
USCA1 Opinion

	




                            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 & 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 &               ______________            _____________________     ________          Moreda were on brief, for appellants.          ______               Maria Soledad Ramirez-Becerra, with  whom Mercado & 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 & 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  &          ___                                         _____     ___________          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.          _____________________________________________                                          17
