                Not for Publication in West's Federal Reporter

           United States Court of Appeals
                       For the First Circuit

No. 13-1640

                     ZULAIKA RODRIGUEZ DELGADO,
              T.I.O.R., a minor, and J.M.B., a minor,

                       Plaintiffs, Appellants,

                                     v.

                       AERO INVESTMENT CORP.,

                         Defendant, Appellee.


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

         [Hon. Aida M. Delgado-Colón, U.S. District Judge]


                               Before
                       Selya, Circuit Judge,
                    Souter,* Associate Justice,
                     and Lipez, Circuit Judge.


     Álvaro R. Calderón Jr., Adriana G. Sánchez-Parés, Francisco J.
Ortiz-García, and Álvaro R. Calderón Jr. LLP, for appellants.
     Jaime F. Agrait Llado, Eric D. Griffin Jr., Agrait-Llado Law
Firm, and Griffin Serrano, P.A., for appellees.


                              March 4, 2015




     *
          Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
     SOUTER, Associate Justice.         A small passenger plane flying

from the Dominican Republic met with a violent storm and crashed

into shallow seas off Puerto Rico, killing the pilot and all five

passengers.   The appellants are the pilot's child, the child's

mother, and another of her children, against whom the district

court entered summary judgment in their diversity jurisdiction

negligence action against Aero Investment Corporation, which had

installed an allegedly defective magneto in the plane's engine and

performed subsequent maintenance work on it.            Aero tested the

engine's performance after the installation and at least two more

times, with a possible third test said to have been done just

before the fatal flight.      In ruling on Aero's motion for summary

judgment under Federal Rule of Civil Procedure 56, the district

court analyzed a number of contentious issues, in the course of

which it accepted Aero's claim that appellants had not furnished

evidence from which a trier of fact could find a causal connection

between any fault on Aero's part and the crash of the plane.            We

affirm on the same ground of lack of causation, albeit on a theory

pressed in the district court and before us but upon which the

district court did not rely in granting summary judgment.

     We   review   summary   judgment   de   novo,   under   the   familiar

standard that views the evidentiary record in the light most

legitimately favorable to the party against whom judgment is

sought, in determining whether there is no genuine dispute about


                                  -2-
material facts entitling the moving party to judgment as a matter

of law.   Genereux v. Raytheon Co., 754 F.3d 51, 54 (1st Cir. 2014).

Despite myriad factual disagreements on subsidiary issues, the

evidence bearing on the standard requirement of proving proximate

cause between any negligence and injury, see P.R. Laws Ann. tit.

31, § 5141; Vázquez–Filippetti v. Banco Popular de P.R., 504 F.3d

43, 49 (1st Cir. 2007), may be described in the manner most

favorable to the appellants fairly succinctly.

     The plane was owned by a corporation not a party to this

appeal.    Another third party reconditioned two engine magnetos,

devices that produce the sparks that fire the plane's engines. The

left magneto suffered from defective internal wiring when inspected

after the accident, thus carrying the potential to fire the engine

erratically and weaken its power.        Aero installed the magnetos,1

but there is no evidence that Aero or anyone else was aware of

inadequate   wiring   in   the   magneto   and   no   evidence   that   an


     1
       It is unclear whether appellants press a negligence claim
based on improper installation, as opposed to inadequate
maintenance, of the faulty magneto. In any event, summary judgment
was appropriate on an installation theory. Although appellants'
expert witness, Colin Sommer, testified that the magneto was
"improperly" installed, that otherwise unexplained conclusory
statement is inadequate to raise a factual issue of negligent
installation. See Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st
Cir. 2008). Moreover, although appellants' experts testified that
if Aero had examined the left magneto on installation (presumably
by disassembling it to some extent) it would have found the wiring
defect, there was no testimony or other evidence showing an
industry standard of reasonable care that required an installer
like Aero to do a partial disassembly of the independent
reconditioner's work before making the installation. See id.

                                   -3-
imperfection had manifested itself in any way in the course of

periodic tests by Aero and some 250 hours of flying time between

installation      and   the   period   immediately    preceding   the   crash.

Shortly before the plane went down, the pilot spoke by radio with

a Puerto Rican traffic controller, but his stated reason was only

to obtain permission to deviate from his original flight plan, to

avoid severe weather ahead. After the pilot received authorization

to do that, and the plane descended to a lower altitude, witnesses

on the ground heard what they took to be irregular firing of the

engine.    Although the pilot made no further radio contact, the

plane then flew into the storm itself, which was so violent that

control was impossible.        The crash in shallow water followed.

     In the district court and before us, much effort was devoted

to arguing whether there was a basis in evidence to claim (or

dispute) that engine malfunction caused the pilot to allow the

plane to veer suddenly into the destructive weather that he had

obviously meant to avoid.           But there is no need to resolve this

issue,    which    is    relevant    only    if   appellants   have   evidence

connecting the source of any engine malfunction with a negligent

failure to discover it on Aero's part; and they have no such

evidentiary basis in the record.

     The nub of the negligence action against Aero is that its

tests of the running engine were inadequate, and appellants make

two such claims.        The first of them, that Aero failed to perform a


                                       -4-
necessary inspection just prior to the fatal flight, rests on

expert witness, Luis Irizarry-Porrata, who testified that, after

the crash was known, he saw an Aero employee making entries in the

required record-keeping book to document the inspection claimed to

have been made days before. Irizarry-Porrata took this to indicate

that the inspection had never been completed.                 Although it is

questionable whether this conclusion is adequately supported,2 this

issue, too, need not be resolved, owing to the insufficiency of the

causation evidence made apparent in the course of presenting the

second claim of testing inadequacy.

      The second claim turns on a dispute over whether, in doing the

testing, the Aero employees ran the engine at 1800 r.p.m. (the

speed suggested by the plane's manufacturer) or at 2200 r.p.m. (as

suggested by the engine's manufacturer). The expert witness Sommer

understood the evidence to indicate 1800 r.p.m. had been used, at

which speed he found it less "likely" that the defective magneto

would produce the irregular ignition that would indicate a defect.

But   he   also   testified   that     sparking    irregularity    would    be

"intermittent at most" even at the higher speed and that Aero's

employees   could   have   run   the   engine     at   2200   r.p.m.   without

producing any noticeable irregularity.          All he could say was that

an irregularity would be "more likely" to show up at the higher



      2
       The evidence was that the book entries were pre-existing
computer entries, then being printed out and posted in the book.

                                     -5-
speed, but he offered no opinion on how likely it would show up at

any speed.   So far as the evidence shows, the likelihood of an

irregular spark during a standard test duration might have been one

in a hundred at 1800 r.p.m. and two in a hundred at 2200 r.p.m.

The record provides no way to tell.

     Thus, even if we assume for argument that Aero tested at 1800

r.p.m. or failed to complete a test or both, there is no evidence

from which a trier of fact could conclude by a preponderance that

a test viewed by the expert as adequate, complete, and consistent

with due care at 2200 r.p.m. would have alerted Aero's people to a

defect and led them to refuse to approve the plane's operation.

Consequently, even if we assume that Aero failed to exercise due

care, there is no evidence that due care would, to a degree of

preponderance, have avoided the result.

     We think Aero's counsel is correct to argue that this absence

of causal evidence places this case in the same posture as the one

described by the Supreme Court in Celotex Corp. v. Catrett:

     In our view, the plain language of Rule 56(c) mandates
     the entry of summary judgment, after adequate time for
     discovery and upon motion, against a party who fails to
     make a showing sufficient to establish the existence of
     an element essential to that party's case, and on which
     that party will bear the burden of proof at trial. In
     such a situation, there can be no genuine issue as to any
     material fact, since a complete failure of proof
     concerning an essential element of the nonmoving party's
     case necessarily renders all other facts immaterial. The
     moving party is entitled to a judgment as a matter of law
     because the nonmoving party has failed to make a
     sufficient showing on an essential element of her case
     with respect to which she has the burden of proof.

                               -6-
477 U.S. 317, 322-23 (1986) (internal quotation marks omitted).

     The order of summary judgment is affirmed.




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