          United States Court of Appeals
                     For the First Circuit


No. 18-1266

                  YEITZA MARIE APONTE-BERMUDEZ,

                      Plaintiff, Appellant,

                               v.

                      ELIGIO COLON ET AL.,

                     Defendants, Appellees,

                  ANGEL NOLBERTO ROBLES ET AL.,

                           Defendants.


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

       [Hon. Camille L. Velez-Rive, U.S. Magistrate Judge]


                             Before

                     Lynch, Boudin, Kayatta,
                         Circuit Judges.


     David Efron, Alberto J. Pérez Hernández, Etienne Totti del
Toro, and Law Offices of David Efron, P.C. on brief for appellant.
     Jorge Carazo-Quetglas and Carazo Quetglas Law Offices on
brief for appellees.


                        December 20, 2019
          BOUDIN, Circuit Judge.         On December 30, 2012, Gabriel

Medina Ortíz ("Medina") drove his car into a vehicle parked outside

a building owned by Eligio Colón.         The impact caused the parked

vehicle to crash into the building's open terrace, injuring several

individuals   sitting   within    the     terrace,     including   Yeitza

Aponte-Bermúdez   ("Aponte").     Aponte     sued    Medina,   Colón,   and

others, thereafter settling her claims with all defendants, except

for Colón, his heirs, and his insurer.1

          At trial, two expert witnesses testified and submitted

reports for Aponte.     After Aponte's case-in-chief, the district

court granted judgment, Fed. R. Civ. P. 50, for the defense,

finding that Aponte failed to establish the applicable standard of

care, a breach of duty, and that the accident was foreseeable to

the defendants.   Aponte now appeals.

          Because this is a diversity case controlled by Puerto

Rico law, see Rodríguez-Tirado v. Speedy Bail Bonds, 891 F.3d 38,

41 (1st Cir. 2018), Aponte had to show "damage . . . through fault

or negligence" of the defendant, P.R. Laws Ann. tit. 31, § 5141.

Where, as here, Aponte claimed defective or negligent design, this

circuit ruled in Vázquez-Filippetti v. Banco Popular de Puerto

Rico that under Puerto Rico law, Aponte would ordinarily have to

prove the applicable standard of care through expert witnesses.


     1 Colón died prior to trial, and Aponte substituted Colón's
heirs as defendants. See Fed. R. Civ. P. 25(a).


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504 F.3d 43, 51-52 (1st Cir. 2007).                  What is a reasonably safe

design, the court said, is ordinarily "beyond the experience or

knowledge of an average lay person."                Id. at 52.

              The rule ascribed to Puerto Rico has the ring and balance

of a settled rule, and Vázquez-Filippetti presents it in these

terms.   What is "ordinarily" true is not invariably true: some

negligence in design may be blatant enough not to require expert

testimony just as an ordinary negligence case might occasionally

call for more than lay testimony. But no such exception is claimed

to apply to the negligent design claim in this case nor would there

be any sound basis for such an exception in this instance.                       And

while standard tort treatises do not seem commonly to identify the

expert   witness          requirement,       Vázquez-Filippetti        cites   some

authority for the rule in Puerto Rico, id. at 50-53, and Aponte

agrees that Vázquez-Filippetti governs this case.                 As she also has

not   cited    us    to   any    Puerto      Rico   case   contrary    to   Vázquez-

Filippetti, Vázquez-Filippetti is binding in this circuit.

              At trial, Aponte argued that the defendants' terrace was

negligently designed in two respects: first, that the terrace was

built too closely to the road to ensure the safety of customers

inside   and,       second,     that   the    structure    was   not   capable    of

withstanding vehicular impacts.               But her experts at trial did not

present to the jury or otherwise point elsewhere in the record to

any evidence showing "what the customary or usual standard of care


                                          - 3 -
[is]    for    traffic    or    structural       engineers   designing"    roadside

structures.      Id. at 54.

               Carlos    Vera-Muñoz    ("Vera"),      qualified      as   an   expert

witness in engineering and project management, testified that

"[the] structure was constructed illegally without permits and it

was constructed inside the right of way of the road."                      Yet Vera

identified no such required permits nor the statute or regulation

that makes illegal the construction of the terrace within an

existing right of way.

               Vera     reported    that     a    Highway    and   Transportation

Authority ("HTA") guide sets eighteen meters (nine meters from the

road's center in each direction) as the typical cross-section for

roads like PR-152, the road on which the accident occurred.                     Vera

also testified that a planning regulation, Planning Regulation #4,

prohibits construction within a government-owned roadside right of

way without the government's permission.                  In fact, one corner of

the terrace was fewer than nine meters from the road's center.

               On cross examination, Vera acknowledged that the HTA

guide    and    Planning       Regulation    #4    were   distinct    regulations.

Planning Regulation #4, at least as presented in Vera's report and

testimony, does not refer to the HTA guide.                  Planning Regulation

#4, provides, in pertinent part:

               No construction of any building within the
               proposed right of way will be authorized
               (Article 21, Act No. 76, enacted on June 24,


                                       - 4 -
           1975, as amended), unless the owner of               the
           possession or property promises, to remove           the
           structures and development works, at its             own
           account and risk . . . . The occupation or           use
           of    lawfully    existing     buildings              or
           structures . . . is   permitted,   until             the
           government may have a need to acquire                the
           property by any lawful means.

Planning Regulation #4 does not create rights of way; it simply

prohibits construction, unless the owner bears the risk of removal,

in the rights of way that the 1975 act references.2              Nor does the

HTA establish rights of way or prohibit roadside construction.

           As to the terrace's construction, Ivan Baigés-Valentín

("Baigés-Valentín"),    an    expert    in   mechanical       engineering    and

accident   reconstruction,     reported      that    the    terrace   was   "not

capable of resisting impacts from vehicle accidents" or "safely

protecting its customers from the impact of a vehicular collision."

Yet   Baigés-Valentín   did    not     provide      any    industry   standards

establishing a standard of care regarding the construction of

roadside structures.

           Affirmed.




      2Nor does the 1975 act create rights of ways. The act only
prohibits the Regulations and Permits Administration from
authorizing construction on rights of way that appear on an
official map or that the Department of Transportation and Public
Works is in the process of constructing. See P.R. Act No. 76 of
June 24, 1975, at 231–32.


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