
USCA1 Opinion

	




          January 28, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1392                                    ISABELITA MAS,                                Plaintiff, Appellant,                                          v.                          UNITED STATES OF AMERICA, ET AL.,                                Defendants, Appellees.                                 ___________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              Skinner,* District Judge.                                        ______________                                 ____________________                Jos  A. Fuentes-Agostini, with whom Dom nguez & Totti, were                ________________________            _________________          on brief for appellant.                Fidel  A.   Sevillano-Del  R o,  Assistant   United  States                ______________________________          Attorney, with whom Daniel F. L pez-Romo, United States Attorney,                              ____________________          was on brief for appellee United States of America.                                 ____________________                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                    TORRUELLA, Circuit  Judge.  This appeal  requires us to                               ______________          delve  into the  tort law  of Puerto  Rico.   Appellant  sued the          United  States pursuant to the Federal  Tort Claims Act ("FTCA"),          28 U.S.C.   2671 et seq., for damages arising out  of a slip-and-                           _______          fall accident.    The district  court judge  dismissed the  suit,          finding that appellant failed to establish any negligence leading          to  the  accident.   Appellant contends  that the  district court          judge  incorrectly construed  Puerto Rico  law in  requiring that          showing.  We disagree with appellant and thus affirm.                                      THE FACTS                                      THE FACTS                                      _________                    The facts are rather simple.  Appellant was shopping at          the  army commissary in Fort Buchanan,  Puerto Rico.  Approaching          the checkout counter with her groceries, she slipped on some milk          and sustained  serious  injuries.   Several  people came  to  her          assistance,  including  a  commissary  employee.    According  to          appellant, the employee  indicated that she  knew about the  milk          prior to the accident and expressed regret at not  cleaning it up          earlier.     The  employee,  Ms.  Toledo,   denies  making  these          statements or to having any knowledge  of the spilt milk prior to          the accident.                      Appellant filed an FTCA  claim against United States in          the  District  Court of  Puerto Rico.   As  the FTCA  directs the          district court  to  employ local  tort  law, the  district  court          applied the laws of Puerto Rico.    The district court judge thus          found that appellant  was a  business invitee  at the  commissary          because she was a  shopper.  The district court  judge also found                                         -2-          that  local   law  required  appellant  to   establish  that  the          commissary was  negligent before  the commissary could  be liable          for her injuries.  Specifically, the district court judge imposed          upon the plaintiff the burden of showing that the store owner had          actual or constructive notice of the dangerous condition and time          to cure it.                    After hearing  from the  witnesses at the  bench trial,          the district  court judge determined that  there was insufficient          evidence  to show  negligence by  the commissary.   The  district          court  judge found the testimony of Ms. Toledo more credible than          the testimony of appellant  as to whether the commissary  knew of          the milk.   Lacking such  evidence, the district  court dismissed          appellant's claim.                                    LEGAL ANALYSIS                                    LEGAL ANALYSIS                                    ______________                    The  issue in  this  case is  whether  Puerto Rico  law          imposes a burden upon business invitees  who suffered a slip-and-          fall  to  show  that the  store  owner  possessed  notice and  an          opportunity to cure.  Puerto  Rico law is unclear on  this point.          We therefore trace the  development of Puerto Rico law  to divine          the  result that the Puerto Rico Supreme Court would have reached          in this case.                      Our analysis  begins with  the Puerto Rico  civil code.          Section 5141 provides that "[a] person who by an act or  omission          causes  damage to  another through  fault or negligence  shall be          obliged to repair the  damage so done.  Concurrent  imprudence of          the party aggrieved does not exempt from liability, but entails a                                         -3-          reduction of  the indemnity."   P.R. Laws  Ann. tit.  31,    5141          (1991).   The statute does not define  "fault or negligence" in a          business  invitee  slip-and-fall situation,  but the  Puerto Rico          Supreme Court has addressed this issue on several occasions.  The          Court's pronouncements, however, have  been inconsistent.  We are          required to analyze the cases in an attempt to  reach the correct          result in this case.  We proceed in chronological order.                    We  begin with Guti rrez v. Bahr, 78 D.P.R. 473, 474-75                                   _________    ____          (1955), in which  a man was injured  in a watch repair  shop by a          fan.    From  these  facts  the Court  set  forth  the  two basic          principles  behind     5141.     First,  as  a  "universal  legal          principle,"  store owners  must  maintain their  store in  a safe                                     ____          condition for any person induced to enter.  Id. at  474.  Second,                                                      ___          the  duty only extends  to acts or omissions  caused by "fault or          negligence."  Id.   In Guti rrez, the Court found  that the store                        ___      _________          owner  was negligent in maintaining the fan, as the fan presented          an unreasonable  risk  of danger  to  invitees.   While  shedding          little   light  on  the   instant  slip-and-fall  situation,  the          underpinning  of     5141  set  forth  in  Guti rrez  has  guided                                                     _________          subsequent decisions on business invitee torts by the Puerto Rico          Court.                      The  Court followed  the  instruction  of Guti rrez  in                                                              _________          Goose v. Hilton Hotels,  79 D.P.R. 523  (1956).  In Goose,  hotel          _____    _____________                              _____          guests  wearing bathing  suits  were required  to  use a  certain          elevator  and stairway to go to the  pool.  The stairway was wide          and slippery, but equipped with only one railing.  Because of the                                         -4-          stairway's  condition, a hotel guest fell.  Focussing on the fact          that the stairs should  have had more than one railing, the Court          found the  stairway unreasonably and forseeably  dangerous.  From          this  finding,  the Court  determined  that  the hotel  possessed          constructive knowledge of the  danger.  As the requirements  of            5141 were  satisfied, the Court imposed liability upon the hotel.          The  Court also  noted that  store customers  "generally expect[]          that the aisles and passage ways  open to customers are free from          . . . slippery spots."  Id. at 530 n.2.                                  ___                    In Aponte v. Mel ndez, 87 P.R.R. 619 (1963), the  Court                       ______    ________          revised its views on  the requirements of   5141 and  the lessons          of Goose.  There, a shopper at  a food store slipped on a  banana             _____          peel.    The  shopper sued  under     5141, but  the  trial Court          rejected her claim because she failed to show  that the store had          constructive  knowledge of  the banana  peel on  the floor.   The          Puerto  Rico Supreme  Court reversed,  however, finding  that the          defense  of a lack of constructive  knowledge was not viable in            5141  cases.   The  Court cited  Goose  for the  proposition that                                           _____          shopowners must keep public areas free of "slippery spots," while          ignoring the language in  Goose concerning actual or constructive                                    _____          knowledge.                     By doing  away with  the knowledge  element of    5141,          Aponte imposed a strict  liability or, as the Puerto  Rico courts          ______          sometimes say, a res ipsa loquitur standard upon store owners, in                           _________________          which a dangerous condition in the store led to a  per se finding          of negligence.  Cf.  Dopico-Fern ndez v. Grand Union Supermarket,                          ___  ________________    _______________________                                         -5-          841 F.2d 11, 15 (1st Cir. 1988) (citing Aponte and Goose:  "[t]he                                                  ______     _____          clear rule in Puerto Rico is that an owner of an establishment is          potentially  liable for all injuries occurring  in areas where he                                  ___          has retained  control") (emphasis  added).   In the cases  before          Aponte, the Court  discussed    5141 in terms  of negligence;  in          ______          Aponte the Court switched to res ipsa loquitur liability.          ______                       _________________                    The Puerto  Rico Supreme Court followed the instruction          of the Aponte case in  a line of cases imposing liability  on the                 ______          store  owner  when  a  dangerous  condition  existed,  without  a          specific  finding  of knowledge  of  the condition.    See, e.g.,                                                                 ___  ____          Feliciano v. Escuela  de Enfermeras,  94 P.R.R. 509  (1967).   In          _________    ______________________          Feliciano,  plaintiff alleged that some water  caused her to slip          _________          on  defendant's  steps.     The  Court   disregarded  plaintiff's          allegation, but  imposed liability anyway because  even when dry,          the steps were smooth  and "at times" slippery.   See also Rivera                                                            ________ ______          v. Supermercados Amigo, Inc., 106 D.P.R. 657 (1977) (store owners             _________________________          must keep inside of their stores in safe condition,  but they owe          lower level of duty as to parking lots).                    Notably, in the Feliciano  case four justices joined in                                    _________          a  vigorous  dissent.1   The  dissenters  argued that  the  Court          imposed liability  without any showing of  actual or constructive          knowledge  of  water, or  any  other  dangerous condition,  which          caused plaintiff  to  slip.   The dissenters  concluded that  the          majority had imposed a res ipsa loquitur standard on the property                                 _________________                                        ____________________          1  A total of nine Justices  sat on the Puerto Rico Supreme Court          when Feliciano was decided.               _________                                         -6-          owner:  because a slip-and-fall occurred, the Court presumed that          the owner  was negligent.   The  dissenters found  the majority's          holding contrary to the weight of Puerto Rico negligence law, but          failed to acknowledge Aponte.                                ______                    In seeming response to the  concerns of the dissent  in          Feliciano,  the  Court   incorporated  language  of   actual  and          _________          constructive knowledge  in its  opinion in Cotto  v. Consolidated                                                     _____     ____________          Mutual Insurance Co., 116 D.P.R. 644 (1985).  In Cotto, a shopper          ____________________                             _____          fell while she was walking to an escalator at a department store.          She sued,  alleging that  the floor was  slippery.  She  did not,          however, allege that any  foreign matter on the floor  caused the          slipperiness.                      The  Court  disallowed  her  claim,  finding  her  bare          allegation  that the  floor was  slippery insufficient  to impose          liability.  The Court  stated that its previous cases,  including          Guti rrez, Goose, and Aponte, "imposed liability when [the cases]          _________  _____      ______          involved  existing  dangerous  conditions  within   the  business                    _______________________________          premises in question,  which conditions were known  to the owners                                                       ____________________          or should have been known to them."  Id. at 650.  Thus, actual or          _________________________________    ___          constructive knowledge of the hazard was an element of the tort.                     The  Court went on, however, to base its holding on the          lack of a  dangerous condition in  the store.   This holding  was          consistent  with the Aponte line  of cases, in  which the inquiry                               ______          focussed  on the existence of  a dangerous condition.   The Cotto                                                                      _____          language on actual or constructive knowledge,  on the other hand,          was  not consistent with those  cases.  Indeed,  a cite to Aponte                                                                     ______                                         -7-          for the proposition that knowledge of the hazard is an element of          the tort was incorrect.                    This  leaves  us  in  the   uncomfortable  position  of          choosing whether to  follow the  Aponte line of  cases, in  which                                           ______          actual or constructive knowledge  is not an element of  the tort,          or  whether to follow Cotto and  the cases prior to Aponte, under                                _____                         ______          which such knowledge is an element of the tort.                    We believe that Cotto and the cases prior to Aponte are                                    _____                        ______          more consistent with the language of   5141, and thus contain the          correct  result in this case.  Those  cases give effect to all of          the language  of the  statute, including the  language concerning          fault and  negligence.    In  contrast, Aponte  and  its  progeny                                                  ______          virtually  deleted those  words from  the statute.   Furthermore,          Cotto, as the most recent  case, provides the most  authoritative          _____          description of the current state of  the law.  To the extent that          its language is inconsistent  with Aponte and its  progeny, Cotto                                             ______                   _____          represents an  evolving understanding  of   5141.   To  disregard          Cotto thus would require us to select potentially outdated law.          _____                    As  we find Cotto to  reflect the current  state of the                                _____          law in  Puerto Rico,  we  agree with  the district  court on  the          result of this  case.  Section 5141  requires, as an  element, an          affirmative  showing  by the  plaintiff  that  the defendant  was          negligent.  This showing, in turn, requires  a demonstration that          the defendant  has either actual  or constructive knowledge  of a          dangerous  condition.    As the  plaintiff  failed  to meet  this          burden, the district court properly dismissed the case.                                         -8-                    Affirmed.                    ________                                         -9-
