DocketNumber： 97-1269
Filed Date： 9/9/1997
Status： Precedential
Modified Date： 9/21/2015
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
_________________________
No. 97-1269
LYNNE WOODS-LEBER AND ANTHONY LEBER,
Plaintiffs, Appellants,
v.
HYATT HOTELS OF PUERTO RICO, INC., ETC.,
Defendant, Appellee.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Dominguez, United States District Judge] ____________________________
_________________________
Before
Selya, Circuit Judge, _____________
Gibson,* Senior Circuit Judge, ____________________
and Lynch, Circuit Judge. _____________
_________________________
Iv n D az-L pez and Gerardo A. Quir s-L pez, with whom Law _______________ _______________________ ___
Offices of Gerardo A. Quir s-L pez, P.S.C., were on brief, for ____________________________________________
appellants.
Hector F. Oliveras, with whom Luis Ram n Ortiz-Segura was on __________________ _______________________
brief, for appellee.
_________________________
August 26, 1997
_________________________
_______________
*Hon. John R. Gibson, of the Eighth Circuit, sitting by
designation.
SELYA, Circuit Judge. This appeal arises out of an SELYA, Circuit Judge. ______________
unwanted intrusion by a rabid mongoose into the opulent environs
of a posh luxury hotel. During its sojourn, the animal bit a
guest. The guest sued, but to no avail; the district court
entered summary judgment in the hotelier's favor. See Woods- ___ ______
Leber v. Hyatt Hotels of P.R., Inc., 951 F. Supp. 1028 (D.P.R. _____ ___________________________
1996). We affirm.
I. THE MONGOOSE ATTACK AND ITS SEQUELAE I. THE MONGOOSE ATTACK AND ITS SEQUELAE
Defendant-appellee Hyatt Hotels of Puerto Rico, Inc.
(Hyatt) owns and operates the Cerromar Beach Hotel (the hotel) in
Dorado, Puerto Rico. The hotel occupies a picturesque oceanfront
setting. Its verdant grounds are bordered on the west by a
mangrove swamp which is under the protection of the
Commonwealth's Department of Natural Resources. On the far side
of the swamp lies Lakeside Villas, a residential subdivision
which was being built at the time material hereto. Hyatt has no
financial or other proprietary interest in the development of the
subdivision.
On April 10, 1995, at approximately 5:00 p.m.,
plaintiff-appellant Lynne Woods-Leber, a guest, was sunbathing
near the hotel's pool. Suddenly (and without any apparent
provocation) a wild mongoose scurried into the pool area and bit
her. Because the mongoose carried rabies, Woods-Leber underwent
a series of painful inoculations.
A few days after the attack, the hotel hired an
exterminator, Pest Management International (PMI), to implement a
2
mongoose control program. PMI set several baited traps and
captured fifteen mongooses in a week's time.1 PMI concluded that
the most likely explanation for the infestation was that
mongooses living in the mangrove swamp had been disturbed by the
construction activity at Lakeside Villas and had migrated
eastward onto the hotel's grounds. The traps were left in place
on the premises.
In due season, Woods-Leber invoked diversity
jurisdiction, 28 U.S.C. 1332(a) (1994), and sued Hyatt in
Puerto Rico's federal district court.2 Her suit sought damages
for personal injuries under local law. Hyatt denied
responsibility and, following a period of discovery, moved for
brevis disposition, supporting its motion with a number of ______
affidavits and declarations. The plaintiff opposed the motion
but made only one evidentiary proffer: her husband's conclusory
recitation of his suspicion that a temporary food preparation and
storage area which had been installed near the pool functioned as
____________________
1The plural of "mongoose" is a matter of some debate in
lexicographic circles. See, e.g., Webster's Ninth New Collegiate ___ ____ ______________________________
Dictionary 767 (1989) ("mongoose . . . n, pl mongooses also __________ _ __ ____
mongeese . . . ."). Having noted the debate, however, we choose
not to enter it. Thus, while we use the term "mongooses"
throughout, we express no opinion on which plural noun is
linguistically preferable.
2Woods-Leber's husband, Anthony Leber, joined as a co-
plaintiff. Inasmuch as his claim is derivative, we treat the
appeal as if Woods-Leber were the sole plaintiff and appellant.
Of course, our decision disposes of Anthony Leber's claim as
well.
3
a mongoose magnet.3
On December 30, 1996, the district court granted
Hyatt's motion. The court concluded, in substance, that Hyatt
could not be held strictly liable because it had not exerted any
control over the mongoose, and that it could not be held liable
in negligence because it could not reasonably have been expected
to foresee the mongoose attack. See Woods-Leber, 951 F. Supp. at ___ ___________
1039. This appeal followed.
II. THE SUMMARY JUDGMENT STANDARD II. THE SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when the record shows
"no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law." Fed. R.
Civ. P 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. ___ ____ ________ ___________________
242, 247 (1986). The genuineness requirement signifies that a
factual controversy "must be sufficiently open-ended to permit a
rational factfinder to resolve the issue in favor of either
side." National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, _________________________ ______________
735 (1st Cir. 1995). The materiality requirement signifies that
the factual controversy must pertain to an issue which "might
affect the outcome of the suit under the governing law." Morris ______
v. Government Dev. Bank, 27 F.3d 746, 748 (1st Cir. 1994). ____________________
Like the nisi prius court, we must evaluate the summary
judgment record in the light most flattering to the nonmovant,
drawing all reasonable inferences in that party's favor. See ___
____________________
3The gist of Leber's statement is reprinted in the district
court's opinion. See Woods-Leber, 951 F. Supp. at 1033. ___ ___________
4
Coyne v. Taber Partners I, 53 F.3d 454, 457 (1st Cir. 1995). _____ _________________
Despite this advantage, however, the party opposing summary
judgment cannot simply rest on "conclusory allegations,
improbable inferences, and unsupported speculation." Medina- _______
Munoz v. R. J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. _____ ____________________________
1990). To the contrary, at least with respect to issues on which
she bears the burden of proof, the nonmovant must identify
properly substantiated facts sufficient to establish a
trialworthy issue. See Morris, 27 F.3d at 748; Kelly v. United ___ ______ _____ ______
States, 924 F.2d 355, 358 (1st Cir. 1991). ______
Appellate review of an order granting summary judgment
is plenary. See Coyne, 53 F.3d at 457; Morris, 27 F.3d at 748. ___ _____ ______
III. ANALYSIS III. ANALYSIS
The substantive law of Puerto Rico governs the
liability question in this diversity action. See Erie R.R. Co. ___ _____________
v. Tompkins, 304 U.S. 64, 78 (1938); Daigle v. Maine Med. Ctr., ________ ______ _________________
Inc. 14 F.3d 684, 689 (1st Cir. 1994). The plaintiff makes two ____
claims under that law. We consider them sequentially.
A. The Article 1805 Claim. A. The Article 1805 Claim. ______________________
Article 1805 of the Civil Code, P.R. Laws Ann. tit. 31,
5144 (1992), imposes strict liability on the possessor or user
of an animal for any damages which the animal causes. See ___
Serrano v. Lopez, 79 P.R.R. 922, 927 (1957). In order to prevail _______ _____
on an Article 1805 claim, a plaintiff must show, at a bare
minimum, that the defendant owned, possessed, or used the wild
animal. See Ferrer v. Rivera, 56 P.R.R. 480, 482 (1940); ___ ______ ______
5
Redinger v. Crespo, 18 P.R.R. 106, 111 (1912). This customarily ________ ______
involves a showing that the defendant exercised control over the
animal. See P.R. Laws Ann. tit. 31, 1480 (1993). ___
The district court ordered summary judgment on this
count, holding that Woods-Leber failed to present any evidence
tending to show that Hyatt controlled the rabid mongoose. See ___
Woods-Leber, 951 F. Supp. at 1035. We agree. A person cannot ___________
control an animal of which he is completely unaware. Here, the
uncontradicted evidence indicates that Hyatt had no inkling of
the mongoose's existence, had no reason to suspect that mongooses
were lurking nearby, and received as jolting a surprise as Woods-
Leber when the mongoose struck. In the utter absence of any
evidence of either knowledge or control, the district court
properly entered summary judgment on the Article 1805 claim.
The plaintiff endeavors to avoid this predictable
result by arguing that a symbiotic relationship existed between
Hyatt and the mongoose population in the mangrove swamp. She
pins this rather exotic theory to a suggestion that Hyatt must
have benefitted from the mongooses' natural affinity for
devouring snakes and rodents, and that this benefit is legally
tantamount to control. This argument is woven entirely from the
gossamer strands of speculation and surmise. The record is
devoid of any evidence that mongooses patrolled the perimeters of
the hotel's grounds, performing pest control functions. And,
moreover, the argument is unaccompanied by any meaningful
6
citation to applicable legal authority.4 In sum, this argument
is factually barren, legally bankrupt, and altogether
insufficient to breathe life into the plaintiff's Article 1805
claim.
B. The Article 1802 Claim. B. The Article 1802 Claim. ______________________
Article 1802 of the Civil Code, P.R. Laws Ann. tit. 31,
5141, imposes liability on any person or entity which, by his,
her, or its negligent acts or omissions, causes harm or damage.
In broad perspective, Puerto Rico law defines negligence as the
failure to exercise due diligence to avoid foreseeable risks.
See Coyne, 53 F.3d at 459; Malave-Felix v. Volvo Car Corp., 946 ___ _____ ____________ _______________
F.2d 967, 971-72 (1st Cir. 1991).5 To recover on a negligence
theory, a plaintiff suing for personal injuries under Article
1802 must establish (1) a duty requiring the defendant to conform
to a certain standard of conduct, (2) a breach of that duty, (3)
proof of damage, and (4) a causal connection between the damage
and the tortious conduct. See Sociedad de Gananciales v. ___ _________________________
Gonzalez Padin, 17 P.R. Offic. Trans. 111, 125 (1986). These ______________
requirements cannot be satisfied unless the plaintiff proves,
inter alia, that the injury was reasonably foreseeable (and,
thus, could have been avoided had the defendant acted with due
____________________
4The lower court perspicaciously observed that this argument
was "not merely novel, but . . . perilously close to the
frivolous." Woods-Leber, 951 F. Supp. at 1035 n.5. ___________
5In a premises case a showing of negligence under Puerto
Rico law ordinarily requires a demonstration of the owner's or
occupier's actual or constructive knowledge of the harm-causing
condition. See Mas v. United States, 984 F.2d 527, 530 (1st Cir. ___ ___ _____________
1993).
7
care). See Coyne, 53 F.3d at 459-60. ___ _____
The plaintiff contends that, under Puerto Rico law, a
hotel-keeper owes its guests a heightened duty of care and
protection. The law so provides. See, e.g., Mejias-Quiros v. ___ ____ _____________
Maxxam Property Corp., 108 F.3d 425, 427 (1st Cir. 1997); Coyne, _____________________ _____
53 F.3d at 458; Pabon-Escabi v. Axtmayer, 90 P.R.R. 20, 29 ____________ ________
(1964). Nevertheless, a hotel-keeper is not an insurer of its
guests' well-being. See, e.g., Goose v. Hilton Hotels, 79 P.R.R. ___ ____ _____ _____________
494, 499 (1956) (holding that a hotelier is liable for a guest's
fall on hotel premises only if the hotelier knew or should have
known of a preexisting dangerous condition). Consequently,
notwithstanding the heightened duty of care and protection, the
hotel-keeper is not liable for harm unless the harm is reasonably
foreseeable. See Coyne, 53 F.3d at 460-61. ___ _____
In this case, the linchpin question is whether it was
reasonably foreseeable at the time and place in question that a
mongoose would attack a guest (for, without a foreseeable harm,
Hyatt could not have breached its duty of care by failing to
implement a mongoose control program before the attack). See id. ___ ___
at 460. The district court answered this question in the
negative. See Woods-Leber, 951 F. Supp. at 1039. We think that ___ ___________
Judge Dominguez got it right.
The evidence as to knowledge is telling. On this
point, the record permits only one conclusion: that Hyatt had no
knowledge, actual or constructive, either of the mongooses'
existence or of the incipient danger that they presented, at any
8
time before the attack. The hotel personnel most directly
involved in the matter (such as the head grounds keeper and the
chief of security) submitted affidavits which made plain that a
mongoose had never before been seen on the hotel premises; that
no one at the hotel knew of the presence of mongooses in the
mangrove swamp or otherwise in the vicinity; and that, prior to
the assault on Woods-Leber, no wild animal of any kind had ever
bitten any hotel guest. By the same token, there was no evidence
from which a factfinder could conclude, without rank speculation,
that the temporary food preparation and storage area presented
any hazard or that Hyatt should have known the inauguration of a
construction project near the mangrove swamp portended an influx
of wild animals. Indeed, several previous construction projects
had been undertaken near the swamp without incident. Finally,
there was no evidence either that a non-rabid mongoose,
unprovoked, was likely to bite a supine sunbather, or that rabies
was prevalent in the area.
We do not mean to imply that, merely because a rabid
mongoose had never before invaded the premises and bitten a
guest, the attack could not have been foreseen. See generally ___ _________
Pabon-Escabi, 90 P.R.R. at 25 (explaining that "the requirement ____________
of foreseeability [does not require] that the precise risk or
consequences have been foreseen"). If, say, an occupier of
premises disregards a known general danger, or omits a precaution
regularly taken by prudent persons similarly situated, a first
attack might well be foreseeable (and, thus, actionable). See ___
9
Coyne, 53 F.3d at 460; see also State v. Francis, 635 A.2d 762, _____ ___ ____ _____ _______
769 n.11 (Conn. 1993) (holding that liability does not require
specific foreseeability); Stevens v. Des Moines Indep. Community _______ ___________________________
Sch. Dist., 528 N.W.2d 117, 120 (Iowa 1995) (same); Pimentel v. __________ ________
Roundup Co., 666 P.2d 888, 891 (Wash. 1983) (same). But here, ___________
the plaintiff offered no evidence to support a finding of
foreseeability, electing instead to rely on the defendant's
affidavits and declarations.6 We have warned before, and today
reiterate, that parties who permit the movant to configure the
summary judgment record do so at their peril. See Kelly, 924 ___ _____
F.2d at 358.
We need go no further. As the district court correctly
stated, "[t]he normal rule is that a person does not have a duty
to prevent an attack upon another . . . by wild animals." Woods- ______
Leber, 951 F. Supp. at 1036 (citations omitted). While the rule _____
admits of exceptions, the plaintiff in this case adduced no
evidence which sufficed to bring the mongoose attack within any
of those exceptions. Since a hotel-keeper, like any other owner
or occupier of premises, cannot be held liable for that which it
cannot reasonably foresee, the lower court did not err in
granting Hyatt's motion for summary judgment.
____________________
6This presents a marked contrast to the cases on which
Woods-Leber relies. See, e.g., Tormos-Arroyo v. Department of ___ ____ _____________ _____________
Ed., 96 J.T.S. 34, 806 n.2 (1996) (plaintiffs submitted ___
deposition testimony suggesting foreseeability); J.A.D.M. v. ________
Plaza Carolina Shopping Ctr., 93 J.T.S. 26, 10,435 (1993) _______________________________
(plaintiff submitted statistical evidence showing past incidence
of crimes in the area); Elba v. University of P.R., 125 P.R. Dec. ____ __________________
294, 306 (1990) (plaintiff submitted cartographic evidence
indicating known high-risk areas).
10
Affirmed. Affirmed. ________
11
52 Fair empl.prac.cas. 253, 52 Empl. Prac. Dec. P 39,659 ... , 896 F.2d 5 ( 1990 )
prod.liab.rep. (Cch) P 12,963 Leila Malave-Felix v. Volvo ... , 946 F.2d 967 ( 1991 )
Isabelita Mas v. United States of America , 984 F.2d 527 ( 1993 )
National Amusements, Inc. v. Town of Dedham , 43 F.3d 731 ( 1995 )
Morris v. Government Development Bank , 27 F.3d 746 ( 1994 )
Mejias-Quiros v. Maxxam Property Corp. , 108 F.3d 425 ( 1997 )
Stevens v. Des Moines School Dist. , 528 N.W.2d 117 ( 1995 )
John L. Kelly v. United States , 924 F.2d 355 ( 1991 )
Pimentel v. Roundup Company , 100 Wash. 2d 39 ( 1983 )
John P. Coyne v. Taber Partners I, D/B/A Ambassador Plaza ... , 53 F.3d 454 ( 1995 )
Daigle v. Maine Medical Center, Inc. , 14 F.3d 684 ( 1994 )
Erie Railroad v. Tompkins , 58 S. Ct. 817 ( 1938 )