Aponte-Bermudez v. Colon ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1266
YEITZA MARIE APONTE-BERMUDEZ,
Plaintiff, Appellant,
v.
ELIGIO COLON ET AL.,
Defendants, Appellees,
ANGEL NOLBERTO ROBLES ET AL.,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Camille L. Velez-Rive, U.S. Magistrate Judge]
Before
Lynch, Boudin, Kayatta,
Circuit Judges.
David Efron, Alberto J. Pérez Hernández, Etienne Totti del
Toro, and Law Offices of David Efron, P.C. on brief for appellant.
Jorge Carazo-Quetglas and Carazo Quetglas Law Offices on
brief for appellees.
December 20, 2019
BOUDIN, Circuit Judge. On December 30, 2012, Gabriel
Medina Ortíz ("Medina") drove his car into a vehicle parked outside
a building owned by Eligio Colón. The impact caused the parked
vehicle to crash into the building's open terrace, injuring several
individuals sitting within the terrace, including Yeitza
Aponte-Bermúdez ("Aponte"). Aponte sued Medina, Colón, and
others, thereafter settling her claims with all defendants, except
for Colón, his heirs, and his insurer.1
At trial, two expert witnesses testified and submitted
reports for Aponte. After Aponte's case-in-chief, the district
court granted judgment, Fed. R. Civ. P. 50, for the defense,
finding that Aponte failed to establish the applicable standard of
care, a breach of duty, and that the accident was foreseeable to
the defendants. Aponte now appeals.
Because this is a diversity case controlled by Puerto
Rico law, see Rodríguez-Tirado v. Speedy Bail Bonds, 891 F.3d 38,
41 (1st Cir. 2018), Aponte had to show "damage . . . through fault
or negligence" of the defendant, P.R. Laws Ann. tit. 31, § 5141.
Where, as here, Aponte claimed defective or negligent design, this
circuit ruled in Vázquez-Filippetti v. Banco Popular de Puerto
Rico that under Puerto Rico law, Aponte would ordinarily have to
prove the applicable standard of care through expert witnesses.
1 Colón died prior to trial, and Aponte substituted Colón's
heirs as defendants. See Fed. R. Civ. P. 25(a).
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504 F.3d 43, 51-52 (1st Cir. 2007). What is a reasonably safe
design, the court said, is ordinarily "beyond the experience or
knowledge of an average lay person." Id. at 52.
The rule ascribed to Puerto Rico has the ring and balance
of a settled rule, and Vázquez-Filippetti presents it in these
terms. What is "ordinarily" true is not invariably true: some
negligence in design may be blatant enough not to require expert
testimony just as an ordinary negligence case might occasionally
call for more than lay testimony. But no such exception is claimed
to apply to the negligent design claim in this case nor would there
be any sound basis for such an exception in this instance. And
while standard tort treatises do not seem commonly to identify the
expert witness requirement, Vázquez-Filippetti cites some
authority for the rule in Puerto Rico, id. at 50-53, and Aponte
agrees that Vázquez-Filippetti governs this case. As she also has
not cited us to any Puerto Rico case contrary to Vázquez-
Filippetti, Vázquez-Filippetti is binding in this circuit.
At trial, Aponte argued that the defendants' terrace was
negligently designed in two respects: first, that the terrace was
built too closely to the road to ensure the safety of customers
inside and, second, that the structure was not capable of
withstanding vehicular impacts. But her experts at trial did not
present to the jury or otherwise point elsewhere in the record to
any evidence showing "what the customary or usual standard of care
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[is] for traffic or structural engineers designing" roadside
structures. Id. at 54.
Carlos Vera-Muñoz ("Vera"), qualified as an expert
witness in engineering and project management, testified that
"[the] structure was constructed illegally without permits and it
was constructed inside the right of way of the road." Yet Vera
identified no such required permits nor the statute or regulation
that makes illegal the construction of the terrace within an
existing right of way.
Vera reported that a Highway and Transportation
Authority ("HTA") guide sets eighteen meters (nine meters from the
road's center in each direction) as the typical cross-section for
roads like PR-152, the road on which the accident occurred. Vera
also testified that a planning regulation, Planning Regulation #4,
prohibits construction within a government-owned roadside right of
way without the government's permission. In fact, one corner of
the terrace was fewer than nine meters from the road's center.
On cross examination, Vera acknowledged that the HTA
guide and Planning Regulation #4 were distinct regulations.
Planning Regulation #4, at least as presented in Vera's report and
testimony, does not refer to the HTA guide. Planning Regulation
#4, provides, in pertinent part:
No construction of any building within the
proposed right of way will be authorized
(Article 21, Act No. 76, enacted on June 24,
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1975, as amended), unless the owner of the
possession or property promises, to remove the
structures and development works, at its own
account and risk . . . . The occupation or use
of lawfully existing buildings or
structures . . . is permitted, until the
government may have a need to acquire the
property by any lawful means.
Planning Regulation #4 does not create rights of way; it simply
prohibits construction, unless the owner bears the risk of removal,
in the rights of way that the 1975 act references.2 Nor does the
HTA establish rights of way or prohibit roadside construction.
As to the terrace's construction, Ivan Baigés-Valentín
("Baigés-Valentín"), an expert in mechanical engineering and
accident reconstruction, reported that the terrace was "not
capable of resisting impacts from vehicle accidents" or "safely
protecting its customers from the impact of a vehicular collision."
Yet Baigés-Valentín did not provide any industry standards
establishing a standard of care regarding the construction of
roadside structures.
Affirmed.
2Nor does the 1975 act create rights of ways. The act only
prohibits the Regulations and Permits Administration from
authorizing construction on rights of way that appear on an
official map or that the Department of Transportation and Public
Works is in the process of constructing. See P.R. Act No. 76 of
June 24, 1975, at 231–32.
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