          United States Court of Appeals
                      For the First Circuit

No. 13-1498

                     BLANCA CALDERÓN-ORTEGA,

                      Plaintiff, Appellant,

                                v.

                    UNITED STATES OF AMERICA,

                       Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Marcos E. López, U.S. Magistrate Judge]



                              Before

                       Lynch, Chief Judge,
              Torruella and Selya, Circuit Judges.



     Jorge Martínez-Luciano, Emil Rodríguez-Escudero, and Martínez-
Luciano & Rodríguez-Escudero on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
on brief for appellee.



                           May 16, 2014
           SELYA, Circuit Judge.          When a dangerous condition is

present on commercial premises and injury results to a business

invitee, tort liability often turns on whether the owner or

occupier knew or reasonably should have known of the existence of

the hazard.    See, e.g., García-Catalán v. United States, 734 F.3d

100, 102 (1st Cir. 2013); Gomez v. Stop & Shop Supermkt. Co., 670

F.3d 395, 397 (1st Cir. 2012).          This is such a case and, in the

wake of a bench trial, the district court concluded that the

evidence failed to show that the defendant had the requisite

knowledge (actual or constructive). Accordingly, the court entered

judgment for the defendant.             After careful consideration, we

affirm.

           We start by rehearsing the origin and travel of the case.

Our task is simplified because the parties have stipulated to many

of the facts.

           On January 27, 2010, plaintiff-appellant Blanca Calderón-

Ortega visited the Fort Buchanan Post Exchange store (PX) in San

Juan, Puerto Rico.          The PX is located on the grounds of the

military base and is operated by the Army and Air Force Exchange

Service.      After   the   plaintiff    had   shopped   for   a   while,   she

proceeded toward the check-out area to pay for her purchases.               En

route, she slipped on liquid that was present on the floor in front

of one of the cash registers.




                                    -2-
             The shift manager was summoned and responded promptly.

He offered to call an ambulance, but the plaintiff declined and

left the premises. The next morning, she sought medical treatment.

Following a series of doctors' visits, she was diagnosed as having

a seven-percent whole-person impairment stemming from the fall.

             The plaintiff filed an administrative claim against the

United States, and the statutory period allowed for consideration

of   her   claim   expired   without    a    disposition.    See   28   U.S.C.

§ 2675(a).     She then repaired to the federal district court and

sued under the Federal Tort Claims Act (FTCA), id. §§ 1346(b),

2671-2680.      Her complaint averred that PX personnel had been

negligent both in preventing the spill and in failing to clean up

the liquid.

             The parties consented to proceed before a magistrate

judge.     See id. § 636(c); Fed. R. Civ. P. 73.             Following some

preliminary skirmishing not relevant here, the district court (in

the person of the magistrate judge) conducted a bench trial.               At

the close of all the evidence, the court reserved decision and

solicited post-trial briefs. Several weeks later, the court handed

down an opinion in which it found the defendant not liable for the

plaintiff's injuries.        See Calderón-Ortega v. United States, No.

11-1771, 2013 WL 427209, *1 (D.P.R. Feb. 4, 2013).                 The court

determined     that   the    plaintiff's      failure   to   establish    the




                                       -3-
defendant's actual or constructive knowledge of the spill was

dispositive.       See id. at *7.   This timely appeal ensued.

             We previously have explained that "an appellate court

will displace factual findings made in the aftermath of a bench

trial [only] if those findings are clearly erroneous."               United

States v. 15 Bosworth St., 236 F.3d 50, 53 (1st Cir. 2001).            Even

so, we review the trier's conclusions of law de novo.                   See

Wojciechowicz v. United States, 582 F.3d 57, 66 (1st Cir. 2009).

             As a sovereign nation, the United States is open to tort

liability only insofar as it consents to be sued.               See Nieves-

Romero v. United States, 715 F.3d 375, 378 (1st Cir. 2013).              To

this end, "[t]he FTCA comprises a limited waiver of federal

sovereign immunity, which allows the government to be held liable

for certain tortious acts and omissions."         Id.   The FTCA mandates

that an inquiring court must look to "the law of the place where

the    act    or    omission   occurred"   when    making   a     liability

determination.       28 U.S.C. § 1346(b)(1).      In this case, then, we

must extract the substantive rules of decision from Puerto Rico

law.

             Under Article 1802 of the Puerto Rico Civil Code, "[a]

person who by an act or omission causes damage to another through

fault or negligence" may be held liable for the damage.           P.R. Laws

Ann. tit. 31, § 5141.      To establish liability, the plaintiff must

show that the defendant owed a duty to the plaintiff, that the duty


                                     -4-
was breached, that damages resulted, and that those damages were

caused by the breach of duty.   See Nieves-Romero, 715 F.3d at 378-

79 (citing Sociedad de Gananciales v. González Padín Co., 17 P.R.

Offic. Trans. 111, 125 (P.R. 1986)).

          In the case at hand, the first element of the claim is

apparent: one who operates a business for profit undeniably owes a

duty of reasonable care to business invitees. See Cotto v. Consol.

Mut. Ins. Co., 16 P.R. Offic. Trans. 786, 793 (P.R. 1985).       Our

inquiry, however, stops with the second element: breach of duty.

          A business invitee who alleges a breach of the duty owed

by the owner or occupier of commercial premises normally must show

"that the injury was reasonably foreseeable (and, thus, could have

been avoided had the defendant acted with due care)."    Woods-Leber

v. Hyatt Hotels of P.R., Inc., 124 F.3d 47, 50-51 (1st Cir. 1997);

see Coyne v. Taber Partners I, 53 F.3d 454, 459-60 (1st Cir. 1995).

It follows, therefore, that "[i]n a premises liability case, fault

ordinarily depends on knowledge."     Nieves-Romero, 715 F.3d at 379;

see Woods-Leber, 124 F.3d at 50 n.5 (noting that "Puerto Rico law

ordinarily requires a demonstration of the owner's or occupier's

actual or constructive knowledge of the harm-causing condition").

          There is no showing of actual knowledge of the dangerous

condition (the spilled liquid) here. The district court found that

neither the cashier stationed near the aisle where the liquid had

spilled nor any other employee of the PX knew of the spill at any


                                -5-
time prior to the plaintiff's fall.         See Calderón-Ortega, 2013 WL

427209, at *5.    This finding is consistent with the record,1 and we

cannot say that it is clearly erroneous.            Thus, the case turns on

the   evidence    or    lack   of   evidence   that    the    defendant    had

constructive knowledge of the liquid on the floor.

             In an effort to substantiate her claim of constructive

knowledge, the plaintiff labors to convince us that the spill could

have been discovered by reasonable inspection.              Her argument has

two facets.

             First,    the   plaintiff   contends    that    the   PX's   staff

neglected to adhere to the PX's established inspection policies.

This contention leans heavily on the cashier's testimony that she

was trained to inspect her surroundings "[a]s often as possible,"

but that on the day of the accident she did not perform any such

inspections because she was kept busy by a steady stream of

customers.

             The district court met this facet of the plaintiff's

argument head-on.      It supportably found that the cashier's primary

responsibility was to deal with customers and that it was "[n]ot

protocol for a cashier to step out from behind the cash register to


      1
       To be sure, the plaintiff testified that the shift manager
told her that he had seen the spilled liquid beforehand. But the
district court did not credit this testimony, and we cannot second-
guess the court's credibility determination. See, e.g., United
States v. Natanel, 938 F.2d 302, 313 (1st Cir. 1991) (emphasizing
that "the district court must be given wide rein to assess
. . . and judge the credibility of witnesses").

                                     -6-
check for hazards."        Calderón-Ortega, 2013 WL 427209, at *5

(alteration in original) (internal quotation marks omitted).                 The

court also found as a fact that the primary responsibility for

detecting spills lay with the shift manager, see id.; and the

record discloses, without contradiction, that the shift manager

performed his routine inspections in a diligent and timely fashion

on the day of the incident, see id. at *7.                  Those inspections

revealed nothing amiss.

             Second, the plaintiff maintains that the PX's protocol

for preventing and detecting spills was inadequate. Here, too, the

plaintiff's position is at odds with the record.

             The district court found that the PX had a number of

relevant policies in place.        Pertinently, the shift manager was

responsible for checking the premises every twenty to thirty

minutes in order to ensure that the floors were clear.                    If the

shift manager (or any other employee, for that matter) spotted a

spill, the person who made the discovery was enjoined to block off

the area immediately and either clean up the spill or call for

someone else to do so.      The district court's finding that these

protocols were fully observed on the day of the incident is

supported by the record and is not clearly erroneous. See Cumpiano

v.   Banco   Santander   P.R.,   902    F.2d   148,   152   (1st   Cir.    1990)

(explaining that a finding is not clearly erroneous unless it gives

rise to an "unyielding belief that a mistake has been made").


                                       -7-
               Relatedly, the plaintiff asserts that the cashier, not

the shift manager, should have inspected the area in front of the

cash register.        This bald assertion is insufficient to establish

liability: speculation that different policies could have been put

into       place,   untethered   to   any   proof    of    differing     levels    of

efficacy, is insufficient by itself to ground an inference of

negligence.2        See, e.g., Nieves-Romero, 715 F.3d at 379.

               As a fallback, the plaintiff suggests that the spill may

have been caused by leakage from bags of ice that were on sale in

the PX.       Even if this is so — and there is no real proof of it —

the PX had in place protocols, including signage, to prevent spills

from leaking bags of ice.             The record contains nothing beyond

conjecture that suggests that these protocols were violated.

               In all events, it was the plaintiff's burden to "place

the court in a position to make a clear and specific determination

on negligence." Cotto, 16 P.R. Offic. Trans. at 794. The district

court supportably found that the plaintiff failed to carry this

burden.3        See   Calderón-Ortega,      2013    WL    427209,   at   *7.      The


       2
      We note, moreover, that even if the cashier had periodically
inspected the area in front of the cash register, the record
contains no evidence sufficient to support a finding that the
hazardous condition about which the plaintiff complains would have
been discovered in time to prevent the accident. For aught that
appears, the spill may have happened only moments before the
plaintiff slipped.
       3
       The plaintiff assails the district court for its reference
to Ramos Rosado v. Wal-Mart Stores, Inc., 165 D.P.R. 510 (P.R.
2005).    She correctly observes that this decision has no

                                       -8-
plaintiff has neither adduced any evidence that these inspection

procedures were violated nor developed any cogent explanation as to

why any other procedures should have been employed.

            We add a coda.    The plaintiff's arguments are couched in

strong language. She claims, for example, that "[o]n the record of

this case it is impossible to conclude that defendant met" the

applicable standard of care.        Appellant's Br. at 4.         But rhetoric

is not a surrogate for proof, and the plaintiff has offered no

proof — let alone preponderant proof — from which the district

court reasonably could have concluded that the spilled liquid was

on   the   floor   for   a   sufficient    interval   to    put    the   PX   on

constructive   notice    of   its   presence.     Given     this    dearth    of

evidence, we cannot say that the district court erred in holding

that the plaintiff failed to prove her case.               See, e.g., Mas v.

United States, 984 F.2d 527, 530 (1st Cir. 1993) (explaining that,

in a premises liability case, a plaintiff must affirmatively show

"that the defendant has either actual or constructive knowledge of

a dangerous condition").


precedential effect because it is only a judgment of the Puerto
Rico Supreme Court, not a full-dress opinion.        See Baralt v.
Nationwide Mut. Ins. Co., 251 F.3d 10, 20 n.12 (1st Cir. 2001).
This attack misfires: even though a judgment of the Puerto Rico
Supreme Court (as opposed to an opinion) does not constitute
binding authority, its rationale nonetheless may have intrinsically
persuasive force and may be relied upon to that extent. See Rivera
Maldonado v. Estado Libre Asociado, 19 P.R. Offic. Trans. 88, 95
(P.R. 1987). We are confident that the court below embraced the
judgment in Ramos Rosado only for the persuasiveness of its
reasoning.

                                     -9-
            We   need   go    no   further.   Stripped   of   rhetorical

flourishes, the plaintiff's real complaint is that the district

court did not hold the defendant liable as an insurer of the

plaintiff's safety.          But even though an owner or occupier of

commercial premises must exercise due care for the safety of its

patrons, it is not liable in tort without a showing of fault.       See

Vázquez-Filippetti v. Banco Popular de P.R., 504 F.3d 43, 49 (1st

Cir. 2007).



Affirmed.




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