
USCA1 Opinion

	




          December 14, 1994     [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-1009                                        IN RE:                     SAN JUAN DUPONT PLAZA HOTEL FIRE LITIGATION.                              _________________________                               FEDERICO QUINONES ARTAU,                                Plaintiff, Appellant,                                          v.                         HOTEL SYSTEMS INTERNATIONAL, ET AL.,                                Defendants, Appellees.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                              _________________________               Roberto  Roldan Burgos and Bufete  Jose Antonio on brief for               ______________________     ____________________          appellant.               James  M. Harris, Theodore A. Pianko, and Sidley & Austin on               ________________  __________________      _______________          brief for appellees.                              _________________________                              _________________________                    Per  Curiam.   This case  arises from  the now-infamous                    Per  Curiam.                    ___________          conflagration that devastated the San  Juan Dupont Plaza Hotel on          New Year's Eve (December 31, 1986).  Plaintiff-appellant Federico          Quinones Artau, an assistant district attorney, was called to the          scene  in  his official  capacity and  spent  the better  part of          several days there.  He claims that his exposure to conditions at          the  site  (e.g.,  copious  amounts  of   smoke)  made  him  ill.                      ____          Consequently, he  filed for, and received,  workers' compensation          benefits.                    In  due  course,  appellant's  thoughts   turned  to  a          potential  third-party recovery.  To  this end, he  filed suit in          the United States District Court for the District of Puerto Rico.          His  suit  named   a  variety  of  persons  and  firms  allegedly          instrumental in causing the  blaze or aggravating its deleterious          effects, and  sought damages for personal  injury, including pain          and  suffering, lost  earnings, medical  expenses, and  the like.          The  district court, after first requiring appellant to flesh out          his claims,  dismissed the suit for  failure to state  a cause of          action upon which the court might grant relief.  See Fed. R. Civ.                                                           ___          P. 12(b)(6).  This appeal eventually ensued.1                    We need  not  linger.    In this  diversity  case,  the                                        ____________________               1We leave  to  one side  the questions  that appellees  have          raised concerning the timeliness of  the appeal.  See In  re D.C.                                                            ___ ___________          Sullivan Co., 843 F.2d 596, 598 (1st Cir. 1988) (explaining that,          ____________          where  a  decision on  the  merits  is straightforward  and  will          resolve  the case  in  favor  of  the  party  asserting  want  of          appellate jurisdiction,  the appellate court, in  its discretion,          may   hinge  its  decision  on  the  merits  instead  of  on  the          jurisdictional issue).                                          2          substantive   law  of   Puerto  Rico   controls.     See  Crellin                                                               ___  _______          Technologies, Inc.  v. Equipmentlease  Corp., 18  F.3d 1,  4 (1st          __________________     _____________________          Cir.  1994) (citing Erie  R.R. Co. v.  Tompkins, 304  U.S. 64, 78                              ______________     ________          (1938)).  Puerto Rico adheres to an expanded version of the hoary          "Fireman's  Rule," recast  in modern  times as  the "Professional          Rescuer's Rule."   Under that  rule, there is  no tort  liability          when,  as in  this  case, the  risk  created by  the  defendants'          conduct  is one that the plaintiff predictably encounters when he          enters  upon private property in  the course of  carrying out his          professional  duties as,  say, a  firefighter or  police officer.          See Soto Rivera  v. Tropigas de P.R.,  Inc., 117 D.P.R. 863,  867          ___ ___________     _______________________          (1986);  see also Ortiz Andujar v. E.L.A., 122 D.P.R. 817 (1988);                   ___ ____ _____________    ______          Alvarado  v. United States, 798 F. Supp. 84, 87-88 (D.P.R. 1992).          ________     _____________          Appellant's case seems to fit squarely within the four corners of          the  Soto Rivera doctrine, as his injuries arose in the course of               ___________          his employment, he received benefits (i.e. workers' compensation)                                                ____          for  those injuries from the State Insurance Fund, and he assumed          the  risk of  the conditions existing  at the fire  scene when he          reported for duty.2                    To   be  sure,  we  recognize  that  appellant  strives          valiantly  to  distinguish  his  case  from  earlier  precedents,          largely  on  the ground  that  district  attorneys, unlike,  say,                                        ____________________               2We base our  decision on a  slightly different ground  than          that employed  by the district  court.  We  view such a  shift as          well within our  authority.  See Garside v. Osco  Drug, Inc., 895                                       ___ _______    ________________          F.2d 46, 49 (1st  Cir. 1990) (explaining that an  appellate court          is  free to  affirm  a judgment  on any  independently sufficient          ground  made  manifest  by  the record);  Polyplastics,  Inc.  v.                                                    ___________________          Transconex, Inc., 827 F.2d 859, 860-61 (1st Cir. 1987) (same).          ________________                                          3          firefighters  or  police  officers,  are  not  usually,  or  even          regularly, assigned to visit fire scenes, and are not customarily          exposed  to  peculiar environmental  hazards in  performing their          wonted  duties.  But we must apply  Puerto Rico law in this case,          and the Puerto Rico Supreme Court has given no indication that it          will carve out  any exception  to the Soto  Rivera doctrine,  let                          ___                   ____________          alone honor the novel  distinction that appellant seeks  to draw.          That ends the matter:  we  have repeatedly warned that a litigant          who,  like appellant,  deliberately chooses  "to reject  a state-          court  forum in favor of a federal forum . . . is in a perilously          poor position to grumble" about the federal court's unwillingness          to blaze new, uncharted state-law trails.  Kassel v. Gannett Co.,                                                     ______    ___________          875 F.2d 935, 950 (1st Cir. 1989).  Accord Porter  v. Nutter, 913                                              ______ ______     ______          F.2d 37, 40-41 (1st Cir.  1990); Croteau v. Olin Corp., 884  F.2d                                           _______    __________          45, 46  (1st Cir. 1989); Cantwell v. University of Massachusetts,                                   ________    ___________________________          551  F.2d  879,  880  (1st  Cir. 1977).    We  may,  perhaps,  be          unadventurous in  our interpretation  of Puerto Rico  law, but  a          plaintiff who seeks  out a  federal venue in  a diversity  action          should not anticipate greater daring.          Affirmed.  See 1st Cir. Loc. R. 27.1.          Affirmed.          ________   ___                                          4
