
USCA1 Opinion

	




                            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                                          2          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
