Roman-Gonzalez v. PREPA ( 1994 )

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                                [NOT FOR PUBLICATION]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-