In Re: San Juan v. Hotel Systems ( 1994 )

USCA1 Opinion

          December 14, 1994     [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]


                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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          No. 94-1009

                                        IN RE:
                     SAN JUAN DUPONT PLAZA HOTEL FIRE LITIGATION.

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                               FEDERICO QUINONES ARTAU,
                                Plaintiff, Appellant,

                                          v.

                         HOTEL SYSTEMS INTERNATIONAL, ET AL.,
                                Defendants, Appellees.

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

                    [Hon. Raymond L. Acosta, U.S. District Judge]
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                                        Before

                                Selya, Circuit Judge,
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                            Bownes, Senior Circuit Judge,
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                               and Cyr, Circuit Judge.
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               Roberto  Roldan Burgos and Bufete  Jose Antonio on brief for
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          appellant.
               James  M. Harris, Theodore A. Pianko, and Sidley & Austin on
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          brief for appellees.

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                    Per  Curiam.   This case  arises from  the now-infamous
Per  Curiam.
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          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.
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          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.
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          P. 12(b)(6).  This appeal eventually ensued.1

                    We need  not  linger.    In this  diversity  case,  the


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               1We leave  to  one side  the questions  that appellees  have
          raised concerning the timeliness of  the appeal.  See In  re D.C.
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          Sullivan Co., 843 F.2d 596, 598 (1st Cir. 1988) (explaining that,
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          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).

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          substantive   law  of   Puerto  Rico   controls.     See  Crellin
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          Technologies, Inc.  v. Equipmentlease  Corp., 18  F.3d 1,  4 (1st
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          Cir.  1994) (citing Erie  R.R. Co. v.  Tompkins, 304  U.S. 64, 78
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          (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
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          (1986);  see also Ortiz Andujar v. E.L.A., 122 D.P.R. 817 (1988);
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          Alvarado  v. United States, 798 F. Supp. 84, 87-88 (D.P.R. 1992).
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          Appellant's case seems to fit squarely within the four corners of

          the  Soto Rivera doctrine, as his injuries arose in the course of
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          his employment, he received benefits (i.e. workers' compensation)
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          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,

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               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
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          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.
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          Transconex, Inc., 827 F.2d 859, 860-61 (1st Cir. 1987) (same).
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          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
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          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.,
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          875 F.2d 935, 950 (1st Cir. 1989).  Accord Porter  v. Nutter, 913
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          F.2d 37, 40-41 (1st Cir.  1990); Croteau v. Olin Corp., 884  F.2d
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          45, 46  (1st Cir. 1989); Cantwell v. University of Massachusetts,
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          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.
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