim.

          The  plaintiff  endeavors  to  avoid  this  predictable

result by arguing  that a symbiotic relationship  existed between

Hyatt and  the mongoose  population in the  mangrove swamp.   She

pins this  rather exotic theory  to a suggestion that  Hyatt must

have   benefitted  from  the   mongooses'  natural  affinity  for

devouring snakes  and rodents, and  that this benefit  is legally

tantamount to control.  This  argument is woven entirely from the

gossamer strands  of  speculation and  surmise.   The  record  is

devoid of any evidence that mongooses patrolled the perimeters of

the hotel's  grounds, performing  pest control  functions.   And,

moreover,  the  argument  is  unaccompanied   by  any  meaningful

                                6

citation to applicable  legal authority.4  In  sum, this argument

is   factually   barren,   legally   bankrupt,   and   altogether

insufficient  to breathe life  into the plaintiff's  Article 1805

claim.

                   B.  The Article 1802 Claim.                             B.  The Article 1802 Claim.                                                       

          Article 1802 of the Civil Code, P.R. Laws Ann. tit. 31,

  5141, imposes liability  on any person or entity which, by his,

her, or its  negligent acts or omissions, causes  harm or damage.

In broad  perspective, Puerto Rico law defines  negligence as the

failure to  exercise due  diligence to  avoid foreseeable  risks.

See  Coyne, 53 F.3d at 459;  Malave-Felix v. Volvo Car Corp., 946                                                                      

F.2d 967,  971-72 (1st Cir. 1991).5   To recover  on a negligence

theory, a  plaintiff suing  for personal  injuries under  Article

1802 must establish (1) a duty requiring the defendant to conform

to a certain standard of conduct, (2)  a breach of that duty, (3)

proof of damage,  and (4) a causal connection  between the damage

and  the  tortious  conduct.   See  Sociedad  de  Gananciales  v.                                                                       

Gonzalez Padin,  17 P.R.  Offic. Trans. 111,  125 (1986).   These                        

requirements cannot  be  satisfied unless  the plaintiff  proves,

inter  alia, that  the injury  was  reasonably foreseeable  (and,

thus, could  have been avoided  had the defendant acted  with due
                                                  

     4The lower court perspicaciously observed that this argument
was  "not  merely  novel,  but .  .  .  perilously  close to  the
frivolous."  Woods-Leber, 951 F. Supp. at 1035 n.5.                                  

     5In a  premises case a  showing of  negligence under  Puerto
Rico  law ordinarily requires  a demonstration of  the owner's or
occupier's actual or constructive  knowledge of the  harm-causing
condition.  See Mas v. United States, 984 F.2d 527, 530 (1st Cir.                                              
1993).

                                7

care).  See Coyne, 53 F.3d at 459-60.                           

          The plaintiff contends  that, under Puerto Rico  law, a

hotel-keeper owes  its  guests  a heightened  duty  of  care  and

protection.   The law so  provides.  See, e.g.,  Mejias-Quiros v.                                                                        

Maxxam Property Corp., 108 F.3d  425, 427 (1st Cir. 1997); Coyne,                                                                          

53  F.3d at  458;  Pabon-Escabi  v. Axtmayer,  90  P.R.R. 20,  29                                                      

(1964).   Nevertheless, a hotel-keeper  is not an insurer  of its

guests' well-being.  See, e.g., Goose v. Hilton Hotels, 79 P.R.R.                                                                

494,  499 (1956) (holding that a hotelier is liable for a guest's

fall on hotel  premises only if the hotelier knew  or should have

known  of  a  preexisting  dangerous condition).    Consequently,

notwithstanding the heightened  duty of care and  protection, the

hotel-keeper is not liable for harm unless the harm is reasonably

foreseeable.  See Coyne, 53 F.3d at 460-61.                                 

          In this case, the  linchpin question is whether  it was

reasonably foreseeable at  the time and place in  question that a

mongoose would attack  a guest (for, without  a foreseeable harm,

Hyatt could  not have  breached its  duty of  care by failing  to

implement a mongoose control program before the attack).  See id.                                                                           

at  460.   The  district  court  answered  this question  in  the

negative.  See Woods-Leber, 951 F. Supp.  at 1039.  We think that                                    

Judge Dominguez got it right.

          The  evidence as  to  knowledge is  telling.   On  this

point, the record permits only one conclusion:  that Hyatt had no

knowledge,  actual  or  constructive,  either of  the  mongooses'

existence or of the incipient  danger that they presented, at any

                                8

time  before  the attack.    The  hotel personnel  most  directly

involved in the  matter (such as the head grounds  keeper and the

chief  of security) submitted affidavits  which made plain that a

mongoose had never  before been seen on the  hotel premises; that

no  one at  the hotel knew  of the  presence of mongooses  in the

mangrove swamp or  otherwise in the vicinity; and  that, prior to

the  assault on Woods-Leber, no wild animal  of any kind had ever

bitten any hotel guest.  By the same token, there was no evidence

from which a factfinder could conclude, without rank speculation,

that  the temporary food  preparation and storage  area presented

any hazard or that Hyatt should have known the  inauguration of a

construction  project near the mangrove swamp portended an influx

of  wild animals.  Indeed, several previous construction projects

had been  undertaken near the  swamp without incident.   Finally,

there  was  no   evidence  either  that  a   non-rabid  mongoose,

unprovoked, was likely to bite a supine sunbather, or that rabies

was prevalent in the area.

          We do  not mean to  imply that, merely because  a rabid

mongoose  had never  before  invaded the  premises  and bitten  a

guest, the  attack could not  have been foreseen.   See generally                                                                           

Pabon-Escabi, 90 P.R.R.  at 25 (explaining that  "the requirement                      

of  foreseeability [does not  require] that  the precise  risk or

consequences  have been  foreseen").   If,  say,  an occupier  of

premises disregards a known general danger, or omits a precaution

regularly  taken by prudent  persons similarly situated,  a first

attack might  well be foreseeable  (and, thus, actionable).   See                                                                           

                                9

Coyne, 53  F.3d at 460; see also State  v. Francis, 635 A.2d 762,                                                            

769 n.11  (Conn. 1993) (holding  that liability does  not require

specific foreseeability); Stevens v.  Des Moines Indep. Community                                                                           

Sch. Dist., 528  N.W.2d 117, 120 (Iowa 1995)  (same); Pimentel v.                                                                        

Roundup Co., 666  P.2d 888, 891 (Wash.  1983) (same).  But  here,                     

the  plaintiff  offered  no  evidence  to support  a  finding  of

foreseeability, electing  instead  to  rely  on  the  defendant's

affidavits and declarations.6   We have warned  before, and today

reiterate, that parties  who permit the  movant to configure  the

summary judgment  record do so  at their  peril.  See  Kelly, 924                                                                      

F.2d at 358.

          We need go no further.  As the district court correctly

stated, "[t]he normal rule is that a person does not have  a duty

to prevent an attack upon another . . . by wild animals."  Woods-                                                                           

Leber, 951 F.  Supp. at 1036 (citations omitted).  While the rule               

admits of  exceptions,  the plaintiff  in  this case  adduced  no

evidence which sufficed  to bring the mongoose  attack within any

of those exceptions.  Since  a hotel-keeper, like any other owner

or occupier of premises, cannot be held liable  for that which it

cannot  reasonably  foresee,  the  lower  court  did  not err  in

granting Hyatt's motion for summary judgment.
                                                  

     6This  presents  a marked  contrast  to the  cases  on which
Woods-Leber  relies.  See,  e.g., Tormos-Arroyo v.  Department of                                                                           
Ed.,  96  J.T.S.   34,  806  n.2  (1996)   (plaintiffs  submitted             
deposition  testimony  suggesting  foreseeability);  J.A.D.M.  v.                                                                       
Plaza  Carolina  Shopping  Ctr.,  93  J.T.S.  26,  10,435  (1993)                                         
(plaintiff submitted statistical  evidence showing past incidence
of crimes in the area); Elba v. University of P.R., 125 P.R. Dec.                                                            
294,  306  (1990)  (plaintiff  submitted  cartographic   evidence
indicating known high-risk areas).

                                10

          Affirmed.                    Affirmed.                            

                                11
