USCA1 Opinion

January 28, 1993

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1392
ISABELITA MAS,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA, ET AL.,
Defendants, Appellees.
___________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gene Carter, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
Skinner,* District Judge.
______________

____________________

Jos A. Fuentes-Agostini, with whom Dom nguez & Totti, were

________________________
_________________
on brief for appellant.
Fidel A.
Sevillano-Del R o, Assistant
United States
______________________________
Attorney, with whom Daniel F. L pez-Romo, United States Attorney,
____________________
was on brief for appellee United States of America.
____________________
____________________
____________________
*

Of the District of Massachusetts, sitting by designation.

TORRUELLA, Circuit Judge.

______________
delve

into the

United

tort law

of Puerto

This appeal
Rico.

States pursuant to the Federal

28 U.S.C.

Appellant

The district

sued the

Tort Claims Act ("FTCA"),

2671 et seq., for damages arising out

_______

fall accident.

requires us to

court judge

of a slip-and-

dismissed the

suit,

finding that appellant failed to establish any negligence leading

to

the

judge

accident.

Appellant contends

incorrectly construed

showing.

Puerto Rico

that the

district court

law in

requiring that

We disagree with appellant and thus affirm.

THE FACTS

THE FACTS
_________
The facts are rather simple.
the

army commissary in Fort Buchanan,

Appellant was shopping at

Puerto Rico.

Approaching

the checkout counter with her groceries, she slipped on some milk
and sustained
assistance,

serious

injuries.

including

appellant, the employee

Several

commissary

people came

employee.

indicated that she

The

employee,

Ms.

Toledo,

statements or to having any knowledge

her

According

knew about the

prior to the accident and expressed regret at not

earlier.

to

to

milk

cleaning it up

denies

making

these

of the spilt milk prior to

the accident.
Appellant filed an FTCA
the

District

district court

Court of
to

Puerto Rico.

employ local

applied the laws of Puerto Rico.

found that appellant
because she was a

claim against United States in

was a

shopper.

tort

As

the FTCA

law, the

directs the

district

court

The district court judge thus

business invitee

at the

The district court

commissary

judge also found

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that

local

commissary was

law

required

appellant

negligent before

to

establish

the commissary could

that

the

be liable

for her injuries.

Specifically, the district court judge imposed

upon the plaintiff the burden of showing that the store owner had

actual or constructive notice of the dangerous condition and time

to cure it.
After hearing
the district
evidence
court

from the

witnesses at the

court judge determined that

to show

negligence by

bench trial,

there was insufficient

the commissary.

The

district

judge found the testimony of Ms. Toledo more credible than

the testimony of appellant

the milk.

Lacking such

as to whether the commissary

evidence, the district

knew of

court dismissed

appellant's claim.
LEGAL ANALYSIS
LEGAL ANALYSIS
______________
The

issue in

this

case is

imposes a burden upon business invitees

fall

to

show

that the

opportunity to cure.
We therefore trace the
the

store

Puerto

owner

whether

Puerto Rico

law

who suffered a slip-andpossessed

notice and

Rico law is unclear on

an

this point.

development of Puerto Rico law

to divine

result that the Puerto Rico Supreme Court would have reached

in this case.
Our analysis

begins with

the Puerto Rico

civil code.

Section 5141 provides that "[a] person who by an act or

omission

causes

shall be

damage to

another through

obliged to repair the

fault or negligence

damage so done.

Concurrent

imprudence of

the party aggrieved does not exempt from liability, but entails a
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reduction of

the indemnity."

P.R. Laws

(1991).

The statute does not define

business

invitee

Ann. tit.

31,

5141

"fault or negligence" in a

slip-and-fall situation,

but the

Puerto Rico

Supreme Court has addressed this issue on several occasions.

Court's pronouncements, however, have

been inconsistent.

required to analyze the cases in an attempt to

result in this case.
We

From

principles
principle,"

a man was injured

these

facts

behind

store owners

in a watch repair

the Court

5141.

duty only extends

negligence."
owner

Id.
___

set

First,

must
____

forth

as

the

two basic

"universal

legal

store in

a safe

maintain their

Id. at
___

to acts or omissions

shop by a

474.

Second,

caused by "fault or

In Guti rrez, the Court found

_________

that the store

was negligent in maintaining the fan, as the fan presented

an unreasonable
little

reach the correct

We proceed in chronological order.

condition for any person induced to enter.

the

We are

begin with Guti rrez v. Bahr, 78 D.P.R. 473, 474-75

_________
____

(1955), in which
fan.

The

light

underpinning

risk
on

of

of danger

the
5141

to

instant
set

invitees.

slip-and-fall

forth

in

While

shedding

situation,

Guti rrez

has

the

guided

_________

subsequent decisions on business invitee torts by the Puerto Rico

Court.
The

Court followed

the

instruction

Goose v. Hilton Hotels,

_____
_____________

79 D.P.R. 523

guests

suits

wearing bathing

elevator

(1956).

were required

and stairway to go to the

of Guti rrez
_________

pool.

In Goose,
_____
to

use a

in

hotel

certain

The stairway was wide

and slippery, but equipped with only one railing.

Because of the

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stairway's

condition, a hotel guest fell.

that the stairs should

found the
this

have had more than one railing, the Court

stairway unreasonably and forseeably

finding,

the Court

determined

constructive knowledge of the

5141 were
The

Focussing on the fact

danger.

that

dangerous.

the hotel

From

possessed

As the requirements

of

satisfied, the Court imposed liability upon the hotel.

Court also

noted that

store customers

that the aisles and passage ways

. . . slippery spots."

"generally expect[]

open to customers are free from

Id. at 530 n.2.

___

In Aponte v. Mel ndez, 87 P.R.R. 619 (1963), the

Court

______
revised its views on
of Goose.
_____
peel.

________
the requirements of

There, a shopper at
The

shopper sued

5141 and

a food store slipped on a

under

5141, but

rejected her claim because she failed to show

constructive
Puerto

Rico Supreme

defense
5141

knowledge of

the banana

Court reversed,

of a lack of constructive

cases.

The

Court cited

the lessons

the

banana

trial Court

that the store had

peel on

the floor.

however, finding

The

that the

knowledge was not viable in

Goose
_____

for the

proposition that

shopowners must keep public areas free of "slippery spots," while

ignoring the language in

Goose concerning actual or constructive

_____

knowledge.
By doing

away with

Aponte imposed a strict

______

the knowledge

element of

liability or, as the Puerto

5141,

Rico courts

sometimes say, a res ipsa loquitur standard upon store owners, in

_________________
which a dangerous condition in the store led to a
of negligence.

Cf.
___

per se finding

Dopico-Fern ndez v. Grand Union Supermarket,

________________
_______________________
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841 F.2d 11, 15 (1st Cir. 1988) (citing Aponte and Goose:
______
_____

"[t]he

clear rule in Puerto Rico is that an owner of an establishment is

potentially
has retained

liable for all injuries occurring

___
control") (emphasis

Aponte, the Court

______

discussed

added).

in areas where he

In the cases

5141 in terms

before

of negligence;

in

Aponte the Court switched to res ipsa loquitur liability.

______
_________________
The Puerto

Rico Supreme Court followed the instruction

of the Aponte case in

______

a line of cases imposing liability

store

dangerous

owner

specific

when

finding

of knowledge

condition
of

the condition.

Feliciano v. Escuela de Enfermeras,

_________
______________________
Feliciano,
_________
on

existed,

defendant's

allegation, but

steps.

The

Court

(1967).

disregarded

and "at times" slippery.

In

caused her to slip

imposed liability anyway because

the steps were smooth

without

See, e.g.,
___ ____

94 P.R.R. 509

plaintiff alleged that some water

on the

plaintiff's

even when dry,

See also Rivera

________ ______

v. Supermercados Amigo, Inc., 106 D.P.R. 657 (1977) (store owners

_________________________
must keep inside of their stores in safe condition,

but they owe

lower level of duty as to parking lots).

Notably, in the Feliciano
_________
a

vigorous

dissent.1

imposed liability

The

case four justices joined in

dissenters

without any showing of

argued that

the

Court

actual or constructive

knowledge

of

water, or

caused plaintiff

to

any

other

slip.

dangerous condition,

The dissenters

which

concluded that

the

majority had imposed a res ipsa loquitur standard on the property

_________________
____________________
1 A total of nine Justices
when Feliciano was decided.
_________

sat on the Puerto Rico Supreme Court

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owner:

because a slip-and-fall occurred, the Court presumed that

the owner

was negligent.

The

dissenters found

the majority's

holding contrary to the weight of Puerto Rico negligence law, but

failed to acknowledge Aponte.
______
In seeming response to the
Feliciano,
_________

the

Court

constructive knowledge

concerns of the dissent

incorporated
in its

language

of

opinion in Cotto
_____

Mutual Insurance Co., 116 D.P.R. 644 (1985).

____________________

actual

in

and

v. Consolidated
____________

In Cotto, a shopper
_____

fell while she was walking to an escalator at a department store.

She sued,

alleging that

the floor was

slippery.

She

did not,

however, allege that any

foreign matter on the floor

caused the

slipperiness.
The

Court

allegation

that the

liability.

The Court

disallowed

her

floor was

claim,

finding

her

bare

slippery insufficient

to impose

stated that its previous cases,

including

Guti rrez, Goose, and Aponte, "imposed liability when [the cases]
_________ _____
______
involved

existing dangerous conditions

_______________________________

premises in question,

within

the

business

which conditions were known to the owners

____________________

or should have been known to them."

_________________________________

Id. at 650.
___

Thus, actual or

constructive knowledge of the hazard was an element of the tort.

The

Court went on, however, to base its holding on the

lack of a

dangerous condition in

the store.

consistent

with the Aponte line

______

of cases, in

focussed

on the existence of

not consistent with those

cases.

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Indeed,

was

which the inquiry

a dangerous condition.

language on actual or constructive knowledge,

was

This holding

The Cotto
_____

on the other hand,

a cite to Aponte
______

for the proposition that knowledge of the hazard is an element of

the tort was incorrect.
This

leaves

choosing whether to

us

in

the

follow the

Aponte line of
______

actual or constructive knowledge

or

whether to follow Cotto and

_____

uncomfortable

position

cases, in

is not an element of

of

which

the tort,

the cases prior to Aponte, under

______

which such knowledge is an element of the tort.

We believe that Cotto and the cases prior to Aponte are

_____
______
more consistent with the language of
correct

result in this case.

the language

of the

Those

cases give effect to all of

statute, including the

fault and

negligence.

In

virtually

deleted those

words from

Cotto, as the most recent

_____

language concerning

contrast, Aponte
______

and

its

progeny

the statute.

Furthermore,

case, provides the most

authoritative

description of the current state of

its language is inconsistent
represents an

5141, and thus contain the

the law.

To the extent that

with Aponte and its

______

evolving understanding

of

progeny, Cotto
_____

5141.

To

disregard

Cotto thus would require us to select potentially outdated law.

_____
As
law in

we find Cotto to
_____

Puerto Rico,

result of this
affirmative
negligent.

case.

showing

we

reflect the current

agree with

Section 5141
by the

the district
requires, as an

plaintiff

that

This showing, in turn, requires

state of the
court on

the

element, an

the defendant

was

a demonstration that

the defendant
dangerous

has either actual

condition.

As the

or constructive knowledge
plaintiff

failed

to meet

burden, the district court properly dismissed the case.

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Affirmed.
________

of a

this

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