
USCA1 Opinion

	




          September 29, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1395                            HECTOR ROMAN GONZALEZ, ET AL.,                               Plaintiffs, Appellants,                                          v.                    PUERTO RICO ELECTRIC POWER AUTHORITY, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                 [Hon. Jaime Pieras, Jr., Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Victoria A.  Ferrer-Kerber  with  whom  Law Offices  of  Ferrer  &            __________________________              __________________________        Cardona was on brief for appellants.        _______            Lilliam Elisa  Mendoza Toro, with whom  Pedro Toledo  was on brief            ___________________________             ____________        for appellees.                                 ____________________                                 ____________________                      Per Curiam.  This is a  diversity action brought in                      __________            the United States  District Court for the District  of Puerto            Rico for personal injury.  Plaintiff, Hector  Roman-Gonzalez,            as a lark, climbed a guy wire attached to a pole belonging to            defendant, Puerto Rico Electric  Power Authority.  He climbed            so high that his  head came in contact with the  high voltage            power line the pole was carrying, and he was severely burned.            On the basis of the pleadings, affidavits, and depositions of            experts,  the court entered  summary judgment  for defendant,            and  plaintiff appeals.   We  affirm, basically  adopting the            court's comprehensive opinion.                      After reciting  the evidence, the court stated that            defendant  had established  that "no  proximate cause  exists            between  any  act  or   omission  by  PREPA  and  plaintiff's            injuries," even if defendant  had been negligent with respect            to  the guy  wire.   At first  blush this raises  a question,            since  contributory  negligence  by  a  plaintiff  does   not            necessarily break  the chain of causation. Widow of Davila v.                                                       _______________            Water Resources  Authority, 90  P.R.R. 316 (1964).   However,            __________________________            the  court's  concept  was   that  defendant  may  have  been            negligent with  respect to a  lineman properly at  the locus,            but  not as  to plaintiff, who  voluntarily trespassed.   The            court's reasoning was defendant "could not have foreseen that            a twenty year-old would climb 23 to  24 feet on a guy wire to            amuse himself."   "[T]he  controlling  factor in  determining                                         -2-            whether  [defendant's] actions  or  inactions  are  negligent            [with  respect  to  plaintiff]  is the  probability  of  risk            involved."  "The Authority could not reasonably have foreseen            the situation . . . [which] was too fortuitous to require the            electric company to guard against it."                      We agree.   While anything is  possible, there must            be  a limit  in  a  practical  world  to  what  conduct  must            reasonably be foreseen.  Small children could not be expected            to climb a wire to that height; a man of twenty ought to know            the difference  between a  slack, supporting guy  wire openly            touchable  at ground level,  and an electric  power line, and            that  electricity is dangerous.   Hence there was  no duty to            either one to provide a more complex structure.                      Affirmed.                      ________                                         -3-
