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 &amp; 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 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
                                        

          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-
